MPEMBA JUDGEMENT

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA

AT MWANZA CIVIL APPEAL NO. 14882 OF 2024 (Arising Matrimonial Appeal No. 2497/2024 of Kwimba District Court and Matrimonial Cause No. 1/2023 of Ngula Urban Primary Court) MPEMBA SIMON………………..………………………….APPELLANT

VERSUS SABINA MONGO……………………………….……….…RESPONDENT

JUDGEMENT 13th December 2024 &10th February 2025 ITEMBA, J. This is second appeal from the judgement of Kwimba District Court in Matrimonial Appeal No. 2497 of 2024 (the first appellate court). The respondent herein filed Matrimonial Case No. 1 of 2023 before Ngula Primary Court for decree of divorce and division of matrimonial properties. The appellant was dissatisfied with the decision of the trial court on division of matrimonial properties. He unsuccessful filed an appeal to the first appellate court hence this appeal. The appeal is pegged on five grounds of appeal that; 1. That, the District Court erred in law and fact when failed to consider that the suit was prematurely instituted and heard for non-conformity with the requirement to obtain statutory form from Conciliation Board. 1 2. That, the District Court erred in law and fact for ignoring the amended petition of appeal by the appellant without any justifiable cause.

3. That, the District Court erred in law and fact for failure to observe that the trial court had no jurisdiction to with distribution of the property which had dispute and conflict on their ownership hence need to be determined by the proper forum.

4. That, the District Court erred in law for failure to observe that the case was not proved on balance of probability as required by the law.

5. That, the District court erred in law to allow the appeal without proper identification of the matrimonial property I ordered the appeal to be argued by way of written submissions, both submissions were filed by learned counsels; Mr. Joseph Mange for the appellant and Ms. Hidaya Haruna for the respondent. I will consider submissions of parties while determining the grounds of appeal. Mr. Mange submitted that, the matter was pre-maturely instituted and heard due to non-conformity with requirement of obtaining certificate of Marriage Conciliation Board (Form No. 3). That, Section 101 of Law of Marriage Act, Cap 29 R.E 2022 stated that, “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.” 2 That, it is nowhere that the matter was first referred to the Marriage Conciliation Board for conciliation. Further that, the no Form no. 3 from the conciliation Board was neither tendered nor admitted as evidence in the trial court. I was referred to the case of Patrick William Magubo vs. Lilian Peter Kitali, Civil Appeal no. 41/2019 (unreported). He submitted further that, parties in this matter, as per the records lived at Igutu hamlet, Ngogo Village in Mwabomba Ward, within Kwimba District therefore they were required to refer their dispute to

Conciliation Board of Mwabomba Ward. Further reference was made to the case of J.M.M vs. F.J.U, Matrimonial Cause no. 04/2023 and Mabushi Sengerema vs. Pendo Petro Manoni, Civil Appeal no. 83/2022 (both unreported). In reply, Ms. Hidaya submitted that, the matter was filed in line with the requirement of Section 101 of the Law of Marriage Act, CAP 29 R.E 2022. That, it has to be in the knowledge of the appellant that Form No. 3 from Ngula Ward tribunal was filed at the commencement of the case at Ngula Primary Court as shown at page 5 to 16 of the trial court proceedings, where the counsel for the appellant one Lucas Bundala raised Preliminary Objection to challenge the same and the Preliminary Objection was overruled. That, 3 the appellant resides at Ngula Ward therefore the respondent complied with section 103 (2) (a) of the Law of Marriage Act which states that; “(2) the Board having Jurisdiction for the purpose of this Act shall be a. The Board or any one of the Boards established for the ward within which the husband or intended husband resides or where the husband or intended husband is not resident in Tanzania the Board established for the ward within which the wife or the intended wife reside.” That, the facts that Form No.3 is not part of the court record as it was not tendered as evidence is the matter of technicalities and it does not affect the right of the

parties. I have considered submissions of both parties. It is not in dispute that, Form No. 3 of Marriage Conciliation Board was neither tendered nor admitted as evidence before the trial court. As correctly submitted by Mr. Mange, in the case of Patrick William Magubo (supra) the Court of Appeal insisted that, the Certificate from Marriage Conciliation Board certifying that it has failed to reconcile the parties need be tendered and admitted in evidence. At page 13 the Court of Appeal had the following to say; “…the issue of parties' referring their matrimonial dispute to the Marriage Conciliation Board before filing a petition for divorce in the 4 court, is a mandatory requirement of the law. 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. “ From submissions of parties one fact is clear that, on trial court’s record there was Certificate from Marriages Conciliation Board of Ngula Ward. Basing on the case of Patrick William Magubo (supra) presence of form No. 1 in the records of trial court does not make it part of records. Therefore, mere presence of the said document in the file will not entitle this court to consider it. In the case of Ismail Rashid vs Mariam Msati, Civil Appeal No. 75 of 2015 (unreported) the Court of Appeal said at page 10; “We wish to

