JUDGMENT CIVIL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT TABORA ( CORAM: MWANDAMBO. J.A., FIKIRINI. J.A. And NGWEMBE. J.A.^ CIVIL APPEAL NO. 213 OF 2023 VITUS RUPECHE................................................................................APPELLANT VERSUS VUMILIA MWAKILASA.................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Tabora) fBahati, 3.) dated the 15th day of December, 2022 in PC. Civil Appeal No. 4 of 2021 JUDGMENT OF THE COURT 7th & 13th June, 2024 NGWEMBE, JA.: This is a third appeal. Vitus Repeche, the appellant herein and Vumilia Mwakilasa, the respondent contracted their civil marriage in year 2018 and were blessed with three issues. Prior to their marriage, they cohabited as husband and wife from 2012 to the date of their official marriage. Throughout their marriage, they resided in their residential house built at Oysterbay area within Urambo District. Unfortunately, their marriage did not last long before feuds and tensions creeped out, which resulted in the appellant petitioning for divorce after obtaining letter from the Social Welfare i Officer from Urambo District, allegedly being a certificate from the Marriage Conciliation Board. On 5th January, 2020 the appellant lodged a petition for divorce before Urambo Urban Primary Court, registered as Shauri la Madai Na. 7 la 2020, literally meaning Civil Case No. 7 of 2020. At the end of trial, the court granted the petition having found that the marriage had been broken down irreparably. Consequently, it dissolved, followed by consequential orders relating to custody of children, maintenance and division of matrimonial assets. Despite the fact that the trial ended in favour of the appellant, he was dissatisfied and he preferred an appeal to the District Court of Urambo at Urambo, armed with four grounds. In effect, they were only two grounds namely; want of jurisdiction of the trial court to entertain the petition for divorce in the absence of certificate from the Marriage Conciliation Board, and dissatisfaction on the division of the matrimonial assets. The District Magistrate Court did not consider the issue of jurisdiction of the trial court due to absence of the certificate from the Marriage Conciliation Board. It proceeded to uphold the judgment and orders made by the trial court, save for the order to sell the matrimonial house and equal division of the proceeds between them. Instead, it ordered compensation to the 2 respondent in the sum of TZS. 3,000,000.00 for reasons which are not apparent from the record. Dissatisfied with the order of compensation, the respondent successfully appealed to the High Court in PC. Civil Appeal No. 4 of 2021 with one ground on compensation. She pressed for equal division of the value of their matrimonial house. The learned second appellate judge set aside the order for monetary compensation made by the first appellate court and upheld the decision of the trial court with an order that the matrimonial house be sold and its proceeds equally divided between the parties. That decision aggrieved the appellant, hence the instant appeal. At the hearing of this appeal, the appellant was represented by Mr. Saikon Justin Nokoren, learned advocate. The respondent appeared in person, unrepresented. In arguing the appeal, the learned advocate prayed to abandon the second ground and submit on the first ground in relation to the jurisdiction of the trial court in the absence of a certificate from the Marriage Conciliation Board. Mr. Nokoren briefly argued that, it is a mandatory legal requirement in section 101 of the Law of Marriage Act that a petition for divorce must be accompanied with a certificate from the Marriage Conciliation Board, failure of 3 which, renders the petition incompetent. He buttressed his argument by the Court's decision in the case of Jackline Hamson Ghikas v. Mlatie Richie Assey (Civil Appeal No. 567 of 2022) [2024] TZCA 366 TANZLII (16 May 2024). He insisted that, the petition for divorce filed before the trial court was not accompanied with a valid certificate from the Marriage Conciliation Board which rendered the whole proceedings and judgments of subordinate courts a nullity. He urged the Court to declare them such, and let the parties to follow the laid down legal procedures in their endeavour. Resisting the appeal, the respondent had nothing to contest save that the two are no longer husband and wife, since the appellant had another woman since August 2021 and therefore, she asked the Court to consider the circumstances prevailing in their estranged marriage and the rationale of going to start it all over. She thus urged the Court to do justice to her. From the submission of both parties, we agree with the learned counsel on the