ocr KAWAMBWA tanzlii

TEMEKE SUB-REGISTRY (ONE STOP JUDICIAL CENTRE) AT TEMEKE CIVIL APPEAL NO. 18816 OF 2024 (Arising from the decision of the District Court of Temeke at Temeke one Stop Centre in Matrimonial Appeal Nol52 of 2023 which originate from Matrimonial Cause No.766 of 2022) RAMADHAN JUMA KAWAMBWA................................................. APPLICANT VERSUS ASHA MOHAMED MASUO.......................................................RESPONDENT JUDGEMENT Date of last order: 27/09/2024 Date of Judgement: 18/10/2024 S.D. MWAIPOPO J, The Appellant Ramadhani Juma Kawambwa is aggrieved by the decision of the District Court of Temeke at One Stop Judicial Centre in Matrimonial Appeal No. 152/2023, arising from matrimonial cause no 766/2022 filed by the Respondent before the Primary Court at Temeke. He has preferred an appeal before this court against the Respondent, containing six grounds as follows. (i) That, the Appellate court erred in law and fact by failing to identify that the trial court failed to evaluate and analyse the testimony tendered at trial court to justify the decision reached. (ii) The Appellate Court erred in law for failure to identify that the trial court failed to give reasons for the decision reached and made the judgment to lack reasons contrary to the law. (iii) That the Appellate Court erred in law and facts for failure to identify that the trial court failed to consider the contribution factor of the parties towards the acquisition of the properties. (iv) That the Appellate Court erred in law and in fact, by deciding the appeal using facts that are not given by either party of the case. (v) That the Appellate Court erred in law and in fact for failure to determine each and every ground/issue of appeal raised (vi) The Appellate Court erred in law by upholding the decision of the trial Court while the trial Court entertained the matter without a proper certificate in the proceedings issued by the reconciliation board indicating that, the marriage conciliation board had failed to reconcile the marriage between the parties and whether the same was dully tendered and admitted in Court during the trial. It is on the basis of these six grounds that he prayed for this court to: a. set aside the decision of Mahakama ya Mwanzo Kituo Jumuishi Dar e salaam in Matrimonial cause no. 766 of 2022 and the decision of District Court of Temeke at One Stop Judicial Centre in Matrimonial Cause No. 152 of 2023; b. Alternatively; evaluate and analyse the contribution of the parties to the acquisition of the matrimonial assets which are two houses which its document tendered and this Hon. Court be pleased to declare that the Appellant is entitled to 95% of the matrimonial assets c. Any other relief this Honourable court deems fit to grant The hearing of the Appeal proceeded by way of written submissions pursuant to the timetable drawn by the court. At the commencement of hearing, the Appellant was represented by learned Advocate Issa Chundo while the Respondent received legal assistance from TAWLA in preparation of the written submissions and she also appeared in court in person. Arguing in support of the appeal, the learned counsel contended that the Appellate court erred in law and in fact by failing to identify that the trial court failed to evaluate and analyse the testimony tendered at trial court to justify the decision reached. He submitted that according to the proceedings at the trial court, the evidence adduced was only two sale agreements, one tendered by the Appellant which showed a house at Zavala-Chanika in the name of Ramadhani Juma Kawambwa and another one tendered by the Respondent which was an Agreement for sale in the name of Amina Mohamed Masuo, a mother of the Respondent. He argued that both parties did not dispute the existence of two houses in which the agreement for sale which was tendered in the name of Appellant was given to the Respondent and another house in the name of Amina Mohamed Masuo was declared not a matrimonial asset. However, the court upon finding that there was one matrimonial house yet ordered that the share of the Appellant to be on another house which was not discussed in the proceedings and no evidence was adduced in court on its existence. The learned counsel asserted that the first appellate court failed to analyse that failure of the trial court. The first appellate court had an obligation to question on existence of the house whose document was neither tendered nor discussed at the trial court. He submitted that this omission made the Appellant miss shares on the matrimonial assets. With regard to the motor vehicle, the trial court correctly ordered that it would not consider the claim of existence of motorcycle while there was no proof of the same. He referred the court to paragraph 1 of page 6 of the Judgement of the trial court dated on 27/07/2023. However, by surprise the court ordered the Appellant to be given the house, which was not even discussed in the proceedings, and no evidence of its existence was tendered in court. He contended further that the first Appellate court had a mandate to go back to the record and re-evaluate the entire evidence adduced so that it could arrive at its own conclusion which it did not. This was clearly stated in the case of Lantaedna Diyamet vs Tumaini N. Mnondwa, Civil Appeal No. 13 of 2023 at page 8; It