GAIL HILLARY MOLLEL V. PETRO SMITH JESHI, MATRIMONIAL CAUSE No. 5 OF 2021

 IN THE DISTRICT COURT OF KIGAMBONI

AT KIGAMBONI

MATRIMONIAL CAUSE No. 5 OF 2021

GAIL HILLARY MOLLEL..........................................PETITIONER

VERSUS

PETRO SMITH JESHI......................................... RESPONDENT

RULING

Date of the last Order: 25/08/2021

Date of the Ruling: 10/ 9/2021

J.W. MGAYA-SRM.

This is a matrimonial cause brought before this court by The petitioner seeking divorce, the division of jointly acquired properties, maintenance and custody of the infant child. The petition for divorce was opposed by the respondent who filed a reply to the petition of divorce and raised a preliminary objection on two grounds as follows:-

1. That there is no Certificate from the Marriage Conciliation Board.

When the preliminary objection was scheduled for hearing,Ms Rehema Jailo Mwakyusa appeared for the Petitioner Respondent whereas Mr. Kephas Mayenje appeared. 

The parties were granted leave to dispose of the preliminary objection by way of written submissions. The court scheduled the dates for filing the written submissions to the effect that that the respondent to file his submission in chief on or before 8th of July, 2021; the petitioner to file her submissions on or before 14th July, 2021 and the rejoinder if any on or before 19th July, 2021.

The respondent in support of the preliminary objection argued that the petitioner and the respondent are husband and wife, that, Section 101 of the LMA stipulates “no person shall petition for divorce unless he or she has first refereed the matrimonial dispute to a Board and the Board has certified that it has failed to reconcile the parties”.

Since the petitioner is petitioned for divorce, she should first refer the matter to the Marriage conciliation Board per the law. The respondent went on to submit that the certificate by the Marriage conciliation Board should be in prescribed form, citing the case of HASSANI SANDALI VS ASHA ALLY, CIVIL APPEAL NO. 246 OF 2019. The respondent argued what has been attached as a proof of the matter being referred to the Marriage conciliation Board is a letter and not a prescribed form No. 3. The respondent prays for this Petition to be struck out with costs.

In reply the petitioner argued that, it is not true that the parties are husband and wife, that the parties voluntary agreed to live together as husband and wife for five years thus were presumed married under Section 160 of the LMA.

The petitioner went on to submit, it is a legal requirement under Section 101 of LMA, that, no person shall petition for divorce unless he or she has first refereed the matrimonial dispute to a Board and the Board has certified that it has failed to reconcile the parties, however, the law is silence when it comes to presumption of marriage under Section 160(1) and (2) of the Act. The petitioner makes reference to Annexture P-3 a letter from the Marriage conciliation Board, arguing, the letter has the status of the certificate issued by the Board under Section 102(1) of the Act, that Annexture P-3 is valid in form and content and carries the required details and reasons of the failure to reconcile the parties.

The petitioner further argued that the respondent in his submission in chief mislead the court by citing HASSANI SANDALI VS ASHA ALLY (Supra) arguing, the facts of the case are quite different from the case at hand. In the referred case the parties are dully married and herein are to the contrary. The petitioner maintains the parties have been cohabiting under the same roof since 2016 citing the case of JOHN KIRAKWE VS IDDI SIKO (1989) TLR No.215 and the case of FRANCIS LEO VS PASCALI SIMON MAGANGA (1978) and observed, that the principles of presumption of marriage in the two refereed above cases are no longer applicable and good as bad law. The petitioner was of the view, what constitute presumption of marriage is parties cohabiting for two or more years; parties acquiring a reputation of being husband and a wife and absence of a formal marriage between the parties. The petitioner prays the court to dismiss the objections and to proceed on merit.

Having carefully considered the submissions by both parties, there is no doubt that the preliminary point of law raised by the respondent involves a point of law touching on the competence of the proceedings before this trial court.

I’m of the view, it is the 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.

The matter at hand, is a matrimonial proceedings, it has to follow the procedure laid by Rule 29(2) of the Law of Marriage (Matrimonial Proceedings) Rules GN. No. 246 of 1997, where Rules provides;

“The court shall proceed to try a petition in the same manner as if it were a suit under the Civil Procedure Code, and the provisions of the Code which relate to examination of parties, production impounding and return of documents, settlement of issues, Summoning and attendance of witnesses, affidavits judgments and decree shall apply mutatis mutandis to a trial of a petition”.

In terms of the above provisions, a matrimonial proceeding (petition for divorce) to be entertained by any court, it has first to be referred to the Marriage conciliation Board and the Board has to certify that it has 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 of 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 of 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', 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.

In the case at hand, Annexture P-3, accompanying the petition for divorce is not a certificate from the Marriage Conciliation Board. I am guided by the case of YOHANA BALOLE VS ANNA BENJAMIN MALONGO, CAT (2021) Kirefu JA that:

“in the case at hand there was no certificate from the Marriage conciliation Board which accompanied the petition for divorce lodged by the respondent at the trial court.... the learned trial Magistrate relied on the letter from the A.LC Church as a sufficient document to institute matrimonial proceedings, with profound respect, the said letter does not amount to a certificate envisaged under Section 101 and 106 of the Marriage Act. ”

It is evident (Annexture P-3) the letter is indicating how the parties tried to reconcile the conflict between them but failed, hence referred the matter to the court.

Whether the petition filed before this court was properly filed due to lack of the certificate from the Marriage conciliation Board; that it has failed to reconcile the parties.

I am aware that prior to filling of any divorce petition, the matrimonial dispute must first be referred to the conciliation Board per Section 101 of the Act. If the Board makes a finding that it has failed to reconcile the parties, it has to issue the parties with a certificate to that effect, as was observed in the case of YOHANA BALOLE(Supra)

The compliance of Section 101 of the Act is mandatory for parties who are dully married and want to pursue divorce and other remedies thereto. The parties in this case were neither married but cohabitated under one roof thus presumption under Section 160 of the LMA was raised. Therefore the parties are not bound by the provisions of Section 101 of the Act.

In the upshot the preliminary objection is devoid of merit and accordingly dismissed. Since this is a matrimonial dispute. I make no order as to costs.

J.W MGAYA

SENIOR RESIDENT MAGISTRATE