Victor Faustine Kamazima vs Epifania Niima Axwesso (Civil Appeal No. 2568 of 2025) [2026] TZCA 529 (12 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DOPOMA fCORAM: MWARIJA. 3.A. GALEBA. 3.A. And KHAMIS. J.A.^ CIVIL APPEAL NO. 2568 OF 2025 VICTOR FAUSTINE KAMAZIMA..............................................APPELLANT VERSUS EPIFANIA NIIMA AXWESSO .............................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Arusha) (Masara. 3.1 dated the 24th day of October, 2025 in Matrimonial Appeal No. 016133 of 2025 JUDGMENT OF THE COURT 15th April & 12th May, 2026 KHAMIS, J.A.: This appeal relates to the petition for divorce filed in the District Court of Karatu on 25th January, 2025 by Victor Faustine Kamazima, the appellant, against Epifania Niima Axwesso, the respondent, seeking dissolution of the marriage and various consequential orders, including, custody of the issue of the marriage, division of the matrimonial properties and costs. The facts of the case reveal that, the parties contracted a Christian marriage on 17th September, 2016 and their union was blessed with one issue. During subsistence of the marriage, they jointly acquired landed properties, pharmaceutical shops and some business outlets for mobile financial services. Having solemnized their marriage at the Kilimamoja Roman Catholic Church on 17th day of September, 2016, the couple enjoyed a harmonious life in Karatu until 2023 when misunderstandings arose after the appellant decided to place the only child of the marriage in the custody of his parents residing in Bukoba - a decision that did not sit well with the respondent. On 8th March, 2024 the appellant approached the Qurus Ward Marriage Conciliation Board (the board) alleging that, the marriage was irreparably broken down. On the same date, the board issued a certificate declaring that it failed to reconcile the parties after several attempts (exhibit P6). On the basis of exhibit P6, the appellant petitioned for divorce in the District Court of Karatu (the trial court) on the ground that, the respondent was cruel and subjected him to sexual perversion; that, she constructively deserted the matrimonial home to live at unknown place; that, she refused to share a room or a bed with him; that, she disrespected him; that she misused the proceeds from the family business and thus, untrustworthy; and that, while she would eat the food the husband prepared, she declined to cook for him. The respondent filed an answer to the petition for divorce subjecting the appellant to the strictest proof of his allegations. She specifically challenged a certificate from the board (exhibit P6) alleging that, it was illegally obtained. She averred that, the certificate was issued by an unauthorized person as the board was not duly constituted to reconcile the parties. Premised on the assertion that parties could not live together, she maintained that, the couple's misunderstandings were trivial and could not render the marriage broken down with no prospect of reconciliation; that, she was still deeply in love with the appellant and therefore, the substratum of marriage was not destroyed; and that, no mediation was actually done by the board. Therefore, the marriage was not finished for good, it could be saved. On those basis, she prayed for dismissal of the petition with no order for costs. The appellant did not file a reply to the answer to the petition and during trial, testified as PW1 without any other witness. The respondent testified as DW1 and lined up two more witnesses, Enock Paulo (DW2) 3 and Ambesh Ngadi (DW3). At the instance of the trial court, the only issue of marriage, a 13 years old girl, testified as DW4. In determining the matrimonial cause, the trial court was of the view that, the marriage was irreparably broken down because the respondent turned down the appellant's sexual advances on the pretext of feeling physically unwell. As no medical chits were produced to prove the sickness, the trial court viewed the respondent's refusal to sex as sexual perversion and cruelty. On the strength of exhibit P6, the trial magistrate concluded that, efforts of the board to reconcile the parties were futile. The learned magistrate proceeded to issue a decree of divorce and an order for division of the matrimonial properties. The custody of the issue of marriage was granted to the appellant. Aggrieved, the respondent filed an appeal to the High Court faulting the trial court's decision on three grounds: one, failure to consider the contradictions between the pleadings and the evidence produced by the appellant concerning the acquisition of matrimonial assets; two, failure to consider the respondent's contribution to the acquisition of the matrimonial properties; and three, failure to properly analyze, evaluate and consider the parties' evidence hence arrived at the wrong decision. The High Court allowed the appeal, quashed and set aside the judgment and decree of the trial court on the ground that, the appellant failed to prove the alleged cruelty or sexual perversion. Upon analysis of the evidence on record, the learned High Court Judge found that, the respondent's failure to give conjugal rights was not intentional but attributed to her poor health at the time. In totality, the Judge was of the view that, the grounds outlined in the petition for divorce were trivial and could not justify the annulment of marriage in terms of section 107 of the Law of Marriage Act, Cap 29 R.E. 2023 (the LMA). Aggrieved, the appellant filed this appeal faulting the first appellate court on two grounds, thus: one, compelling the parties to cohabit despite the fact that both were not interested to live together as husband and wife; and two, holding that the evidence on record was not sufficient to prove the marriage was irreparably broken down. Both parties filed written submissions in support of their respective cases in terms of rule 106 of the Tanzania Court of Appeal Rules, 2009 (the Rules). When the appeal was placed before us for