is a salutary principle of law that a first appeal is in the form of re-hearing where the court is duty bound to re-evaluate the entire evidence on record by reading together and subjecting the same to a critical scrutiny and if warranted arrive to its own conclusion. Based on the above case law, he argued that the absence of re-evaluation of evidence of the first appellate court led to a wrong and or biased conclusions. This was stated by the Court of Appeal in the case of Leonard Mwanashoka v. R, Criminal Appeal No. 226 of 2014: 'Failure to evaluate or an improper evaluation of the evidence inevitably leads to wrong and/or biased conclusions or inferences resulting in miscarriages of justice. He submitted that it is unfortunate that the first appellate judge fell into the same error and did not re-evaluate the entire evidence as she was duty bound to do and she did not even consider the defence case too. It is universally established jurisprudence that failure to consider the defence is fatal and usually vitiates the conviction. That failure to re-evaluate the evidence as addressed above in this submission is fatal and vitiates the whole judgment. This was also stated in the case of Joseph Athanazi vs Makene Musimu Civil Appeal No. 4 of 2023 whereby the High Court at page 9 of the judgement stated that; "My perusal of the judgment of the first appellate court specifically on pages 10, 11 and 12 reveals that; the Court did not re-evaluate the evidence of the Appellant that was summarized on page 4 of the judgment. This is fatal and vitiates the whole judgment. Given that, it is my opinion that there is no judgment worth to be determined by this Court." Submitting on the second ground of appeal, the learned counsel for the Appellant stated that; the Appellate Court erred in law for failure to identify that the trial court failed to give reasons for the decision reached and made the judgment to lack reasons contrary to the law. The learned counsel submitted that the trial court at paragraph 2 page 6 of its judgement arrived into its decision and held that; "Mahakama inaamua kwamba sasa kuhusiana na nyumba hizo k warnba nyumba ambayo Mdai anaishi na watoto iwe ya kwake na nyumba ambayo anaishi Mdaiwa abaki nayo yeye kama nyumba yake" He argued that there is no reason as to why the court reached the decision of dividing the property which is not subject to division of matrimonial assets while in the proceedings the house was discovered to be one and the other is not matrimonial house. He thus argued that the trial court failed to give reasons to justify its finding of dividing the house which is not in the proceedings while giving the only matrimonial house to the Respondent and left the Appellant without any share of division of the assets. He contended that the first Appellant court failed to determine this aspect as determination of the dispute is reached by the court after a thorough evaluation and consideration of the parties' evidence tendered at the trial in relation to the applicable lawz and disclosing the reason for the decision and the conclusion thereon. This is provided under Order XX Rule 4 of the Civil Procedure Code [Cap. 33 R.E 2019]. Where it is stated that: "A judgment shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision." He argued that the primary purpose of a judgment is to set out qualitatively by reference to the evidence that is accepted or rejected; the primary facts which the court find to relate those findings to the factual issues in the case; and to show how any inference has been drawn. In this regard, in the case of Abubakari I.H. Kilongo & Alex Alen Memba v. Republic Criminal Appeal No. 230 of 2021 Court of Appeal of Tanzania at Dar es Salaam, held that: "A judgment of the trial court must be based on a pure reflection of what is contained in the record of proceedings. That Judgment, being the decision of the court regarding the rights and liabilities of the parties in the proceedings, must provide the court's explanation as to why it has chosen to make a particular conclusion or order." Therefore, a good and reasonable judgment must be clear, systematic and straightforward. Every judgment should state the facts of the case, establishing each fact by reference to the particular evidence by which it is supported; and it should give sufficiently and plainly the reasons which justify the finding. It should state sufficient particulars to enable the parties to know the facts Regarding the third ground of appeal, the Appellate court erred in law and in fact for failure to identify that the trial court failed to consider contribution factor of the parties towards the acquisition of the properties. The learned counsel for the Appellant contended that the trial court did not consider the contribution factor in the process of determining the contribution. He stated that there is nothing to show what is the contribution between the parties despite the fact that the Appellant states that he contributed 95% of the matrimonial houses as he was working and employed and the Respondent contributed 5% of the assets as she was caring for the family and doing small vendor business activity of selling fish at home which was financed by the Appellant, the fact which was not disputed by the Respondent. He contended that the requirement to consider contribution factors is provided