Limi Judgment Final

Page 1 of 13 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF GEITA AT GEITA MATRIMONIAL APPEAL NO. 12248 OF 2024 (Arising from Matrimonial Appeal No. 8727 of 2024 in the District Court of Nyag’hwale, Originating from Matrimonial Cause No. 01 of 2024 in the Kharumwa Primary Court) LIMI JUMA MISUNGWI…………….……………………………….....APPELLANT VERSUS JUMANNE NHINDE MAGANGA…..………………………………..……..RESPONDENT JUDGMENT Date of last order: 26/06/2024 Date of Judgment: 02/07/2024 MWAKAPEJE, J.: In this second appeal, the Appellant, Limi Juma Misungwi, appeals against the respondent, Jumanne Mhinde Maganga, in a matrimonial dispute resulting in a divorce decree in the Kharumwa Primary Court in Nyang’hwale District. The appellant contests the decision of the first appellate court, which overturned the trial court's decision on the basis that it was premature due to procedural inadequacies. The appellant now stands before this court in defiance of the aforementioned decision while asserting the competence of the petition presented before the trial court. The facts leading to this appeal are quite simple: the appellant and respondent were a married couple who had their traditional wedding in Page 2 of 13 2011. The appellant successfully petitioned for divorce at the Kharumwa Primary Court, resulting in the dissolution of their marriage on 09th March 2024. The respondent, however, was dissatisfied with this decision and opted to challenge it at the Nyang’hwale District Court. The District Court allowed the appeal, citing that the case was prematurely brought before the trial court without adhering to the mandatory legal requirement of seeking mediation from the Marriage Conciliation Board before resorting to legal action. Disgruntled with this outcome, the appellant is now before this court challenging the said decision on four grounds of appeal as follows: 1. That the District Court’s Magistrate erred in law and fact by deciding that the Ward Conciliatory Board failed to properly perform its duties by favouring one side without considering that the reconciliation was fully conducted, only that it failed followed by issuance of certificate. 2. The District Court’s Magistrate erred in law and fact by holding that the Primary Court had no jurisdiction, as the petitioner did not pass through the Conciliation Board without considering that the certificate was issued. The same is in the trial Court’s file. 3. That the District Court’s Magistrate erred in law and fact by deciding that the Conciliation Certificate from the Board is part of Page 3 of 13 the evidence which is required to be tendered as an exhibit to the evidence before the Court. 4. That the District Court’s Magistrate erred in law and fact by deciding that the Primary Court erred by deciding the case without satisfying itself on the existence of marriage, which was not disputed by either party. The parties resolved to dispose of the appeal by way of written submission, a move which was blessed by this court. The appellant abided by the court's scheduled order by filing her submissions accordingly. However, for reasons not disclosed to the court, the respondent failed to file his submissions as scheduled by the Court. This scenario is not new to this court as, on some occasions, parties have failed to conform to the orders of the court in filing submissions and have been considered to have not appeared in court. It is trite that failure to file a submission in court is a failure to prosecute one’s case. See the cases of Godfrey Kimbe vs Peter Ngonyani (Civil Appeal 41 of 2014) [2017] TZCA 1, when citing the cases of National Insurance Corporation of (T) Ltd & Another vs Shengena Limited, Civil Application No. 20 of 2007 and Patson Matonya vs The Registrar Industrial Court of & another, Civil Application No. 90 of 2011 (both unreported). Particularly in the case of Page 4 of 13 National Insurance Corporation of (T) Ltd & another v. Shengena Limited (supra), it was observed that: "The Applicant did not file submission on the due date as ordered. Naturally, a party's inaction could not make the court impotent. It had to act. ... it is trite law that failure to file submission(s) is tantamount to failure to prosecute one's case.” [Emphasis supplied] To say less, and being guided by the above authorities, the respondent’s failure to file his submission as scheduled will not stop me from proceeding with this appeal. Therefore, I proceed to determine the appeal accordingly. In this appeal, the appellant was represented by Mr Yessey Simeon Lubunda, a learned advocate, who presented the following arguments to support the grounds of appeal. With regards to the first ground, Mr Lubunda informed the court that according to section 101 of the Marriage Law Act, Cap 29 R.E 2019, it is mandatory for a divorce petition to undergo conciliation proceedings before being submitted to the court for the divorce decree. Mr Lubunda contended that the appellant had adhered to this requirement by providing the certificate from the Kharumwa Ward Board. Furthermore, he pointed out that even the first appellate court acknowledged this compliance on page 4 of its written judgment, where it noted that the Board had shown bias. Page 5 of 13 Mr Lubunda further contended that the first appellate court inadequately elucidated the circumstances leading to the favourable outcome, particularly in light of the absence of a definitive decision in favour of either party. There was no clear victor between the appellant and the respondent during the conciliation board proceedings. The appellant asserted that the