Regina Monko vs Justin Monko (Civil Appeal No. 369 of 2021) [2024] TZCA 822 (23 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM f CO RAM: MWANDAMBO. J. A. MAIGE, 3. A. And KHAMIS. J.A.l CIVIL APPEAL NO. 369 OF 2021 REGINA M O N K O ......... ..................................... .............................. APPELLANT VERSUS JUSTIN M O N K O ....... ...................... ............................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania, Dar es Sataam) (De-MeHo. J.^ dated the 6th day of May, 2021 in Matrimonial Cause No. 1 of 2019 JUDGMENT OF THE COURT 9th & 23rd August, 2024 KHAMIS. 3. A.: In a judgment delivered on 6th May, 2021, the High Court, sitting at Dar es Salaam concluded that, the petition for divorce was premature for lack of an accompanying certificate from the marriage conciliation board in accordance with section 101 of the Law of Marriage Act (the LMA) and struck it out with an order that each party to bear own costs. Resentful of the decision, the appellant who was the petitioner approached this Court on an appeal premised on five grounds, namely: one, raising issues suo m otuand decide them without affording parties the right to be heard; two, deciding the case on lack of certification by

the marriage conciliation board while the same was not framed as an issue for determination; three, failure to hold that the evidence on record sufficiently placed the case on exceptions under section 101 of the LMA as it involved extraordinary circumstances which made reference to the conciliation board impracticable; four, failing to hold that the marriage between the parties had irreparably broken down; and; five, failing to hold that the final submissions solely filed by the appellant sufficiently addressed all issues necessary for entering judgment in favour of the appellant. With those grounds, the appellant moved the Court to quash the judgment and decree of the High Court and allow the appeal with costs. By way of background, the appellant petitioned the High Court for declaration that, her marriage with the respondent had irreparably broken down; a decree of divorce; distribution of matrimonial assets acquired during subsistence of the marriage; custody of two infant children of the marriage and; an order for maintenance of the two infant children against the respondent. The appellant pleaded that, she was legally married to the respondent since 4th July, 1998 in accordance with the Roman Catholic canonical form. The marriage was blessed with three issues born on 2n d

April, 1999; 16th November, 2005; and; 26th January, 2007. During subsistence of the marriage, the parties jointly acquired and developed several landed properties in Tanga, Singida, Dar es Salaam, Lindi and Arusha and owned a fleet of vehicles. The appellant further pleaded that, when the parties' relationship soured in 2017, she unsuccessfully referred the disharmony to the catholic church conciliation board for amicable settlement and conciliation. The dispute did not proceed to conciliation due to the respondent's intransigence. Detailing the hurdles, she averred that: "11.0 ...The Catholic Church in Tanga where the petitioner has been currently abandoned, and in D ar es Salaam where the parties contracted their m arriage, has tried to no avail to reconcile the parties, fo r they cannot reconcile when only one party, the petitioner, constantly attends alone. The petitioner has sought the Catholic Churches' issuance o f a letter to that effect, but the o fficia l lin e has alw ays been that the church does not partake in the facilitation o f breakup o f holy matrimony. A s a la st resort, and only when the petitioner made dear her intentions to refer the m atter to courts o f law, particularly because the respondent has been selling o ff m atrim onial property (acts that no conciliation board can

injunct and enforce against). The church authorities reluctantly advised the petitioner to file a reference to an internal church tribunal term ed as "Mahakama ya Jim bo", which however upon advice o f the petitioner discovered that, it does n ot havejurisdiction over m atrim onialproceedings the way a court has. The petitioner, thus, had no option but to file this petition w ithout benefit o f certificate from m arriage conciliation board having so unsuccessfully endeavored. Reference sh all be made to a copy o f the reference form to the "Mahakama ya Jim bo", annexed as annexture "T A I-5 "." In the answer to the petition, the respondent admitted as a fact that the appellant had unsuccessfully referred the dispute to the catholic church conciliation board and asserted that no progress was recorded because the appellant did not allow time to sit down and reconcile. He pleaded that it was premature to mark the marriage irreparably broken down as reconciliation was not conducted. He also raised a preliminary objection on the competency of the petition for lack of a certificate from the marriage conciliatory board that it had failed to reconcile the parties. Before trial started, the respondent abandoned the preliminary objections to pave way for trial. After the appellant had testified as the

sole witness for the petitioner and following the testimony of three witnesses for the respondent, the trial Judge suo m otu brought up issues on incompetency of the petition in the course of composing a judgment. Having discussed at length the lack of a certificate from the marriage conciliation board, she was of the view that the petition was incompetent and thus struck it out. At the hearing of this appeal, Messrs. Peter Kibatala and Mashaka Edgar Mfala, learned advocates, appeared for the appellant and the respondent, respectively. At the outset, Mr. Kibatala consolidated the first, second and third grounds of appeal and abandoned the fourth and fifth grounds. The issue arising out of the remaining three consolidated grounds of appeal is whether, the High Court was right in determining the competency of the petition without affording the parties the right to be heard on it. In support of the consolidated grounds of appeal, Mr. Kibatala drew our attention to pages 477, 478, 479 and 480 of the record where the trial Judge, in the course of composing the judgment, took note of the irregularities in the case, and opted to determine them without involving the parties. He asserted that, the issue on whether section 101 of the LMA

was violated in the institution of the case or not could not be exhaustively decided without hearing the parties. He contended that, it was wrong for the trial Judge to decide as she did, because no issue was framed for determination and therefore, parties were not afforded the opportunity to lead evidence on the disputed areas. He argued that, even assuming the issue was covered in the final submissions, the trial could not have been fair because final submissions were only made by the appellant. On that ground, he implored us to find that the parties were deprived of the right to be heard on a jurisdictional issue whose determination had conclusively disposed of the matter. Responding to a question by the Court, the learned counsel pointed out that, throughout trial, the High Court did not frame any issue for determination. He contended that, under the Civil Procedure Code (the CPC), the duty to frame issues rested on the trial court but parties shared a responsibility to ensure compliance with the law. He submitted that, the procedural irregularity to frame the issues was fatal to the merits of the case and resulted to a miscarriage of justice. On those basis, the learned counsel for the appellant invited us to allow the appeal and quash the impugned judgment, decree and proceedings with costs.

