Sapensia George Malyi vs Fredrick Emmanuel Marwa (Civil Appeal No. 791 of 2023) [2026] TZCA 571 (13 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: MWANPAMBO. J.A.. KENTE, J.A. And MGONYA, J.A.l CIVIL APPEAL NO. 791 OF 2023 SAPENSIA GEORGE M ALYI ........................................................ APPELLANT VERSUS FREDRICK EMMANUEL MARWA.............................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Kamana, J.) dated the 10th day of February, 2023 in PC. Civil Appeal No. 106 of 2022 JUDGMENT OF THE COURT 29th April & 13th May, 2026 MGONYA, J.A.: The parties to this appeal were a married couple, having contracted their marriage on 27/05/2017. Their marital relationship came to an end by a decree of divorce granted on 11th April 2022. The instant appeal does not arise from the decree of divorce, but rather from a subsequent order for division of matrimonial assets considered to have been acquired jointly during the subsistence of the marriage. The facts giving rise to the present appeal may briefly be stated as follows. The appellant and the respondent were lawfully married under Christian rites in 2017, and the union was blessed with one child. However, in 2019, the marriage deteriorated and eventually broke down irretrievably. Consequently, in 2022, the appellant instituted divorce proceedings at the District Court of Ilemela at Ilemela in Mwanza Region. Upon hearing the petition, the trial court granted a decree of divorce. It further ordered the division of matrimonial assets whereby the appellant was awarded the matrimonial house situated at Plot No. 274, Block D, Buswelu, in Ilemela District, while the respondent was awarded a farm located in Ukerewe District, Mwanza Region. In addition, the respondent was ordered to pay child maintenance in the sum of TZS. 300,000.00 per month. Being dissatisfied with that decision, the respondent appealed to the District Court of Ilemela. The first appellate court partly allowed the appeal and interfered with the trial court's orders on the division of matrimonial assets and child maintenance. In doing so, it substituted the trial court's decision with its own orders, resulting in a redistribution of the matrimonial properties and variation of the maintenance award. Still dissatisfied, the appellant lodged a further appeal to the High Court. Her appeal was premised on three grounds. After hearing the parties, the High Court partly allowed the appeal and affirmed the order for equal division of the matrimonial house, as well as the order relating to child maintenance. Notwithstanding that partial success, the appellant remained aggrieved and has now preferred this appeal advancing three grounds of appeal. However, the appellant abandoned the second ground of appeal. The remaining two grounds can be paraphrased as below: 1. That, the High Court Judge lacked jurisdiction to interfere with the concurrent findings o f facts by two subordinate courts, as the respondent failed to prove clearly that there had been a misapprehension o f evidence. Instead, the Judge based it on his own views; and 2. That the High Court Judge erred in law by misdirecting his mind to the irrelevant provisions o f the law and facts on the contribution to the acquisition o f the matrimonial house at Plot No. 274 Block D, Buswelu and proceeded to hold that the respondent has a stake worth an equal share in the absence o f substantive evidence. At the hearing of the appeal, both the appellant and the respondent were respectively represented by Mr. Paul Bomani and Mr. David Rwechungura, learned counsel. Mr. Bomani did not wish to make any oral submission in addition to the written submissions lodged earlier. Likewise, Mr. Rwechungura also prayed to adopt the written submission that was filed earlier, and he had nothing to add. In his written submission, Mr. Bomani commenced by restating the settled principle of law that an appellate court ought not to interfere with the concurrent findings of fact of the lower courts unless it is demonstrated that such courts committed irregularities, misapprehended the evidence, occasioned a miscarriage of justice, or violated established principles of law or procedure. In support of this proposition, he cited the case of Amratlal Damodar Maltaser and Another t/a Zanzibar Silk v. A.H. Jariwalla t/a Zanzibar Hotel [1980] T.L.R. 31. Regarding the second ground of appeal, learned counsel submitted that there is no dispute that Plot No. 274, Block D, Buswelu, was acquired during the subsistence of the marriage. The contentious issue, however, concerns the extent of each party's contribution toward its acquisition. He argued that the determination of such a contribution is pivotal to the division of matrimonial property and must necessarily be grounded on the evidence adduced by the parties. In support of this position, he