MAIMUNA KASSIM LUBINZA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA CIVIL APPEAL NO. 13218 of 2024 MAIMUNA KASSIM LUBINZA.……………..……………..……..…………..APPELLANT VERSUS SHABAN TWAHA…….………....……………………………………………RESPONDENT JUDGMENT 04th October & 09th October 2024. Kilekamajenga, J. The respondent married the appellant through Islamic rites on 1st April 2020 and they were immediately thereafter blessed with an issue. However, their happy marriage did not last for a long time before perennial squabbles struck the marriage. According to the appellant’s testimony, more than thirteen meetings convened to try to amend the union, but, without success. The respondent also confirmed that they tried to reconcile their matrimonial dispute at different levels before referring the same to the Marriage Reconciliation Board. Also, the Board confirmed that the reconciliation was not successful, hence referred the matter to the court for determination. On 04th November 2022, that means, two years and five months after contracting the marriage, the appellant petitioned in the Primary Court of Ilemela at Ilemela for divorce, division of matrimonial assets and maintenance to the child. During the trial, it was alleged that, the parties jointly acquired several properties including a matrimonial house located at Kangae CBE and some money which were in the bank account. Finally, the trial court granted, interalia, 15% of the 1 matrimonial home to the appellant (wife). The respondent, being unhappy with the decision, appealed to the District Court with one ground that, the trial court erred in awarding 15% to the appellant without considering the extent of contribution made by each party towards the acquisition of the matrimonial properties. Also, the appellant lodged a cross-appeal challenging the award of 15% to her. The District Court nullified the proceedings of the Primary Court on the reason that the Certificate from the Reconciliation Board (form number 3) was not tendered hence the Primary Court lacked jurisdiction to determine the case. The appellant appeared before this court with one ground that: 1. That the first appeal court (sic) erred in law and fact when it invalidated the trial court’s ruling based on the Marriage Conciliation Board Certificate, despite the respondent’s (husband’s) testimony to the trial court that he had attended the marriage conciliation board. When the appeal came for hearing, the appellant appeared accompanied by his counsel, Mr. Sande Uromi. The counsel argued that, the District Court erroneously nullified the decision and proceedings of the Primary Court on the reason that the certificate from the Marriage Reconciliation Board was not tendered as evidence whereas the respondent confirmed that they attended the reconciliation. In his view, it was an error to nullify the decision and proceedings of the Primary Court because the trial court had jurisdiction to determine this matter after receiving the Marriage Reconciliation Board. Also, at the first and second page of the judgment of the Primary Court the magistrate referred to the certificate that confirmed the failure to reconcile the parties. He further argued that, failure to tender such a certificate cannot vitiate the decision of the trial court. Also, 2 section 106(2) of the Law of Marriage Act, Cap. 29 RE 2022 requires the petitioner to accompany the certificate to the petition of divorce. Soon after the certificate is attached to the petition, there is no requirement to tender such a certificate. He referred the court to the case of Patrick William Magubo v. Lilian Peter Kitali, Civil Appeal No. 41 of 2019 (unreported). The counsel was of the view that, as the Primary Court had jurisdiction to determine the case, the argument that the certificate was not tendered had no merit. Again, the fact that the parties appeared before the reconciliation board is not contested. In response, the respondent objected to the appeal arguing that, as the appellant did not tender the certificate from the reconciliation board, the Primary Court had no jurisdiction to determine the matter. He argued further that the documents attached to the petition must be tendered. See the case of Crescent Impex (T) Limited v. Mtibwa Sugar Estate Limited, Civil Case No. 455 of 2020. Also, the Certificate from the Reconciliation Board must be tendered during the trial as was stated in the case of Patrick William Magubo (supra). When rejoining, the appellant’s counsel stressed that, during the trial of the case, the respondent confirmed that they appeared before the reconciliation board which failed to reconcile them. This case is distinguishable to the case of Patrick William Magubo (supra) where the certificate was not attached to the application. In this case, the certificate from the Marriage Reconciliation Board was submitted during the filing of 3 the case. Therefore, trial of this case complied with sections 101 and 106 of the Law of Marriage Act. In this appeal, the court is moved to determine only one issue whether or not the first appellate court correctly nullified the proceedings of the trial court on the reason that the certificate from the reconciliation board was not tendered. It is the requirement of the law that whoever petitions for divorce must first satisfy the requirement of section 101 of the Law of Marriage Act, Cap. 29 RE 2019. The section provides that: 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- (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 wilfully 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. 