under Section 114(2) of the Law of Marriage Act where it is stated that the court when dividing the matrimonial assets among other factors shall consider the extent of the contribution made by each party in money, property or work towards the acquisition of the assets. He argued that, Looking at the case at hand, the contributory factors on acquisition of property were not identified as discussed in the case of Joyce Hamidu Mtambo vs Joseph Burton Mwansakanile, Civil Appeal No. 30 OF 2022 HC Temeke (sub-registry at One Stop Judicial Centre) at page 8 and 9 of the judgement where it is stated that: "In regard to the second ground, it is a trite law that the fundamental principle guiding division of matrimonial property is contribution of each spouse towards the acquisition of the property. That is, if the parties acquired together any asset or property it will be subject to division based on proof of each one's contribution. The extent of contribution is of utmost importance to be determined when the court is faced with a predicament of division of matrimonial property. However, in resolving the issue of extent of contribution the court will mostly rely on the evidence adduced by the parties to prove the extent of contribution" He submitted further that, the Respondent failed to prove on her contribution apart from stating that she was a fish monger, as the Appellant denied on her contribution that it could not even exceed 5% of house shares acquired during the subsistence of marriage. This presses the burden for a party alleging contribution to prove the extent of contribution in line with Section 110(1) of the Evidence Act Cap. 6 R.E 2019 which provides that; "Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which asserts must prove that those facts exist" Moving to the 4th ground of appeal, the Appellant submitted that; the Appellate court erred in law and in fact by deciding the appeal using facts that are not given by either party of the case. He contended that looking at page 4 paragraph 1 of Judgement of the first Appellate court, the Magistrate explained facts which were not part of the suit proceedings and neither the Appellant nor the Respondent stated those facts. The said irrelevant facts are found at page 4 paragraph 1 to the effect that; "...For her, the house at Kifuru was not acquired by them jointly during the subsistence of their marriage. She added that the house was acquired in 2015 whereas their marriage was celebrated in 2017. She further amplified her version that such a house was built by the man she had a child with before getting married to the Respondent. For her, the Respondent contributed only to the construction of a wall and not the house." Based on the quotation above, the learned counsel argued that the Respondent herein did not state such words, which were used by the court to reach on its decision. The Respondent was never married and have child from another man than the Appellant. Further, there is no house at kifuru as stated in the judgement of the first appellate court. Another irrelevant facts used by the first appellate court were that; "...On his side, the Respondent cherished the trial court decision with a strong view that the court reached unto just decision hence prayed for this court not to fault the trial court decision. He was of the view that he contributed more than 40% toward the acquisition of the house../' He submitted that the Appellant herein did not state such words neither in the trial court nor in the first appellate court. The court based on those facts hence reached into wrong decision. As for the 5th ground of appeal, he contended that the Appellate Court erred in law and in fact for failure to determine each and every grounds/issues of appeal raised. He submitted that the Appellant upon being served with the judgement from the trial court was aggrieved by it and filed an appeal at the first appellate court. The appeal in the first appellate court was based on five grounds. The first appellate court, while determining the grounds merged ground number 1, 2 and 3 and analyse as one ground and also ground number 4 and 5 were argued as one. He submitted that the first appellate court did not as per its judgement dispose issue number 1 and 2 at all. There is no any wording, which re-evaluates the 1st and 2nd grounds of the appeal. All what is explained concerned ground number 3, 4 and 5 of the appeal. The first appellate court failed to discuss ground no. 1 of the appeal that was to the effect that; "the trial court delivered judgement without analysing and evaluating exhibits and testimonies tendered to justify the decision reached contrary to the law" and ground no. 2 of the appeal was to the effect that "the trial court failed to give reasons for its decisions". He asserted that the whole judgement of Matrimonial Appeal No. 152 of 2023 does not contain any wording addressing the mentioned ground of appeal. If those grounds were considered, the could have reached to a different decision. It is trite law that the court is enjoined to consider the grounds of appeal presented generally or one after another and failure to consider the grounds is fatal to the decision. He referred the court to the case of Mwajuma Bakari vs Julita Semgeni and Another, Civil Appeal No. 71 of 2022 at page 8 where it was held that; appellate court is bound