Edward Elisha vs Anna Philmon (Civil Appeal No. 77 of 2023) [2026] TZCA 498 (7 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA f CORAM: FIKIRINI. J.A, RUMANYIKA, J.A, And ISSA, J J U CIVIL APPEAL NO. 77 OF 2023 EDWARD ELISHA................................................................ APPELLANT VERSUS ANNA PHILMON .............................................................. RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Arusha Registry) ( Mwaseba. 3 } dated the 19th day of July, 2022 in PC Civil Appeal No. 11 of 2021 JUDGMENT OF THE COURT 29th April & 7th May, 2026. FIKIRINI, J.A.: Marriage is a sacred vow, a lifelong bond founded upon love and faithfulness. It is intended to endure through all seasons of life, holding firm until death parts those who have become one. Presumably, this was the understanding of the appellant, Edward Elisha and the respondent, Anna Philmon, when they contracted a civil marriage on 21st June, 2017. Though their union was not blessed with children, the appellant embraced the respondent's child, Happiness Edward Elisha, as his own, hence the inclusion of his name in the child's identity. Prior to the marriage, in 2015, the appellant purchased a plot of land upon which he constructed a residential house in 2016. At the time the parties entered into marriage, the house was not fully completed, and the couple subsequently cohabited therein while further developments and improvements were undertaken. These improvements included contributions by the respondent, both direct and indirect, toward the completion and enhancement of the house, which later became the subject of dispute following the breakdown of the marriage. Ultimately, the marriage irretrievably broke down, culminating in proceedings before the Dongobesh Primary Court. By its decision delivered on 20th November 2020, the Primary Court dissolved the marriage and addressed the division of matrimonial assets, particularly the house in question. Upon evaluating the contributions of each party, the court ordered that the value of the matrimonial house be divided between the parties in the ratio of 70% to the appellant and 30% to the respondent, taking into account the respondent's contribution toward its completion. Dissatisfied with that decision, particularly the order on division of the matrimonial house, the appellant preferred an appeal to the District Court of Mbulu. Upon hearing the appeal, the District Court reversed the findings of the Primary Court and awarded the appellant 100% ownership of the house, effectively excluding the respondent from any share in the property. Aggrieved by that outcome, the respondent lodged a second appeal to the High Court of Tanzania, in PC Civil Appeal No. 16 of 2021. In its judgment delivered on 19th July 2022, the High Court allowed the appeal, set aside the decision of the District Court, and reinstated the orders of the Primary Court. The High Court was satisfied that the respondent had made a recognizable contribution to the development of the house and was therefore entitled to a 30% share of its value. Beside the issue on dissolution of marriage and division of matrimonial property, the High Court took issue with the maintenance order issued by the Primary Court, finding it to be too general and lacking specificity, and consequently quashed it. The appellant, still dissatisfied with the decision of the High Court, has now lodged a third appeal before this court, advancing three grounds of appeal challenging, inter alia, the finding on contribution and the resultant division of the matrimonial property. The appellant's grounds of appeal can be summarized as follows:- one, that the first appellate court wrongly awarded the respondent 30% of the appellant's property without proof of contribution, two, that the court assumed, without evidence, that the respondent contributed to property acquired before marriage and three, that, the court raised child maintenance issues without giving both parties a chance to be heard. During the hearing the appellant had services of Ms. Jenipher John, learned advocate whereas the respondent, was unrepresented, she thus fended for herself. Parties had lodged written submissions for and against the appeal, which were adopted in course of the hearing. On the first and second grounds of appeal, the appellant's counsel contended that the High Court erred in granting the respondent a 30% share of the disputed property on two fronts, one, in the absence of proof of contribution, and two, that the court improperly treated the property as matrimonial despite having been acquired prior to the marriage. Maintaining her position faulting the High Court judgment, learned counsel for the appellant submitted that, although the High Court expressly stated in its judgment that division of matrimonial assets must be based solely on evidence of each party's contribution, it nevertheless upheld the trial court's decision awarding the respondent 30% despite the absence of any evidence to that effect. To fortify her submission, counsel referred the Court to Gabriel Nimrod Kurwijila v. Theresia Hassani Malongo [2020] TZCA 31 and Yesse Mrisho v. Sania Abdul [2019] TZCA 763, where the Court emphasized the necessity of scrutinizing the contribution or effort of each party in acquiring or developing the matrimonial assets. While acknowledging that oral