Rukia Mustapha vs Jumanne Hamis Seleman (Civil Appeal No. 530 of 2025) [2026] TZCA 518 (11 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: LILA. 3.A., MASOUD. J.A. And MLACHA. J.A.^ CIVIL APPEAL NO. 530 OF 2025 RUKIA MUSTAPHA ................................................................... APPELLANT VERSUS JUMANNE HAMIS SELEMAN................................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, at Kigoma) (Nkwabi, 3.) dated the 15th day of January, 2025 in PC. Civil Appeal No. 000014505 of 2024 JUDGMENT OF THE COURT 2 JdApril & 11t h May, 2026 MLACHA. J.A.: The respondent sued the appellant at the Primary Court of Kigoma District at Ujiji in Matrimonial Cause No. 11 of 2023 seeking divorce and division of matrimonial assets; a house on plot No. 333, Block "0" Mwanga Majengo Kigoma township and two cars described as Toyota Vista registration No. T 762 BZE and Suzuki registration No. T 478 BHP and return his documents and clothes. The Primary Court found that the marriage between the parties was broken beyond repair and issued a decree of divorce. The house was found to be a matrimonial asset and ordered to be shared between the parties; 70% to the appellant and 30% to the respondent. The claim for the cars, return of documents and clothes was found to be lacking in evidence and dismissed. The appellant did not find justice in the decision which recognized the house as a matrimonial asset and ordered it to be shared between the parties. She appealed to the District Court of Kigoma in Civil Appeal No. 000002550 of 2024 challenging the decision. The District Court found the house to be the property of the appellant. It reversed the orders of the Primary Court. Aggrieved by the decision of the District Court, the respondent appealed to the High Court in PC Civil Appeal No. 000014505 of 2024. The High Court, like the Primary Court, found the house to be a matrimonial asset but had a different view on the way it should be divided. It vacated the decision of the District Court. Based on its own assessment of evidence, it awarded 30% to the appellant and 70% to the respondent. This decision prompted the appeal. The evidence on which the decision of the High Court was based can be presented, albeit briefly, as follows. The appellant (SU1), a mother of 10 kids, fell in love with the respondent and became her third wife in 2012. The marriage was celebrated under Islamic rites. By that 2 time, she had 3 children from her first husband (whose name was not disclosed) and 7 children from her second husband, Mr. Haruta Ibrahim Mtunda (SU2) who divorced her in 2010. She was not blessed to have a child with the respondent during the subsistence of their marriage (2012 to 2023). It was the tale of the appellant that in 2016 she got money from her second husband, Tshs. 20,000,000.00 as Kitoka Unyumba (a gift given to a divorced wife under Islamic law) which she used to buy a plot. The plot was bought at Tshs. 16,000,000.00. It had a small house where they lived temporarily before she built the house under dispute where they lived from 2017 to 2023 when they parted. Giving details on the way the house was built, she said that, her second husband added Tshs. 10,000,000.00 while her son Sharifu Haruta Ibrahim (SU4) gave her Tshs. 20,000,000.00. She brought her children, Sada Haruta Ibrahim (SU3) and SU4 who supported the evidence that she received money from SU2 and SU4 to build the house. She agreed that she had no income to build the house but insisted that the house belong to her in exclusion of the respondent because the source of the funds did not involve the respondent. The sale agreement (exhibit Dl) and the title deed (exhibit D2) also carry her name. 3 The tale of the respondent was that, by 2012 when he married the appellant, he had two other wives; Salma Rashid (married in 1992) and Sikuzani Yusuph (married in 1998). He lived with the appellant at the place where she met her but later saw it important to build a house for this new family. With this in mind, he bought a plot from his brother, Juma Hamisi (SM2) which had a small house. He renovated it and they lived there. He later built the house where he shifted and lived with the appellant from 2017 to 2023 when he walked out to save his life in view of difficulties between them. Explaining the difficulties, he said that, sometimes in 2022, the appellant moved to Congo DRC on a business trip. She moved repeatedly until when he discovered that she had another husband in Congo DRC (Malilo). Tension increased. One night in 2023, the appellant attempted to kill him by poison. He moved out of the house leaving everything behind including his vital documents, cars and clothes. He reported the matter to BAKWATA who tried to reconcile them in vain. He gave her the religious divorce (exhibit D6) on 17.06.2023. He then went to the Primary Court for a judicial divorce and division of matrimonial assets. He said that he is the one who bought the plot and built the house and denied the allegation that the house was built by the appellant using funds from her x-husband and son. The matter moved from the Primary Court through the District Court to the High Court which made decisions as intimated. Undaunted, the appellant lodged the appeal which had four grounds of appeal which carry two complaints. One, the house on plot No. 333 Block 'O' Mwanga Majengo is not matrimonial property and if so, the award of 70% to the respondent and 30% to the appellant was erroneous; two, section 60 (a) of the Law of Marriage Act [Cap 29 R.E. 2019] was not given the