SALIMA SIJALI UREMBO

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA CIVIL APPEAL NO. 24 OF 2023 (Arising from Matrimonial Appeal No. 04 o f2020 at Kondoa District Court, Original Matrimonial Cause No. 09 o f2020 at Kondoa Urban Primary Court) SALIMA SIJALI U REM BO ..................................................................APPELLANT VERSUS OMARY BAKARI BA N G U ............................................................... RESPONDENT JUDGMENT . 02 07.2024 HASSAN, J.: Marital life sometimes is like a novel, as spousal life creates a story tale. In fact, to live long is to experience more, or otherwise to encounter much mysterious darling period. In this appeal, it has been a saddened experience of which the parties herein have gone through together. At often times, back on sugary matrimonial period, these two couples were inseparable sweethearts. Lovely quotes such as: " where you are is where I want to bd' and even the more candy, like "when I listen to my heart, l it whispers your name." were seemingly flowing out of their lips. But as afamous Swahili saying emanates "Kizuri hakidumu/'Jhat was the case in the life of these twosomes. Regrettably, it has never been forever, those sweet words have now faded like a morning mist. Now, as it stands, Salima d/o Sijali Urembo (the then bride), and Omary s/o Bakari Bangu (the bridegroom), as they were in their early marriage time, have become enemies. These parents of two children have entered into serious marital conflict which has now ended up before this court for determination. The long journey of looking for redress started on 04/08/2020 at the Primary Court of Kondoa where the appellant herein opened a Matrimonial Cause No. 9 of 2020. In her claim form (MCA/63) to the court, the appellant prayed to be granted a divorce, division of matrimonial properties and an order for sum of Tshs 150,000/= as maintenance of children for the two issues that they have had together. Categorically, matrimonial properties included in the claim form comprises of: one house located at Kisaki, 260 bags of seam seam (ufuta), one farm of 11 acres, one car 1ST, 35 goats, 2 beds and 2 mattresses, 3 2 solar panel, one motorcycle and one motorcycle spares shop, 3 sofas, 1 TV and 1 decoder. Thus, in the judgment delivered on 21/10/2020, the trial Magistrate granted divorce to the appellant. The court also ordered for distribution of matrimonial properties under section 99 of the Marriage Act, No. 5 of 1971 [Cap. 29 R.E. 2019] on the following ratio: That is, the appellant to receive 50% of the house after evaluation, 20% of spare part shop, 30% of the car, 20% of motorcycle, 5 acres of the farm, 15 goats, 100 bags of seam, 1 bed and 1 mattress, and 1 solar panel. With respect to the maintenance of children, the court ordered for payment of 60,000/= per month for each issue as maintenance ransom totalling to 120,00/= per month for the two issues that they had during their marital life. Aggrieved by the decision, the respondent herein appealed to the District Court of Kondoa in the Matrimonial Appeal No. 4 of 2020. After hearing, the appellate District Court affirmed the Primary Court's decision to the extent that an order for grant of divorce was confirmed. However, partially varied on the distribution of the matrimonial properties and maintenance of children. At this stage, I will reserve what was decided by the appellate District Court for the reason to be known soon. 3 Thus, following the decision of the District Court which was delivered on 16/03/2021, the appellant herein was dissatisfied and hence, to relieve her grievances on the outcome, she appealed to the High Court in the Matrimonial Appeal No. 6 of 2021. Upon its final determination, the High Court nullified the entire proceedings of the appellate District Court, and the orders meted out were set aside and an order for rehearing of appeal was pronounced. Consequential to the decision thereof, the appeal was remitted to the appellate District Court to start hearing afresh by another Magistrate. That being so, the Matrimonial Appeal No. 4 of 2020 was therefore retried incompliance to the order of the High Court. Again, when the parties were summoned to appear, both parties appeared in person unrepresented by counsels. After hearing, the appellate District Court found the appeal had merit. Thus, it was held that, indeed there was ta/aq initially given to the appellant herein, but thereafter, the same was revoked by respondent herein incompliance with Islamic laws. Consequently, the marriage between the parties still exists, and as it stands, the parties are husband and wife. 4 Therefore, based on the outcome of her findings, the appellate District Magistrate quashed both the judgment entered by the trial Primary Court and the subsequent orders meted thereto in the decision delivered on 29/12/2022. Pained by the decision thereof, the appeallant now appeared before this court for redress thus, she lodged four grounds of appeal for determination of the court, to wit: 1. That the appellate district court erred in law and in facts by deciding the matter in favour o f the respondent, the decision which is neither from the evidence nor from the reasoning o f the court. 