to consider the grounds of appeal presented before it and in so doing, need not to discuss all of them only a few will be sufficient to dispose of the appeal but it is bound to address and resolve the complaints of the appellant either separately or jointly depending on the circumstance of each appeal.../' With regard to the 6th ground of appeal, he argued that, the Appellate court erred in law for upholding the decision of the trial court while the trial court entertained the matter without a proper certificate in the proceedings issued by the reconciliation board indicating that, the marriage conciliation board has failed to reconcile the marriage between the parties and whether the same was dully tendered and admitted in court during the trial; He submitted that; the Respondent filed a matrimonial case No. 766 of 2022 whereby the proceedings of the case were complete and the judgement was pronounced. During the hearing of the case the Respondent did neither show the court the certificate from the marriage reconciliation board which stated its failure to resolve the matter nor did she ask the court to tender and have the certificate admitted as part of her testimony. This makes the proceedings to end up without the court admitting the certificate from the reconciliation board contrary to the requirement of the law. He argued that it is a mandatory requirement that the certificate from the reconciliation board must be read to the court, tendered and the court must admit the same. Failure to do that renders the proceedings a nullity. In the case of Fatuma Said v Yona k. Mabela, PC Civil Appeal No. 573 of 2023 High Court sub- registry of Mwanza at Mwanza page 14 Hon. Chuma J while quoting the case of Patrick William Magubo Vs. Lilian Peter Kitali, Civil Appeal No. 41 Of 2019 (Cat-Mwz) (Unreported) held that, "...one the certificates was never tendered in court and hence not admitted to form part of court records. Two even in their evidence neither of them testified or said anything in that aspect. Thus, the certificate is not reflected in the court record, which suggests that the appellate court assumed the parties went through the Board. I have tried to ask myself what if one removes the certificate from the file or it gets lost for whatever reason and the record does not reflect its existence, how can one believe that the same was brought in court? It is my view that being found on a court file and being not raised by the parties in dispute does not justify non-compliance with the mandatory requirement of the law". He contended that It is trite law that; annexture is not evidence until the same is tendered and admitted in court. The issue does not end up on whether the certificate of reconciliation board is in the file also the issue will be whether the same was dully tendered and admitted in court during the trial. This was clearly stated in the case of Fatuma Said v Yona k. Mabela (supra). Also, in the case of Patrick William Magubo Vs. Lilian Peter Kitali, Civil Appeal No. 41 Of 2019 (Cat-Mwz) (Unreported) page 13 where it was held that, "...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. Therefore, that document was required to be tendered and admitted in evidence. It is trite law that, annextures are not evidence for the court of law to act and rely upon." He also referred the court to the case of Yohana Balole Vs. Anna Benjamini Malongo, Civil Appeal No. 18/2020 on page 13, where it was held that; "A certificate of the Board has to be tendered as evidence by either party" The certificate being in the court file does not amount admitting the same. The first appellate court then entered into an error of assuming the existence of the certificate as the same does not feature in anyhow in the trial court proceedings and hence tried nullity. Failure to tender the said certificate of the board in the Matrimonial Cause No. 766 of 2022 renders the proceedings a nullity. From the above arguments backed up by the cited authorities since the Certificate from Marriage Reconciliation Board does not feature on the trial Primary courts record for being not tendered and admitted on record and or not even testified by the parties, it is as good as there was no such certificate. The learned counsel concluded his submissions by praying for the court to quash and set aside both the Judgment and Decree of the trial court and the appellate court. Submitting in rebuttal, the Respondent stated as follows; With regard to the first ground of appeal, she submitted that that the trial appellate court did not error in law and fact as the judgment analyzed and evaluated exhibits and testimony tendered and reached a fair and just decision. She contended that the house at Buyuni was not included in the matrimonial assets, as there was no evidence brought to prove that the house is a matrimonial house. That at the trial court, it was evidently proven that the said house belonged to Amina Mohamed Masuo the mother of the Respondent hence not subject to division. She argued that the Appellant claims that the evidence brought by the Respondent was questionable and yet he gave no evidence to question the said evidence. The Appellant did not provide any evidence to support his claim that the house at Buyuni is a matrimonial property. With regard to the claim that the first Appellate court failed to evaluate, evidence, she