correct interpretation by the High Court. Messrs. Method Kabuguzi and Ignatius Kagashe, both learned advocates, appeared for the appellant and respondent respectively. On taking the floor, Mr. Kabuguzi impressed upon us to find that, on the basis of the evidence adduced by the appellant during the trial, the house under dispute is not a matrimonial asset. It was owned by the appellant in exclusive of the respondent due to the source of funds and its registration. He contended that the appellant is protected by section 60 (a) of the Law of Marriage Act because the house is registered in her name. He submitted in alternative that, in the event the Court will find that the house is matrimonial, it should award 70% to the appellant and 30% to the respondent because the contribution of the appellant was more taking into account that the amount of money she received from her ex-husband and her son, who also came to testify as SU2 and SU4 respectively. In reply, it was submitted by Mr. Kagasheki that, SU2 who was married to the appellant and lived with her from 1988 to 2010 and who had 7 children, could not build her a house. It could not be possible for him to build her a house after being married by another man. He went on to submit that SU2 said that he could not give the appellant Kitoka Unyumba after divorce because he had no money. He wondered the way he could raise Tshs. 20,000,000.00 in 2016. To the contrary, he referred the Court to the evidence of Juma Hamisi (SM2) at page 55 where he said, "SA/i (Respondent) ndiye alikuwa ananipa pesa. Jumanne ndiye alikuwa ananipa pesa nusunusu mpaka zilipokwishd' and impressed upon us to believe that the respondent is the one who bought the plot and built the house. He referred the Court to the evidence of the appellant appearing at page 62 through to 67 where she said "ni sawa na kuniita mama wa nyumbani" meaning that she was a mere house wife. He contended that the appellant had no contribution in buying the plot in 2016 or building the house because she was a mere house wife. He argued that, as she had no income, she did not contribute anything. He referred the court to page 71 line 10 6 where the second husband is quoted as saying that he could not give the appellant "Kitoka Unyumbd' at the time of divorce because he had no money and argued that he was not truthful when he said that he gave Tshs. 20,000,000.00 to the appellant in 2016. He referred the Court to the evidence of SU4 appearing at page 79 who said that he was in jail in the period and submitted that SU4 who was in jail in 2016 could not give Tshs. 20,000,000.00 to the appellant. He went on to submit that SU3 said that she and her sister received Tshs. 20,000,000.00 from their father and gave them to their mother but the appellant did not say so in his evidence. In winding up, he contended that, there was no good evidence showing that the appellant got the money from her ex-husband or her son. When he was engaged by the Court, he agreed that there is evidence showing that the couple met during business but hastened to say that, if there can be any adjustment by the Court, then it should take into account that the respondent contributed more than the appellant. In rejoinder, Mr. Kabuguzi reiterated his earlier stance that there cannot be any division of matrimonial asset because the house belonged to the appellant. He argued that much as it is true that SU4 was in prison in the period but there is evidence that he gave the money to the appellant. He went on to submit that the appellant was a house wife at a later stage not all the time. When he was engaged by the Court to get his views in case the Court finds that the house was a matrimonial asset, he submitted that a division of 70% to the appellant and 30% to the respondent could be fair. We will now move to examine the merit of the appeal. The jurisdiction of the Court in hearing matrimonial appeals from the High Court is contained under section 80 (4) of the Law of Marriage Act which provides: "Any person aggrieved by a decision or order o f the High Court in its appellate jurisdiction may appeal there from to the Court o fAppeal on any ground o f law or mixed law and fa c t " [Emphasis supplied] The Court is given jurisdiction to entertain appeals based on any grounds o f law or mixed law and facts. An appeal based on a ground of law calls for an examination of the law or a principle developed out of it whereas an appeal based on a ground of mixed law and facts calls for an examination of both the law and the evidence adduced during the trial. We will now move to examine the rights of the parties in this appeal. Like the learned counsel, we will combine the two complaints and discuss them together. We will start by examining the import of sections 60 of the Law of Marriage Act. It reads thus: "60 - Where during the subsistence o f a marriage, any property is acquired- (a) in the name o f the husband or o f the wife, there shall be a rebuttable presumption that the property belongs absolutely to that person, to the exclusion o f his or her spouse; (b) in the names o f the husband and wife jointly, there shall be a rebuttable presumption that their beneficial interests therein are equal." [Emphasis supplied] This provision carries a reputable presumption that, where during the marriage, any property is found in the name of the husband or wife, that property belongs to him or her as the case may be until proved otherwise. It means that, subject to any evidence to the contrary, any property held in the name of one of the spouses, it may be presumed