Abdallah Athumani Mponda vs Samia Mussie Abraha (Civil Appeal No. 1361 of 2024) [2026] TZCA 526 (12 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA ( CORAM: KEREFU. 3.A.. MWAMPASHI, J.A.. And ISMAIL, J.A,^ CIVIL APPEAL NO. 1361 OF 2024 ABDALLAH ATHUMANI MPONDA ................................................... APPELLANT VERSUS SAM IA MUSSIE ABRAHA.... ........................................................ RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Temeke Sub-Registry, One-Stop Judicial Centre at Dar es Salaam) (Mnvukwa, J.) dated the 5thday of September, 2024 in Civil Appeal No. 4794 of 2024 JUDGMENT OF THE COURT 14th April, & 12th May, 2026 KEREFU, J.A.: The main issues of controversy between the parties to this appeal are the division of matrimonial assets and the custody of the last born- child. The Resident Magistrate's Court of Dar es Salaam at Kisutu (the trial court) in Matrimonial Cause No. 21 of 2021, having dissolved the marriage between the parties and granted divorce, it awarded the appellant sixty percent (60%) and the respondent forty percent (40%) of the alleged jointly acquired matrimonial assets. The custody of the last born-child was placed to the respondent, while the appellant was ordered to provide maintenance for his welfare, pay school fees and was also granted access to visit him twice a month on the arrangement to be agreed upon between the parties. Aggrieved, the appellant unsuccessfully appealed to the High Court vide Civil Appeal No. 4794 of 2024. Upon hearing the parties and re-evaluating the entire evidence on the record, the first appellate court, upheld the custody order but varied the distribution ratio of jointly acquired matrimonial assets by assigning, fifty five percent (55%) to the appellant and forty five percent (45%) to the respondent. The decision of the first appellate court prompted the appellant to lodge the current appeal to express his dissatisfaction. The appeal comprises fourteenth (14) grounds of appeal. However, in view of what will unfold in the course of disposing of this appeal, we do not deem it appropriate to reproduce all the grounds herein. However, in order to appreciate the context in which this appeal has arisen, we find it apposite to briefly provide the material facts of the matter as obtained from the record of appeal. That, the appellant and the respondent solemnized their marriage under Islamic rites on 21st June, 2002 at Asmara Sharia Court in the Republic of Eritrea. At that time, the appellant was working with the United Nation's Peace Keeping Mission for Eritrea and Ethiopia. Therefore, the parties spent early part of their marital life in Eritrea from 2002 to 2005 when they moved to Tanzania where they successfully registered their marriage on 7th December, 2006. In her testimony before the trial court, the respondent, who testified as PW1, stated that, during the subsistence of their marriage, they were blessed with three issues and jointly acquired various properties. However, later, after a period of about thirteen (13) years of marriage, their relationship became sour, as the appellant developed a habit of being abusive and violent towards her without any justifiable cause. That, their marriage relationship worsened further in 2015, when they moved to Mapinga Bagamoyo, as the appellant started beating her seriously, hence subjected her to severe pain, bodily harm and humiliation. She reported the matter at Urafiki Police Station where a Police Form No. 3 (PF3) was issued to facilitate her medical treatment. Subsequently, she started to receive abusive and disturbing frequent phone messages from the appellant stating on how he hates her and cursing the day he married her. It was further testimony of the respondent that, on 5th March, 2020, a fight ensued and the appellant threatened to kill her by using a knife. The incident was reported at the Central Police Station where the appellant was summoned and arrested. The said matter, later, culminated into a Criminal Case No. 155 of 2020 which was filed at the District Court of Bagamoyo. However, upon hearing both parties, the appellant was acquitted. The respondent went on to state that, the said misunderstanding and frequent quarrels were reported to the family members and BAKWATA Marriage Conciliation Board that tried to solve the same but, all in vain. Subsequently, and due to irreconcilable marital differences, the respondent vacated the matrimonial home in March, 2020 together with her last born-child and started her own life at different rented houses in Dar es Salaam. The respondent also alleged that, after she left the matrimonial home, she discovered that, the appellant had extramarital affairs with another woman. Finally, she decided to petition for divorce and prayed to be awarded the reliefs indicated above. Specifically, on the