submitted that, that was not rue as the appellate court evaluated the proceedings and judgment of the trial court considering the evidence brought and found that the judgment was fair and just. The Appellant filed his appeal at the 1st Appellant court and his appeal was heard unfortunately the Appellant did not have sufficient evidence to support his appeal hence the Judgments of both court are fair and just. She argued that even in this Appeal the Appellant has failed to state as to what exactly was not evaluated by the trial court or the first appellate court. The Appellant did not provide any evidence at the trial court to support his claims in the division of the matrimonial assets, claiming that the court did not evaluate his evidence while there was no evidence brought before is absurd. Regarding the second ground of appeal, the Respondent submits that, the trial court did not error in law and fact as the reasons as to why it reached that decision were given. She submitted that, reading from the judgment of the trial court in each category that the trial magistrate gave a decision there is a reason for that decision. The Judgment states that regarding matrimonial properties, the decision was reached on the reasons that both parties agreed that they have two houses and even one of the Appellant witness testified the same, the same goes for the decision regarding their issues. As for the third ground of appeal, the trial court did not error in law and fact as it measured the contribution of both parties and that the distribution was fair and just. The Respondent was not a housewife rather an entrepreneur and contributed from buying the plots to construction of the said houses hence entitled as such. She contended that the Appellant claims to have contributed 95% of the matrimonial home and yet no evidence to support his claim, thus the decision of the trial court regarding division of the matrimonial assets is fair and just. She submitted further that, the said house at Buyuni is not a matrimonial home as it was evidently proven to belong to Amina Mohamed Masuo. The Appellant has not brought any evidence to prove that the house is a matrimonial property. On the fourth ground of appeal, the Appellant states that the Appellate court erred in law and fact by deciding the appeal using the facts that are not given by either party of the case. The Respondent states that the facts stated by the first Appellate court were quoted from the authority stated in page 3 of the judgment as follows. "Gabriel Nimrod Kurwijila v Theresia Hassan Malongom Civil Appeal no. 102 of 2018, Court of Appeal of Tanzania at Tanga where it was observed that extent of contribution was stressed to be of utmost importance to be considered for her........." Thus the ground of appeal as claimed by the Appellant does not hold water as the fact came from quoting a case. Moving to the 5th ground of Appeal, the Respondent states that the 1st Appellate court did not error in law or in fact as all the grounds of appeal were considered and determined in the judgment, hence the ground held no water. Therefore, it is the Respondent submission that this appeal be dismissed, and the trial and appellate courts decisions be upheld. In rejoinder, the Appellant reiterated his submissions in chief and also responded to specific questions as follows; With regard to the Reply submissions, he stated that the Respondent having been served with the written submissions that stipulated six grounds of appeal, she did not tackle the 6th ground of appeal that the trial court entertained the matter without a proper certificate in the proceedings issued by the reconciliation board, indicating that the marriage reconciliation board has failed to reconcile the marriage between the parties and also the issue as to whether the same was dully tendered in court during the trial. He submitted that failure of the Respondent to reply to this point of law indicates that the issue is undisputed and according to the law, the document was required to be tendered and admitted in evidence for the court to rely upon thus as testified by the parties it is as good as there was no such a certificate. With regard to the first ground of appeal, he contended that Respondent has failed to understand the Appellant's submission on the said house at Buyuni which according to purported evidence produced it shows that it belonged to Amina Mohamed Masuo the mother of the Appellant. He argued that the court ought to have divided one matrimonial house located at Zavala-Chanika in the name of Appellant as per the evidence tendered by him. Thus failure of the first appellate court to question for non-existing house which was part of the division is as leaving the Appellant without any right to the division for being awarded a non existing house. Regarding the second and third grounds of appeal, the evidence adduced by the Appellant on contribution to the said house reaching to 95% was not objected by the Respondent. Despite the Respondent being an entrepreneur as claimed on evidence she had a duty to prove the same since the law is very clear that he who alleges must prove. Concerning the issue of the Appellant owning two houses, the court failed to give reasons because the evidence shows existence of two houses, one of them was declared not a matrimonial house therefore remaining