relied on the case of Gabriel Nimrod Kurwijila v. Theresia Hassan Malongo, [2020] TZCA 31. He further contended that, the evidence on record clearly delineates the respective roles and activities of the parties and demonstrates that the appellant earned more income than the respondent. He maintained that, this evidence was thoroughly tested and evaluated by the trial court, as reflected at pages 18 and 19 of the record. In his view, the lower courts properly exercised their discretion in apportioning shares based on the established evidence. The learned counsel faulted the High Court for interfering with those findings and ordering an equal division of the property without due regard to the extent of each party's contribution. In his conclusion, the learned counsel contended that the decision of the High Court was improper and tainted with irregularities as the learned Judge failed to demonstrate how the lower courts misapprehended the evidence, occasioned a miscarriage of justice, or violated any principle of law or procedure. He accordingly urged this Court to allow the appeal. Conversely, the learned counsel for the respondent supported the findings of the High Court Judge and argued that the appellant did not dispute that the properties in question were acquired during the subsistence of the marriage; rather, her grievance lies solely in the extent of the respondent's contribution. He argued that, the High Court properly exercised its appellate jurisdiction by re-evaluating the evidence on record concerning the development of the disputed property. Further, the learned counsel contended that the evidence established that the respondent contributed to the acquisition and development of the property through various means, including participation in planning, procurement of building materials, and securing the right of occupancy in his name. 5 In response to the appellant's assertion that her higher earnings translated into greater contributions, the learned counsel submitted that such an argument is untenable. He referred us to our previous decision in Sixbert Bayi Sanka v. Rose Nehemia Samzungi, (Civil Appeal No. 68 of 2022) [2023] TZCA 227, wherein it was held that the mere fact of financial capacity does not necessarily establish that such funds were applied toward the acquisition or development of matrimonial property and argued that the appellant's income could have been utilized for other purposes unrelated to the property in dispute. Referring to section 114(1) of the Law of Marriage Act (the LMA), Mr. Rwechungura submitted that the provision places a duty upon each party to establish their respective contributions and joint efforts in the acquisition of matrimonial assets thereby enabling the court to fairly determine their respective shares. He further argued that, while the appellant proved acquisition of Plot No. 275 at Buswelu, the respondent did not derive any benefit therefrom. Based on the foregoing submissions, he urged this Court to find that the appeal lacks merit and to dismiss it. We have given due consideration to the submissions made by the learned counsel of the parties and the authorities cited. Essentially, the crux of the above grounds of appeal is whether it was proper for the 6 second appellate court to interfere with the concurrent findings of fact by the lower courts. As rightly argued by the appellant's counsel, it is settled law that the second appellate court should not easily disturb or interfere with the concurrent findings of facts by the two lower courts unless it is demonstrated that such findings are not supported by evidence, or that the courts below misapprehended the evidence, or acted on wrong principles, thereby occasioning a miscarriage of justice. The Court reiterated this principle in its numerous decisions, including in Samwel Kimaro v. Hidaya Didas (Civil Appeal No. 271 of 2018) [2019] TZCA 201, Mediterranean Shipping Company Ltd v. Emmanuel Agreyson Daudi t/a Ishey's General Enterprises & Another (Civil Appeal No. 342 of 2021) [2024] TZCA 863, and Registered Trustees of Joy in The Harvest v. Hamza K, Sungura (Civil Appeal 149 of 2017) [2021] TZCA 139.. In the latter case, it was held that: 'We are as well, aware o f the fact that this is not only a second appeal, but the appeal is seeking to fault findings o f two concurrent decisions. Ordinarily, this Court would not readily disturb such findings, unless it can be demonstrated that the findings o f the lower courts are clearly unreasonable or are a result o f a complete misapprehension o f the substance o f the evidence or that the findings are based on a violation o f some principle o f law culminating into a miscarriage o f justice." In the instant appeal, the appellant challenges the High Court's decision which allegedly disturbed the two lower courts' findings of fact that