conciliation board executed its duties diligently, mirroring the actions of the trial court. Concerning the second ground, the counsel for the appellant contended that the first appellate court was erroneous in concluding that the conciliation board had failed to provide certification while simultaneously asserting that the Board had failed to execute its mandate adequately. He argued that the first appellate court had referenced the contents of the certificate acquired from the trial Court file in its decision. Regarding the third ground, Mr Lubunda argued that in accordance with section 106 (2) of the Law of Marriage Act, the divorce petition submitted to the court must be accompanied by the certificate issued by the Conciliation Board. The learned counsel asserted that the statutory provision does not explicitly require producing the aforementioned certificate as documentary evidence before the trial court. Furthermore, he stressed that the commencement of the petition was dependent on the Page 6 of 13 trial court's satisfaction with the presence of a lawful and valid Certificate from the Conciliation Board. To bolster his argument, he cited the case of Hellen Chanua Sawere vs David John Adams (Civil Appeal No. 01 of 2023) [2023] TZHC 23443 and Janeth Gonde Rubiya vs Pastory Petter Massawe (Civil Appeal No. 39 of 2022) [2022] TZHC 15839, in which the court held that the Certificate is part of the pleadings which need not be produced as an exhibit in the court. Submitting on the last ground, the counsel for the appellant contended that neither party contested the validity of their marriage. Both affirmed that they had entered into a customary union, hence obviating the need for the trial court to establish the existence of the marital bond between the parties to the suit. I have extensively considered the appellant's arguments concerning the grounds of appeal, which I will address accordingly. Given that the second and third grounds pertain to jurisdiction, I will collectively address them. The jurisdiction of a court pertains to the authority and limits that a court possesses to hear and adjudicate cases of varying natures. This is considered fundamental for any court prior to determining a case as it delves into the very core of its power. See the case of Fanuel Mantiri Page 7 of 13 Ng’unda vs. Herman M. Ng’unda, Civil Appeal No. 8 of 1995 (CAT- unreported). In accordance with section 76 of the Law of Marriage Act, Cap. 29 R.E. 2019 (the Act), courts endowed with original jurisdiction to adjudicate marital matters under it are concurrently vested in the High Court, a resident magistrate's court, a district court, and a primary court. Nevertheless, section 75 assigns the primary court the mandate to address cases where parties were wedded in accordance with customary or Islamic laws. The parties in the present case celebrated their marriage in customary rites. Given the deteriorating relationship between the parties, the appellant sought a dissolution of marriage from the respondent in the Kharumwa Primary Court. Therefore, it fell upon the trial court to ascertain whether it had the jurisdiction to entertain the case based on fulfilling the obligatory conditions for granting the petition. This leads us to the prerequisites outlined in section 101 that one must adhere to when seeking a divorce. As per the aforementioned section 101: “No person shall petition for divorce unless he or she has first referred the matrimonial dispute or matter to a Board and the Board has certified that it has failed to reconcile the parties: Provided that this requirement shall not apply in any case— Page 8 of 13 (a) where the petitioner alleges that he or she has been deserted by, and does not know the whereabouts of, his or her spouse; (b) where the respondent is residing outside Tanzania, and it is unlikely that he or she will enter the jurisdiction within the six months next ensuing after the date of the petition; (c) where the respondent has been required to appear before the Board and has willfully failed to attend; (d) where the respondent is imprisoned for life or for a term of at least five years or is detained under the Preventive Detention Act and has been so detained for a period exceeding six months; (e) where the petitioner alleges that the respondent is suffering from an incurable mental illness; (f) where the court is satisfied that there are extraordinary circumstances which make reference to the Board impracticable. [Emphasis supplied] According to the provisions of this section, the trial court will, therefore, lack jurisdiction if it entertains the divorce petition without first referring the matter to the board for reconciliation. See the cases of Shillo Mzee v. Fatuma Ahmed [1984] TLR 112 and Yohana Balole vs Anna Benjamin Malongo (Civil Appeal 18 of 2020) [2021] TZCA 388 (19 August 2021). Expressly, in the case of Yohana Balole vs Anna Benjamin Malongo, it was stated that: “It is settled that a petition for divorce instituted without being accompanied by a valid certificate in terms of section 101 of the Act is incomplete, premature and incompetent.” [Emphasis supplied] Page 9 of 13 Also, in the case of Patrick William Magubo vs Lilian Peter Kitali (Civil Appeal No. 41 of 2019) [2022] TZCA 441 (18 July 2022), it was stated that: “…………..because the issue of parties' referring their matrimonial dispute to the Marriage Conciliation Board before filing a petition for divorce in the court is a mandatory requirement of the law.” [Emphasis supplied]. Towards petitioning for divorce after compliance with section 101 of the Act, a party is