division of matrimonial assets, the respondent listed the following properties: (i) A residential house on Plot No. 636 Block 'T situated at Sahare area in Tanga Region (Sahare house); (ii) A farm measuring 16 acres at Mleni area within Magundaro Village, in Tanga Region (the Mleni shamba ); (iii) A farm and a house measuring 1.7 acres at Kiharaka, Mapinga, Bagamoyo Coastal Region (the Mapinga house); (iv) A motor vehicle, Toyota Ipsum with Registration No. T144 BWN; (v) the cafeteria business in Tanga and a hardware shop at Msasani area, Kinondoni Municipality, in Dar es Salaam Region. To establish the extent of her contribution towards acquisition of the said matrimonial assets, the respondent testified that, all assets were acquired during the subsistence of their marriage and she personally contributed both, monetary and by providing domestic services. That, when the appellant was working outside the country, she used to work at different places, such as Royal Mirage Hotel, Djibouti and American Embassies in Dar es Salaam and also as a teacher at the school known as 'My World'. She also supervised family businesses, to wit, the cafeteria business in Tanga and Hardware Shop at Msasani Dar es Salaam. The respondent's testimony was augmented by twenty-three (23) documentary evidence, including; (i) two marriage certificates registered in Eritrea and Tanzania with Ref. Nos. 189/422/2002 and 536/2006, respectively (exhibits PI and P2); Children's Birth Certificates (exhibits P2 to P5); Sale Agreement for Mapinga house dated 15th March, 2014 (exhibit P10); two employment contracts with My World School (exhibits P l l and 12); a motor vehicle Registration Card (exhibit P13); the PF3 (exhibit P14); printed text messages and a copy of the CD (exhibit P15); Land Lord/Tenancy agreements (exhibits 16 to 20); School fees receipts (exhibits P21 and 22); BAKWATA documents and the Form No.3 (exhibit P23). 5 On his part, the appellant, who testified as DW2, admitted that he was duly married to the respondent, lived in Eritrea and Tanzania and blessed with the said issues of marriage. That, while working in Eritrea, he used to come to Tanzania after every four months. He stated further that, the respondent came to Tanzania for the first time in 2005 under a visitor's Visa but, later on, she was issued with a certificate of naturalization and finally granted the Tanzanian citizenship. That, the respondent vacated the matrimonial home in March, 2020, after several disagreements between them. However, according to him, they were normal arguments for married couples and there was nothing serious. On the matrimonial assets, he admitted that, all assets listed by the respondent were acquired during the subsistence of their marriage. He, however disputed the Mleni shamba to be included in the list of matrimonial assets. He contended that, the said shamba was his personal gift given to him by his late father. On the Sahare and Mapinga houses, the appellant stated that, he acquired the same from his own sources of income, particularly from his salary and loan obtained from the CRDB Bank. He contended that, the respondent had not contributed to the acquisition of the said assets, but she only squandered the family money and mismanaged the family businesses. That, he has been always maintaining his children and the entire family without any 6 support from the respondent. The testimony of DW2 was supported by DW1, Siti Zuberi Mgeni (DW3), Athumani Mohamed Rashidi (DW4) and Jafari Maghinde (DW5). Moreover, the appellant tendered four documentary exhibits, namely, the respondent Dependent's Pass issued on 19th May, 2005 (exhibit Dl), sale agreement for Mapinga house dated 14th November, 2014 together with the text book in which he recorded all monies paid to the seller (exhibits D2 and D3 respectively) and Bagamoyo District Court's proceedings in Criminal Case No. 155 of 2020 (exhibit D4). Having heard the evidence of witnesses for both sides, the trial court was convinced that the marriage between the parties had broken down beyond repair hence the decree of divorce was granted and the division of matrimonial assets and custody were awarded as indicated above. At the hearing of the appeal, the appellant was represented by Mr. Barnaba Luguwa, learned counsel, who entered appearance virtually through video conference linked to his office located in Dar es Salaam, Tanzania and the appellant was also present in Court. On the other part, the respondent who was also present in Court, had legal services of Mr. Emmanuel Safari, learned counsel. It is noteworthy that, pursuant to Rule 106 (1) and (7) of the Tanzania Court of Appeal Rules, 2009, the learned counsel for the parties had earlier on lodged their respective written submissions and reply written submissions in support of and in opposition to the appeal, which