the appellant's contribution towards the acquisition of the matrimonial house was higher than that of the respondent. It is common ground that Plot No. 274 Block D, Buswelu, was acquired during the subsistence of the marriage. Likewise, it is on record that the lower courts concluded that the house in dispute was a matrimoniai property. However, the trial court, upon evaluation of evidence, both ora! and documentary, concluded that the appellant's contribution was higher towards the acquisition of the house in dispute, while the respondent did not contribute, and if he had any contribution, the same was less by 18%. Those findings were sustained by the first appellate court, hence allocated 90% of shares to the appellant and 10% to the respondent. As the respondent challenged the said decision to the High Court, the High Court Judge, upon hearing of the parties, interfered with the concurrent findings of the lower courts. The High Court Judge found that both parties contributed equally towards the acquisition of the house in dispute. Thus, dividing the same in equai shares of 50% each. The nagging question at this juncture is whether the interference was justifiable. It is on record at page 349 of the record of this appeal that the High Court in its judgment took the view that the lower courts did not thoroughly evaluate the adduced evidence from both parties. He stated that, during the trial, both the appellant and the respondent adduced the evidence in support of their claim regarding the contribution to the acquisition of the house in dispute. The parties summoned their witnesses to support their cases. However, it was his findings that the record did not reflect whether the trial court considered and evaluated the evidence adduced by the witnesses fielded by the appellant. It was the High Court Judge's findings that the trial court evaluated the evidence of the appellant and her witnesses only and jumped to the conclusion that the appellant's evidence was heavier than that of the respondent. On our part, having keenly gone through the record of this appeal and having reminded ourselves of the principle of the law above on the circumstances which allow the second appellate court to disturb the findings of the two lower courts, we find that it was proper for the High Court Judge to interfere with the concurrent findings of fact by the two lower courts, and there was a justification for that. The reason for our findings is simple, and we give the same. We have traversed through the records of appeal and noted that there was a misapprehension of evidence by the two lower courts and hence reached a wrong conclusion. It is on record that, during the trial, each party claimed that the property in dispute was solely acquired by him or her. The appellant testified that the house was built by her with her own funds. She tendered the bank statements, salary slips, and allowance payment vouchers. She also summoned Elias Moses (SM2), who assisted her in getting the land (Plot No. 274 Block D) where the house was contracted, and she also summoned Mary Gumbo (SM3), the previous owner of the said plot, who sold it to her. On the other hand, the respondent alleged that the property in dispute was acquired by him. That he was the one who paid TZS. 8.500.000.00 for purchasing the disputed land. He also bought 6,000 blocks for TZS. 6,000,000.00 which were used to construct the house. The respondent also asserted that he bought all the construction materials that were used in construction except for the timbers worth TZS. 2.000.000.00, which were bought by the appellant. To support his case, the respondent summoned two witnesses including Abdaliah Mabula (SU3) a mason who allegedly built a house in dispute. 5U3 testified before 10 the trial court that it was the respondent who contracted and gave him a sketch plan of the house. Another witness was Juma Hezron (SU2) who told the court that he was assigned by the respondent to construct the roof of the house in dispute. According to SU2, it was the respondent who bought the iron sheets, and he was paying him except for a single payment, which was made by the appellant when the respondent was not around. Unfortunately, when determining the extent of contribution of each party, the trial court found that the respondent was lying in his evidence. The trial magistrate reasoned that the respondent brought neither the bank statements nor any proof of other sources of income, taking into consideration that his salary was only TZS. 950,000.00, which in her view was insufficient to enable him to construct the house in dispute. The trial court did not consider or evaluate the evidence adduced by the respondent's witnesses on the work they were assigned by the respondent and that they were paid by him. In our view, that was contrary to the principle of the law