with one which was given to the Respondent leaving the Appellant without shares from the matrimonial properties. He argued that that the first appellate court did not give reason on that division. He argued that the contribution was not fair and just as the matrimonial house was placed under the Respondent yet it bears the name of the Appellant leaving the Appellant with no division to the property he fully contributed by buying and constructing the house. Regarding the fourth ground of appeal, he contended that Respondent is aware of the facts explained by the Magistrate being not part to the suit proceedings as stated at paragraph 1 page 4 of the judgment, however the Respondent in her submissions tried to show that the facts were quoted from the authority in the case of Gabriel Nimrod Kurwijila Vs Theresia Hassan Malongom, Civil Appeal No. 102 of 2018, Court of Appeal at Tanga. The cited case when read properly has no connection to the said facts as there was another case cited to support the same, though the cited shows the equality of contribution in attaining matrimonial property to be proved with evidence. On the fifth ground of appeal, he submitted that on the issue of grounds of appeal, the Appellant still emphasizes as stipulated on page 7 of his submissions that the first appellate court did not consider grounds 1 and 2 of the appeal and cited case of Mwajuma Bakari Vs Julita Semngeni and Another, Civil Appeal No. 71 of 2022 at page 8. In line with the above arguments and well cited authorities, he prayed for the whole decision of the of the District Court of Temeke at One Stop Judicial Centre Centre in Matrimonial Appeal No. 152 of 2023 and Primary Court of Temeke at One Stop Judicial Centre be set aside and this appeal be allowed. Having gone through the rival submissions of the learned trained legal minds, the central question to be resolved is whether this appeal has merit. In dealing with this appeal I am mindful of the principle that 2nd appellate court may interfere with the factual findings of the trial court only if there is misdirection or misapprehension of evidence, see the case Bushangilangonga vs Mayanda Maige [2002] TLR 355. Similarly, It is trite law that a court of law must address all the issues raised before it. This position was settled in the case of Malmo Montagekonsult AB Tanzania Branch vs. Margret Gama, Civil Appeal No. 86 of 2001 (unreported); Simon Edson @ Makundi vs. Republic (Criminal Appeal 5 of 2017) [2020] TZCA 1730 (18 August 2020) TANZLII; Nyakwama s/o Ondare @ Okware vs. Republic (Criminal Appeal No. 507 of 2019) [2021] TZCA 592 (21 October 2021) TANZLII and; Revocatus Mugisha vs. Republic (Criminal Appeal No 200 of 2020) 2022 TZCA 63 (22 February 2022) TANZLII. Further, in the case of Zuberi Bakari Mwichikitu vs Selemani Bakari Mwichikiti, Pc Civil Appeal No.91353 O 2023 while celebrating the Court of Appeal case, the court observed that: 'M/7 appellate court, however, Is not bound to determine all grounds of appeal. It can determine a ground that disposes of the matter alone. It can also determine the grounds jointly or generally or in seriatim ", This stance was also reiterarted by the Court of Appeal in Malmo Montagekonsult AB Tanzania Branch vs. Margret Gama, (supra) whereby the Court stated as follows: "In the first place, an appellate court is not expected to answer the issues as framed at the trial. That is the role of the trial court. It is, however, expected to address the grounds of appeal before it. Even then, it does not have to deal seriatim with the grounds of appeal as listed in the memorandum of appeal. It may, if convenient, address the grounds generally or address the decisive ground of appeal only or discuss each ground separately". Coming back to the case at hand, the Appellant has raised six grounds of appeal, however, upon careful scrutiny of the submissions of the parties in all the grounds of appeal, I will begin the determination of this appeal first by addressing the sixth ground of appeal, which is to the effect that; the Certificate from the reconciliation Board was not duly tendered and determined in the trial Court. Here I would first say that the law demands the Petition for a decree of divorce to be accompanied by a Certificate from the Reconciliation Board, issued not more than six months before the filling of the petition. The Board must certify that it has failed to reconcile the parties and shall issue a certificate setting out its findings. See section 104(5) of the Law Marriage Act, Cap 29 RE 2019 For easy reference, I reproduce the said provisions for clarification; 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: The said provisions require the reconciliation Board to certify that it has failed to reconcile the parties, something that is not discerned from the document attached in the trial court file. I have carefully gone through the Petition and observed that a copy of the Certificate attached in the Petition reads as follows; "MHESHIMIWA HAKIMU KWA KUWA BARAZA LIMETHIBITISHA TALAKA ILIYOTOLEWA MAHAKAMA YA QADHI YA MKOA DAR ES SALAAM TOKA TAREHE 5/01/2021 NAOMBA MAHAKAMA YAKO TUKUFU ITOWE "HATI YA TALAKA" (DIVORCE CERTIFICATE) KUASHIRIA MWISHO WA NDOA YAO. WATALAKA HAWA WANA WATOTO WATATU (3) WALIOWAPATA KIPIN DI CHA NDOA YAO NAIYOMBA MAHAKAMA YAKO IWAPE MWONGOZO WANANDOA WANA MACHUMO WATAJIELEZA