Anita Adam Matinya vs Charles Alex Shauri (Civil Appeal No. 1503 of 2024) [2026] TZCA 546 (11 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MKUYE. J.A.. FELESHI. J.A. And NANGELA, J.A.^ CIVIL APPEAL NO. 1503 OF 2024 ANITA ADAM MATINYA...............................................................APPELLANT VERSUS CHARLES ALEX SHAURI .......................................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Mbeya) (Nonqwa, J.^ dated the 20th day of June, 2024 in PC. Matrimonial Appeal No. 28469 of 2023 JUDGMENT OF THE COURT 4th & 11th May, 2026 FELESHI, 3.A.: This is a third appeal. Anita Adam Matinya (the appellant) continues to challenge the distribution of matrimonial assets allegedly acquired through the joint efforts of herself and Charles Alex Shauri (the respondent) during the subsistence of their marriage, as distributed by the High Court and the two lower courts. The facts giving rise to this appeal are not complex. The appellant and the respondent contracted a Christian marriage at the Catholic Church in Mbeya Urban in 2013. They were blessed with three children,

one son and two daughters. During the marriage, the parties engaged in business activities and managed to build a house. According to the appellant, marital problems began after they moved into the new house, as the parties started accusing each other of superstition. The appellant alleged that the respondent engaged in witchcraft, which disturbed her during the night. On the other hand, the respondent accused the appellant of believing in superstition, consulting witch doctors, and spending substantial amounts of money on such practices. As a result of these disputes, the appellant, in 2023, filed a petition for a decree of divorce and division of matrimonial property in Matrimonial Cause No. 34 of 2023 before the Uyole Primary Court (the trial court). After hearing both parties, the trial court found that the marriage had irretrievably broken down and consequently issued a decree of divorce. Regarding the matrimonial properties, the trial court found that the respondent had made the greater contribution towards its acquisition. It identified the matrimonial assets as a shop located at Sokoine, Mbeya, and the matrimonial home. The appellant was awarded the shop at Sokoine, while the respondent retained the matrimonial home. Custody of the children was granted to the appellant. The trial

court also ordered the respondent to provide all necessary support for the children, including maintenance in the sum of TZS. 100,000.00 per month. Being dissatisfied with that decision, the appellant unsuccessfully appealed to the District Court of Mbeya in Matrimonial Appeal No. 18 of 2023. The District Court upheld the findings of the trial court, save for the maintenance award, which it enhanced to TZS. 150,000.00 per month. Still aggrieved, the appellant lodged a second appeal in the High Court through PC Matrimonial Appeal No. 28469 of 2023. The appeal was heard by way of written submissions. Apart from the grounds of appeal, the appellant raised, in her rejoinder submissions, an issue challenging the jurisdiction of the trial court. The High Court declined to entertain the issue on the ground that it was being raised for the first time>in the rejoinder submissions, thereby denying the respondent an opportunity to respond. On the merits, the High Court upheld the decisions of the two lower courts and dismissed the appeal. Still dissatisfied, the appellant has preferred this appeal on four grounds which can be summarized that: one, the first and second appellate courts erred in law and fact in finding that the respondent substantially participated in the construction and acquisition of the

matrimonial house; two, the High Court erred in law and fact in holding that rule 38 of the Matrimonial Proceedings Rules barred the raising of a new issue not contained in the memorandum of appeal without leave of the court, despite the fact that the issue raised was a point of law capable of being raised at any stage of the proceedings; three, the High Court wrongly treated the list of alleged matrimonial properties as a new matter, whereas the record allegedly showed that those properties had already been mentioned in the application filed before the trial court; and four, the High Court failed to consider that her inability to properly recall or present the full list of matrimonial properties before the subordinate courts resulted from her lack of legal knowledge and the fact that she was an unrepresented layperson. At the hearing of the appeal, both parties appeared in person, unrepresented by counsel, and were ready to proceed. They also invited the Court to have regard to the written submissions they had filed in accordance with rule 106 (1) and (7) of the Tanzania Court of Appeal Rules, 2009. When invited to argue for and against the grounds of appeal, both parties substantially reiterated the contents of their adopted written submissions together with the respective prayers sought therein.

Having heard the parties and found the second ground of appeal specifically raised the issue of lack of jurisdiction on the part of the trial court and was not determined by the High Court, we considered it necessary also to invite the parties to address us on another related jurisdictional issue, namely, whether a certificate from the Marriage Conciliation Board certifying that reconciliation between the parties had failed was ever obtained and presented before the trial court so as to properly invoke its jurisdiction. We deemed it necessary to raise this issue suo motu because the record of appeal is conspicuously silent on the matter. In response, both parties admitted that neither the record of appeal nor the proceedings of the trial court contained such a certificate. The appellant, however, stated that she had attended the Conciliation Board proceedings and had been issued with a certificate, which she allegedly submitted to the trial court clerk before the matter was registered. In view of the foregoing and guided by the longstanding established practice that, where both points of law and fact arise in an appeal, a court ought, in the first instance, to determine the points of law before addressing factual issues, we shall accordingly first dispose of the second ground of appeal and the issue concerning the Marriage

