maimuna mapunda v saidi rashidi 2023 tzhc 19219 26 july 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SONGEA SUB-REGISTRY AT SONGEA PC. CIVIL APPEAL NO. 09 OF 2023 (From the Decision of the District Court ofSongea in Matrimonial Appeal No. 08 of 2022, Original Matrimonial Cause No. 02/2022 ofLumbingu Primary Court) MAIMUNA MAPUNDA......... ............................. ................. ...... .......... APPELLANT VERSUS SAIDI RASHIDI............ ................... ....... ............................. . RESPONDENT JUDGMENT Date of Last Order: 17th July, 2023 Date of Judgment: 26th July, 2023 U. E. Madeha, J. It is worth considering that, this is the second appeal. In fact, the first appeal was dealt by the District Court of Songea which nullified the decision made by Lumbingu Primary Court in the Matrimonial Cause No. 2 of 2023. The first appellate Court nullified the decision of the trial Court on the ground that there was no Certificate from the Marriage Conciliation Board to prove that the matter was referred for conciliation before filing matrimonial petition in Court as required by the law Dissatisfied with that decision the Appellant has knocked the door of this Court. In her petition of appeal, the appellant has preferred only one ground of appeal that; '"That, the District Court erred in law and in fact in holding that the Trial Court heard and determined the matter without proof that the dispute between the parties was referred to the Marriage Conciliation Board and the Board has certified that it has failed to reconcile the parties since there was no certificate issued" As a matter of fact, at the hearing of this appeal the Appellant appeared in person that is to say; she was unrepresented whereas, the Respondent was represented by hone other than Mr. Nestory E. Nyoni, the learned advocate. By consent of both parties, the appeal was disposed by way of written submissions. Before I embark to discuss on the submissions and merit or otherwise of this appeal, I find it is better to state in albeit, the background of this appeal. Basically, the Appellant herein filed petition for divorce before Lumbingu Primary Court (the trial Court). The reliefs claimed by the Appellant were for the declaration that their marriage has broken down irreparably and she prayed for the divorce decree to be issued. 2 Also, the Appellant prayed for the distribution of jointly acquired properties (matrimonial properties). After full trial, the trial Court found the marriage of the parties has broken irreparably and proceeded to grant its ancillary orders thereto. Dissatisfied with that decision the Respondent appealed to the District Court of Songea (first Appellate Court) which nullified the whole decision and orders given by the trial Court for the reason which I have stated earlier hereinabove. It is worth considering that, arguing in support of the appeal, the Appellant submitted that; the first appellate Court wrongly nullified the decision of the trial Court on the ground that there was ho certificate from the Marriage Conciliation Board while the dispute between the parties was referred before Litapwasi Marriage Conciliation Board and the certificate showing that it failed to reconcile the marriage was presented before the trial Court when the divorce petition was filed. In addition, she stated that she filed the Matrimonial Cause before the trial Court after obtaining the certificate from the Marriage Conciliation Board and the Respondent knows that they attended before the Board which failed to reconcile them. The Appellant further argued that before filing her petition for divorce one of the requirements was to have the certificate from the Marriage 3 Conciliation Board which is the legal requirement under section 101 of the Law of Marriage Act (Cap. 29, R. E. 2019) and that requirement was complied. The Appellant contended further that; without the certificate she could not have been able to file divorce petition before the trial Court, Lastly, the Appellant prayed for this appeal to be allowed, the decision of the first appellate Court to be quashed and the decision of the Trial Court to be restored. Lastly, she prayed for the Respondent to be ordered to pay the costs of this appeal. On the other hand, responding to the submissions made by the Appellant in support of the appeal, the Respondents learned counsel submitted that it is a legal requirement that before filing petition for divorce the matter must have been referred to the Marriage Conciliation Board as required under section 101 of the Law of Marriage (supra). He contended that going through the records of the trial Court, they do not show that the matter was referred before the Board, since there was no certificate tendered to prove that the parties referred heir dispute to the Board before filing divorce petition. In the same way, he contended that the first appellate Court was correct to quash the proceedings and the judgment of the trial Court 4 basing on that illegality. Finally, he prayed for this appeal to be dismissed with costs and the decision of the first appellate Court be upheld. Besides, in her short rejoinder submission, the Appellant reiterated what was submitted in her submission in chief insisting that the matter was referred before the Marriage Conciliation Board and the certificate from the Board was used in filing the petition for divorce. As much as I am concerned, having heard the competing arguments made by the Appellant and the learned counsel for the Respondent, I will proceed to make determination of this appeal. Basically, from the records of the trial Court, there is an original copy of the certificate from Litapwasi Marriage Conciliation Board but strange as it may sound, in the whole proceedings of the trial Court there is nowhere the said certificate was admitted during trial as evidence that the matter was referred before the Marriage Conciliation Board. Principally, as argued by the Respondent's learned counsel that there was no certificate to prove that the matter was referred before the Marriage Conciliation Board since there was no oral testimony given by the Appellant to prove that there was a certificate. Regulation 11 (2) of the Magistrates1 Courts (Rules of Evidence in Primary Courts) Regulations, 1964, requires all documentary evidence to be linked 5 with an oral testimony. This has been discussed by this Court in its various decisions including the decision made in George Mbushi v. Mniko Magesa, PC. Civil Appeal No. 62 of 2023, in which the Court held that: - "In case where documentary evidence is produced, it can be relied upon if oral evidence to link it with the case is given. This is pursuant to regulation 11(2) of the Magistrates' Courts (Rules of Evidence in Primary Courts) Regulations, 1964." Since in this appeal the Certificate from the Marriage Conciliation Board was not tendered in Court during trial, I find no any other way that the Respondent would have known that there was such a certificate in Court. Therefore, I concur with the Respondent's learned counsel and the decision made by the first appellate Court and find that this appeal has no merit. I hereby dismiss this appeal and uphold the decision of the first appellate Court. In the circumstances of this case, I give no order as to costs. Order accordingly. DATED and DELIVERED at Songea this 26th day of July, 2023. U. E. MADEHA JUDGE 26/07/2023 6 COURT: Judgment delivered on this 26th day of May, 2023 in the presence of the Appellant and the Respondent. Right of appeal explained. 7