they sought to adopt at the hearing to form part of their oral submissions. Upon taking the floor to expound on the grounds of appeal, Mr. Luguwa prayed to abandon the first, third, fifth, sixth, seventh, eighth, tenth, eleventh and thirteenth grounds of appeal and intimated that he would only argue the remaining four grounds (second, fourth, nineth and fourteenth) which can be conveniently paraphrased as follows, that: one, failure by the learned Judge to consider the extent of contribution by the parties towards acquisition of the matrimonial assets (the second ground); two, that, the learned Judge erroneously revised the percentage of the amount bestowed upon the parties while there was no cross appeal by the respondent and no prayer to that effect (the fourth ground); three, the custody of the last born-child was erroneously placed on the respondent without considering that, being a foreigner, after the divorce, she could leave the country with the child to the place outside the jurisdiction of the courts of Tanzania (the ninth ground); and finally, failure to properly analyze the evidence on record and thus, arrived at a wrong decision (the fourteenth ground). We propose to address the parties' submissions in the course of determining the grounds of appeal in the order we have reformulated them above. However, at this stage, we wish to state that, this being a second appeal, under normal circumstances, we would not interfere with concurrent findings of the lower courts, if there were no mis-directions or non-directions on evidence. Where there are mis-directions or non directions on the evidence, the Court is entitled to interfere and look at the evidence with a view of making its own findings. See for example Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] TLR 149 and Mussa Mwaikunda v. The Republic [2006] T.L.R. 387. We shall be guided by the above principle in disposing this appeal. In arguing the second, fourth and fourteenth grounds, Mr. Luguwa faulted the learned trial Judge for failure to properly evaluate the evidence on record and arrived at a wrong decision regarding division of matrimonial assets contrary to the requirement of sections 58, 60 and 114 of the Law of Marriage Act, Cap. 29 of the Revised Laws (the LMA). That, the learned Judge made a general conclusion that the said properties were acquired during the subsistence of the marriage without considering the actual contribution made by each party and specifically, the negative contribution made by the respondent towards acquisition of the said assets. He contended that, the respondent mismanaged the family business, the cafeteria and hardware shop. To underscore his point, he referred us to the testimonies of DW1 and DW2 and argued that, the said witnesses clearly stated that the Sahare house was acquired in 2003 through the serving deposited by the appellant in a joint account, at the Savings and Finance Bank, between him and DW2, while working in Uganda, Rwanda and Eritrea before he married to the respondent. On the Mleni shamba, he referred us to the testimony of DW4, who testified that the said shamba was bought by the appellants father in 2004, as a gift to the appellant. On the Mapinga house, Mr. Luguwa referred us to the two sale agreements (exhibits P10 and D2) tendered by the parties at the trial and urged us to consider exhibit D2 as the valid agreement, as it was corroborated by DW5, who witnessed the sale transaction of the said asset. On that basis, Mr. Luguwa urged us to find that, under the circumstances, the lower courts erroneously found that the respondent had contributed towards acquisition of the said assets, while she failed to prove the extent of her contribution. Mr. Luguwa also urged us to find that, the learned Judge was not justified to vary the percentage of the amount apportioned to the parties by the trial court, as there was no cross appeal by the respondent to that effect. In response to these grounds, Mr. Safari challenged the argument advanced by his learned friend of attempting to reduce the respondent's role to mere monetary contribution towards acquisition of the matrimonial assets, while ignoring her other valuable contributions during the subsistence of the marriage. He argued that, before the trial court, there was no dispute that all listed matrimonial assets were acquired jointly by the parties during the subsistence of their marriage. That, the appellant himself admitted to the said facts. To justify his argument, he referred us to the testimony of the appellant found at pages 629 to 630 of the record of appeal. He also challenged the submission made by Mr. Luguwa that, despite alleging that the Sahare house was acquired in 2003 through the money deposited by the appellant in a joint account with DW1 from the money he got from his former jobs before married to