testimony may be relied upon, counsel pointed out that, in the proceedings before the Primary Court, neither party adduced cogent evidence nor called witnesses to substantiate their assertions on contribution issues. She further stressed that the appellant had acquired the property prior to marrying the respondent, and that the brief duration of the marriage of two years, could not reasonably have enabled the respondent to develop the contested property. The learned counsel, further highlighted that the appellant had borne the responsibility of maintaining the family, including the respondent's daughter, for whom he provided TZS 3,000,000.00 to open a bank account held in trust by the respondent. On that basis, counsel strongly contended that the award of 30% was excessive. She urged that the percentage be either removed entirely or substantially reduced, as the respondent's alleged contribution to the matrimonial property was not substantiated. Against this backdrop, she prayed that the Court allow the appeal on the first and second grounds. The respondent being a lay person had nothing much to say save for adopting her filed written submissions as alluded to earlier on in this judgment. In determining the two grounds of appeal argued together, we find the relevant provision to start our deliberations to be section 114 (3) of the Law of Marriage Act, Cap. 29 Revised Laws (the LMA), which expressly provides that references to assets acquired during the marriage include assets owned by one party before the marriage but which have been substantially improved during the marriage by the other party or through the joint efforts of both spouses. In the cases of Gabriel Nimrod Kurwijila and Yesse Mrisho, (supra), we had articulated ourselves explicitly that when determining division of matrimonial assets, scrutiny of each party's contribution to the acquisition or development of the matrimonial asset under discussion must be evidenced. 6 The evidence on record, in the present case, which the High Court was fully entitled to re-evaluate on appeal, clearly demonstrates that the Primary court relying on the oral evidence of the parties was satisfied with each party's story on the acquisition and contribution of the matrimonial asset centre of the controversy. Like the learned Judge, was particularly convinced that the respondent, made a tangible and direct contribution to the improvement of the house. The record shows that the plot in which the house was built was undisputedly bought by the appellant. It was further revealed that the parties moved into the house while it was still incomplete. The respondent testified, without effective rebuttal, that she contributed both financially and through personal effort by undertaking the wiring and electrical installation of the house. Such a contribution goes beyond mere domestic support and constitutes a substantial improvement of the property during the subsistence of the marriage. In our view, the High Court did not, as alleged, assume contribution; rather, it drew a proper and lawful inference from the uncontroverted evidence presented by the respondent. In the circumstances, the High Court was correct in upholding the trial court's finding that regardless of the fact the marriage lasted for only two (2) years, the respondent was entitled to a share of the property. Indeed, the award of 30% in her favour was reasonable and, if anything, generous to the appellant, as it preserved his majority interest in the property. Accordingly, the first and second grounds of appeal are without merit and ought to be dismissed. On the third ground of appeal, the appellant contends that the High Court erred in law by raising and determining the issue of maintenance suo motu without affording the parties an opportunity to be heard. The court has, times without number, held that this right is fundamental and whenever abrogated by court proceedings, such proceedings will be null and void. See: Said Nassor Zahor & Others v. Nassor Zahor Abdulla El Nabahany & Another, [2017] TZCA 237. A careful perusal of the record reveals that the issue of child maintenance was neither pleaded as a ground of appeal nor canvassed by the parties during the hearing. The same was, however, introduced by the High Court at the stage of writing its judgment and determined without inviting the parties to address it. With respect, this approach was irregular. This was a clear violation of the audi alteram partem rule, rendering the judgment a nullity. See: Kumbwandumi Ndemfoo Ndossi vs Mtei Bus Services Ltd, [2021] TZCA 23. 8 In the circumstances of this case, it is indeed correct that the parties were denied the right to be heard on the issue of maintenance. As for the first and second grounds we find no merit. For the third ground on maintenance issue, we order the record to be remitted to the High Court to allow parties to be heard on that. Finally, we conclude that the appeal partially succeeds to the extent demonstrated above. Each party to bear its own costs. DATED at ARUSHA this 6th May, 2026. P. S. FIKIRINI A. A. ISSA JUSTICE OF APPEAL Judgment delivered this 7th day of May, 2026 via teleconferencing in the presence of Ms. Jenipher John, learned counsel for the appellant and the respondent in person and Mr. Nelson Novati, Court Clerk in person is JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL 9