hearing, Mr. Pontian Mujuni Dionysius, learned advocate, appeared for the appellant who was also present in person. On the other hand, the respondent appeared in person, unrepresented. The learned counsel and the respondent adopted their respective submissions on record and exercised the right to highlight in terms of rule 106 (10) (a) of the Rules. Having noticed that, throughout the proceedings in the courts below parties disagreed on validity of a certificate from the marriage conciliation board, a matter going to the jurisdiction of the trial court, we called upon them to submit on that issue. Consequently, we shall not reproduce the parties' competing submissions on the grounds of appeal at this juncture since jurisdictional issues are fundamental and must be resolved before the merits are considered. When invited to address the Court on this issue, each party stuck to his/her gun. The learned counsel for the appellant, Mr. Dionysius, strongly submitted that, exhibit P6 was validly obtained and properly initiated the matrimonial cause at the trial court. The respondent on the other hand, insisted that, the certificate was spurious as no mediation was actually conducted by the board to justify the issuance of exhibit P6. It was her argument that, the board's certification that the parties' dispute could not be reconciled did not reflect a reality of what transpired on the ground. She challenged the quorum of the board asserting that, it was not duly constituted. Furthermore, the respondent asserted that, the person who purportedly signed the certificate was not empowered to do so as he did not involve other members of the board. The issue that presents itself for determination is whether the trial court had jurisdiction to entertain the matrimonial cause. It is trite law that the Primary Court, the District Court, the Resident Magistrate Court and the High Court have concurrent original jurisdiction in matrimonial proceedings (section 76 of the LMA). In terms of section 101 of the LMA, for the petition of divorce to be entertained by any of the said courts, the matrimonial dispute should first be referred to the board and the board certifies that it has failed to reconcile the parties. Upon reference of a matrimonial dispute, the board is required to mediate the parties in order to reconcile and rescue the marriage. It must promptly schedule a meeting, notify both parties, and provide an opportunity for them to be heard. If reconciliation fails, the board is required to issue a certificate enabling the parties to proceed to court. The proceedings and conduct of the board are governed by the LMA and the Marriage Conciliation Boards (Procedure) Regulations, 1971 (Government Notice No. 240 of 1971) (the MCB Regulations). According to regulation 4 of the MCB Regulations, the quorum necessary for the transaction of a business of the board is three members including a chairman or vice chairman who shall preside over the meetings of the board. Where both the chairman and vice chairman are absent, the members present may elect a temporary chairman from amongst themselves and such temporary chairman shall preside at such meeting. The decision of the majority of the members at any meeting is considered as the decision of the board. Where the dispute is between a husband and wife, and relates to the breakdown of the marriage or an anticipated breakdown of the marriage, and the board fails to reconcile the parties, it is required to issue a certificate in the prescribed form. The MCB Regulations recognizes the board to mean the board established or designated under section 102 of the LMA and includes a ward tribunal and a communal board. A communal board is the board of the community for which it is so designated. 8 The validity of a certificate from the board is of paramount importance because it is a mandatory legal prerequisite for filing a divorce petition in court. Without a valid certificate, a petition for divorce is deemed premature, incompetent and renders the entire proceedings a nullity. A valid certificate signifies that the board has officially attempted to reconcile the parties but failed. This has been a stance of this Court in a plethora of authorities. In terms of the MCB Regulations, the certificate must be issued by a legally recognized board and meets the mandatory procedural requirements. Regarding the board, the certificate must be issued by a board established in the ward where the couple resides and if the parties are part of a specific community, a designated community board has jurisdiction. Other key factors to establish validity of a certificate include: one, proper composition and quorum of the board; two, the certificate must be issued in the prescribed form; three, the certificate must clearly state that the board has failed to reconcile the parties on the breakdown or anticipated breakdown of the marriage; and four, the certificate should confirm that the dispute was properly referred to the board. In terms of section 106 (2) of the LMA, a valid certificate must be issued not more than six months before the filing of the divorce petition in court. A certificate older than six months cannot be accepted. The relevant provision of the LMA reads, thus: "106 (2) Every petition o f divorce shall be accompanied by a certificate by a board, issued not more than six months before the fiiing o f the petition." (Emphasis supplied) This Court has pronounced itself on a plethora of authorities regarding the procedure applicable in matrimonial proceedings. In the case of Patrick William Magubo v. Lilian Peter Kitali, Civil Appeal No. 41 of 2019 [2022] TZ CA 441 (18 July, 2022), the Court held that: "The issue o fparties referring their matrimonial dispute to the marriage conciliation board before filing a petition for divorce in the court is a mandatory requirement o f the law..." In the case of Hassani Ally Sandali v. Asha Ally, Civil Appeal No. 246 of 2019 [2020] TZCA 14 (24 February, 2020) the Court expressed itself that: 10 "... 