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IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWAR A AT MTWARA DC. CIVIL APPEAL NO. 27006 OF 2023 (Arising from Matrimonial No, 3 of 2023 at the District Court of Nanyumbu at Mangaka) TWALIBU KW1LYASA LIGOWOLA -......... -....... -........ —— APPELLANT VERSUS LUK1A JUMA BUSHIRI ——-........ RESPONDENT Date of last Order 29,05.2024 Date of Judgment: 19.07.2024 JUDGMENT Ebrahim* J.: This is the second appeal, having been unsuccessful at the two subordinate courts, the Appellant herein has lodged the instant appeal raising three grounds of appeal: Page 1 of 13 1. That the trial Magistrate erred in Law and fact by deciding in favour of the Respondent without taking into consideration the evidence adduced by the Appellant, 2, That the trial Magistrate erred in Law and fact by deciding in favour of the Respondent by weak and fabricated evidence adduced by the Respondent, 3. That the trial Magistrate erred in Law and fact by deciding in favour of the Respondent by not taking into consideration the contribution of cash of the matrimonial assets. Brief facts of the case gathered from proceedings on record are that the parties solemnised their muslim marriage on 5th December 2010. They were not blessed with any had issues. The Appellant left the matrimonial home following the matrimonial suit which was filed by the Respondent in 2022. During the trial, the Appellant called four witnesses and the Respondent called two witness. After hearing the evidence from both parties, the trial court dissolved the marriage and distributed the matrimonial properties at the ratio of 50% to the Respondent and 50% to the Appellant. Page 2 of 13 Aggrieved the Appellant unsuccessfully appealed to the District Court which upheld the decision of the trial court; hence the instant appeal. On the hearing date, the Appellant appeared through Charles Peter, the learned advocate while the Respondent appeared in person, unrepresented. Submitting in support of the first ground of appeal, Mr. Peter argued that the petition was incompetent before the trial court as section 101 and 106 of the Law of Marriage Act, [Cap 29 R.E. 2019] was not complied with since there was no certificate from the Marriage Conciliation Board. He contended the certificate was not issued as an exhibit. To fortify his stance, he cited the decision of the Court of appeal in Abdallah Hamisi Kiba vs Ashura Masatu (Civil Appeal 465 of 2020) [2022] TZCA 335 (14 June 2022) where appeal was allowed because the procedure was not followed. In. respect of the second and third grounds of appeal on the division of matrimonial properties, Mr. Peter argued that the Respondent didn't prove the contribution she made to be entitled to the distribution of 50% as she was duty-bound to prove the extent of contribution. He added that the Respondent adduced weak Page 3 of 13 evidence by saying that she was the secretary at AMCOS- Masyelele - Mangaka while there was no evidence to prove that she was being paid a salary for the whole month. He thus prayed for the appeal to be allowed and this court to reverse the decision of the District Court. The Respondent refuted what was submitted by the counsel for the appellant. She submitted that they went to BAKWATA for reconciliation and they were given a letter to go and file a case at Kadhi-Mtwara. She attached the said letter during the filing of the case in court. She submitted further that the Appellant testified in court that he did not want to be with her anymore so the marriage was broken. Thereafter the trial court issued a decree of divorce. The Respondent contended further that she has been working for 14 years at Masyelele AMCOS. That she used the money she was getting from AMCOS together with her husband [the Appellant). She responded further that they have been farming together and used the money to acquire all the properties. She thus prayed for the court to consider the fact that she was not a housewife hence she is entitled to the distribution of the properties. She prayed for the court to dismiss the appeal. Page 4 of 13 I shall address the grounds of appeal generally. As it can be observed this is a second appeal. The second appellate court is discouraged from interfering with the concurrent findings of facts of the lower courts unless there has been a misapprehension of evidence, a miscarriage of justice, or a violation of some principles of law or practice. The said principle has been enunciated by the Court of Appeal in the case of Saturn Bugu vs Mariam Kibwana, Civil Appeal No 29 of 1992; and the case of Amratal Danodor & Another t/a Zanzibar Silk Store vs A.H Janowala t/a Zanzibar Hotel, [1980] TLR, 31 at page 35. I have dispassionately gone through the rival submissions of both parties as well as the evidence on record. Counsel for the Appellant raised the issue of jurisdiction that the matter did not pass through the Marriage Reconciliation Board as no certificate was issued contrary to sections 101 and 106 (2) of the Law of Marriage Act, [Cap 29, R.E 2019]. He cited the case of Abdallah Hamisi Klba vs Ashura Masatu (Supra) to cement his contention. This line of argument prompted me to go through the records. Page 5 of 13 Conspicuously in the court file is a letter from BAKWATA Nanyumbu District to Mahakama ya Kadhi Mtwara Region. Before I determine the appeal, I should clarify that the trial court records do not suggest that the certificate of Marriage Conciliation Board was tendered and admitted as evidence that the efforts to conciliate the parties proved futile. As seen above, the Primary court dissolved the marriage between the Appellant and the Respondent based on section 107(3) of the Law of Marriage Act [Cap 29 R.E 2019]. 