Mabula Sayi vs Kalekwa Malahya (Civil Appeal No. 195 of 2022) [2024] TZCA 1235 (10 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: KEREFU. J.A.. MWAMPASHI. J.A.. And FELESHI. J.A.^ CIVIL APPEAL NO. 195 OF 2022 MABULA SAYI.................................................................................... APPELLANT VERSUS KALEKWA MALAHYA ........................................... .......................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Mwanza) (Rumanvika. J.) dated the 31s t day May, 2021 in PC Matrimonial Appeal No. 08 of 2021 JUDGMENT OF THE COURT 4h & lCfh December, 2024 KEREFU, J.A.: This is a third appeal from the decision of Misungwi Primary Court in Matrimonial Cause No. 16 of 2019. In that case, the respondent herein, petitioned to the trial court claiming for reliefs of divorce, division of matrimonial properties, custody and maintenance of the four issues of the marriage. The material facts of the matter obtained from the record of appeal giving rise to the present appeal indicate that, the respondent alleged that, she cohabitated with the appellant as husband and wife since 2007 i

to July, 2016 when they separated. That, out of the said relationship they were blessed with four issues and have also acquired several properties including, farms, houses, tractors, buses, canter, colour spraying machine, Bajaj, ten cows and a total of TZS. 10,000,000.00. The respondent stated further that, their relationship went on well until July, 2016, when the appellant deserted her together with the issues of the marriage. That, all efforts to settle the dispute between them through amicable means by involving family relatives and the Marriage Conciliation Board had proved futile. As such, the respondent decided to petition for divorce as indicated above. On his part, the appellant did not dispute the fact that he cohabited with the respondent, but he vehemently challenged the division of the alleged assets as he contended that all properties were acquired by him from his own sources of income with the assistance of his other two wives. He also stated that they were only blessed with one issue as the respondent came to him with her other children. He therefore only admitted one child among the four children listed by the respondent. Having heard the parties with their respective witnesses, although, the trial court found that there was no legal recognized marriage between the parties, it proceeded with the division of the alleged matrimonial 2

assets and granted 30% of the value of the appellant's shares in Mabula and Brothers Co. Ltd and one house to the respondent. Then, the appellant was ordered to provide maintenance for the issues he got together with the respondent. Aggrieved, the respondent unsuccessfully appealed to the District Court of Misungwi. Still dissatisfied, the respondent appealed to the High Court armed with three grounds mainly challenging the jurisdiction of the trial court to have entertain a matrimonial dispute while the parties have not contracted either customary nor Islamic marriage. The respondent also challenged the division of the alleged matrimonial assets. Having heard the appeal, the High Court (Rumanyika, J. as he was then), confirmed the decree of divorce and awarded the respondent the following reliefs: (i) 30% o f the value o f the appellant's shares in Mabula and Brothers Co. Ltd; (ii) A house located at Misungwi along Mwanza/Shinyanga road; (Hi) Eight (8) acres o f shamba situated at Geita; (iv) TZS 200,000.000.00 as monthly maintenance for the issues of the marriage; (v) Custody o f the children; and 3

(vi) TZS 50,000.00 as monthly maintenance for the respondent until she remarries. The above decision of the High Court prompted the appellant to lodge the current appeal to express his dissatisfaction. In the memorandum of appeal, the appellant has raised eight (8) grounds of complaint. However, for reasons which will be apparent shortly, we do not deem it appropriate, for the purpose of this judgment, to reproduce them herein. At the hearing of the appeal, the appellant was represented by Messrs. Mathias Mashauri and Mathew Nkanda, both learned counsel whereas the respondent had the services of Mr. Linus Amri, also learned counsel. It is noteworthy that, in compliance with Rule 106 (1) and (7) of the Tanzania Court of Appeal Rules, 2009, both learned counsel for the parties had earlier on lodged their respective written submissions in support of and in opposition to the appeal. At the outset, and before we could embark on the hearing of the appeal, Mr. Mashauri sought and obtained leave to add the following ground of appeal: "That, the second appellate court erred in law and facts for determining the appeal without

considering that the trial court did not have the requisite jurisdiction to entertain the matrimonial dispute for failure by the respondent to comply with the mandatory requirement o f the law as the certificate from the Reconciliation Board was not tendered before the trial court as an exhibit to form part o f the trial court's proceedings". On taking the stage, Mr. Mashauri intimated that he will start to argue the above additional ground which touches on a procedural irregularity. Submitting in support of that ground, Mr. Mashauri faulted the second appellate court for failure to observe that the trial court was not vested with the requisite jurisdiction to entertain the matrimonial dispute between the parties. He argued that, pursuant to section 101 of the Law of Marriage Act, Cap. 29 (the Law of Marriage Act), for a petition of divorce to be entertained by a court, a matrimonial dispute between the parties should first be referred to a Marriage Conciliation Board and such Board must certify that it had failed to reconcile the parties. It was the argument of Mr. Mashauri that, during the trial, there was no any certificate from the Marriage Conciliation Board tendered by the parties to prove that the said requirement was complied with.