Conciliation Board certificate, both of which ultimately raise the question whether the trial court had jurisdiction to entertain and determine Matrimonial Cause No. 34 of 2023, before considering, if need be, the 1st, 3rdand 4th grounds of appeal. On the second ground of appeal, that the High Court erred in law when it held that raising a new issue not contained in the memorandum of appeal, without first obtaining leave of the court, was fatal, notwithstanding that the issue raised was a point of law capable of being raised at any stage, the appellant submitted that although the issue concerning the jurisdiction of the trial court was being raised for the first time, it was nonetheless a pure point of law which the High Court was duty-bound to determine, since the law permits such issues to be raised at any stage of the proceedings. In reply, the respondent opposed the second ground of appeal, contending that the High Court correctly rejected the issue because it had been improperly raised in the rejoinder submissions without leave of the court. He further argued that, since it was the appellant who instituted the proceedings in the Primary Court, she could not later challenge its jurisdiction. The respondent also maintained that, even if the High Court had entertained the issue, the ground lacked merit because the trial court had jurisdiction to determine matrimonial

proceedings pursuant to section 18 (1) (b) of the Magistrates Courts Act, Chapter 11. For our part, we are of the considered view that, the second ground of appeal may conveniently be resolved through the question whether the High Court erred in law in declining to determine the issue of jurisdiction merely because it had been raised during the rejoinder submissions. Indeed, at pages 77-78 of the record of appeal, the High Court acknowledged that the appellant had raised the issue of the trial court's jurisdiction. However, it declined to determine the issue principally on the grounds that: first, it constituted a new ground not contained in the memorandum of appeal; secondly, it had been raised without leave of the court contrary to rule 38 of the Law of Marriage (Matrimonial Proceedings) Rules, 1971 (G.N. No. 136 of 1971); thirdly, parties are bound by their pleadings and, in appellate proceedings, the memorandum of appeal constitutes the pleading; and lastly, entertaining the issue at that stage would deny the respondent an opportunity to respond, thereby curtailing his right to be heard. At the outset, we wish to state that the principles relied upon by the learned High Court Judge, as set out above, are correct principles of law, and we fully endorse them. However, in our considered view, every

general rule admits exceptions. One such exception to the general rule that courts should not determine issues not raised before or determined by lower courts, and that parties are bound by their pleadings, arises where the issue concerns a pure point of law, particularly a question of jurisdiction. Such an issue may be raised at any stage of the proceedings, including during submissions or even by the court on its own motion, provided that the parties are afforded an opportunity to be heard on it. In R.S.A. Limited v. Hanspaul Automechs Limited & Another [2021] TZCA 96, this Court dealt with a situation where an issue of jurisdiction, though not pleaded or supported by evidence during trial, was raised during final submissions. The Court held that the trial court was under a duty to invite the opposing party to respond before rendering its decision. The Court stated: "Thus, since the jurisdiction to adjudicate any m atter is a creature o f statute, an objection in that regard is a point o f law and it can be raised a t any stage. In o u r co n sid e re d o p in io n , it w as n o t o ffe n siv e on th e p a rt o f th e re sp o n d e n ts to ra is e it in th e fin a l su b m issio n s w hich w as a fte r th e d o se o f th e h e a rin g . A s su ch , it w as in cu m b e n t on th e p a rt o f th e ie a rn e d tr ia l ju d g e to re -

sum m on a n d h e a r th e p a r t ie s [Emphasis supplied] In the present matter, it is not disputed that the appellant raised the issue of jurisdiction during her rejoinder submissions. In those circumstances, we find that the learned High Court Judge ought to have re-summoned the respondent, whose right of reply had already lapsed, and afforded him an opportunity to respond to the jurisdictional issue, even if, in the Judge's opinion, the issue ultimately lacked merit. Moreover, had the learned Judge properly considered the proviso under rule 38 (b) of G.N. No. 136 of 1971, he would have appreciated that the law expressly permits the court to determine issues not contained in the memorandum of appeal, provided the parties are first afforded an opportunity to be heard. The rule provides: "38 (b)...in determ ining any appeal, th e c o u rt s h a ll n o t b e co n fin e d to th e g ro u n d s o f o b je ctio n ra is e d in th e m em orandum o f a p p e a l b u t m ay, a fte r g iv in g th e p a rtie s an o p p o rtu n ity o f b e in g h e a rd th ereu p o n , decide the appeal on any ground not raised in the memorandum o f appeai;"[Er(\phas\s added] It is therefore our firm view that the High Court fell into error when it declined to entertain the appellant's jurisdictional objection solely because it had been raised in the rejoinder submissions. 9

