IN THE COURT OF APPEAL OF TANZANIA

AT BUKOBA

(CORAM: MWAMBEGELE, J.A.. KEREFU, J.A.. And KENTE. 3.A.)

CIVIL APPEAL NO. 18 OF 2020

YOHANA BALOLE...................................................................APPELLANT
VERSUS
ANNA BENJAMIN MALONGO............................................. RESPONDENT
(Appeal from the Judgment of the High Court of Tanzania
at Bukoba)

fBonaole, J.)

dated the 29thday June, 2018

in
Matrimonial Appeal No. 1 of 2017

JUDGMENT OF THE COURT

13th & 19th August, 2021

KEREFU. J.A.:

This matter originated from Bukoba Urban Primary Court in

Matrimonial Cause No. 88 of 2013. 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 two 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 they celebrated their marriage under Christian rites sometimes in

July, 2005. That, thereafter, they started living in a rented room at

Hamgembe area and later they shifted to another rented house situated

at Nyakanyasi. The respondent went on to state that they lived a happy

marriage life with no difficulties for sometimes where they managed to

jointly acquire some properties situated in Mwanza and Kagera Regions

and other properties were acquired before the said marriage. The

respondent stated further that they were also blessed with two issues,

namely Paulo Yohana and Magoke Yohana. She said that

misunderstandings in their marriage life started when the appellant

brought the children he had before their marriage and started living with

them in their houses. That, due to the said misunderstandings, frequent

quarrels and fight became the order of the day to a point that the

appellant, on different occasions, took the respondent to a police station

where she was locked up in custody. The respondent also complained

about infidelity and witchcraft beliefs practiced by the appellant.

Following such long and unresolved misunderstandings, the respondent

decided to petition for divorce as indicated above.

 On his part, the appellant admitted that they contracted the said

marriage, acquired properties and were blessed with two issues.

However, according to him the said misunderstandings started when he

convinced the respondent to quit her previous job and start her own

business. That, he gave her TZS. 350,000.00 for the said business and

she started a retail shop but later she wanted to go back to her original

job. The appellant added that sometimes the respondent would

disappear from her matrimonial home and go to unknown places for

months and his efforts to make her stay at their matrimonial home had

failed.

At the end of the trial, the trial court was convinced that the

marriage between the parties had broken down beyond repair hence the

decree of divorce was granted. The trial court further proceeded to order

for division of matrimonial assets whereby the house situated at Buswelu

in Mwanza Region together with the 18 cows, one motor vehicle Mark II

with Registration No. T. 549 ADU and other households were distributed

between the parties equally. The house situated at Kibeta within Bukoba

Municipality and a fish boat were awarded to the appellant while the

house situated at Kashai Matopeni and a TV set were awarded to the

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respondent. The house situated at Igoma in Mwanza Region was

awarded to the appellant's first wife.

As regards the custody of children, each party was granted custody

of one child and the appellant was ordered to pay TZS 100,000.00

monthly to the respondent as maintenance.

Aggrieved with the decision of the trial court, the respondent

appealed to the District Court of Bukoba armed with four grounds mainly

challenging the division of matrimonial assets and specifically the

inclusion of the house situated at Kashai Matopeni in that division, which

she alleged was acquired before the said marriage. The respondent also

challenged the trial court's decision by awarding the house situated at

Igoma Mwanza to the appellant's alleged first wife. The respondent's

appeal before the District Court partly succeeded as the said court made

a finding that the house situated at Kashai Matopeni having been

acquired before the existence of the marriage should not have been

included in the list of matrimonial assets to be divided between the

parties. As such, the District Court awarded that house to the respondent

and proceeded to dismiss other grounds of appeal.

 Still dissatisfied with the division of matrimonial assets, the

respondent preferred Matrimonial Appeal No. 1 of 2017 in the High Court

of Tanzania at Bukoba. Having heard the appeal, the High Court

(Bongole, J), on 29th June, 2015 confirmed the decree of divorce and the

order of custody and maintenance of the two children born in the

wedlock. It however varied the order of division of matrimonial

properties to the extent that the house situated at Kibeta within Bukoba

Municipality was awarded to the appellant while the house situated at

Buswelu in Mwanza Region was awarded to the respondent.

Furthermore, the appellant was awarded the motor vehicle make

Forester Subaru with Registration No. T. 829 BNK and the respondent

was awarded the motor vehicle make Mark II with Registration No. T.