In his brief submissions, Mr. Mfala conceded that, the impugned decision of the High Court was a nullity for failure to frame issues for determination. He contended that, the trial Judge had wrongly raised and determined a jurisdictional issue without affording parties the right to submit on it Under those circumstances, he moved the Court to order a retrial and direct the High Court to properly determine the issue on non- compliance of section 101 of the LMA. Rejoining, Mr. Kibatala reiterated his earlier submissions and moved the Court to allow the appeal and order a retrial. We have scanned the record and considered the counsel submissions. From the record, it is not disputed that the parties herein were married and the appellant petitioned the High Court for a decree of divorce without a certificate from the marriage conciliation board that it had failed to reconcile the parties. In the course of composing the judgment, the trial Judge highlighted the evidence of both sides and suddenly raised procedural irregularities which she decided to determine. As reflected at page 477 of the record, she viewed lack of certification by the marriage conciliation board as a hurdle ousting the jurisdiction of the court, and went ahead to determine it without inviting parties to address her on it. 7

At page 480 of the record the learned Judge made a landing of her decision thus: "Sadly, that we had to go through a fu ll hearing w ithout the said certificate, notw ithstanding the other anom alies earlier mentioned. The m atter is as such prem ature before this court fo r non- compHance with the m andatory requirem ent o f law ..." In James Funke Gwagilo v. Attorney General [2004] T.L.R 61, the Court underscored the importance of issues in a trial quoting a statement by Scrutton LJ in Blay v. Pollard and Morris [1939] 1 K.B 628, 634 which was applied by the Court of Appeal for Eastern Africa in Gandy v. Caspar Air Charters Ltd [1956] 23 E.A.C.A 139 thus: ''Cases m ust be decided on the issue on record; and if it is desired to raise other issues they m ust be placed on the record by am endm ent In the present case the issue on which the judge decided the case was raised by him self w ithout am ending the pleadings, and in m y opinion he was not entitled to make such a course." The importance of involving parties in the determination of issues framed cannot be over stressed. In a plenitude of authorities this Court has maintained that, after an issue or additional issue is framed, the court s

must accord parties an opportunity to be heard on such new or additional issue. (See Samson Ng'walida v. The Commissioner General of Tanzania Revenue Authority, Civil Appeal No. 86 of 2008; Christian Makondoro v. The Inspector General of Police & Another, Civil Appeal No. 40 of 2019 (both unreported); and Charles Christopher Humphrey Kombe t/a Kombe Building Materials v. Kinondoni Municipal Council, Civil Appeal No. 19 of 2019, [2022] TZCA 205 (14 April 2022, TANZLII). In Wagesa Joseph M. Nyanda v. Chacha Muhogo, Civil Appeal No. 161 of 2016 (unreported), we echoed our stance that; "In the instant appeal we are m inded to re-assert the centraiity o f the righ t to be heard guaranteed to the parties where courts, while com posing their decision, discover new issues with ju risd ictio n al im plications. The way the firs t appellate court raised two ju risd iction al m atters suo m otu and determ ined them w ithout affording the parties an opportunity to be heard, has made the entire proceedings and judgm ent o f the High Court a n u llity and we hereby declare so ." In this case, as rightly acknowledged by the learned counsel, there was a general omission to draft the issues for determination by the High Court. The dereliction, in our view, led to miscarriage of justice as parties

failed to direct their evidence to the specific issues. We also noted that, having realized the absence of issues in the case, the Judge belatedly picked the jurisdictional issue and moved forward to reach a decision without involving the parties. It should be noted that the issue raised by the court suo m otu was previously brought up by the respondent as a preliminary objection. However, as shown at page 436 of the record, the objections were abandoned on the understanding that, the jurisdictional issue involved mixed points of law and facts, and therefore, it would be ascertained at the hearing of the suit. This development appears to have been overlooked by the trial Judge who did not frame any issue in that respect. Since lack of certificate from the marriage conciliation board was expressly pleaded by the appellant in paragraph 11 of the petition and traversed by the respondent in paragraph 10 of the answer to the petition, it was incumbent on the High Court Judge to frame it as an issue for determination and afford parties an opportunity to lead evidence on it. From the pleadings on record, it was important to decide whether there were extraordinary circumstances which made reference to the marriage conciliation board impracticable. 10

Given the irregularities herein stated, we undoubtedly find the trial was vitiated. We hold that, the trial conducted without framing issues was a nullity and hereby quashed. So is the judgment and decree that followed. Going forward, we order that the record be remitted to the High Court for a retrial before another Judge. For the reasons given, we allow the appeal but with no order for costs. DATED at DAR ES SALAAM this 22n d day of August, 2024. L. J. S. MWANDAMBO JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The judgment delivered this 23rd day of August, 2024 in the presence of Mr. Kikoti Lissu, learned counsel for the appellant and Mr. Mashaka E. Mfala, learned counsel for the respondent via teleconferencing, is hereby certified as a true copy of the original.