Having said so, we would ordinarily proceed to determine the effect of that error and the appropriate remedy. However, in light of the other legal issue earlier identified by this Court suo motu, we consider it appropriate to first resolve it before addressing the consequences flowing from our determination of this ground of appeal. The said legal issue is specifically on whether the trial court had jurisdiction to determine the appellant's petition in the absence of the certificate from the Marriage Conciliation Board. As we have hinted above, both parties admitted that neither the record of appeal nor the trial court proceedings shows the presence of Form No. 3 which is the required certificate certifying that the conciliation board failed to reconcile the parties. We begin our deliberation by reiterating the settled principle that a court's jurisdiction is a creature of statute, and every court or tribunal must satisfy itself of its jurisdiction before entertaining the merits of any matter before it. In Tanzania Electric Supply Company (TANESCO) v. Independent Power Tanzania Ltd (IPTL) and Two Others [2000] T.L.R. 324, we reiterated that where a statute prescribes mandatory procedural requirements before the institution of proceedings, courts are bound to enforce such requirements. 10

In matrimonial matters, the Law of Marriage Act, Chapter 29 (the Act), mandatorily requires a petition for divorce to be preceded by a certificate from the Marriage Conciliation Board confirming that reconciliation efforts have failed. Section 101 of the Act provides: "A person sh all not petition fo r divorce unless he o r she has first referred the m atrim onial dispute o r m atter to the Board and the Board has certified that, it has failed to reconcile the parties " Further, section 106 (2) of the same Act requires that every petition for a decree of divorce must be accompanied by a valid certificate issued by the Board. The certificate must be issued by a competent Board within not more than six months before the filing of the petition. The section provides: "106 (2) Every petition for a decree o f divorce sh all be accom panied by a certificate by a Board, issued not more than six m onths before the filin g o f the petition ..." This Court, in Patrick William Magubo v. Lilian Peter Kitali [2022] TZCA 441, discussed the consequences of non-compliance with the above provisions. Similar emphasis was made in Hassani Ally Sandali v. Asha Ally [2020] TZCA 14, where the Court held: ii

1 W e sh all begin with the obvious. A s seen above, the Prim ary court dissolved the m arriage between the appellant and the respondent on the basis o f section 107 (3) o f the A ct However, the granting o f the divorce under section 107 (3) o f the A ct was not an end in itself. It was subject to com pliance with section 101 o f the A ct That section prohibits the institution o f a petition fo r divorce unless a m atrim onial dispute has been referred to the Board and such Board certifying that it has failed to reconcile the parties. T h at m eans th a t co m p lia n ce w ith se ctio n 101 o f th e A c t is m a n d ato ry e x ce p t w here th e re is e vid e n ce o f e x iste n ce o f e x tra o rd in a ry circu m sta n ce s m akin g it im p ra ctica b le to re fe r a d isp u te to th e B o a rd a s p ro v id e d fo r u n d e r se ctio n 101 (f) o f th e A ct. However, there is no indication o f any extra ordinary circum stances in this appeal which could have attracted dispensing with reference o f the m atrim onial dispute to the Board." [Emphasis supplied.] As can be gathered from the law stated above, the requirement for a reconciliation proceedings certificate issued through Form No. 3 prescribed under the Marriage Conciliation Boards (Procedure) Regulations, 1971, G.N. No. 240 of 1971 may only be dispensed with 12

under the circumstances provided under paragraphs (a) to (f) of the proviso to section 101 of the Act. In the present matter, and as admitted by both parties, the record of appeal and the proceedings of the trial court are completely silent on the existence of a certificate from the Marriage Conciliation Board certifying that reconciliation efforts had failed, as required by law. Furthermore, there is no evidence in the proceedings of the trial court showing the existence of any extraordinary circumstances that would justify exemption from compliance with section 101 of the Act. The appellant's oral assertion that she attended the Board and was issued with a certificate is unsupported by the record. We therefore conclude that, as no certificate was presented before the petition was filed in the trial court, the entire proceedings therein, together with the resultant judgment, decree and orders, as well as the proceedings, judgments, decrees and orders before the appellate courts, are a nullity. In the circumstances, the need for us to pronounce ourselves on the second ground of appeal has been rendered futile. For the same reason, we find it unnecessary to address the remaining grounds of appeal. In the circumstances, we invoke our revisional powers under section 6 (2) of the Appellate Jurisdiction Act, Chapter 141, and hereby 13

nullify, quash, and set aside the proceedings, judgments, and consequential orders of all three courts, namely the Uyole Primary Court, the Mbeya District Court, and the High Court. Any interested party is at liberty to file a fresh petition in accordance with the law. We make no order as to costs. DATED at MBEYA on this 11th day of May, 2026. R. K. MKUYE JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL Judgment delivered this 11th day of May, 2026 in the presence of Ms. Anita Adam Matinya, learned Counsel for the Appellant, Mr. Charles Alex Shauri, learned Counsel for the Respondent and Mr. Elias Nkwabi, Court clerk, is hereby certified as a true copy of the original. D. P. KINYWAFU DEPUTY REGISTRAR COURT OF APPEAL 14