To clarify further on this point, Mr. Mashauri referred us to page 1 of the record of appeal, on the petition of divorce where the respondent alleged that the matrimonial dispute was referred to the Marriage Conciliation Board and purported to attach the said certificate as annexure thereto. He argued that the said annexture was never tendered in evidence as an exhibit to form part of the record of the trial court's proceedings. He also referred us to page 24 of the same record and argued that, even in her testimony during the trial, apart from stating that she had referred the dispute to the Marriage Conciliation Board, the respondent did not tender a certificate from the said Board to substantiate her evidence. It was the argument of Mr. Mashauri that, since there was no any certificate from the Marriage Conciliation Board, the trial court did not have jurisdiction to entertain the matrimonial dispute between the parties. The learned counsel also faulted the learned trial Magistrate by erroneously indicating in his judgment at page 128 of the record of appeal that, the matrimonial dispute between the parties was subjected to the Marriage Conciliation Board while the certificate from the said Board was not tendered and admitted in evidence as an exhibit. He emphasized that, since the trial court did not have the requisite jurisdiction to entertain the 6

matrimonial dispute which was before it, then, the entire proceedings of the trial court and the resultant judgment are a nullity. On that account, Mr. Mashauri urged us to nullify the aforesaid proceedings and its decision together with the subsequent proceedings before the first and second appellate courts. Finally, and on the strength of his submission, he urged us to allow the appeal. In response, at the outset, Mr. Amri informed the Court that he was supporting the appeal on the additional ground of appeal, as indeed, there was no evidence tendered before the trial court to prove that the parties have subjected their matrimonial dispute to the Marriage Conciliation Board before approaching the trial court. He thus associated himself with the submission made by his learned friend and also insisted that, since there was no compliance with the mandatory requirement of section 101 of the Law of Marriage Act, the trial court was not vested with the requisite jurisdiction to entertain the matrimonial dispute between the parties. To support his proposition, he cited the case of Patrick William Magubo v. Lilian Peter Kitali, Civil Appeal No. 41 of 2019 [2022] TZCA 441: [18 July 2022: TanzLII] and also urged us to nullify the aforesaid proceedings and its decision together with the subsequent proceedings before the first and the second appellate courts. Going forward, Mr. Amri 7

argued that, if parties are still interested to pursue their rights, should be directed to comply with the requirement of the law. Having carefully considered the arguments by the learned counsel for the parties, there is no doubt that the additional second ground of appeal raised an issue of jurisdiction of the trial court to entertain the matter. Since this is a crucial issue and is a point of law, we find it appropriate to start with it. It is common ground that jurisdiction of courts is a creature of statute and is conferred and prescribed by the law and not otherwise. The term " Jurisdictiorl' is defined in Halsbury's Laws of England, Vol. 10, paragraph 314 to mean: "...the authority which a court has to decide matters that are litigated before it or to take cognizance o f matters prescribed in a formal way for its decision. The limits o f this authority are imposed by the statute; charter or commission under which the court is constituted, and may be extended or restrained by similar means. A limitation may be either as to the kind and nature o f the claim, or as to the area which jurisdiction extended or it may partake o f both these characteristics". 8

[Emphasis added]. From the above extract and considering the fact that jurisdiction of courts is conferred and prescribed by law, it is therefore a primary duty of every court, before venturing into a determination of any matter before it, to first satisfy itself that it is vested with the requisite jurisdiction to do so. In the instant appeal, as correctly argued by both learned counsel for the parties, the dispute which was submitted before the trial court was a matrimonial dispute in nature. Jurisdiction of the Primary Court in matrimonial proceedings derives from two pieces of legislation, namely the Magistrates' Courts Act, Cap. 11 of the revised laws (the MCA) and the Law of Marriage Act. Section 18 (1) of the MCA gives power to the Primary Court to determine matrimonial proceedings. The said section provides that: "18 (1) A primary court shall have and exercise jurisdiction - (a) In all proceedings o f a civil nature - (i) where the law applicable is customary law or Islamic law: Provided that no primary court shall have jurisdiction in any proceedings o f a civil nature relating to land; (ii) NA (Hi) NA 9

(b) In all matrimonial proceedings in the manner prescribed under the Law o f Marriage Act". In addition, section 76 of the same law vest concurrent jurisdiction in matrimonial proceedings to the Primary, District and High Courts. The said section states that: "Original jurisdiction in matrimonial proceedings shall be vested concurrently in the High Court, a court o f a resident magistrate, a district court and a primary court" In terms of the above provisions, there is no doubt that the Primary Court, the District Court and the High Court all have original jurisdiction to entertain a matrimonial proceeding. However, and as eloquently submitted by both learned counsel for the parties, for a petition for divorce to be entertained by any court, a matrimonial dispute should first be referred to a Marriage Conciliation Board and such Board certify that it had failed to reconcile the parties. This is in terms of section 101 of the Law of Marriage Act which provides categorically that: "101. No person shall petition for divorce unless he or she has first referred the matrimonial dispute or matter to a Board and the Board has certified that it has failed to reconcile the parties: 10

