| dc.contributor.author | MUGASHA, KEREFU, J.A. And KIHWELO. J.A. J.A. | |
| dc.date.accessioned | 2023-05-10T12:13:08Z | |
| dc.date.available | 2023-05-10T12:13:08Z | |
| dc.date.issued | 2022-07-18 | |
| dc.identifier.uri | http://localhost/handle/123456789/1270 | |
| dc.description | IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MUGASHA. J.A., KEREFU, J.A.. And KIHWELO, J.A.) CIVIL APPEAL NO. 41 OF 2019
PATRICK WILLIAM MAGUBO VS. LILIAN PETER KITALI.
(Appeal from the Judgment and Decree of the High Court of Tanzania at Mwanza)
Matrimonial proceedings-Necessary steps during Petition for divorce-
The mandatory Requirement of the certificate from the marriage conciliation Board as a necessary document during petition for divorce.
Jurisdiction of the District Court in matrimonial proceeding-Whether the district court has the jurisdiction to entertain the matrimonial cases.
This matter originates from the District Court of Nyamagana at Mwanza in Matrimonial Cause No. 04 of 2015 (the trial court). 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 three issues of the marriage who were born during the subsistence of the marriage, before it went on the rocks. During an appeal their petition for divorce were nullified due to non - compliance with the procedure of referring the matter to the marriage conciliation board before institution of the petition for divorce.
HELD
(i) The court 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 (2) of the Marriage Act. It is the requirement of the law that the granting of the divorce should be subject to compliance with section 101 of the Act. That section prohibits the institution of 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 of 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) of the Act. “Every petition for a decree of divorce shall be accompanied by a certificate by a Board, issued not more than six months before the filing of the petition..."
(ii) section 76 of the Marriage Act, vests 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." The court observed that in terms of the above provision, there is no doubt that the Primary Court, the District Court and the High Court all have original jurisdiction to entertain a matrimonial proceeding.
Statutory provision
Tanzania Court of Appeal Rules, 2009
Cases reffered to
Richard Julius Rukambura v. Isaack NtwaMwakajila and Another, Civil Appeal No. 2 of 1998.
Halima Athumani v. MaulidiHamisi (1991) T.L.R. 179
Yohana Balole v. Anna Benjamin Malongo, Civil Appeal No. 18 of 2020
Sabry Hafidhi Khalfan v. Zanzibar Telecom Ltd (Zantel) Zanzibar, Civil Appeal No. 47 of 2009 (unreported), | en_US |
| dc.description.abstract | (i) The court 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 (2) of the Marriage Act. It is the requirement of the law that the granting of the divorce should be subject to compliance with section 101 of the Act. That section prohibits the institution of 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 of 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) of the Act. “Every petition for a decree of divorce shall be accompanied by a certificate by a Board, issued not more than six months before the filing of the petition..."
(ii) section 76 of the Marriage Act, vests 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." The court observed that in terms of the above provision, there is no doubt that the Primary Court, the District Court and the High Court all have original jurisdiction to entertain a matrimonial proceeding. | en_US |
| dc.language.iso | en | en_US |
| dc.publisher | THE COURT OF APPEAL OF TANZANIA, MWANZA. | en_US |
| dc.subject | MWANZA. | en_US |
| dc.title | PATRICK WILLIAM MAGUBO VS. LILIAN PETER KITALI CIVIL APPEAL NO. 41 OF 2019. | en_US |
| dc.title.alternative | CIVIL APPEAL NO. 41 OF 2019. | en_US |