mandatory requirement for attaching a valid certificate from the Marriage Conciliation Board for dissolution of marriage under section 101 of the Act. On the other hand, section 106 (2) of the Act, provides for a mandatory procedure to be followed prior to petitioning for divorce. The sub­ section provides: 4 106 (2) "Every petition for a decree o f divorce sh a ll be accom panied by a certificate by a Board, issued not more that six months before the filin g o f the petition in accordance with subsection (5) o f section 104. Provided that, such certificate sh all not be required in cases to which the proviso to section 101 applies". The above sections are couched in mandatory terms that whoever intends to petition for divorce must have a certificate from the Board. The word 'Board' is defined in section 2 of the Act to mean a Marriage Conciliation Board established under the provisions of section 102 of the Act. The crux of the matter in this appeal is whether the petition for divorce before Urambo Urban Primary Court was accompanied with a valid certificate from the Board. It is plain from the record that the petition was accompanied by a letter dated 8th January 2020 bearing a title: "SHAURI LA VITUS RUPECHE DHIDI YA MKE WAKE VUMILIA MWAKILASA KUHUSU MGOGORO WA NDOA"which literally mean the marriage dispute between Vitus Rupeche, the appellant and his wife Vumilia Mwakilasa, the respondent. The letter was written and signed by one Hamisi I. Hamisi, a Social Welfare Officer for Urambo District Council. The contents of the letter sounded as if it originated from the Marriage Conciliation Board which was not the case. Based on the said letter, the petition for divorce was instituted and determined as alluded to above. Although one of the grounds of appeal before the first appellate court faulted the trial court's decision for lack of 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; Jackline Hamson Ghikas v. Mlatie Richie Assey (supra); Abdailah Hamis Kiba v. Ashura Masatu, (Civil Appeal No. 465 of 2020) [2022] TZCA 335 TANZLII (14th June 2022); Hassani ally Sandali v. Asha Ally (Civil Appeal 246 of 2019) [2020] TZCA 14 TANZLII (24th February 2020). The Court has consistently held that, any petition for divorce instituted in a court of law without being accompanied by a valid certificate from the Marriage Conciliation Board in terms of section 101 of the Act is incomplete, premature and incompetent. See: Shillo Mzee v. Fatuma Ahmed [1984) T.L.R. 112. The petition before the trial court pertaining to the parties' case was not based on the exceptions listed under the proviso to section 101 of the Act. Therefore, it required the petition for divorce to have been accompanied with a valid certificate from the Marriage Conciliation Board. Since the letter from the Social Welfare Office was not a certificate recognized by law, it was not sufficient to confer jurisdiction to the primary court to determine the petition. We say so because the Social Welfare Office is not among the known Marriage Conciliation Boards established under section 102 of the Act. The second appellate court determined the appeal without regard to that anomaly presumably because it was not raised as one of the grounds of appeal. The District Court and the High Court being the first and second appellate courts ought to have addressed themselves on such glaring illegality and made a decision thereon. See: Marwa Mahende v. Republic [1998] T.L.R. 249 and Tryphone Elias @ Ryphone Elias & Another v. Majaliwa Daudi Mayaya (Civil Appeal No. 186 of 2017) [2017] TZCA 200 TANZLII (8 December 2017) for the proposition that superior courts have a duty to ensure a proper application of the law and we stress that this duty was not performed by the two appellate courts. In view of the above discussion, the trial court acted without jurisdiction. We therefore find no alternative but to nullify the whole proceedings, judgments and orders made by the trial court as well as the first and second appellate courts as they stemmed from illegal assumption of jurisdiction by the trial court on account of absence of a valid certificate from a Marriage Conciliation Board. 7 In the final analysis, we allow the appeal. It being originated from a matrimonial cause, we make no order as to costs. Parties are at liberty to pursue the cause by following the laid down statutory procedures. DATED at TABORA this 13th day of June, 2024. L. J. S. MWAMBAMBO JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Judgment delivered this 13th day of June, 2024 in the presence of Saikon Nokoren, learned counsel for the Appellant, and the Respondent who appeared in person, is hereby certified as a true copy of the original. J. J. KAMALA DEPUTY REGISTRAR COURT OF APPEAL 8