20020618 TZHC Arusha

IN THE HIGH COURT OF T;:u'\JZ.c'i.NIA AT iu'tUSl:L~ 1 OF 2001 ~--.- L:OORNli.RD OI> S1i.S3IYO o o o ••o ". 0 e • o . • • • .illTELLi..NT : '. - Versus - RES:i. ONDEN'!._i J U D G M E N T MSOFFE 2 J'!- There is no serious dispute that tn,e respondent's son intends . to marry. the E\fYpellnnt' s. daughtero ,.. . ~.) '' ~ .. The appellant objected to the intended marriage rGlying on the Iraqw tribe customary concept of HATr1Cwhich h12 contenq.s that it, prohibits the mo.rriagee +n n jud- gment and a d.ecree dnted 4/1/2001 the District Court; at Mbulu held that the p2rties to the intended marriage were not within the pro- . hibited degrGes o:f relationship uncler ·S .. 14 0f ,' . .•. ; ~,,~ .·•. ~ Acfj 1971 and, therefore, cOu;J;_d· contract n mo.rriage. The appellant is 'a.isat:tsf'ied nnd rwnce .... ..... this ·appealo , ' ~--... ·~ -... The memorandum of appenl. ,~e.s file~. ancl. received by the· Distrir"-1- Court o:t-:·Mbulu on 29/1/2001,. ... 0:h 22/10/2001 this Court granted the •MJ ap~llant' S' counse.1,_ Mr., Ojare ,learned advocate, to file an addi-- tional ground of appeal~ J:t was accordinGlY filed on 29/10/20010 On 28/1/2002 ·it ·wtts ngreed by ·th(:; Court :mcl both parties that the • J •.• oooooooe/2 2 ··~·": ... ,,_... appeal·-: ,-,:~K ·b'6th 'the -m~mo~~nd'}ID _/Jf appee.l ancF-:the ~ddit~on~ ground b:f appeal\ -:cbuld ~ nrguec.1 by way of writtep ~ubmissions~: '.:'1ilhe. parties have since fi~ed their respective submissions. It will ' ,, ,.. ; I,:•,· • ' ;., ' .. '·· ';j,,·,, ._' .. '. •• . . be noted,· 'however, tha;t I"i.r .. - Oj 3r.e h~s. written and filed submi- ssions on the additional ground only. On the :·other·:'h'and,. the . . . .. ~· '· . .,- ........... ·:-\::.-;...: .:,l;. ~.~~ respondent has fi•led .written submission covering the substantive appee.l and the additional ground. The adclitional ground of appeal reads ns .follows:-•- ······- ·i.-.- •"-:: • • I ' • 11 ( a) THld the whole· proceedings· . before . the· Mbulu Dist.rict :Court. were null and void as the respondent had no locut. standi 11 • . - ' _.- Irudence demands thnt I deal with this point at this very early stq,ge in that its d.etermina:tion will be enough to dispose of the 'l"' .. , _ _ • ·As correctly submitted by Mr. Ojnre, the formB.l objection to the intended mn.rriage was ·presurrre.bly filed under the.provisions of s ••20(:iJ. of The Law of Marrin5e Act, -12_7,! and which upon ·rl:)ceipt by .the Registrar· or Registration Officer was transmitted to the Dis- tri·~•t Co~t,. ci~f Mbul~·._unc1er S.21(1) of the ebove Act. ; Once that ,~ ,(_#' .·· .. ., ......... was done,.then the re:qui:r:e.rpent():r S~22(1) of the same A&t would apply., It reads:~ "On receip~,of a notice of objection nnd a notice of ••••• /3 ' •.. .'! ••f. • intention transmitted to it under section 21, the Court • & • • • or the Boe.rd, ~s·the case may be; shall reguirr the e.t:hendance ot,_ the ·parties _to the i:g._t_tnq._ed mar:ri_age Bfld _. of the objector and sho,~~ h0or then_ . . .nd theip, witne2,ses, if aai,;,. and any other persons the C3ourt or· the Board may ... think necessary to hear fbr a just deterillinatioµ. of· the . objection; and shall. make ·findings on the. facts alleged - in the notice of obj~ction and shall either,.by Order, direct that ,.. the intended marriage is not to be contra- cted .