RAJABU Ramadhani

IN THE HIGHCOURT OF UNITED REPUBLIC OF TANZANIA TABORA SUB REGISTRY AT TABORA PC MATRIMONIAL APPEAL NO. 19 OF 2023 (Arising from the decision of the District Court of Nzega in Matrimonial Appeal No. 9 of 2022, Original Matrimonial Cause No. 28 of2022 before Nyanza Primary Court in Nzega District) RAJABU S/O RAMADHANI............................................... APPELLANT VERSUS ZAINABU GOMELA............................................................... RESPONDENT JUDGEMENT Last order: 8/05/2024 Judgement: 4/07/2024 MANGO, J. The Appellant and Respondent were husband and wife. They contracted their Islamic marriage on 6th June 2014. In year 2022, the Respondent filed matrimonial case No. 28 of 2022 before Nyasa Primary Court in Nzega District praying for divorce decree and division of matrimonial properties against Rajabu Ramadhani. She alleged that, the Appellant has been telling her constantly that he no longer need her in his life. She also alleged that, the Appellant was uttering defamatory words against her and he has extra marital affairs. The Court granted a divorce decree and divided a house which was the only proved matrimonial asset between the Appellant and the Respondent. The house was divided at the ratio of 70:30 between the Appellant and the Respondent respectively. Aggrieved by the decision of the trial Court, the Appellant appealed to the District Court of Nzega via Matrimonial Appeal No. 09 of 2022. Before the District Court, the Appellant unsuccessfully challenged the trial court for issuing a divorce prematurely and alleged that, the certificate issued by the marriage conciliation board does not conform to the law, Rule 19(2) of GN 240 of 1971. He has now filed this second appeal armed with the following grounds of appeal: - 1. That, the first appellate Court erred in law and facts when it ignored the legal defects in the purported certificate from the marriage conciliation board which did not bear the name of the parties to the proceedings before the trial Court. 2. That, in its decision the first Appellate Court grossly misdirected itself by taking into account irrelevant considerations when determining the legality of the purported certificate from marriage conciliation board being a point of law entertaining a matter of the Court. 3. In absence of clear words certifying to the effect that the board has failed to mediate the parties or resolve the dispute, the first Appellate Court erred in law for failure to hold that the Court lacked Jurisdiction for entertaining a matter that was premature. 4. The honourable Magistrate sitting in first appeal erred in law and facts in his decision when he improperly shifted the burden of proving that a matter did not pass through the marriage conciliation board without recourse to known principles governing civil litigations. The Appellant was represented by Kelvin Kayaga learned advocate while the Respondent was represented by Salehe Makunga learned advocate. 2 By Leave of the Court, the appeal was argued by way of written submissions. Submitting in support of the Appeal, Advocate Kayaga asserted that, the first ground of appeal is a point of law rather than facts. He argued that, it is undisputed that the names of parties whose matrimonial dispute was referred to the marriage conciliation board is different from the names of the couple involved in this matter. He specifically submitted that, the names of the Appellant do not appear in the certificate issued by the board. He explained that, the names of the person who was involved in the proceedings before the conciliation board are not Appellant's names. The names in the certificate from the board are Ramadhan Rajabu while the Appellant's names are Rajabu Ramadhani. The learned advocate pointed out that, the first Appellate Court noted the difference in names of the parties whose dispute was referred to the marriage conciliation board and those in Court proceedings. It however found it to be not fatal. He is of the view that the names "RAMADHANI RAJABU" are names relating to Appellant's biological father's identity and not the Appellant's identity. The learned advocate insisted that, parties must be sued in their official and specific names for Identification purposes in order to avoid ambiguity in justice delivery. He referred the Court to the decision of this Court in the case Issa Nyoka@ Abeid Issa Nyoka T/A Issa Nyoka General Supply v Uvinza District Council, Civil Case No. 3/2017, High Court at Tabora (unreported) in which the court insisted on the duty of the Court to ascertain the identity of parties prior to making substantial determination of the parties' rights. 3 The learned advocate is of the view that the errors are fatal. To cement his views, he cited the case of Khantibhai M. Patez vs Dahyabhai F. Ministry [2003] T.L.R 437 in which the Court of Appeal stated "An error in a certificate is not a technicality which can be glossed over. It goes to the root of the document. " He concluded that, since the names of the Appellant are not reflected in the certificate that was issued by the marriage conciliatory board, Matrimonial dispute which was entertained by Nyasa Primary Court as Matrimonial Cause No. 28/2022 had never been referred to the marriage conciliation board prior to it being referred to the primary court for trial, thus, it offended the dictates of section 101 of the Law of Marriage Act [Cap 29 R.E 2019] On the second ground of appeal, the learned counsel submitted that the first appellate Court considered irrelevant issues when determining the illegality of the certificate. He mentioned the irrelevant issues to include the attempt by the trial Court to justify the different in the names of the Appellant by considering the manner his names appear in the proceedings and those that appear in the certificate issued by the board. He argued that, instead of considering the difference in the two names, the first appellate Court presumed that the two sets of names refer to the Appellant and that the difference is very minor as it resulted from the number of names that appear in the two documents. In this the Court presumed that, the names appear to be different because only two names of the Appellant appear in the certificate while in Court proceedings, three names appear. He is of the view that, the Court ought to have considered the different in the two sets 4 of names instead of raising presumptions that the two sets of names refers to the Appellant without any proof to that effect. On the third ground of appeal, he challenged the wording of the board decision as it appears in the certificate for failure to indicate expressly that it failed to mediate the dispute. He argued that, it is important for the board to indicate that it mediated parties and it failed. To cement his arguments he cited the case of Hassan Ally Sindali versus Asha Ally Civil Appeal No. 246 of 2019. He also challenged the manner the certificate was admitted. In this he argued that the document was not read after its admission as evidence. On the fourth