SOPHIA HATIBU MWAMBA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA PC. CIVIL APPEAL NO. 26 OF 2023 (Appeal from Matrimonial Appeal Nd. 14 of 2023 in the District Court of Mpanda at Mpanda, original matrimonial cause no. 3 of 2023 in the Primary Court of.Mpanda ta Mpanda) SOPHIA HATIBU MWAMBA ......... .......... .........:;y...X.............. APPELLANT VERSUS^ % EDGAR THADEO KAPAMA ................RESPONDENT 26/02/2024 & 06/05/2024 \ ,.F JUDGMENT MWENEMPAZI, J. < f " The Respondent herein name successfully filed a petition for divorce in the trial court whereby a decree of divorce was issued and the court also issued an order for distribution of matrimonial properties by giving the respondent 60% and the appellant was awarded 40%. That a house at Chanika Dar es Salaam be sold and the proceed therefrom be appropriated to pay debts at NMB and URA SACCOS LTD where the respondent had borrowed for construction of the said houses. At the time of determination, the respondent was owing NMB Tshs. 453,444.50 and URA SACCOS LTD Tshs. i 1,905/416.77, The remaining, money was ordered to be divided in equal amount to the parties. The appellant was not satisfied and unsuccessfully appealed to the District court where the appeal was dismissed with costs. The appellant has again appealed to this court challenging the 1st appellate court decision raising two grounds of appeal. First, that the Honourable trial magistrate/erred x;in law entertain the matrimonial case without certificate from the board a nd,the matter was not prior referred to the board. ■%. Second, that without prejudice to the foregoing, the Honourable trial magistrate erred in law and in fact in awarding 40% of matrimonial properties to the appellant despite the fact that the appellant and the respondent had made equal contribution in the construction of the two houses. Parties were unrepresented and were brief on the first ground to which I have opinion it suffices to dispose this appeal. 2 The appellant held fast to the first ground that there was no certificate and the respondent was clear that reconciliation was held at the Ward Tribunal; he submitted that, they were issued with a certificate of marriage reconciliation Board showing that reconciliation has failed. I have read the certificate which is annexed to the petition for divorce purporting to have been issued by the marriage conciliation Board..?dt is not ' W-, " •' ' recorded which tribunal or board held the reconciliation session concerning ,</■ £■ -A., , , ’s>/. •■V, the parties, save for the names of the parties and the statement that reconciliation has failed. Although there is a stamp of the ward tribunal and secretary's signature, still the name of the said secretary has not been disclosed. In my considered, opinion; though the certificate is in the prescribed from but the contents are deficient to verify its authenticity. It is therefore not valid especially when backed up by lack of the disclosure of the Ward Tribunal issuing the same. Also, when hearing, at first the respondent said they had referred the dispute to the conciliation Board but later he was hesitant to confirm the position. 3 I have the opinion that section 101 of the Law of Marriage Act, [Cap 29 R.E 2022] has not been complied with. The same provides that: - "No person shall petition for divorce unless he or she has first referred the matrimonial dispute or matter to an Board and the Board has certified that it has failed to reconcile the parties". In the case of Yohana Balole Vrs. Anna Benjamini Malongo, Civil Appeal No. 18 of 2020 Court of Appeal of Tanza nia .at Bukoba, it was held that: - .. iPiP ;J • :• ’A . "For a petitionfordivorce to be entertained by any court, a matrimonial dispute should first be referred to a marriage conciliation Board and such Board certify that it ft, has failed toreconcile the parties, (page 13) And at page 14 the court held that: "Compliance with section 101 above is mandatory except where there is evidence of existence of extra-ordinary 4 circumstances making it impracticable for the parties to refer their dispute to the Board". The certificate in this case as I have observed herein above, is defective in content and it does not fulfil the intention envisaged under section 101 of the marriage Act. Despite of deficiency pointed, the record shows that the certificate from the marriage conciliation Board wasnot tendered> in evidence as an exhibit. Therefore, it was an error for the trial court rely .oh it. Refer CRDB Bank Ltd Vs. Isaack Mwamasika & Others (Civil Appeal No. 139 of 2017) [2018] TZCA 36 (7 August 2018) where The court of appeal in considering the evidential value of the guarantees'which Mr. L.B. Mwamesika executed to support the 3rd Respondent's loan held: - "...these guarantees were not tendered in evidence, and no findings could therefore be made on those guarantees". Under the; circumstances, the court lacked jurisdiction to entertain the petition for divorce for non - compliance to section 101 of the marriage Act. I therefore nullify the proceedings of the District Court and Primary Court and quash their respective judgments and set aside subsequent orders as they emanated from nullity proceedings. The respondent is at liberty to 5 process his petition afresh in accordance with the law, if he so wishes. In the event I find merit on the appeal and allow it. No order is made as costs. It is ordered accordingly. Dated and signed at Sumbawanga this 06th day of May, 2024. Judgment delivered this 06th day of May, 2023 in the presence of the appellant and absence of the Respondent in judge's chamber at Mpanda Resident Magistrate's Court. 6