549 ADU and the division of other properties remained undisturbed.

Aggrieved, the appellant lodged the current appeal. In the

memorandum of appeal, the appellant has preferred three grounds

which can be conveniently paraphrased as follows: -

1. That, the second appellate court erred in law and fact by

including the motor vehicle make Mark II in the division o f
matrimonial properties without there being proof o f its
 existence as its Registration Card was not tendered in
evidence;

2. The second appellate court erred in law and fact for

determining the appeal without considering that a
Certificate issued by a Marriage Conciliation Board was not
availed and tendered as an exhibit during the trial to
ensure that the court was vested with jurisdiction to
adjudicate the matter before it; and

3. That, the second appellate court erred in law and fact for
determining the appeal without considering that the lower
courts had no jurisdiction to entertain the matter in terms
o f section 101 o f the Law o f Marriage Act, [Cap. 29 R.E
2019].

At the hearing of the appeal, the appellant was represented by Mr.

Sifael Muguli, learned counsel while the respondent had the services of

Mr. Aaron Kabunga, also learned counsel. The appellant and the

respondent were also present in Court. It is noteworthy that the counsel

for the appellant had earlier on filed his written submissions as required

by Rule 106 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules)

which he sought to adopt to form part of his oral submission. On his

part, the counsel for the respondent did not file a reply written
submission and he thus addressed us in terms of Rule 106 (10) (b) of

the Rules.

Upon taking the floor, Mr. Muguli intimated that he would argue

the first ground separately and the second and third grounds jointly.

Arguing on the first ground, Mr. Muguli faulted the second appellate

court for including the motor vehicle make Mark II in the division of

matrimonial properties and proceeded to award it to the respondent

without there being any proof of its existence and ownership. He

contended that during the trial the respondent, though listed the said

motor vehicle among the matrimonial assets jointly acquired by the

parties, she failed to prove its existence and ownership as she did not

tender any Registration Card to that effect. He further argued that the

respondent did not even adduce evidence on how she contributed

towards acquisition of the said property. To buttress his proposition, Mr.

Muguli referred us to the case of Bi Hawa Mohamed v. Ally Seif

[1983] T.L.R 32.

In respect of the second and third grounds, Mr. Muguli 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, the issue of jurisdiction being a

point of law can be raised at any stage. To bolster his proposition, Mr.

Muguli cited the case of Richard Julius Rukambura v. Isaack Ntwa

Mwakajila and Another, Civil Appeal No.2 of 1998.

To clarify on his point, the learned counsel referred us to section

101 of the Law of Marriage Act, [Cap. 29 RE 2019] (the Marriage Act)

and contended that, pursuant to that section, for a petition for divorce to

be entertained by a 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. It was the argument of Mr. Muguli 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. He thus faulted the learned trial Magistrate by

erroneously indicating in his judgment that the matrimonial dispute

between the parties was subjected to the Marriage Conciliation Board

and extensively made reference to a letter from the A.I.C Church in Geita

which was not tendered and admitted in evidence as an exhibit. He thus

emphasized that, since the trial court did not have the requisite
jurisdiction to entertain the matrimonial dispute which was before it,

then, the entire proceedings of the trial court and the resultant judgment

are nullity. On that account, Mr. Muguli urged us to nullify the aforesaid

proceedings and its decision together with the subsequent proceedings

before the first and second appellate courts. On the strength of his

submission, Mr. Muguli urged us to allow the appeal with costs.

In response, Mr. Kabunga resisted the appeal. Starting with the first

ground, Mr. Kabunga challenged the claim by his learned friend that the

respondent had failed to prove the existence and ownership of the said

motor vehicle. He argued that ownership of a motor vehicle is not proved

only by a registration card because people purchase vehicles and use

them without changing ownership in the said cards. It was his argument

that since during the trial the appellant did not dispute owning the said

vehicle, he cannot dispute it at this stage.

As regards the second and third grounds, Mr. Kabunga also

challenged Mr. Muguli for raising the said issue at this level as he argued

that the same was not raised before the lower courts. It was his
argument that the trial court had the requisite jurisdiction as it was

satisfied that the parties were reconciled but failed.

However, upon further reflection, Mr. Kabunga submitted that, since

the point raised by Mr. Muguli is a point of law which touches on the

jurisdiction of the trial court to entertain the matter, the appellant is

justified to raise it at this level. He however, prayed for the appeal to be

dismissed.

