Shillo Mzee vs Fatuma Ahmed [1986] TZHC 14 (2 July 1986)

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

  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.

E