Hawa Mahamudu vs Mikidadi Halidi (Civil Appeal No. 527 of 2025) [2026] TZCA 491 (6 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: LILA. J.A.. MASOUD. 3.A. And MLACHA. J.A.^ CIVIL APPEAL NO. 527 OF 2025 HAWA MAHAMUDU........................................................................ APPELLANT VERSUS MIKIDADI HALIDI......................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania (Sub-Registry) at Kigoma) (Nkwabi. 3.) dated the 2n d day of August, 2024 in PC. Matrimonial Appeal No. 9719 of 2024 JUDGMENT OF THE COURT 23rd April & 6th May, 2026 LILA. J.A.: The central issue in this appeal is division of matrimonial assets. The Primary Court of Kalinzi in Matrimonial Cause No. 6 of 2022, awarded the appellant twenty percent (20%) and the respondent eighty percent (80%) of the matrimonial assets. Aggrieved, the appellant partly succeeded in her first appeal to the District Court of Kigoma in Matrimonial Appeal No. 6 of 2023 in which, apart from sustaining the trial court's division of matrimonial assets, it ordered the house allocated to the appellant to be renovated by i the respondent at the cost not exceeding Two Million shillings. Still undaunted, the appellant unsuccessfully preferred an appeal to the High Court, Kigoma Sub- Registry in PC Matrimonial Appeal No. 9719 of 2024 which found no reason to fault the trial court's finding and quashed and set aside the order that the respondent should renovate the appellant's house made by the District Court. That decision triggered institution of the present appeal by the appellant centered on unfair division of matrimonial assets. For the purpose of this appeal, these facts unveil the essence of this appeal. The parties solemnized their marriage in Islamic rites and were blessed with five issues but two passed away leaving them with three namely; Hidaya Mikidadi (19 years), Shahali Mikidadi (16 years) and Farida Mikidadi (11 years). The appellant petitioned for divorce and division of matrimonial assets before Kalinzi Primary Court claiming desertion by the respondent. A divorce decree was issued and there has been no appeal against it. Guided by the provisions of section 114 of the Law of Marriage Act, 1971, Cap. 29 of the Laws (the LMA), the trial primary court considered the issue of division of matrimonial assets and arrived at the above stated proportions; 20% to the appellant and 80% to the 2 respondent after being satisfied that the latter's contribution towards their acquisition was bigger than that of the appellant. For certainty, the trial court, in its judgment, went further to list down assets allocated to the appellant at pages 64 and 65 of the record of appeal. It stated that: "Apewe nyumba anayoishi na watoto na vyombo vilivyopo (kitanda, godoro na ndoo), apewe kiwanja kimoja na mashamba mawHi ." (Literally, it meant, the appellant be given a house in which she was living with her children, a mattress and buckets, one plot of land and two farms.) The appellant's complaint before us is that her contribution was bigger and deserved a lion's share not as the trial court and the High Court decided. She has accordingly accessed the Court on a sole ground that: "1. That the Honourable High Court grossly erred in law and fact by giving a greater percentage (80%) to the Respondent o f the said matrimonial properties while the Appellant had greater contribution towards the acquisition o f the matrimonial properties." At the hearing of the appeal before us, both parties appeared in persons and unrepresented. While the appellant appeared in person in Court, the respondent appeared though video conference linked from High Court at Kigoma. The parties were very brief, in essence, repeating in summary form what they had told the trial primary court. The appellant repeated her explanation on how she contributed in the acquisition of assets. She complained that the house allocated to her is not in a good and tenable condition compared to the one the respondent is living. She said she deserved one shop out of the two shops acquired. And, lastly, she lamented that even those assets allocated to her by the primary court are yet to be given to her and the two farms are not arable as they are situated at a barren area with gravel. She prayed to be given one shop and a new and modern house be built for her by the respondent. In his reply, the respondent argued that he complied with all the orders of the primary court but the quarrel arose when he prevented the appellant to sell a pine tree (mkaratusi) on the plot she lived on. He further submitted that he gave her what he acquired with her as was ordered by the court and he denied owning the alleged two shops and a good and modern house. He said, there was no locus in quo visit done by the trial court to see the properties allegedly acquired during subsistence of their marriage before dividing them. As acknowledged by all courts below, division of matrimonial assets is guided by law, section 114 of the LMA. It provides: " The court shall have power, when granting or subsequent to the grant o f a 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 asset 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; (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 for their joint benefit; and (d) the needs o f the children, if any, o f the marriage, and subject to those considerations, shall incline towards equality o f division. (3) For the purposes o f this section, references to assets acquired during the marriage include assets 5 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 added) In the light of the above, it is only properties or assets acquired during the subsistence of marriage which are subject to division between the spouses. "Matrimonial assets" is a term applied to describe such properties. Trite legal position is that, extent