In a brief rejoinder, Mr. Muguli challenged the submission of his

learned friend on how the ownership of a motor vehicle is supposed to

be proved. He referred us to page 81 of the record of appeal and argued

that the High Court properly advised on how the ownership of a motor

vehicle is supposed to be established. He then reiterated what he

submitted earlier and insisted for the appeal to be allowed.

Having carefully considered the arguments by the counsel for the

parties, there is no doubt that the second and third grounds of appeal

raise an issue of jurisdiction of the trial court to entertain the matter.

Since this is a crucial issue and a point of law, we find it appropriate to

start with it.

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 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 "Jurisdiction" 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 simiiar 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. "[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 anymatter

before it, to first satisfy itself that it is vested with the requisite

jurisdiction to do so.

In the matter at hand, it is on record that the dispute which was

submitted before the trial court was a matrimonial dispute. Jurisdiction of

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the Primary Court in matrimonial proceedings derives from two pieces of

legislation, namely the Magistrates' Courts Act, [Cap. 11 RE 2019] (the

MCA) and the 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
(iii) NA
(b) In all matrimonial proceedings in the manner prescribed
under the Law o f Marriage A c t"

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"

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 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

correctly submitted by Mr. Muguli, 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 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:
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;

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 (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

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..."

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 In the case at hand, 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 the decision of the trial court found at page 27 of the

record of appeal, where the learned trial Magistrate in his own words,

observed that:

"...Mahakama Hipokea barua kutoka Kanisa la A.I.C.

Geita kuonesha walivyosuluhisha mgogoro wa ndoa ya
wadaawa, na kuandika kuwa wa/ikuwa wameshindwa
usuluhishi na kuikabidhi Mahakama ichukue hatua za
kisheria, hivyo kuridhika kuwa wadaawa wa/ikuwa ni
wanandoa."

Our literal translation of the above paragraph is as follows: -

"... The court had received a letter from A.I.C Church in

Geita indicating how they have tried to reconcile the
conflict between the parties but failed. Hence, they
have referred the matter to the court to handle the
matter in accordance with the law. On that basis, the
court is satisfied that the parties were duly married."

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 From the above extract, it is clear that the learned trial Magistrate

relied on the letter from the A.I.C. Church as a sufficient document to

institute matrimonial proceedings. With profound respect, and as

correctly argued by Mr. Muguli, the said letter is deficient in both form

and content and the same does not amount to a certificate envisaged

under sections 101 and 106 of the Marriage Act. Worse still, the said

letter, though it was extensively referred to by the teamed ■trial

Magistrate in his judgment, it was not part of the record as neither of the

parties tendered the same in evidence as an exhibit. As such, we agree

with the submission of Mr. Muguli that it was improper for the trial

Magistrate to rely on that letter as a valid certificate, hence the petition

for divorce filed by the respondent before the trial court was

incompetent for failure to comply with the requirement of sections 101

and 106 (2) of the Marriage Act. In the case of Hassani Ally Sandali v.

Asha Ally, Civil Appeal No. 246 of 2019 (unreported), the Court, when

faced with an akin 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, stated that: -

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 " 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 of existence of 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.

Similarly, in this case, since we have found that the respondent's

petition for divorce before the trial court was incompetent for failure to

comply with the requirement of section 101 and 106 of the Marriage Act,

we agree with Mr. Muguli 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

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proceeded to divide the alleged matrimonial properties between the

parties 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. In the circumstances, we find the second and

third grounds of appeal to have merit. Since the findings on these

grounds suffice to dispose of the appeal, the need for considering the

other remaining ground of appeal does not arise.

In the premises, we find that the proceedings before the trial court

and the first and second appellate courts were vitiated. As a result, 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 stemmed from nullity proceedings. The 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 the proviso to section 90 (1) of the

Marriage Act, we make no order as to costs.

DATED at BUKOBA this 18th day of August, 2021.

J. C. M. MWAMBEGELE
JUSTICE OF APPEAL

R. J. KEREFU
JUSTICE OF APPEAL

P. M. KENTE
JUSTICE OF APPEAL

The Judgment delivered this 19th day of August, 2021, in the

Presence of appellant and Respondent in persons, Mr. Annesius Stewart,
who is holding brief for Mr. Sifaeli Muguli, learned Counsel for the
Appellant, and Mr. Aaron Kabunga, learned Counsel for the Respondent,
is hereby certified as a true copy of the original.

DEPUTY REGISTRAR
COURT OF APPEAL

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