stipulated under section 114(2)(b) of the LMA, and the decision of the Court in Gabriel Nimrod Kurwijila v. Theresia Hassan Malongo (supra), which requires courts, when resolving the issue of the extent of contribution, to rely on evidence,adduced by both parties. Having gone through the record, we agree with the High Court Judge that the evidence adduced by SU2 and SU3 on who contracted them and how the whole construction was done, as well as who paid them, was enough to establish the contribution of the respondent towards the acquisition of the property in dispute. More so, the contribution of the respondent towards the acquisition of the house in dispute is also reflected in the testimony of SM2 and SM3. These witnesses testified before the court that the respondent was also involved in the process of buying the land in dispute although he signed the agreement as a witness, despite the fact that they didn't know who among the two provided the money that was paid for buying that land. It is clear from the record that the appellant, apart from summoning those who assisted her to get the plot and who sold the said plot to her, did not summon or mention any person who she employed to build the said house. Therefore, it is our considered opinion that, if the lower courts couid evaluate the evidence tendered by parties and their witnesses, the two courts could find out that the house in dispute was acquired by joint efforts of the parties and both parties have equal contributions to the same. We also noted that the appellant told the court that, during construction, she was financially good and tendered the documents to 12 that effect. However, in our opinion, it was not safe for the two lower courts to rely solely on the financial information and the receipts showing payment of hardware materials without other material evidence to link the said money and the purchase of the materials used in the construction of the property in dispute, such as those who were tasked to construct the said house. We support our stance with our previous decision in Sixbert Bayi Sanka v. Rose Nehemia Samzugi (supra), where it was held that: ’We would also add that it is one thing to buy building materials and another thing to ensure that they are really used in the construction o f the house as it is also one thing for one to establish that he was financially liquid and quite another guaranteeing that the money was spent in the construction o f the house. The same way building materials may be used for construction o f a completely different house, the money may be used for other purposes ; " Adding to the above position, we also emphasize that, documentary evidence must be weighed alongside the entire relationship context, not in isolation. Payment receipts bearing the name of one spouse do not necessarily indicate who actually paid or where the money came from, hence, it is not sufficient proof of funding. Based on this legal position, we agree with the High Court Judge that the lower courts did not properly evaluate the evidence and totally disregarded the respondent's witnesses contrary to the principle of the law, which advocates a fair hearing. Further, it is on record that the title to the plot in dispute is in the name of the respondent. However, the lower courts acted on the unproven evidence of the appellant, who told the trial court that the appellant stole the sale agreement and proceeded to register the plot in his name. Those claims were not proved as the appellant did not tender any evidence to show that she reported to any authority, such as the Police or land authorities that the respondent stole her document and fraudulently registered the plot in his name. Unfortunately, the lower courts did not put into scale and weigh the evidence adduced by the parties before concluding that the respondent did not contribute to the acquisition of the plot. The lower courts, in our view, acted on non-existent evidence to deny the respondent his share of the matrimonial property contrary to the law. Based on the analysis above, it is our finding that the learned Judge had a lawful basis to disturb the findings of the subordinate courts. Thus, the two grounds of appeal have no merit. 14 In fine, this appeal is devoid of merit and is accordingly dismissed. As the appeal arises from matrimonial proceedings, we decline to make any order for costs. DATED at MWANZA this 12th day of May, 2026. Judgment delivered this 13th day of May, 2026 in the presence of Mr. David Lweyemamu Rwechungura, learned counsel for the respondent who also held brief for Mr. Paul Bomani, learned counsel for the appellant and Mr. John Banene, Court Clerk; is hereby certified as a true copy of the o rig in a l. ____ _ L. S. MWANDAMBO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL A.L. KALEGEYA pdBFUTY REGISTRAR £em iRT OF APPEAL 15