ground of appeal, the Appellant's counsel challenged the first appellate Court for shifting the burden of proof as to whether the matter did not pass through the marriage conciliatory board which is contrary to the principles governing civil litigations. In his reply submission the Respondent's counsel admitted the names of the Appellant that, appears in the certificate issued by the conciliatory board are different from those that appear in Court proceedings. He however argued that, the same is not fatal since when the plaint was read over to the Appellant, he did not object the manner his names appear therein. He is of the view that, since the Appellant did not dispute the names that appear in the Plaint to be different from his names, it was proper for the Court to presume that the two sets of names refers to the Appellant. He referred the Court to the case of Paul Antony versus Republic Criminal Appeal No. 189 of 2014 CAT at Bukoba and concluded on this point that, the Appellant 5 is estopped from raising issues regarding his names since he did not raise the same during trial. On the second ground of appeal, the learned counsel submitted that, the issue has been wrongly raised before this Court instead of the trial Court. He added that, the difference in two sets of names did not occasioned injustice to either of the parties. He insisted that, the first appellate Court did not consider irrelevant matters in determining the difference that appears in the names presented as the Appellant's names. According to him, the first Appellate Court considered evidence adduced by the parties only in determining the issue. On the third ground of appeal, he argued that the wordings of the certificate issued by the marriage conciliatory board is not ambiguous as argued by the Appellant's counsel. He submitted that, the certificate indicates that the board could not mediate parties due to absence of the Appellant. He distinguished the cases cited by Appellant counsel to be not applicable to the matter at hand due to the differences in factual background. He submitted that, in the cases cited by the Appellant's counsel both parties appeared but the board did not mediate them while in the case at hand, the Appellant though was aware that his matrimonial dispute with the Respondent has been referred to the board he opted not to appear. He argued further that, it was proper for the trial court to entertain the dispute because it was referred to the board as per the requirement of section 100(3) and 101 of the Law of Marriage Act. Hence the matter was not preferred prematurely. 6 On the fourth ground of appeal, the Respondent's counsel cited the sixth schedule of the Magistrates Courts Act( The Magistrates' Courts (Rules of Evidence in Primary Courts) Regulations, GN 66 OF 1972) [Cap. 11 R.E 2019] which provides that, in civil cases, the court is not required to be satisfied beyond reasonable doubt that a party is correct before it to decide the case in its favour, but it shall be sufficient if the weight of the evidence of the one party is greater than the weight of evidence of the other. He is of the view that, the Respondent's evidence was greater than the Appellant that is why the two Courts ruled in her favour. He concluded by praying to have the appeal dismissed. In his rejoinder, the Appellant's advocate reiterated his submission in chief. I have considered submissions by both parties and Court record. From the submissions and Court record, it is not disputed that, the certificate from the marriage reconciliatory board bears a different name from the Appellant's name which appears in Court record. The names of the Appellant in the certificate of marriage conciliatory board appears as Ramadhan Rajab while in Court proceedings his names appears as Rajabu Ramadhani. As correctly noted, the Respondent's counsel, the Appellant did not dispute his names during trial. Ordinarily, that would have been considered to mean that the Appellant conceded that the two sets of names refers to him and the issue would have been considered to be a new issue raised during appeal and an afterthought. It is well established that, parties are barred from raising as grounds of appeal issues that were not determined during trial. However, as correctly noted by the Appellant's counsel, when the certificate in dispute was admitted as evidence was not read. 7 I understand that, the proceedings before the primary Court do not require strict adherence to procedural rules. Despite that, the requirement to read the contents of the documents tendered as exhibits is very important in ensuring that parties understand the contents of the documents tendered against them. Had the document been read, the Appellant would have noted that the names that appears in the certificate is different from his name and he would have objected the same at the earliest stage of this matter. The remedy for failure to read document after its admission in evidence is to expunge it from record as I hereby do. Since competency of the matter before the trial court required a certificate from marriage reconciliatory board, expunging the certificate makes the matter incompetent. I would have ordered retrial of the matter but for interest of justice, the alleged errors in the names of the Appellant that appears in the certificate issued by the conciliatory board need to be rectified. Rectification should be done by referring the dispute before the board afresh. I noted a strong desire from the Appellant to have the dispute resolved. Since the dispute was not reconciled due to his absence, he can now approach the marriage conciliatory board and have the dispute between him and the Respondent reconciled. Before, I pen off, I find it necessary to state that, I understand many couples resists divorce due to fear of having properties registered in their individual names divided as part of matrimonial properties. And some enters into marital relationships with ill motives of seducing their spouse to acquire and register properties in their names thinking that after divorce, the properties 8 registered in his or her name will not be considered as part of matrimonial properties. Our laws have categorically provided that, all properties acquired during subsistence of the marriage and those which have been substantially renovated during such period to be part of the matrimonial properties despite being registered in the names of either the wife or the husband See, section 114(3) of the Marriage [Cap.29 R.E 2019]. It is my considered view that, if couples will keep this in their minds, divorce petitions based solely on the intent to reap properties through division of matrimonial properties will be rarely pursued. Having held so, I hereby employ revisionary powers vested in this Court to quash proceedings of the trial court for being incompetent and set aside its decision. Parties are at liberty to pursue their dispute afresh if it still exists. Appeal is hereby allowed with no order as to costs. Dated at Tabora this 4th day of July 2024 Z.D. MANGO JUDGE 9