obligated to, among other things, comply with the provisions of section 106(2) of the said Act. This section reads: “106(2)Every petition for a decree of divorce shall be accompanied by a certificate by a Board, issued not more than six months before the filing of the petition in accordance with subsection (5) of section 104:Provided that, such certificate shall not be required in cases to which the proviso to section 101 applies.” In this instance, the first appellate court concluded that the primary court lacked jurisdiction to address the petition as it had not been referred to the Board as stipulated by the Act, hence prematurely determined. Mr Lubunda, however, disputes the findings of the first appellate court by arguing that there was substantial evidence indicating that the matter had been forwarded to the Board for reconciliation, with the certificate duly attached, thereby obviating the need to present it during the petition proceedings in accordance with section 106(2) of the Act. The essential Page 10 of 13 query now arises: does the failure to tender the certificate of the reconciliation board as evidence in the trial court invalidate the proceedings? After a careful review of the appellant's submission on this matter, I assert that the Reconciliation Board Certificate is essential for initiating a divorce petition and should be considered at the outset. Section 106(2) clearly states that this certificate should accompany the divorce petition. In simple terms, this provision requires that a party seeking a divorce should submit a certificate from a relevant reconciliation board along with their petition. However, when the certificate under section 106(2) is attached, it does not automatically make it evidence. It must be tendered and admitted in the proceedings to form part of evidence in court. In my view, the attachment pertains to the inclusion of the same for contextual purposes while tendering, and it being admitted in evidence encompasses the formal introduction of the same to support one's case. Thus, if a document is merely appended to the petition for divorce and not tendered during the proceedings, its value as evidence would be considerably diminished. This is so because annexures have never been considered as Page 11 of 13 evidence. Instead, they inform the other party of the proceedings of the documents to be relied on, lest they are taken by surprise. The tendering and admission of a certificate in evidence is the trite position of law as was explicitly provided for in the case of Patrick William Magubo vs Lilian Peter Kitali (supra), where it was stated as follows: “……….Therefore, that document was required to be tendered and admitted in evidence. It is trite law that annexures are not evidence for the court of law to act and rely upon.”[Emphasis supplied] The document intended for submission and admission as evidence in the case of Patrick William Magubo was the certificate from the Reconciliation Board. However, this certificate was neither appended nor formally submitted as evidence. Moreover, this decision by the Court of Appeal alluded to the case of Sabry Hafidhi Khalfan v. Zanzibar Telecom Ltd (Zantel) Zanzibar, Civil Appeal No. 47 of 2009 (unreported), wherein it was articulated that: “We wish to point out that annexures attached along with either the plaint or written statement of defence are not evidence. Probably It is worth mentioning at this juncture to say the purpose of annexing documents in the pleadings. The whole purpose of annexing documents either to the plaint or the written statement of defence is to enable the other party to the suit to know the case he is going to face. The idea behind is to do away with Page 12 of 13 surprises. But annexures are not evidence." [Emphasis supplied] Guided by the aforementioned authorities, I do not concur with Mr Lubanda's assertion that attaching the certificate alongside the petition for divorce obviates the need to tender it as evidence. On the contrary, it ought to have been tendered and admitted in evidence. Failure to tender and admit the certificate from the Reconciliation Board in the present appeal rendered its attachment inconsequential, akin to its nonexistence. This, therefore, rendered the entire process futile, as the petition was incomplete, premature and incompetent; hence, the trial court lacked jurisdiction to address the matter due to the absence of proof of compliance with section 101 of the Law of Marriage Act. Consequently, I discern no merit in the second ground of appeal, which pertains to the third ground of appeal as well. From the foregoing discussion, and since the issue of jurisdiction goes to the root of the case, I, henceforth, concur with the conclusions of the first appellate court, albeit based on distinct reasoning. I, therefore, find no reason to consider the remaining grounds of appeal as they automatically collapse. In the upshot, I hereby dismiss the appeal in its entirety. As advised by the first appellate court, should the Appellant wish to pursue her quest Page 13 of 13 for divorce, she is at liberty to do so afresh according to the law. Considering that the proceedings in the present appeal emanate from the matrimonial dispute, I do not make an order for costs in terms of the proviso to section 90 (1) of the Act. It is so ordered. DATED at GEITA this 02nd day of July 2024. G.V. MWAKAPEJE JUDGE The judgment is delivered on this 02nd day of July 2024, in the presence of Mr Yessey Simeon Lubunda, a learned advocate, the advocate of the Appellant, the Appellant and the Respondent in person. G.V. MWAKAPEJE JUDGE