the respondent, there was no evidence submitted to prove that fact. On the allegations of mismanagement of family businesses by the respondent, he referred us to page 631 of the record of appeal and argued that, it was the appellant himself who squandered the family money by sending only 50% of his salary to his wife to take care of ii more than six (6) people in the family. He emphasized that, it is trite law that contribution toward acquisition of matrimonial assets is not limited to monetary input, it may also include other forms such as, domestic services performed by the respondent as a homemaker to its acquisition. To support his proposition, he referred us to Bi Hawa Mohamed v. Ally Sefu [1983] T.L.R 32 and Samwel Moyo v. Mary Cassian Kayombo [1999] T.L.R. 197. He then insisted that, all matrimonial assets in this appeal were acquired during the subsistence of marriage and the respondent had clearly demonstrated on how she contributed by providing domestic services to the entire family and by monetary terms as she was employed at different places as well as taking care of the family businesses. That, both lower courts properly evaluated the evidence on record and correctly divided the jointly acquired matrimonial assets between the parties. On that basis, he urged us to find that, the second, fourth and fourteenth grounds are devoid of merit Having closely considered the submissions made by the learned counsel for the parties and examined the record of appeal before us, we wish to start by stating that the division of matrimonial assets is governed by section 114 of the LMA, which provides that: "114 (1) The court sh all have power, when granting or subsequent to the grant a decree o f separation or 12 divorce , to order the division between the parties o f any assets acquired assets by them during the m arriage by their jo in t efforts or order the sale o f any asset and the division between the parties o f the proceeds o f sale. (2) In exercising the pow er conferred by subsection (1), the court shall have regard to - (a) the custom s o f the com m unity to which the parties belong; (b) the extent o f the contributions made by each party in money ; property or work towards the acquiring o f the assets; (c) any debts owing by either party which were contracted fo r their jo in t benefit; and (d) the needs o f the children, if any, o f the m arriage, and subject to those considerations, sh all incline towards equality o f division. (3) For the purposes o f this section, references to assets acquired during the m arriage Include assets owned before the m arriage by one party which have been substantially im proved during the m arriage by the other party or by their jo in t efforts". It is clear that, the above provision vests power in a court hearing a matrimonial dispute, upon granting a decree of divorce and or 13 separation, to order for division of matrimonial assets jointly acquired by the parties during the subsistence of their marriage. Specifically, sub section 2 to that provision, gives the trial court the criteria! and or factors to be considered in the process of dividing the matrimonial assets; one, the customs of the community to which the parties belong; two, the extent of contributions made by each party in monetary, property, or work towards the acquisition of the assets; three, any debts owing by either party which were contracted for their joint benefits; four, the needs of the infant children, if any, of the marriage; and five, subject to those considerations, the court must favour equitable distribution. See for instance the cases of Bi. Hawa Mohamed (supra), Gabriel Nimrod Kurwijila v. Theresia Hassan Malongo [2020] TZCA 31 and Bibie Maulid v. Mohamed Ibrahim [1989] T.L.R. 162. In the instant appeal, as correctly argued by Mr. Safari, it is undisputed fact that all three properties were acquired jointly during the subsistence of the marriage between the parties and were intended for development and use for the benefit of both parties and their children. This was clearly stated by the parties before the trial court. For instance, at pages 629 to 630 of the record of appeal, the appellant is recorded to have testified that: 14 AH th e p ro p e rtie s I a cq u ire d w as a fte r I m a rrie d Sam ia, the petitioner. I also acquired m y properties in Tanga when we had already two children. When I bought the house in Tanga our first child had some several m onths old. ..I c a n 't sh o w a n y p ro p e rty w hich I a cq u ire d b e fo re m a rryin g Sam ia. "[Em phasis added]. In terms of the above extract together with the testimonies of PWl, DW1, DW3 and DW5 and the contents of exhibit P10, which was admitted in evidence without any objection from the appellant and or Mr. Luguwa, who also represented the appellant during the trial, it is clear to us that the