Hadija Appeal 2

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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

GEITA SUB REGISTRY

AT GEITA PC MATRIMONIAL APPEAL NO. 19563 OF 2024 (From Matrimonial Appeal No. 15769 of 2024 in the District Court of Geita, Originating from Matrimonial Cause No. 43 of 2024 in the Primary Court of Katoro)

BETWEEN RASHID MASHAURI……………………………………………………….APPELLANT VS HADIJA BENATUS………………………………………………………..RESPONDENT

JUDGMENT Date of last order: 30/8/2024 Date of Judgment: 05/09/2024 MWAKAPEJE, J.: In this subsequent appeal, the appellant, for the second instance, stands before this court, contesting the judgment rendered by the District Court of Geita in the matrimonial appeal issued on 01/08/2024, which failed to satisfy him. Prior to delving deeper into the appeal, it is imperative to recount the facts of this case. In 1997, the appellant and respondent encountered each other in Mwanza and entered into matrimony under the Islamic faith. Throughout the duration of their union, they were blessed with a single child who, regrettably, succumbed prematurely. Originating from humble beginnings at the onset of their marriage, the couple procured a parcel of Page 2 of 11 land and erected a residence in Katoro after a decade of being together. Subsequently, discord plagued the marital relationship, leading to recurrent altercations. As per the respondent, the appellant subjected her to severe physical abuse, compelling her to depart for her safety. Following this, the appellant successfully initiated divorce proceedings before the Primary Court of Katoro, which subsequently decreed an equitable distribution of the matrimonial assets and the residence in Katoro. Dissatisfied with the division of assets accrued during the marriage, the appellant sought recourse with the District Court of Geita, which affirmed the lower court's ruling. Yet unsatisfied, the appellant has lodged the present appeal with this court, supported by three grounds of appeal.

1. That, the trial court and the first appellate court erred in law and fact to order an equal distribution without considering the fact that the appellant has greater contribution towards the acquisition of the said matrimonial properties than the respondent.

2. That the trial court and the first appellate court erred in law and fact to order an equal distribution of matrimonial properties based on weak evidence from the respondent on how such properties have a 50% right of distribution.

3. That the trial court and the first appellate court erred in law and fact for failure to evaluate the evidence by parties and, as a result, reached an erroneous decision. Page 3 of 11 When this appeal came for hearing, the appellant enjoyed the services of Mr Mlumbe, learned advocate while the respondent appeared pro se. Mr Mlumbe, who was the first to submit for the appeal, argued the first two grounds jointly and told the court that the appellant’s contribution towards the acquisition of the house, which is the subject of distribution, was greater than the respondent’s contribution as it was solely acquired by the appellant to the exclusion of the respondent. He maintained that the respondent did not contribute anything towards the acquisition of that property and, hence, could not be awarded an equal share as the appellant. In bolstering his argument, he cited the famous case of Bi Hawa Mohamed vs Ally Sefu [1983] TLR 32. Mr Mlumbe was of the view that when the court is deciding what the parties are entitled to, the contribution of each party has to be taken into account. He added further that, from the evidence, it was the appellant who constructed the said house; the provision of section 114(2) of the Marriage Act regarding the extent of contribution has to be considered. He additionally pointed out that the credibility of the respondent's testimony is questionable, as

it seems to be riddled with numerous inconsistencies. He informed the court that, during the proceedings at the trial court, the respondent presented two conflicting narratives regarding Page 4 of 11 the acquisition of the land on which the house stood. Initially, he asserted that the respondent purportedly purchased the land using inheritance funds, yet no substantiation of any probate case was provided, thus diminishing the evidentiary value of this claim. Another assertion was that the respondent alleged to have inherited land as part of her inheritance, while her witness attested that the inheritance she received was in monetary form, not as land. Regarding the final ground, the learned advocate told the court that the trial court entertained the matrimonial cause prematurely without this matter passing through the conciliation process. He argued that there was no proof whether the matter was first referred to the reconciliation board as provided under section 101 of the Law of Marriage Act, Cap 29 RE 2019. In response, the respondent informed the court that she acquired the land and erected the house using her personal inheritance funds. She contended that the allocation was justifiable. She further stated that she did not contribute to the roofing phase of the construction, but she funded the remaining stages, starting from the foundation exclusively. Regarding the last

ground, the respondent told the court that they sought the intervention of the Ward Tribunal to reconcile their marriage, Page 5 of 11 albeit unsuccessfully, due to the appellant's unwavering stance on pursuing a divorce. She added that the Ward Tribunal referred them to BAKWATA for further reconciliation. However, nothing happened as the appellant refused to honour the invitation for reconciliation. The respondent maintained that it was through a letter from the Ward Tribunal that the appellant relied upon when filing a petition for matrimonial cause before the trial court. There was nothing significant in the rejoinder as they appeared to be repetitions of what had already been submitted. Having considered the opposing arguments presented by both parties, the third ground emerges as pivotal, such that if decided in the affirmative, it would suffice to resolve the entire appeal. When it comes to determining matrimonial disputes, the High Court, a Resident Magistrate Court, a District Court, and a Primary Court are bestowed with original jurisdiction in accordance with section 76 of the Law of Marriage Act, Cap 29 R.E 2019. Nevertheless, the Primary Court is specifically tasked with presiding over cases involving couples united under customary or Islamic laws, as stipulated in section 75 of the Act. Presently, the couples celebrated their union through Islamic laws, hence