4 The reasons for complying with the above provision are legion. First, marriage is an institution that attracts the attention of the community. Apart from the fact that it is a union between a woman and man intended to last for their joint lives, the community and the public at large are interested in the better welfare of the marriage. Second, behind every breakdown of the marriage, there may be children who are normally adversely affected. Third, the community must be involved in mending the marriage rather than making the dissolution of the marriage an individual process. Fourth, effort must be invoked to ensure that the marriage survives because the breakdown has deleterious consequences for the parties, the children and the community at large. Fifth, a reference to the reconciliation board is evidence proving that the marriage has broken down and cannot be repaired. The board must, therefore, certify among other things, that it has failed to reconcile the parties. The law further obliges a petitioner to accompany the certificate to the petition; this requirement is mandatory. Section 106(2) provides that: (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 case, both the appellant and respondent are in agreement on the fact that their marriage dragged them for reconciliation not only at the Reconciliation Board. The appellant testified that they have been reconciled at several occasions by the relatives, religious leaders without success. She remembered to have been reconciled thirteen 5 times before tabling the dispute before the Board. The respondent also confirmed to have been reconciled at different levels without success. The respondent specifically mentions at pages 11-12 of the typed proceedings of the trial court that they attended before the Ward Tribunal for reconciliation and the Board finally referred the matter to the court. When filing the oral petition before the Primary Court, the appellant accompanied the certificate to the petition. Moreover, when composing the judgement, the trial court magistrate, at pages 1-3 of the judgment, discussed at length whether or not he/she had jurisdiction to try the case. He/she considered several cases including the landmark case of Patrick William Magubo (supra). He was satisfied that, the trial court had jurisdiction to try the case because the petition was accompanied by the certificate from the reconciliation board. I have carefully perused the record and I find the appellant’s petition complied with sections 101 and 106(2) of the Law of Marriage Act. The argument that the Primary Court lacked jurisdiction to entertain this case lacks merit because the jurisdiction of the court cannot be attained by tendering of a document. I say so because the tendering of a document comes during the trial and sometimes in the middle of the trial. If the tendering of a document vests jurisdiction to the court, that means the trial court may have no jurisdiction until the middle of the trial when the contested document is tendered. It should be remembered that, even in the absence of the certificate from the reconciliation board as per the proviso of section 101, the court may still try the case where there are circumstances making the reconciliation impracticable. A case without a certificate may be admitted based on the first information from the petition on the impractical nature of 6 referring the dispute to the board. It is therefore not a hard and fast rule that the absence of the certificate ousters the jurisdiction of the court. In fact, where there is no certificate, the case becomes premature or incompetent but the court does not lose its jurisdiction for lack of certificate. In my view, the jurisdiction of the Primary Court in trying matrimonial disputes is vested by the law and not by tendering a certificate from the reconciliation board. Section 76 of the Law of Marriage Act vests jurisdiction to the Primary Court to try matrimonial disputes thus: 76. Original jurisdiction in matrimonial proceedings shall be vested concurrently in the High Court, a court of a resident magistrate, a district court and a primary court. Also, section 18 of the Law of Marriage Act gives jurisdiction to the Primary Court to try matrimonial disputes thus: 18 (1) A primary court shall have and exercise jurisdiction (a)in all proceedings of a civil nature— (i) N/A (ii) N/A (iii) N/A (b)in all matrimonial proceedings in the manner prescribed under the Law of Marriage Act. In this case, there is no doubt, the parties referred the dispute to the Reconciliation Board which failed to reconcile them. They were issued with a certificate which is attached to the petition (see, form No. 1 and 3). In their testimony, they again confirmed their attendance before the Reconciliation Board. In my view, the cases of Patrick William Magubo (supra) is distinguishable from the case at hand. In that case, the petition was 7 not accompanied with the certificate rendering the petition incompetent or premature. Also, in the case of Yohana Balole v. Anna Benjamin Malongo, Civil Appeal No. 18 of 2020 had different circumstances to the case at hand. In that case, the petitioner attached a letter from the African Inland Church which under the law is not a Reconciliation Board. The case at hand presents peculiarities and should be decided based on its circumstances. While I encourage the practice of tendering the certificate, I find it injustice to order a retrial of the case for the sole purpose of tendering a certificate from the reconciliation Board which was not even contested. I also find it awkward to nullify the whole proceedings of the trial court for the mere reason that the certificate was not tendered whereas it is the first document initiating the case and the parties testified on it. No wonder, it was not among the respondent’s grounds when he appealed to the District Court. What seemed an injustice to the parties was the percentage of the division of matrimonial properties awarded by the trial court which I also find it fair and reasonable considering the extent of the contribution made by each party. In the upshot, I find merit in the appeal and hereby allow it. I set aside the decision of the District Court and uphold the decision of the Primary Court. No order as to costs. DATED at Mwanza this 09th Day of October 2024. Ntemi N. Kilekamajenga JUDGE 09/10/2024 8 Court: The judgment delivered this 09th October 2024 in the presence of the appellant and respondent all present in person. Right of appeal explained to the parties. Ntemi N. Kilekamajenga. JUDGE 09/10/2024 9