Domina Calist vs Msangi Hemed Msangi (Civil Appeal No. 197 of 2022) [2024] TZCA 1236 (10 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORUM: KEREFU, J.A., MWAMPASHI. 3.A. And FELESHI. J.A.^ CIVIL APPEAL NO. 197 of 2022 DOMINA CALIST............................................................................. APPELLANT VERSUS MSANGI HEMED MSANGI .......................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mwanza) (Mqevekwa. 3.) dated the 14th day of June, 2020 in Matrimonial Appeal No. 5 of 2020 JUDGMENT OF THE COURT 4 h Decem ber & 10th December, 2024 FELESHI. J.A.: Domina Calist, the appellant herein is challenging the decision of the Hight Court of Tanzania at Mwanza in Matrimonial Appeal No. 5 of 2020. The appeal originated in Mkuyuni Primary Court (the trial court) in Matrimonial Cause No. 27 of 2020. In that case, the respondent, Msangi Hemed Msangi, petitioned for: a decree of divorce, distribution of matrimonial properties and custody of a child. 1

To recapitulate what brought into existence of the matter, we glean from the record of appeal that, the respondent lived with the appellant as husband and wife in an alleged customary marriage since 2015. They were blessed with one issue. According to the respondent, they jointly build a house situated at Buhongwa within Mwanza City. However, in 2020, the union became sour to the respondent who accused the appellant of infidelity, that, she had love affairs with other men. As a result, the respondent petitioned for a decree of divorce and other reliefs as stated herein above. On her part, the appellant disputed to have been customarily married to the respondent. It was her position that, they just cohabited together from 2014. She however admitted having been blessed with one issue with the respondent. She stated further that, she bought a plot and constructed a house with a minimal contribution she received from the respondent. Having heard the parties' evidence and their respective witnesses, the trial court found that, there was a customary marriage between the parties. It also found the marriage was irreparably broken down. It distributed the matrimonial property (the house) of which the appellant's share was equal to 20%. The appellant was also given the custody of 2

the solo issue, while the respondent was ordered to pay Tshs. 50,000 per month for the maintenance of that issue. Aggrieved by the decision, the appellant appealed to the District Court of Mwanza vide Matrimonial Appeal No. 14 of 2020 challenging the trial court's findings and the distribution of the matrimonial property. Having considered the evidence on record, the District Court found there was no customary marriage existed between the parties. Therefore, it nullified the trial Court's decision and ordered trial de novo. The respondent was aggrieved by the decision of the first appellate court. He thus appealed to the High Court which, after considering it and revisiting the evidence on record, it allowed it, quashed the District Court's decision and restored the trial court's decision. That decision dissatisfied the appellant who chose to file her appeal to this Court founded on the following four grounds of appeal: -

1. That the appellate Judge o f the High Court grossly erred in law by entering a judgem ent in favour o f the respondent by confirm ing the decision o f the tria l court Makuyuni Prim ary Court, while there was no m arriage between the parties o f any sort.
2. That the High Court erred in law and in fact to entertain an appeal by ignoring the fact that there was no valid certificate from 3

M arriage Conciliation Board that was exhibited by the respondent in the tria l court. 3. That the High Court erred in law and in fact to upheld (sic) the decision o f the tria l court while there was conflicting piece o f evidence, a contract o f purchase o f land by the parties without calling an independent witness (sic). 4. That the High Court erred in law and fact fo r failure to analyze evidences (sic) properly as the appellant contributed higher than the respondent in acquisition o f the m atrim onial assets. When the appeal was called on for hearing, the appellant was represented by Mr. Akram Adam, learned advocate, while the respondent was represented by Mr. Innocent Michael Nganga, learned advocate. When was invited to submit for the appeal, Mr. Adam had two supplementary grounds of appeal. One of them was that the second and first appellate courts erred in law and fact for failure to consider that the trial court had no jurisdiction for want of certificate from the Marriage Conciliation Board (the Board). We pose here so as to first determine this ground. This is because, it may render the appeal resolved to its conclusion without going to the other grounds of appeal. 4