two houses were jointly acquired by the parties. We equally find the act of Mr. Luguwa, of trying to challenge the validity of exhibit P10, at this stage, is nothing but an afterthought. We are also mindful that, in his submission, Mr. Luguwa, when trying to show us that, the Mileni shamba is not a matrimonial asset, he referred us to the testimony of DW4 at page 638 of the record of appeal, where the said witness testified that, the said shamba was bought by the appellant's father in 2004 and given to the appellant as a gift. With profound respect, we are unable to agree with Mr. Luguwa on this point. As correctly argued by Mr. Safari, the oral account of DW1, DW2 and DW4, on this matter, is tainted with contradictions and 15 inconsistencies, which led us to conclude that, the said witnesses were incredible and unreliable, as properly found by the trial court at page 556 of the record of appeal. For the sake of clarity, we found it apposite to reproduce the relevant part of their evidence herein. At page 612 of the record of appeal, DW1 testified that " the appellant came back fo r leave in the year 2004, that is when he bought the farm ” Then, the appellant himself at page 622 of the same record testified that, '7 aiso have a farm in Tanga a t M ileni area (Magundaro Village). I bought the said farm in the year 2004" Again, DW4 at page 638 of the same record testified that, the said farm was bought by the appellant's father in the appellant's name. In the circumstances, we agree with Mr. Safari that, the lower courts properly analyzed the evidence on record, on that aspect and correctly found that the appellant had failed to prove that the said shamba was given to him by his late father as a gift. All in all, it is clear to us that, the said shamba was acquired during the subsistence of the marriage between the parties. We need to emphasize that, it is trite law that the extent of contribution by a party towards acquisition of matrimonial asset is a matter of evidence. A party who asserts that a particular property forms part of the matrimonial asset or is his or her personal property bears the burden of establishing that fact, by credible and cogent evidence. 16 Equally, where a party lays claim to a share in such property, the law requires that, the nature and extent of his or her contribution, whether monetary or non-monetary, be specifically demonstrated. In this appeal, having revisited the evidence on record, we are satisfied that, the respondent had clearly demonstrated on how she contributed by providing domestic services to the entire family and by monetary terms as she was employed at different places as well as supervising and taking care of the family businesses in Tanga and Dar es Salaam. We are increasingly of the view that, Mr. Luguwa's criticism on the learned Judge variation of the percentage of the amount apportioned to the parties by the trial court, is, with respect, without any justification. It is on record that, before taking that move, the learned Judge, being the first appellate court, correctly in our view, cautioned herself at page 743 of the record of appeal, and properly invoked the principle pronounced by this Court in Herman Faida v. Republic [2021] TZCA 405 and dutifully re-evaluated the entire evidence on record and arrived at her own conclusion. It is therefore our settled view that there is nothing on record to suggest that there is misapprehension of facts or evidence by the learned Judge, We therefore see no justification to fault her finding on that aspect. We thus equally find the appellant's complaint in the second, fourth and fourteenth grounds devoid of merit and we dismiss it. The appellants complaint on the ninth ground hinges on the custody of the last born-child. That, the custody of the last born-child was erroneously placed on the respondent without considering that, being a foreigner, after the divorce, she could leave the country with the child to the place outside the jurisdiction of the courts of Tanzania. In his submission, Mr. Luguwa also faulted the learned Judge for failure to consider the Islamic Law governing custody of male children and the requirement of the trial court to involve the social welfare officer and or the independent opinion of the said child who was already aged thirteen (13) years. Based on his submission, he invited us to allow the appeal, quash and set aside the decision of the High Court and its subsequent orders. In his response, Mr. Safari challenged the submission of his learned friend for being misconceived. He argued that in granting the custody of the said child to the respondent, the first appellate court considered many factors itemized under section 125 (1), (2) and (3) of the LMA and the Law of Child Act, Cap. 13 of the Revised Laws (the LCA). He then argued that, since in the instant appeal, there