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 sections 101 and 106 (2) of the Act. Those sections prohibit the institution of a 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. That means that compliance with sections 101 and 106(2) of the Act is mandatory except where there is evidence of the existence of extraordinary circumstances making it impracticable to refer a dispute to the Board as provided for under section 101(f) of the Act. However, there is no indication of any Page 6 of 13 extraordinary circumstances in this appeal that could have attracted dispensing with reference to the matrimonial dispute to the Board. In terms of section 107(3) of the Act, the friar court had the power to dissolve the irreparably broken-down marriage between the parties upon being satisfied that all conditions under the sub-section had been met. It is important to note that the Board's certificate is one of such conditions which the trial court was bound to be satisfied of its existence. Section 101 Of the Act does not prescribe how a certificate accompanying a petition for divorce should look like. However, Regulation 9(2) of the Marriage Conciliatory Boards (Procedure) Regulations G.N No. 240 of 1971 provides that; "Where the dispute is between a husband and his wife, and relates to the breakdown of the marriage or an anticipated breakdown of the marriage, and the Board fails to reconcile the parties, the Board shall issue a certificate in the prescribed form.'' The form is prescribed under the schedule as Form No. 3 in English language. Due to its centrality to the appeal, I reproduce it as hereunder: Page 7 of 13 '’MARRIAGE CONCILIATION BOARD OF (state full designation of Board) WHEREAS a dispute exists between..................... ............ (state name of husband) and .............. ....... ...................... (state name of wife) who are lawfully married and such dispute was referred to this Board by .......... .,......... ... (name of the person who referred the dispute). THIS IS TO CERTIFY that this Board has failed to reconcile the parties and that in the opinion of the Board- (any recommendation which the Board may wish to make) Signed.............. ...... ........................ ■...... ....... ........ ....... Chdirman/Vice-Chairman/Member....................... ................. Dated this............ day of;............... 20...." The contents of the letter tendered before the trial court are hereunder reproduced; "BARAZA KUU l_A WAISLAM TANZANIA BAKWATA BARAZA LA MASHEHE (W) S.L.P246 NANYUMBU mtwara Page 8 of 13 24.03,2023 MAHAKAMA YA KADHI MKOA MKOA MTWARA YAH, KUPOKEA SHAUR1 LA NDOA NA TALAKA MLALAMIKAJI Bl. LUKIA JUMA BUSHIRI MLALAMIKIWABW. TWALIBU SELEMANI UGOWOLA MKUU. MUHUSIKA. Sdwa na some juu la husu hati hit kuwa naomba upokee shauri hili ambalo tumesuluhlsha imeshindikana kwahiyo uiipokee na kuendelea kulichunguza kwa taratibu zilizopangwd kishend mujibu wa dint yetu. H The letter was addressed to Mahakama ya Kadhi, Mtwara, and not Nanyumbu Primary Court and signed by the BAKWATA secretary. Ordinarily, a certificate, as seen above would be signed by the Chairman, vice chairman, or member. It is not clear to us if the secretary was also a member of the Board with authority to sigh the certificate. The Respondent has contended that they Went to BAKWATA complaining against the Appellant. After the BAKWATA Page 9 of 13 failed to reconcile the parties, she was given a letter to go to file a case at Kadhi-Mtwara. Now the issue before this Court is whether the letter from BAKWATA was a valid certificate capable of accompanying a petition for divorce under sections 101 and 106 (2) of the Law of Marriage Act, [Cap 29 R.E 2019]. The letter that the trial court found to be sufficient for use as such certificate in matrimonial proceedings was not a valid certificate in accordance with the law. It follows thus that in the absence of a valid certificate to institute a petition as required by sections 101 and 106 (2) of the Act, the petition before the trial court was premature. The Appellant referred to the decision of the Court of Appeal in Abdallah Hamisl Kiba vs Ashura Masatu (Supra) which held that a petition for divorce instituted without being accompanied by a valid certificate in terms of sections 101 of the Act is incomplete, premature, and incompetent. I subscribe to that holding as reflecting a correct legal position. Furthermore, in the case of Yohdna Balole vs Anna Benjamin Malongo (Civil Appeal 18 of 2020) [2021] TZCA 388 (19 August 2021) the Court of Appeal, when faced with an akin situation of a trial court Page 10 of 13 entertaining an incompetent petition for divorce which did not comply with the requirement of section 101 of the Law of Marriage Act [Cap. 29 R.E. 2019], it stated that: ’‘From the above extract it is clear that the learned trial Magistrate relied on the letter from the A.I.C. Church as a sufficient document to institute matrimonial proceedings. With profound respect and as correctly argued by Mr. Muguli, the said letter is deficient in both form and content and the same does not amount to a certificate envisaged under sections JO J and 106 of the Marriage Act.” Similarly, in this case, 1 have found that the Respondent’s petition for divorce before the trial court was incompetent for failure to comply with the requirement of sections 101 and 106 (2) of the Law of Marriage Act [Cap. 29 R.E 2019]. I therefore agree with Mr. Peter that the trial court did not have the requisite jurisdiction to entertain the matter. Unfortunately, the first appellate court did not detect the said irregularity as it also fell into the same trap and proceeded to divide the alleged matrimonial properties between the parties without there being any valid decree for divorce. It is my considered view that had the first appellate court considered the crucial legal issue on the Page 11 of 13 jurisdiction of the trial court as discussed above, it would not have upheld the decision of the trial court which is erroneous on account of the reasons stated above. Having held that the petition for divorce was incomplete for lack of a valid certificate, the proceedings before the trial court were a nullity. Accordingly, there could not have been any valid decree of divorce from which one could have challenged on appeal to the District Court. In the premises, I vitiate the proceedings before the trial court and the first appellate court. As a result, I have no option other than to nullify the entire proceedings of the trial court, quash the judgment and set aside the subsequent orders thereto. 1 also nullify the proceedings of the District Court and quash its respective judgment and subsequent orders as they stemmed from invalid proceedings. The Respondent is at liberty to process her petition afresh in accordance with the law if she so wishes. In the event and for the foregoing reasons, I find merit in the appeal and allow it with no order as to costs. Page 12 of 13 Ordered accordingly. Page 13 of 13