On that respective ground of appeal, Mr. Adam submitted that the High Court (second appellate court) and the District Court (first appellate Court) acted on nullity proceedings of the trial court. Therefore, their decisions were also a nullity. According to him, the law per section 101 of the Law of Marriage Act, Chapter 29 (the Act) requires a party before instituting a petition of divorce to the Primary Court to refer a dispute to the Board. Also, that section 106 of the same Act, prohibits the Primary Court to entertain matrimonial disputes in the absence of a certificate from the Board. Mr. Adam went on to submit that, there is no certificate of the Board on the record nor any statement about the dispute having been referred to the Board. To substantiate his argument, he referred us to our decision in Patrick William Magubo vs Lilian Peter Kitali (Civil Appeal No. 41 of 2019) [2022] TZCA 441 (18 July 2022). He thus, urged the Court to allow the appeal, nullify the proceedings, the judgment and order of the trial court, and in the subsequent appeals. Then, order any interested party to reinstitute the matter after following the law. He also prayed for costs. On his part, Mr. Nganga conceded to the ground and the prayers made thereon. However, he resisted the prayer for costs. In rejoinder, 5

Mr. Adam, upon further reflection, he parted with his prayer for costs as the matter is matrimonial. We have considered the ground of appeal at hand, and the submissions by the parties. We have also considered the record of appeal and the law. The issue for our determination is, whether in the absence of a certificate from the Board the trial court was vested with jurisdiction to hear and determine the matrimonial dispute. We are of the view that, as concisely argued by Mr. Adam and then conceded to by Mr. Nganga, the law is clear that section 101 of the Act imposes a mandatory requirement for petitions for divorce to be referred to the Board prior to being filed in courts. The section reads: "No person sh all petition fo r divorce unless he or she has first referred the m atrim onial d ifficu lty to a Board, and the Board has certified that it has failed to reconcile the parties". It is also the requirement of the law per section 106 (2) of the same Act that no petition for a decree of divorce can be instituted without being accompanied by a valid Board's certificate. Validity here underscores that it should be issued by the competent Board and not more than six months before filing of the petition. The section reads: 6

"106(2) Every petition fo r 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...". Indeed, this Court in Patrick William Magubo vs Lilian Peter Kitali (supra) observed the consequences of non-compliance with the law. We had also given the same position in the case of Hassan Ally Mwandali v. Asha Ally, Civil Appeal No. 246 of 2019, (unreported) where we underscored that: "We 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 Act. 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 Act. 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. That m eans that com pliance with section 101 o f the A ct is m andatory except where there is evidence o f existence o f extra ordinary circum stances m aking it im practicable to refer a dispute to the 7

Board as provided fo r under section 101(f) o f the Act. 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". In view of the foregoing, we find it clear that, the counsel's submissions which are in conformity with the record of appeal we have keenly perused prove that the parties did not adhere to the mandatory procedures laid by the Act before instituting the matrimonial dispute under consideration. The dispute was never referred to the Board. Therefore, after hearing the counsel and reviewed the law and Court's decision above, we are contented that the proceedings and judgments of the trial court and of the first and second appellate courts respectively, were a nullity. We also confirm that the attendant effect of the omission is to nullify the proceedings and judgment of the trial court and those in the first and second appellate courts. In the end, we allow the appeal based on this sole ground of appeal. We also nullify the proceedings, judgment, and the resultant orders of the trial court and those of the District Court and the High 8

Court. A party still interested to litigate over the matrimonial dispute may only do so but guided by the relevant law. DATED at MWANZA this 10th day of December, 2024. A. M. MWAMPASHI JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered this 10th day of December, 2024 in the presence of Mr. Akram Adam, learned counsel for the Appellant and also holding brief for Mr. Michael Innocent, learned counsel for the Respondent, is hereby certified as a true copy of the original. R. J. KEREFU JUSTICE OF APPEAL