Provided that this requirement shall not apply in any case- (a) where the petitioner alleges that he or she has been deserted by, and does not know the whereabouts of, his or her spouse; (b) where the respondent is residing outside Tanzania and it is unlikely that he or she will enter the jurisdiction within the six months next ensuing after the date o f the petition; (c) where the respondent has been required to appear before the Board and has willfully failed to attend; (d) where the respondent is imprisoned for life or for a term o f at least five years or is detained under the Preventive Detention Act and has been so detained for a period exceeding six months; (e) where the petitioner alleges that the respondent is suffering from an incurable mental illness; (f) where the court is satisfied that there are extraordinary circumstances which make reference to the Board impracticable". By the use of the word 'shall, the above provision implies that, compliance with section 101 above is mandatory except where there is 11

evidence of existence of extraordinary circumstances making it impracticable for the parties to refer their dispute to the Board. This requirement is further reinforced by section 106 (2) of the same Act, which states in mandatory terms that: - "Every petition for a decree o f divorce shall be accompanied by a certificate by a Board, issued not more that six months before the filing o f the petition...". Now, in the instant appeal, it is on record that there was no certificate from the Marriage Conciliation Board which was tendered and admitted in evidence before the trial court to prove that parties have complied with the mandatory requirement of the above provisions. Luckily, this situation is not novel. In several occasions, this Court has pronounced itself on the applicability of the above provision. See for instance, the cases of Hassani Ally Sandali v. Asha Ally, Civil Appeal No. 246 of 2019 [2020] T7CA 14: [24 February 2020: TanzLII], Patrick William Magubo (supra), Yohana Balole v. Anna Benjamin Malongo, Civil Appeal No. 18 of 2020 [2021] TZCA 388: [19 August 2021: TanzLII], and Jackline Hamson Ghikas v. Mlatie Richie Assey, Civil Appeal No. 567 of 2022 [2024] TZCA 366: [16 May 2024: TanzLII]. Specifically, in Hassani Ally Sandali (supra), when we were faced with an akin 12

situation of a trial court entertaining an incompetent petition for divorce which did not comply with the requirement of section 101 of the Marriage Act, we stated that: "...the granting o f the divorce... was subject to compliance with section 101 o f the Act. That section prohibits the institution o f 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 section 101 o f the Act is mandatory except where there is evidence o f existence o f extraordinary circumstances making it impracticable to refer a dispute to the Board as provided for under section 101 (f) o f the Act. However, there is no indication o f any extra ordinary circumstances in this appeal which could have attracted dispensing with reference o f the matrimonial dispute to the Board". [Emphasis added]. Again, in Patrick William Magubo (supra), upon finding that the certificate from the Board was not tendered and admitted in evidence to prove that a matrimonial dispute was referred to the Marriage Conciliation Board, we stated that: 13

"...it is on record that there was no certificate from the Marriage Conciliation Board which accompanied the petition for divorce lodged by the respondent before the trial court. This can be evidenced from pages 3 to 6 o f the record o f appeal that, apart from indicating at paragraph 10 o f the said petition that the certificate o f the relevant Board is attached and marked as LPK/2/3, that document was not attached to the petition, hence not part o f the record. It is also dear that, even the purported certificate from the Nyakato Conciliation Board found at page 1 o f the record o f appeal was as well not tendered in evidence during the trial.. Therefore, that document was required to be tendered and admitted in evidence. It is trite law that annexures are not evidence for the court o f iaw to act and rely upon. "[Emphasis added]. Similarly, in the instant appeal, since we have found that the alleged certificate from the Marriage Conciliation Board was not tendered and admitted in evidence as anexhibit to form part of the record of the trial court's proceedings the said omission had rendered the petitionfor divorce incompetent on account of failure by the respondent to comply with the mandatory requirement of section 101 of the Marriage Act. In the 14

circumstances, we agree with the submissions by both learned counsel for the parties that the trial court did not have the requisite jurisdiction to entertain the matter. It is unfortunate that the first and second appellate courts did not detect the said irregularity as they all fell into the same trap and whereas the first appellate court endorsed the division of matrimonial assets made by the trial court, the second appellate court enhanced it without there being any valid decree for divorce. It is our considered view that had the first and second appellate courts considered the crucial legal issue discussed above, they would not have upheld the decision of the trial court which is erroneous on account of the reasons stated above. We therefore find the additional ground of appeal to have merit. Since our finding on this ground suffice to dispose of the appeal, the need for considering the other remaining grounds of appeal does not arise. Consequently, we have no option other than to nullify the entire proceedings of the trial court and quash the judgment and set aside the subsequent orders thereto. We also nullify the proceedings of the District Court and the High Court and quash their respective judgments and subsequent orders as they all stemmed from nullity proceedings. The 15

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, we find merit in the appeal and allow it. In terms of proviso to section 90 (2) of the Marriage Act, we make no order as to costs. DATED at MWANZA this 6th day of December, 2024. R. J. KEREFU JUSTICE OF APPEAL 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. Mathias Musa Mashauri, learned counsel for the Appellant and Mr. Linus Amri Flugence, learned counsel for the Respondent, is hereby