19760407 TZHC Arusha

I / // •-•- _7 IN THE HIGH COURT 01? TiZAITIA JT L.RUSHA (p0) CIVIL JiTEJ.L NO. 155 OF 1973 (rHcmi TH DOISION OJ THif BISTICT COURT 01 ;RUSHA JT RLTSH IN CIVIL APUELL NO.. 11 OF 1973) BEFORE: Z ••NOULHED, fsç., Diitrict I .Ta jisrote and 11GJTEU fRIUY COURT CiVJi CASE IT O. 77 OF. 1973 versus LOISHIYE HIVL3O .......•.............. RESPONDENT JU1JGHTNT TTV! T t T i. L.LU . U p ( + .... U. tJ . . . The aru1ollant, nnc ly LESIIIET hLRITE petitioned in thc, pri.fo.ry court of Jrusho District at lijotsu for restitution 01 % ccnjujaj r1cI1to ana custody of two children whon. ilu clained to be the children of the :anxz'iaje between hin and one S.1BiJOI• He was unsuccessful in the prinary court oxcept that tao prt:.ry court jrant.wI hin custody of the, first ber child. Ho appealed be the District Court of Prusha which disaissed the coajoal and cdnfir.zlod the docisiorL 0 i i,ac ri coir \He ic no-\v to bnis Court. .- . The facts of ilL ,.. case which era not in disputa in this case are the -b- ,aopellant jot :arriod -bc. the said SELIELLOI in a000rdIOJICci with the custoi'iary law of the Waarusha ce:catuaity. A child was horn aj !?.r.o 1 v.ii biout any difficulty Inoreafter, tncre 'me .soe, delay in catcnin, a second rrnency andy a tro.di:b1:nal aedicinonaia was consulted who prqscribed so:o traditional widiCiJac to. ho used. by the ai3icllant'.s wile. not vary lonj aitcr tnis, thoro was a cjuarrel bci;wcontne moo iellanr and his wiie mIke loft, the natrimoonial h -mae anu. wezitl to live with hor paternal rolativos. The copollant did- nub follca hlu'.: wife to clam her hack fron her relatives. After about seven. ionths later, the wife docidod to la.vc her relatives. nod 'led: for ancther nun whn . she jot and started 1ivinj with kin as .1iusbant and 'wifo 'alth..ujh she dii not jo thiouh any rccojnizbd coro.nnial ri -b-es of narrinjo. She java birth to another child whilo livin with that second moan. Thereafter the aepeilant . rote n latter to the respondent, namooiy LOISHIYE NIVOSO, ohio is a brother of the appellant' s wife • In that lot er doobod 6th 1Jrch 1971, the appellant cla.inad. back his wijo and in the altornalv ie ased k for who ro±uno cf bridevioaltii, and informoed tao resmondorn that failure to roCeonci to tkin lottor will load the appellant ins - itutiIh: lejel. prceodinps in Court. Th letter was writ-ton in Swahili: App arently ............ /2 -2- Apparentl. there was no satisfactory response to that letter and the aopellant, t}orefore tiled, this case in the prinory court on the 25th Novo:foor 1972. The firtocint for consideration in this case is whether a c1in foi restitucio.ia.of conjngal rights - that isin this case adam by the husband for the return of his wife * can be considered by a c curt of 1tw after the Law of Ierriac £Ct 1971 c io into orco. T 1ac answer is no, si±ico Section 140 of tho. ,aw. ofThrriage lot 1971 clearly. states HNo procoodi*e ii1ay he bougJat t000npo1 a wife to live iitn nor has1 ..id c au bnct iih his wife, but it shall he oonpçç fqr a. spoOITwho has been deserted . tá 'ief or the nattcr to a Bo ardil. Tho prinary 'court as thèrfOrd \v1'ong in considering a clai; for th.; return of a ran away wife. The prinary court should have tro::bod the clam as a petition for divorce and custody of children. i thcii ' c f2oct of he ri ary Courts feilurc to troat the' clai.a as a IOOt- itI:JL'3_-,T:for. dierco and custody of the children? I thin) t is was an irregularity which i curable nuler the provisions of Soction 32(2) of the Magistrates Courts Act which stetes: "ITo decision or order of a urinary court or a district court rnadcr 1 this tart elloll .ii rovoreod or altered on apToal or rvisionon account of any error, oeiission or irregularity in the cor.plairtt., an process or charge, in the roccod.ings before or dhriig the hearing, or in such •decision or order, or An: ;accoiiflt of the liopropor adnissien or roec - ion of any evidence, unlc e such error, onission or irreaularity or inproper adnission or rcocG1an of evidence has in fact occasioned a failure of justice". The iraogul::rity c-ni. ihcro'ore be cured by this appellate court treating the clam as a, petition for divorce and custody of childrçn provided the wife is a party to the proceedings. The noxi point for conidoration is whethor the pri:iary court could have entcrtai,nod a petition for divorce without t-he•naftor having first boon referred to a Marriage Conciliation Board as rccuired by Section 101 of the Law of Marriage Act. I thirdc so, since the facts of this case show that. th-istaso falls within the oxe]opticns provided under Section 101. I would say that whore a wife has already loft her husband and is living with another nan as husband. and wife, it is inpracticablo for the ::atter to be refcrrod to a aarriago cohciliation hoard since there is no reasonable chance of the parti.o being reconciled for as long as she continus ta live with the second nan. To held otherwise is to :wke• a aiockery of the process of narriago conciliation as estnblihcdby Iet of arliaaient.. The next point for conisication is whether the District Court had jurisdiction to hear the. apocol in this case.. Section 80 of the Lw of Ilarriage Act as aaenJod by Act ITo. 23 of 1973 clot'ly a states:. -Il...-.. .44 —3- "80 - (1) Any person aggieved, by any decision or order - of -a magistrate's court in a • iiatrinqniai P±oOseding nayappeai • tierefroei..o the High Court. • (2) An appeal to the High Court shall be filed in the nagistrae's court within fourty five days of the decision or order against which the appc al is brought". • The anonding Act I'To: 23 of 1973 substitutes the Court of the Residea Iviagistrate or district court or primary court" in the place of 11 111agistratqsl . Courts'. MaThriaornal proceedings are defined by Section 2 of the sane Act as follows: •. - "Means any jproceodings instituted nndcr Pares II and VI of 'bhs Ac.or anyconparable proceedings. brought under any wittenlaw repealed by this Act, in any. COUrt! ... . It follow tnororo t ha b the Districb Court had no jurisdiction to hoar the ap. cal in this case and the proceedings before the District Court were a nullity and are hereby quashed. The next poiit for consideration is. whether this case can be treated by this Court as a petition for divorce when the wii e was noa party but only a winoss in the proceedings seforo tue primary court. The answer must be no. The primary court he.ving failed to wa]e the wif. a party to the proceodings this court cannot at this stage do so. It follows therof arc that the irregularity in the primary court proceedings cannot be cured by this Courtundor Section 32(2) of the Liagistrates Courts Act and the proceedings nust be quashed and are hereby quashed with advice to the parties to petition for divorce and custody of children in the 13rivay court concerned. There is no n3od for prior reference to a Conciliation Board. The appoal is thoref a c allowed but for reasonsentirely different from those raicod by the appoiLlant. Each party is to bear his own costs. 4 1, (J31 • L. P1ALALI) • FLN/MTiH. . AG. JU1)GB, •