2. That the appellate district court erred in law and in facts for failure to make analysis o f the evidence adduced by the appellant herein in the trial court. 3. That the appellate district court erred in law and in fact by deciding the matter in favour o f the respondent herein above basing on weak and contradictory evidence o f the respondent and her witnesses, as analysed by the trial court. 4. That the appellate district court erred in law and in fact by deciding the matter in favour o f the respondent herein, while the evidence is dear that the matter was irreparable broken down and the reconciliation board issued the certificate as required by the law. During hearing, parties appeared in person unrepresented by counsels as usual and both parties were invited to canvass their submissions. However, for the reason to be apparent soon, I will not dictate their submissions hereunder. After submission complete, the matter was scheduled for judgment. Having gone through submissions, and proceedings in general, it is undisputed fact that parties were professing Islamic religion. And thus, it appears obvious that they were both willing to solve their dispute under Islamic laws and canons. However, in the course of imposing the judgment I observed legal irregularities elicited in the trial Primary Court which are pertinent to the matter at hand. The irregularities noted are that: the matter was tried in violation of section 101 of the Marriage Act, which requires the parties to 6 refer their matrimonial difficulties to the board for reconciliation. Also, that matrimonial assets were only distributed to the parties herein without consideration of interest beheld by the first wife of the respondent who was still in the marriage tie with the respondent. In the circumstance, I have become unquestionably convinced that, had it pass across the mind of the first appellate Magistrate, she could have attended the issues and definitely, she could have arrived to the different conclusion. Consequently, to address the noted faults, I vacated my initial order to compose judgment and instead, I invited the parties to address the court on the issues observed by the court Suo motto. Therefore, in her very brief submission, the appellant opted to leave the matter to the court for solution since it was the trial court's mistake. Whereas, on the other side, the respondent vehemently reiterated that the appellant is still his wife and she should return to their matrimonial home. More so, he left the legal issue raised to this court for its determination. Now, to start my analysis of the issue raised, I will be guided by authority of the Court of Appeal in the case of Vitus Rupeche v. Vumilia 7 Mwakilasa (Civil Appeal No. 213 of 2023) [2024] TZCA 473 (13 June 2024) where it was held that: "Although one o f the grounds o f appeal before the first appellate court faulted the trial court's decision for lack o f jurisdiction, that court did not determine that ground. Apparently, the law is well established on this subject and this Court has stressed in various decisions including; Jack/ine Hamson Gh/kas v. M/atie Richie Assey (supra); Abdailah Hamis Kiba v. Ashura Masatu, (Civii Appeal No. 465 o f 2020) [2022] TZCA 335 TANZLII (14th June 2022); Hassani ally Sanda/i v. Asha Ally (Civil Appeal 246 o f 2019) [2020] TZCA 14 TANZLII (24th February 2020). The Court has consistently held that\ any petition for divorce instituted in a court o f law without being accompanied by a valid certificate from the Marriage Conciliation Board in terms o f section 101 o f the Act is incomplete, premature and incompetent" 8 For clarity, I am also desirous to reproduce the whole section 101 of the Marriage Act, No. 5 of 1971. This section provides: "No person shall petition for divorce unless he or she has first referred the matrimonial difficulty 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 he or she has been deserted by, and does not know the whereabout, o f his or her spouses; or b) Where the respondent is residing outside Tanganyika and it is unlikely that he or she will enter thejurisdiction within the six months next ensuing after the date o f the petition; or c) Where the respondent has been required to appear before the Board and has wilfully failed to attends; or 9 d) Where the respondent is imprisoned for life or for a term o f at least five years or is detained under the provision o f the preventive Detention Act, 1962 Cap. 490 and has been so detained for a period exceeding six