correctly referred their dispute to Katoro Primary Court. It is Page 6 of 11 common law that a petition of the matrimonial cause before a court of law is not automatic; there are conditions which parties have to fulfil prior to filing. These conditions are outlined in section 101 as follows; “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 they have 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 willfully 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. [Emphasis

supplied] According to the cited provisions of the law, any petition determined without passing through the reconciliation board is considered null and void, as the court is termed to have lacked jurisdiction when entertaining Page 7 of 11 such a matrimonial dispute. See the cases of Shillo Mzee vs Fatuma Ahmed [1984] TLR112 and Yohana Balole vs Anna Benjamin (Civil Appeal No. 18 of 2020) [2021] TZCA 338. In the Yohana Balole (supra), the court stated that: “It is settled that a petition for divorce instituted without being accompanied by a valid certificate in terms of section 101 of the Act is incomplete, premature and incompetent.” [Emphasis supplied] Also, in the case of Patrick William Magubo vs Lilian Peter Kitali (Civil Appeal No. 41 of 2019) [2022] TZCA 441 (18 July 2022), it was stated that: “………..because 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.” [Emphasis supplied]. Towards petitioning for divorce after compliance with the section 101 of the Act, a party is obligated to, among other things, comply with the provisions of section 106(2) of the said Act. This section reads: “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: Provided that, such certificate shall not be required in cases to which the proviso to section 101 applies.” Page 8 of 11 In the instant appeal, I visited the proceedings of the trial court to ascertain whether there was compliance with section 106 (2) of the Act. However, to my surprise, when the appellant, the then petitioner, was adducing evidence before the court, he never mentioned having attended the reconciliation board. He did not tender the certificate from the reconciliation board as evidence proving to have gone through the reconciliation process. On that basis, the trial primary court could not, in any circumstance, proceed to dissolve the marriage that had not gone through the reconciliation process unless there was proof of the existence of extraordinary circumstances restraining parties from complying with that mandatory legal requirement. A similar holding was stated in the case of Hassani Ally Sandali vs Asha Ally (Civil Appeal 246 of 2019) [2020] TZCA 14, where it was stated that: “... the Primary Court dissolved the marriage between the appellant and the respondent on the basis of section 107(3) of the Act. However, the granting of the divorce under section 107(3) of the Act was not an end in itself. It was subject to compliance with section 101 of the Act. That section prohibits the institution of

the petition for divorce unless a matrimonial dispute has been referred to the Board and such Board certifying that it has failed to reconcile the parties.” [Emphasis supplied] Page 9 of 11 In matrimonial disputes presented before the primary court, the power vested in the primary court to adjudicate such disputes emanates from two legislative enactments, specifically the Magistrate Courts Act, Cap 11 RE 2019 (the MCA), and the Marriage Act. Section 18 of the MCA confers jurisdiction upon the Primary Court to resolve matrimonial proceedings. The said section provides that; “18. (1) A primary court shall have and exercise jurisdiction (a) in all proceedings of a civil nature- (i) where the law applicable is customary law or Islamic law, Provided that no primary court shall have jurisdiction in any proceedings of a civil nature relating to land; (ii) N/A (iii)N/A (b) in all matrimonial proceedings in the manner prescribed under the Law of Marriage Act.” Pertaining to the aforementioned provision, it is indisputable that the primary court holds the original jurisdiction to entertain matrimonial proceedings. However, as aptly pointed out by Mr Mlumbe, prior to the consideration of a divorce petition by the court, the matter must first be referred to the Marriage Conciliation Board, which is to certify that all Page 10 of 11 attempts at reconciling the parties have been exhausted,

as stipulated in Section 101 of the Marriage Act. Ordinarily, one would expect the parties to have referred the matter to BAKWATA, them being Muslims who contracted their marriage under Islamic laws. The fact that the appellant declined to honour the invitation from BAKWATA as the respondent told the court during the hearing of the appeal totally clears the doubt on the occurrence of such conciliation, for it is proof that there was none. And since nothing extraordinary stopped the appellant from attending the conciliation process, he cannot be treated as falling in the category exempted from attending the conciliation board to be allowed to file a petition for divorce without a reconciliation certificate from the board. To shorten, the appellant’s petition for divorce before the trial court was incompetent for failure to comply with the requirements of sections 101 and 106 of the Marriage Act. Thus, the trial court did not have the requisite jurisdiction to entertain the matter. It is unfortunate that the first appellate court did not detect the said irregularity as it proceeded with the matter and upheld the trial court decision. It is my considered view that had the first appellate court considered that crucial legal issue, it would not have upheld the trial court’s decision which is erroneous on the account of stated reasons. Page 11 of 11 In short, the proceedings before

the trial and the first appellate court were vitiated. As a result, this court had no option other than to nullify the entire proceedings of the lower courts, quash the judgments, and set aside the subsequent orders thereto. Either party is at liberty to process the petition afresh in accordance with the law if they so wish. This being a matrimonial matter, I make no order as to costs. It is so ordered. DATED at GEITA this 05th September 2024. G.V. MWAKAPEJE

JUDGE This Judgment is delivered this 05th day of September 2024 in the presence of the Appellant and Respondent in person. G.V. MWAKAPEJE

JUDGE