to be his at the exclusion of the other until proved to the contrary. The basis of this presumption is section 58 of the Act which allows couples 9 to own properties independently. Now, where it is in the name of one of the parties, the burden lies on the other party to prove that it is a matrimonial asset despite the fact that it is written in the name of one party. This is the import of our decision in Hidaya Ally v. Amiri Mlugu [2016] TZCA 644 where it was stated: "... where the court is directed to presume a fact, it may regard the fact as proved unless or until it is disproved, and that in the present case the respondent was allowed chance to dispute the presumption". [Emphasis supplied] See also: Yesse Mrisho v. Sania Abdul [2019] TZCA 414 and the decision of the High Court in Abdul Azizi Juma v. Jasmin Mwindadi Juma, [2025] TZCA 6565 which we subscribe. In Abdul Azizi Juma (supra) the High Court interpreted the sections 58 and 60 (1) of the Law of Marriage Act correctly when it said: "Section 58 o f the Law o f Marriage Act recognizes that either spouse may acquire separate property, distinct from the matrimonial assets. Section 60(a) further establishes a rebuttable presumption that properties registered in one spouse's name are that 10 spouse's separate property unless proven otherwise." It was thus upon the respondent to disapprove that despite the fact that the house was registered in the name of the appellant, it did not belong to the appellant but was a matrimonial asset subject to division following the grant of the decree of divorce. Whether there was proof that the house in this case was a matrimonial asset despite being in the name of the appellant or not is an issue to be resolved by evidence and is the subject of the discussion which will follow. Division of matrimonial assets is regulated by section 114 of the Law of Marriage Act which reads thus: "114 (1) The Court shall have power, when granting or subsequent to the grant of decree o f separation or divorce, to order the division between the parties o f any assets acquired by them during the marriage by their joint efforts or to order the sale o f any such assets and the division between the parties o f the proceeds o f Sale. (2) In exercising the power conferred by subsection (1), the Court shall have regard to - a) the customs o f the community to which the parties belong; ii b) the extent of the contributions made by each party in money, property or work towards the acquisition o f the assets; c) any debts owing by either party which were contracted for their joint benefit; and d) the needs of the Children, if any, of the marriage, and subject to those considerations, shall incline towards equality o f division. (3) for the purpose o f this section, reference to assets acquired during marriage includes assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by their joint efforts." [Emphasis supplied] Our reading of this provisions has revealed the following: one, division of matrimonial assets is done when granting the decree of separation or divorce or subsequent thereto; two, there cannot be a division of matrimonial assets in the absence of a decree of separation or divorce; three, division is done on assets which were acquired during the subsistence of the marriage by joint efforts of the parties; four, assets which were acquired by one party before the marriage but 12 substantially improved by the other party, during the marriage, may be matrimonial assets, to the extent of the contributions of the parties and subject to division; five, division is made subject to proof of contribution by the parties towards the acquisition of the property and; six, where the needs of the children are at issue, subject to the above considerations, the division should incline towards equality of division. See: Bi Hawa Mohamed v. Ally Sefu [1983] TLR, 32, Yesse Mrisho v. Sania Abdul [2019] TZCA 414, Sixbert Bayi Sanka v. Rose Nehemia Samzugi [2022] TZCA 227, Gabriel Nimrod Kurwijila v. Theresia Hassan Malongo [2020] TZCA 31 and Tumaini M. Simoga v. Leonia Tumaini Balenga [2023] TZCA 249 to mention but a few. The concept of proof of contribution was underscored in our decision in Sixbert Bayi Sanka (supra) where it was stated as follows: " The provisions enjoin or lay a burden to the parties to establish their respective contributions and joint efforts as regard acquisition of the asset which will enable the court to fairly andjustly determine the extent o f their contribution hence apportion their respective shares. "[Emphasis supplied] There is no dispute that the house was acquired during the subsistence of the marriage. There is undisputed evidence that the parties met in business; the appellant was a petty trader dealing with small fish though turned to be a house wife at a later stage and the respondent was a clearing and forwarding agent who ferried cargo through three boats across Lake Tanganyika to Congo DRC. It is therefore clear that, as between the parties, the respondent had a bigger income than the appellant. But the case for the appellant was that, though she had no income at the time of buying and building the house (2016 - 2017), she got money from her ex-husband (SU2) and her son (SU4) which she used in buying and building the house. She made reference to the sale agreement and the title deed both of which are in her name as proof of ownership of the house. The respondent's case was that he bought a house from his brother (PW2) at Tshs. 16,000,000 which was paid by installments. He then built the house where they lived