reiterate what we stated in (SHEMSA KHALIFA AND TWO OTHERS vs SULEMAN HAMED, CIVIL APPEAL NO. 82 of 2012 that, it is trite law that, judgment of any court must be grounded on the evidence properly adduced during trial otherwise it is not a decision at all.” Nevertheless, each case need be determined basing on its peculiarity. Although form No. 3 was not tendered and admitted in evidence, it does not mean that parties were not reconciled by Marriage Conciliation Board. Trial court’s records revels that, the counsel for the appellant herein raised two 5 points of preliminary objection against Form No. 3 which was yet to be tendered. One; that the Marriage Conciliation Board was not properly constituted; and Two; the Marriage Conciliation Board issued an order dissolving the marriage while it has no such jurisdiction. It is also in record that, both points of preliminary objections were overruled by the trial court and there is no ground of appeal filed before District Court or this Court challenging the trial court’s decision on the raised points of preliminary objection. In my view by raising those objections the appellant herein was in agreement that their marriage dispute was referred to Marriage Conciliation Board. The submissions by the appellant further reveals that the appellant concedes to the fact that their dispute was referred to Marriage Conciliation Board because, he

was of the view that, parties lived at Igutu hamlet, Ngogo Village in Mwabomba Ward, within Kwimba District but the matter was referred to Ngulla Marriage Conciliation Board. Another reason that this argument baseless it the evidence of the appellant at page 38 that; “Nilikaa nae mpaka mwaka 2018 tukakosana mimi nikaondoka nikamuacha pale kwangu nikaja Ngulla kutafuta makazi mengine 6 nikapanga kwa mzee Clement Bujiku hatimaye nikapata Kiwanja hapa Ngulla karibu na kisima” According to section 103 (2) (a) of the Act, a located board within a Ward where the husband resided has jurisdiction. It reads; “(2) The Board having jurisdiction for the purposes of this Act shall be- (a) the Board or any one of the Boards established for the ward within which the husband or intended husband resides or where the husband or intended husband is not resident in Tanzania, the Board established for the ward within which the wife or the intended wife resides” This court while discussing the akin situation in the case of Maimuna Kassim Lubinza vs Shaban Twaha, Civil Appeal No. 13218 of 2024 had the following to say; “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 not accompanied with the certificate rendering the petition incompetent or premature. Also, in the case of Yohana 7 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.” Likewise, in this matter at hand, there is no dispute that the matter was referred to Ngulla Marriage Conciliation Board and no question was asked by the appellant during cross examination to challenge this fact. I therefore overrule the first point of preliminary objection. Regarding the second ground of appeal, the appellant was of the view that,

the District Court erred in law and fact when it decided to ignore the Amended Petition of Appeal giving reason that the same was prepared/drawn by unregistered advocate. That, record of the District Court show that the amended petition of appeal was drawn, filed and signed by 8 the appellant himself and not the mentioned advocate. That, the same complied with Section 43 (1) of the Advocates Act, Cap 341 R.E 2019 In reply, Ms. Hidaya submitted that, the District Court Magistrate was right to ignore the amended petition of appeal for being drawn by unqualified person. That, drawing of court’s document is privileged to persons who are registered on the Roll of Advocates only. I have considered the submissions of parties regarding this ground of appeal. At page 3 of the judgement of the District Court, recorded the reasons for ignoring the amended petition of appeal that; “When the appeal was called upon before me for hearing, both parties appeared in person, because 1st time appellant informed this court he shall be represented by his lawyer, Mr. Lucas Bundala, However when he appeared, the court notice that advocate, his licence has expired so he didn’t show up again…the appeal was argued by oral submission also this court dealt with the original petition of appeal not amended petition of appeal dated on 18/4/2024 because the amendment was prepared by unqualified person or

unregistered advocate.” 9 Hence, the District Court ignored the Amended petition of appeal because it was drawn by unqualified person/unregistered advocate. I have observed that; the Amended Petition of appeal, it was drawn by the appellant himself who endorsed his address and signed. It says; Drawn and filed by; The appellant Mpemba simon Ngulla Village 0757….34 Therefore, the District Court erred in law and fact to ignore the amended petition of appeal because, when the petition of appeal is amended the first cease to exist. The court cannot rely on the document which has already been amended. The proper recourse was to give the appellant time to file proper amended petition of appeal not to resort to the first Petition of Appeal. The Court of Appeal in the case of Airtel Tanzania Limited vs Ose Power Solutions Limited, Civil Appeal 206 of 2017 (unreported) had the following to say at page 13, 19 and 20; 10 “…the settled position is that upon filing an amended plaint, the original plaint ceases to exist. The same when an amended WSD is filed inferring the end of the original WSD… upon amendment of a pleading the previous pleading ceases to have any legal effect. In Tanga Hardware and Autoparts Ltd. and 6 Others vs CRDB Bank Ltd, Civil Application No. 144 of 2005 (unreported), the Court referred to the observations made in the case of Warner vs Sampson and Another [1959]1 Q.B.

297 that: ‘... once pleadings are amended, that which stood before amendment is no longer material before the court." Therefore, the District Court was not justified to decide the appeal basing on previous filed Petition of Appeal. I find that this ground of appeal suffices to dispose of this appeal because, hearing before the District Court which was made basing on the previous amended petition of appeal and the judgement arose therefrom are a nullity. In other words, this appeal arose from a nullity. I therefore proceed to set aside all proceedings of the District Court from the date of hearing and set aside the judgement and decree therefrom. I remit the file to the District Court for the court to allow the appellant reasonable 11 time to file proper amended petition of appeal and for the parties to be heard before a different Magistrate. I also urge the District Court to expedite hearing of this matter which has been in court since September 2023. It is so ordered. Right of Appeal fully explained to the parties. Dated at MWANZA this 10th day of February, 2025. L.K.J. ITEMBA

JUDGE 12