SHILLO MZEE v FATUMA AHMED 1984 TLR 112 (HC)

SHILLO MZEE v FATUMA AHMED 1984 TLR 112 (HC)

Court High Court of Tanzania - Tanga

Judge Sisya J

July 2, 1986

MATRIMONIAL CIVIL APPEAL 1 OF 1984

Flynote

Family Law - Divorce - Petition for divorce filed without certificate from Marriage

Conciliatory Board - B Whether irregularity curable - Law of Marriage Act 1971.

Family Law - Injunction - Conditions precedent to its grant under the Law of

Marriage Act 1971, Section 138(1). C

-Headnote

The respondent filed a petition for divorce before a Magistrates' Court without a

certificate from the Marriage Conciliation Board. Meanwhile, the magistrate issued

an order of injunction restraining the appellant from disposing of the matrimonial

assets pending the settlement of the dispute. D

Held: (i) In the absence of a certificate from a conciliatory board a petition for divorce

becomes premature and incompetent;

(ii) an injunction under section 138(1) of the Law of Marriage Act, 1971 can

only lie where a E matrimonial proceeding is pending before the court making the

order.

Case Information

Appeal allowed. F

No case referred to.

[zJDz]Judgment

Sisya, J.: The respondent filed a petition in the Court of the Resident Magistrate,

Tanga, against her husband, the appellant, for divorce. She also prayed for an

injunction restraining her appellant G husband from disposing of, in any manner, a

house which she contends is a matrimonial asset. The learned Resident Magistrate

found that the petition had hastily been brought to Court without the prerequisite

certificate from a Marriage Conciliatory Board. She then 'remitted the case to the H

Conciliatory Board for settlement.' Meanwhile the learned trial lady Magistrate

granted the application for an order of injunction 'pending the last decision of the

dispute.' This appeal is from the decision of the learned trial Magistrate on these two

points.

I agree with the learned trial Magistrate that in the absence of a certificate from a

Conciliatory Board I and the case not falling under

1984 TLR p113

A any of the exceptions listed in Section 101(a) to (f) of the Law of Marriage Act,

1971, the petition was prematurely filed and consequently, therefore, it was

incompetent. Having come to that conclusion it was open to the learned trial

Magistrate to dismiss the petition and not to, as it were, B leave the matter hanging

in the air. So much for that.

Now, turning to the question of injunction, section 138(1) of the Law of Marriage Act,

1971, is only applicable where a matrimonial proceeding is pending before the Court

making the order. Having C declared that the petition was prematurely filed there

was no longer any matrimonial proceeding pending before the Court. The Court was

thus not competent to make the order of injunction.

Again, the appellant's complaint on this point is valid. The said order is quashed and

set aside.

D In the final result this appeal succeeds and it is accordingly hereby allowed. I,

however, make no order as to costs.

Appeal allowed.

1984 TLR p113

E