months; or e) Where the petitioner alleges that the respondent is suffering from an incurable mental illness; or f) Where the court is satisfied that there are extraordinary circumstances which make reference to the Board impracticable." Taking inspiration from the above authority, it is apparent that in the instant appeal, there is nowhere in the records of the trial Primary Court where parties had prayed to tender a Board certificate. Similarly, there is no record which shows that court had admitted a Board certificate to satisfy that Board has failed to reconcile the parties. Therefore, because of the omission, the trial court lacks jurisdiction to entertain the matter for being incompetent, see Vitus Rupeche v. Vumilia (supra). To observe more, I have purposely perused the whole case file from the trial court in order to critically ascertain what has been enclosed in the case file and its effect. Notably, I came across a board certificate attached 10 in the posterior part of the case file. Sadly, the same has not been encompassed in the proceedings and therefore it does not form part of the records. In the circumstance, no matter how sympathetic it might be, the incongruity cannot be salvaged merely by hanging the document in the case file without it being recognised in proceedings. To be precise, on my firm view, the edifice of section 101 of the Marriage Act, No. 5 of 1971 entails that, for the court to assume jurisdiction in matrimonial matter, there must be a certificate from marriage reconciliation board certifying that it has failed to reconcile the parties in their dispute. This section provides: "No person shall petition for divorce unless he or she has first referred the matrimonial difficulty to a Board and the Board has certified that it has failed to reconcile the parties." Based on the meaning of section 101 above, a certificate referred should be tendered by the applicant and thereafter be admitted and endorsed by the court before hearing commenced in order to assume jurisdiction. Consequently, in the absence of the certificate from marriage 11 reconciliation board, the trial court lacked jurisdiction to try this case rendering the entire proceedings a nullity. For instance, see Maulid Ismail Ndonde v. The Republic, criminal appeal no. 319 of 2019 [2021] TZCA 538; [29 September, 2021, TANZLII], where when the court discussed issue relatively similar to the one at hand, it stated that: "The consent and certificate signed on l(Jh April, 2018 were not officially received by the trial court .... Consequently, in the absence o f the consent and the certificate o f the DPP, the trial court lackedjurisdiction to try this case rendering the entire proceedings a nullity. " On the other hand, apart from the prior anomaly to introduce it in advance, the said certificate was not tendered when the appellant adduced her evidence in the trial court. For so doing, it ousts legitimacy to form part of records. See also in, Shemsa Khalifa & Two others v. Suleiman Hamed Abdalla, Civil Appeal No. 82 of 2012 (unreported), when addressing the issue similar to one at hand, the court held: 'We out-right o f the considered opinion that, it was improper and substantial error for the high court and all 12 other court below to ha ve relied on a document which was neither tendered nor admitted in the court as exhibit We hold this led to a grave injustice." With respect to second issue that the matrimonial assets were only distributed to the parties herein without consideration of interest beheld by the first wife of the respondent who was still in the marriage tie with the respondent. In brief, I will not detain myself much to discuss this issue because, the first issue has entirely disposed the appeal. However, for recollection, attention should also be drawn in the mind of trial magistrate during retrial that interest of the first wife and her issues have to be considered and preserved. In the end, all said and done, and as intimated earlier on, the point raised vitiates the proceedings. I therefore invoke the revisional powers vested to this court under section 31 (1) (2) of the Magistrate Courts Act, Cap. 11 R.E. 2019 to nullify, quash and set aside the proceedings, judgment and orders of the Trial Primary Court respectively. Consequently, I further nullify, quash and set aside the entire proceedings, judgment and orders of the first appellate court as the same were originated from nullity proceedings. 13 Going forward, I order the matter be remitted to the trial Primary Court, for it to commence afresh in compliance with the provisions of the Law of Marriage Act, No. 5 of 1971. Each party should bear its costs. Ordered accordingly. DATED at DODOMA this 2nd day of July, 2024. This ruling delivered this 2nd day of July, 2024 in the presence of the parties and the matter was ordered to start afresh under new panel. 14