~r shall dismiss the objection. (Emphasis ·supplied). In ·elaboration of th,e above provision Rule ];§_ of The Law 9.,f MaFriage (:Matrimonial :Proceedi11££s2Rules 1971 - GN 136/71 rea.ds as ·follows:- "On .~he date apv.ointed for the hearing of objection an under this part';· the Court shall pr9ceed: ~- hear and -'. d~termine :the objection and shall -in that.respect have a],l 'the powers ~hi,cH· the Court 'has in relation to any matrimonial proceeding comme·nced by a petition; the provisions of these.Rules which relate to -the hearing and determination of a mtrimonial proceedings commenced ·.·by a petition shall in so far as they may_ be applica.blett ~. ._. apply to proceedinr,s on fill (:bjsction _in t_lp.s,~8:f::; a~ j.! ·the person rhak.in5 the_ obj_~_n.i_9n w.e::e a ~eti tioner, the husband we~e a re.spondent and the pers..on,.' wi tq_ "!_hom the • husband intends to contract ~.. J.Ilsrriall,e 2j,~r~.~.9.0-resI,?<?- . ndent" (:~mphasis_ ~upplied) o .· :'.{_ :. In· the light of the above •provisions. of the Law 9 the crucial issue is this:- Did the respondent herein (the father of the . · husba~d to the intended. marriage) have ·locus standi in the objection proce·edings 1 The answe:i; is,simple ' and clear:-. He had no locus . star;.di/ In terms of. the .abov~. pro:visions, ._the District Court wti/5 J', . • . .. - 'J requir~d to· ensure the· attendance c,f the yartie-.s tQ ths, int€nded . mar.r.i_age -~nd the obj_ector and to hear them and their 'witnesses, ' ' -.;., .. -· "'" r, .• air if _an;y. S"ince that was not- dona,•it will.follow . .... . . ·. .. that . not only that , ..,, '• . the-·respondent had no 1ocus··s·candi but. the p1~oceeq.ings before the District Court·of Mbulu were a nullity for want of the necessarv partieso I notice that .in his response to the ab.ove, point, the res:Jo-,. ndent has .not seriously contGsted.. the_ a_bove I'egal' position. The .. . . . ... - ~ ... ,., ~- ., .•..: ::~- ....~ .·.:· ·-· . ·-··· . .--.:..:.··. ~- ~---- ~. .. . . ·; ,. .._.. : . .. ---~:~:..~ .. - best he ha.s done is to attribute. blame to the appellant thus:- "My Lora., the allegation that the-Respondent to this appeal had no locus standi there'in should neither be direeted to the Mbulu District Court nor to the Respondent himself b1 1_-+: ' ' . ·to the appellant who determined the person to be summoned to appear before the ?I%ulu District Court and consequently brought to this l1onourable Court 11 o ··~~~bo¥e-:- bl·ame. cloe.s. not .. gD. any far to dislodge . . ..... . ·-·. .. ... Mr. Ojare' s sub- ~ _ ·-,,.- miS.$.:!-9P. on the above _:i,.mportant arid -pertinent--~point o! Law and ...... - .. ,• .. ~- :L:.· .:~. • . ,. procedure. In the light of the position I m ve taken on the addi.tione.l ground of appeal there will be no need in discussing the other groundso The appeal is allowed with the result that the proceedings - - 1 .. of the _District Court are vitiated and accordingly quashed and set ,:•,'-/14 aside o There shall be a trial de novo before the same;.;.Court in 'I • wliicl1 "the pertinent objection shall be determined on merit, and e•ooooooe/5 • • 5 o:f course j according to Lawo As correctly submitted by Mr. Ojarr): since the mistake in the proceeding~ was done by the Court it is only fair and just that each party bears its own costs of this decisiono It is so Ordered accordinglyo Jo Ho MSOFFE JUDGE ·18/6/2002 Delivered this 18th day June, 2002 in the presence of Mr. Ojare for the appellant and the respondent in persono ,t,{K.//Ji¢ (.,,e.. p( . J., H. NSOFFE JUDGE 18/6/2002