from 2017 to 2023 using his funds. As to why the sale agreement and title deeds were written in the name of the appellant, he said that the move aimed at safeguarding his third wife as other wives had houses already where they lived. This evidence was supported by PW2, the person who sold the plot. 14 In resolving the controversy, the learned Judge had this to say at page 217 of the record: "Mr. Maghaibuni pressurized me to find that the respondent (now appellant) bought the plot and constructed the house from money she obtained from SU2 and others and there is a proof o f receipt for payment for purchase o f cement. I rebuff the contentions on the correct grounds advanced by Mr. Kagashe that there is no proof how SU2 earned that money him mereiy being a mechanic who even failed to pay Kitoka Unyumba when he divorced SU1 on financial constraints which he himself testified on. For the court to accept his evidence that he became well financially to be able to give that amount of money that he is claimed and claimed to have advanced to the respondent needs cogent evidence over earning the same which is not here. There is no evidence that SU1 and SU2 divided matrimonial assets when they divorced in the year 2010 which implies that they had nothing to divide among themselves, how come he turns to be a millionaire handing over 20 million Tanzanian shillings just like that? The 15 issue o f certificate of occupancy being in the name of the appellant was well explained by the appellant that he did so in order to afford accommodation for his wife as it was the situation for his other wives. The house in question therefore is presumed to be held in trust for the other spouse (the appellant)." [Emphasis supplied] On the evidential value and credibility of SU2, SU3 and SU4 the learned Judge had this to say at page 216 of the record of appeal: 7 am tempted here, as Mr. Kagashe was tempted too to say that SU2 and other witnesses of the respondent (now appellant) had an interest to serve which borders ill will. They ganged against the appellant (now respondent). SU2 might have been angry o f the appellant because o f either snatching the respondent from him or living with respondent. "[Emphasis supplied] The meaning and parameters of Kitoka Unyumba was given by SU5, the BAKWATA Regional Secretary, who had this to say at pages 81 and 82 of the record of appeal: "Baada ya miezi 3 watakuwa wameachana. Mume anatakiwa ampe mke Kitoka Unyumba 16 (uchumba) ku/ingana na uwezo wake. Anaweza kumpa kianzio cha Maisha kwa kiasi chochote Hi aanze Maisha. Kama mke ameoiewa na mume mwingine si haiaii kupewa fedha ya Kitoka Unyumba. Kinatakiwa kitoiewe mara tu baada ya kumaiiza eda. Kama ameoiewa na mume mwingine sio haiaii kupewa zawadi. "[Emphasis supplied] With the above exposition, we are of the view that, the learned Judge made a correct analysis of the evidence on record. We subscribe to his reasoning, on findings of facts and interpretation of the law. It is clear to us that SU2 who had failed to build a house for his wife from 1988 to 2010 could not build it after divorce and when she was living with another man. Further, the concept of Kitoka Unyumba as the source of funds was defeated by the evidence of SU5 and thus of no assistance to the appellant. We also agree that, SU4 who admitted to have been in prison in those days, could not give such a huge amount of money to the appellant. His job and source of income were also not disclosed. It is obvious that, the evidence given by SU2 and SU4 was fabricated to fit in the situation. 17 Section 60(a) of the Act could not therefore come at the aid of the appellant because the respondent proved that he is the one who bought the plot and built the house and explained the reason why it was registered in the name of the appellant. We therefore, like the High Court, find that the house was not the property of the appellant. It was a matrimonial asset subject to division. As to the extent of contributions, the evidence is loud, as intimated above that, the respondent was a clearing and forwarding agent, with 3 boats ferrying cargo to Congo DRC. The appellant was a petty trader who later spent most of her time at home. Taking into account the principle already set in Bi Hawa Mohamed (supra) which recognized domestic services as part of the contribution of the wife towards the acquisition of domestic assets, which can attract up to 30%, we have the view that the decision of the High Court awarding 30% to the appellant was erroneous. We think that, if the learned Judge had considered the principles already set on domestic services as part of contribution of the wife, and the undisputed fact that the parties met in business, he could have awarded more to the appellant. On our part, having considered the evidence closely, we assess and award 50% to the appellant and 50% to the respondent. That is to say, the property 18 in plot number 333 Block "0" Mwanga Majengo Kigoma township be valued and each of the parties be given 50% of the value thereof. In the upshot, the appeal is partly allowed to the extent explained above. This being a matrimonial cause, we will make no order for costs. DATED at TABORA this 8th day of May, 2026. S. A. LILA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL Judgment delivered this 11th day of May, 2026 via virtual Court, in the presence of Mr. Method R. Kabuguzi, learned counsel for the Appellant, Mr. Ignatus Rweyemamu Kagashe, learned counsel for the Respondent and Ms. Rehema Makakala, Court Clerk; is hereby certified as a true copy of the original. 19