WENYEWE" From the above wording it is clear that the Board never reconciliated the parties instead, it approved the divorce from the Qathi office, contrary to the wording of the law above. In the case of Seif Omary Ngunge vs Husna Ally Mikengesi, Civil No. 397 o 2021, when it face the same situation as this at hand about Form No. 3, the court agreed and stated that the submitted form was not a certificate within the purview of the Law of Marriage Act and specifically the Marriage Conciliation Board (Procedure) Regulations, 1971. The then subscribed to the reasons advanced by the learned counsel for Appellant that; such a form was just a letter and not a form, and because of that it was agreed that the case at the trial court was opened/filed prematurely, It held as follows, "In view of the foregoing, I am of the settled mind that the purported Form No. 3 was not Form No. 3 in the spirit of the Law of Marriage Act and its Regulations. That being the position, I hold that the trial Court entertained the Petition for Divorce prematurely for want of the certificate issued by the Marriage Conciliation Board as per section 101 of the Law of Marriage Act. In other words, the proceedings, judgment and decree of the trial Court were a nullity." In the case at hand, it is obvious that the matter was not handled by the Marriage Conciliation Board within the real meaning of reconciliating parties. The purported Form No. 3 states amongst other things that it has been proved by the Kadhi that the wife (now the Respondent) has been divorced and that the parties have already been divorced by the Qathi of Dar es salaam Region and that the said Office has approved the divorce so they have referred the parties at the trial court so that it can issue them with divorce decree to end their marriage. It is clear that no reconciliation was ever made there at the Reconciliation Board. Deducing from the submissions above, it is crystal clear that the dispute was referred to and determined by the Kadhi and not the Marriage Conciliation Board. The purported certificate does not contain the findings of the Marriage Conciliation Board instead findings from the Qathi. This is in contravention with provisions of Section 106(2) of the LMA. Where provisions dictate for the Board to certify that it has failed to reconcile the parties section 104(5) of the Law of Marriage Act stipulates that the certificate should bear the certification of the Board and its recommendations after resolving the matrimonial dispute however this was not done as the Board failed to comply with the provisions of the law. The subsection reads: Section 101 states; 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; Section 10(5) states that: (5) Where the Board is unable to resolve the matrimonial dispute or matter referred to it to the satisfaction of the parties, it shall issue a certificate setting out its findings On the strength of the above submissions of the parties and analysis this court believes that this Form could not pass the test of validity, for the reason that the Board made reference to the decision of the Qathi office and did not provide its own findings. The board ought to have reconciled the parties and indicate whether it failed by way of referring the parties to the court for determination of the dispute. The Board instead directed the court on what to do, that is proceeding with issuing divorce. The Board has no mandate to dictate to the court to issue court divorce. It is my firm position that the role of the Board is only to reconcile parties, certify on the dispute and refer them to court as appropriate for determination of their dispute. Given the foregoing, this court is of the settled mind that the purported Form No. 3 was not Form No. 3 in the spirit of the Law of Marriage Act and its Regulations, but a mere letter. That being the position, this court is in agreement with the advocate for the appellant that the trial Court entertained the matter without a proper certificate from the Board in the proceedings issued by the Reconciliation Board and I thus proceed to hold that the trial Court entertained the Petition for Divorce prematurely for want of a valid certificate issued by the Marriage Conciliation Board as per section 101 of the Law of Marriage Act. In other words, the proceedings, judgment and decree of the trial Court were a nullity. Similarly, I have also perused the proceedings and noted that the said form was not tendered in the trial court and admitted as evidence. This is contrary to the decision of the Court of Appeal in the case of Patrick William Magubo vs Lilian Peter Kitali Civil Appeal No. 41/2019 CAT Mwanza. Further, I have observed also that the Respondent never responded on this issue at all in her submissions. I agree with the Appellant that the issue has thus been admitted by the Respondent. Based on the revisional powers bestowed upon me, I proceed to allow the appeal, quash the proceedings of the trial court and set aside the Judgments and the Decrees issued by both trial and first appellate courts thereon. The Respondent, if she still so wishes, is at liberty to file a fresh petition subject to compliance with the Law of Marriage Act. This being a matrimonial matter, costs shall be borne by the parties. It's so ordered Dated at Dar es Salaam this 18th Day of October 2024 S. MWAIPOPO JUDGE 18/10/2024