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 uniess 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 mandator/ except where there is evidence o f existence o f 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 for any extra ordinary circumstances in this appeal which could have attracted dispensing with reference o f the matrimonial dispute to the board." In the case of Abdallah Hamis Kiba v. Ashura Masatu, Civil Appeal No. 465 of 2020 [2022] T7CA 335 (14 June, 2022) this Court held that: "... the impugned certificate is invalid for stating falsely that the board had attempted to reconcile the parties but failed to settle the dispute when the reconciliation effort clearly did not take its full course. Moreover, we are satisfied that the current dispute does not fall ii within any o f the exceptions (a) to (f) enumerated under the proviso to section 101 o f the Act for the certificate requirement to be dispensed with." We associate ourselves with the position stated by the Court in the above cases. At this juncture we find it prudent to examine the record in as far as validity of a certificate from the board is concerned. The pleadings on record showed validity of exhibit P6 was highly contested in the courts below. In paragraph 6 of the answer to the petition for divorce, the respondent averred that, the certificate was illegally obtained as it was issued by an unauthorized person; and the board was not duly constituted to reconcile the parties. Exhibit P6 was further challenged during trial. The record shows that, when the appellant sought to tender a certificate from the board as evidence, the prayer was strongly resisted by the respondent who contended that: object the same as the certificate that marriage is irreparably broken down is not true. On the second ground, it is not true that reconciliation was made on 8t h 12 March, 2024. Lastly, the certificate was signed by a single person . That is all." (Emphasis supplied) In reply, advocate Maligana who acted for the appellant at the trial court, argued that execution of the certificate by one person was valid. The trial magistrate overruled the objection finding that, it was premised on a question of fact to be proved during trial. The certificate was thus admitted in evidence as exhibit P6. Before the High Court, the parties did not expressly canvass on validity of exhibit P6. It is not surprising that the learned High Court Judge did not make any determination on this issue. That notwithstanding, the central issue remained whether the parties' marriage was irreparably broken down. Having considered the chronology of events related to this issue as pointed out above, and upon examination of exhibit P6, we noticed that, the certificate in question suffers three major flaws: one, the petition for divorce was lodged in the trial court after six months from the date it was issued by the board contrary to the requirements of section 106 (2) of the LMA; two, the certificate was not issued by the board established within the ward where the couple resided; and 13 three, the board which issued the certificate did not mediate the parties. Regarding the first shortcoming, the record show that, exhibit P6 was issued on 8th March, 2024 while the petition for divorce was filed in the trial court on 25th January, 2025. Reckoning the period from the date the certificate was issued, the six months' limitation period for filing the petition in the trial court lapsed on 7th September, 2024. Therefore, the petition for divorce was incompetent for want of a valid certificate. On the second flaw, at page 39 of the record the respondent testified without contradiction that, the dispute was referred to the Qurus Marriage Conciliation Board which was not established within the Ward in which the couple resided. For clarity, we reproduce the relevant part of DW1 testimony, thus: "We also went at the marriage conciliation board o f Karatu ... But it was Improper for me to be taken there because that is not where I reside. That is a ll.." (Emphasis supplied) 14 The third deficiency lies on the contradictions observed on the face of the certificate. The appellant testified that, efforts to reconcile the parties by the Qurus Marriage Conciliation Board were not fruitful. The board vide exhibit P6 showed that, it mediated the parties on many occasions, thus: "INA THIBITISHWA kwamba baraza hffi iimeshindwa kabisa kuwapatanisha watu hao wawiii, yaanimume na mkewe, kwa hiyo maoni ya baraza hiii ni kwamba: Baraza hili la usuluhishi wa ndoa fimesuiuhisha ndoa hii mara nyingi na sasa imeshindikana kabisa. Tunaiomba Mahakama yako itoe maamuzijuu ya wanandoa hao. "(Emphasis added). The board's statement that it mediated the parties in many occasions contradicts the record which show that, the certificate was issued on 8th March, 2024 - the same day the dispute was referred to the board. As such, the certificate (exhibit P6) was issued contrary to the mandatory requirements of the LMA and the MCB Regulations, hence invalid. In the result, having held that the board's certificate was invalid, we find that the proceedings before the trial court were a nullity. Equally, the appeal to the High Court was invalid. In the circumstances, 15 we invoke section 6 (3) of the Appellate Jurisdiction Act to quash the entire proceedings, judgment, decree and orders of the District Court of Karatu in Matrimonial Cause No. 2233 of 2025 as well as the proceedings, judgment and decree of the High Court in Matrimonial Appeal No. 016133 of 2025. This being a matrimonial matter, we make no order as to costs. DATED at DODOMA this 8th day of May, 2026. A. G. MWARDA JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The judgment delivered virtually this 12th day of May, 2026 in the presence of Mr. Pontian Mujuni Dionysius, learned counsel for the Appellant, Respondent in person - unrepresented and Mr. Soud Omary, Court Clerk; is hereby certified as a true copy of the original. E. G. MRANGtJ SENIOR DEPUTY REGISTRAR COURT OF APPEAL 16