was sufficient evidence adduced by the parties concerning the custody of the 18 said child, the tower courts were justified to arrive at that conclusion without involving the social welfare and or soliciting an independent opinion of the said child. To amplify, Mr. Safari referred us to the testimony of the appellant at page 633 of the record of appeal where he testified that, at some point, when he went to pick the child from her mother, the said child refused to go with him. Specifically, at page 641 of the same record, the appellant testified that, 7 need the custody o f m y child so that he w ill be raised by m y new wife. I have never paid for his school fees because the respondent refused...I am not ready to pay for arrears or m oney paid by her as school fees." It was the argument of Mr. Safari that, since, according to the appellant's evidence, the child himself refused to be under the custody of his father to be raised by a different mother, it was correct for the lower courts to place his custody under the respondent who had been all along taking care of him and paying for his school fees. In conclusion and based on his submission, Mr. Safari prayed for the entire appeal to be dismissed for lack of merit. In a brief rejoinder, Mr. Luguwa reiterated what he submitted earlier and, once again, prayed for the appeal to be allowed. Having considered the rival arguments by the learned counsel for the parties and revisited the evidence on record, we wish to state that, 19 as correctly argued by Mr. Safari, issues of custody and maintenance of children, in our jurisdiction, are governed by sections 125 to 137 of the LMA read together with sections 4 (2), 26 (1) (2), 37 (4) to 44 of the LCA and Rule 73 (a) to (i) of the Law of the Child (Juvenile Court Procedure) Rules, GN. No. 182 of 2016 (the Juvenile Court Rules). In terms of the said provisions, in deciding in whose custody a child should be placed, the paramount consideration shall be the best interest and welfare of the child. Where the best interest of the child lies, as between the father and the mother, is a question of fact, which can be determined based on the facts of each case and the evidence adduced by the parties before the trial court. In the instant appeal, the trial court, having considered the evidence adduced by the parties, was satisfied that, it was in the best interest of the said child to continue staying with his mother, as indicated above. Then, the first appellate court, having revisited the entire evidence on record, joined hand with the trial court that, the said child is better placed with her biological mother, the respondent. In her own words, the learned High Court Judge, at pages 743 to 745 of the record of appeal, observed that: "With ai! due respect to the learned advocate fo r the appellant\ the applicable law as far as the 20 issues concerning children is the LCA and its Rules thereto. And it is settled that either o f the parent can be placed with the custody o f the child. What is m ostly considered is the best interest o f the child, and the im portance o f a child to be with his/her m other as stated under section 39 (1) o f the LCA. Therefore, the learned advocate's argum ent that placing custody to the respondent contravenes Mohamadan Law is m isconceived. Furtherm ore, Mr. Luguwa argued that the tria l court placed custody o f a ch ild to the respondent who is a foreigner since her citizenship to this country ceased after dissolution o f her m arriage to the appellant. Respectful, this argum ent is baseless fo r a fact that the respondent was given custody o f the child by virtue o f her being a parent regardless o f her nationality or citizenship." Having scrutinized the entire record of appeal before us, it is our settled view that there is nothing on the record to warrant interfering with the concurrent findings of the lower courts on this matter. We need to emphasize that, the appellant being the father of the said child, is obliged under the law, to maintain him by providing food, shelter and other basic needs regardless of whether he is under his custody or the custody of his mother. See the case of Amri Yahaya Mfikilwa v. Fatuma Mohamed Nampembe [2025] TZCA 279 and Nacky Esther 21 Nyange v. Mihayo Marijan Wilmore [2022] TZCA 507. We accordingly find the ninth ground meritless. Consequently, we hereby dismiss the appeal in its entirety. Each party shall bear its own costs. DATED at DODOMA this 11th day of May, 2026. R. J. KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered virtually this 12th day of May, 2026 in the presence of Mr. Barnaba Luguwa, learned counsel for the Appellant, Mr. Samwel Lawrence Kimaro, learned counsel for the Respondent and Mr. Shafii Kassim, Court Clerk is hereby certified as a true copy of the or A. S. qflUGULU DEPUTY REGISTRAR COURT OF APPEAL