of contribution towards the acquisition of the asset is elementary in considering the extent of the asset to be allotted to a spouse and the contribution can be direct or indirect (see Mohamed Abdallah v. Halima Lisangwe [1988] T.L.R. 197, Charles Manoo Kasara & Another v. Apolina Manoo Kasara [2003] T.L.R. 425 and Reginald Danda v. Felician Wikesi, Civil Appeal No. 265 of 2018 (unreported). Such position was reinstated with lucidity in the regularly cited case of Gabriel Nimrod Kurwijila v. Theresia Hassan Malongo, Civil Appeal No. 102 of 2018 (unreported) where the Court pronounced itself that: " The extent o f contribution is o f utmost importance to be determined when the court is faced with a predicament o f division o f matrimonial property..." (See also Bi Hawa Mohamed v. Ally Sefu [1983] TLR 32,) The extent o f contribution by a party in proceedings is a question o f evidence. Once there is no evidence adduced to that effect, the appellant cannot blame the High Court Judge for not considering the same in its decision. In our view, the issue o f equality o f division as envisaged under section 114(2) o f the LMA cannot arise also where there is no evidence to prove extent o f contribution." In our instant case, the learned Judge guided by the above principle, was faced with this predicament: "7/7 this appeal, particularly in the trial court, the appellant proved nothing. She merely mentioned the alleged properties such as plots, houses and businesses. She did not prove the value or size o f any. It is difficult to determine what amount to allocate to each..." Notwithstanding the dilemma, he found himself in and without resolving it, he decided to agree with the trial court's finding and division of the assets relying on what was observed by the trial court in exhibit D2 which showed that the respondent was a mere servant in the shop business. As a result, he dismissed the appellant's contentions that two shops were among the acquired matrimonial assets. We have examined the evidence on record by the parties and we have found ourselves not free from the dilemma the learned Judge encountered. The learned Judge's observation above is that, there was no evidence establishing that the properties listed/mentioned by the appellant really existed and they belonged to the spouses. Such evidence was crucial before consideration of the extent of contribution by each of them. Herein, the appellant, in her petition and evidence in court, listed the matrimonial assets to be two farms, one found where the house they live is built and another one is occupied by the respondent, farms at Mwanyonge and Kusambo, a forest at Mhihagwe, two plots one at Kalinzi and the other at Basagara and a shop at Kalinzi. These allegations were seriously disputed by the respondent in his defence evidence. In her own words, the appellant is recorded to have said this at page 73 of the record of appeal: "Tumechuma maduka mawili, misitu miwili . NiUkuwa naenda kuokota miti mashamba niliyokuwa naenda kukata ndizi. Manne heka na kasoro robo Mkangoti, kiwanja Basara, kiwanja Kalinzi, Kiwanja sokoni Kalinzi, nyumba ninayoishi, shamba 8 Mwanyonga la kulima Makoti, Kusamubo kuna shamba la mihogo, shamba lingine kwa baba mkwe Busagara ninapoishi, msitu Mhugangute. Tumechuma kitanda nagodoro, ndoo 4,..." In supporting her, the appellant summoned her brother Juma Mahamudu (SM2). He was only able to state that the spouses had a farm at Mugabwe where they involved themselves with horticulture. When he was cross-examined by the respondent, he denied knowing to whom the farms belonged. When he was asked to elaborate further, he said after the marriage, the spouses lived at the respondent's father's place during which time the respondent bought two plots on which the house the appellant lives on is built and the other is occupied by the respondent. He also mentioned the forest and three farms. Another witness was Shahali Mikidadi (3), their daughter, who simply said SMI showed them farms at Kasangezi and shops at Kalinzi and Nyabanda, suggesting that there were two shops. In his defence evidence, the respondent, first demanded the appellant to prove her contribution towards the acquisition of the alleged matrimonial assets. When responding to the questions by the court in respect of the assets acquired, he explained, at page 85, that: "-Wakati namuoa alinikuta na uwanja na ng'ombe niliyotoa mahari -Baada ya kumuoa sijapata kingine Ha nilikuwa natumia mashamba ya mzee. -Anapoishi alinikuta hapo. Mimi sikuonesha duka. Niiipata udhamini nikawa msimamizi wa watu. -Mpaka sasa sina maii yoyote. ” To bail him out, the respondent summoned Halidi Nyamgenda (SU2) who stated that he received the appellant, at the time of marriage, and lived with her as she fell sick and then his son (SU1) bought a plot on which they built a house, later bought another plot after which SU1 got two sponsors who opened a shop business and the respondent worked in the shop. In his own words, at page 86, he said: "SU1 aiimieta SMI kama mkazana aiifika anaugua, aiimuuguza miaka mitatu akaja nyumbani, baadae mtoto wangu aiinunua uwanja akajenga nyumba, baadae aiinunua uwanja mwingine, baadae ndio wakapata wadhamini wakampa mtaji. Aiikuwa kama mfanyakazi wa watu wawiii na mashamba waiiyokuwa wanaiima ni yangu. Ninaomba kutoa kieieiezo ..." 10 In his further elaboration to the court, he said at page 87 of the record of appeal, that: "Shamba la Samlo rti langu Pamoja na mashamba mengine kwani nilimpa SU1 kama kuazima mashamba yote ni yangu." And, at page 88, when cross-examined by SMI, SU2 insisted that: Shamba zote ni zangu. -Niiinunua hizo shamba -Mali ambazo wamepata ni nyumba niliyojenga na kiwanja kipo wazi. -UHpokata ndizi nilikuwa nimemuazima sio lake -Shamba ni langu." He clarified, at page 89, to the court that: "-Mali walizonazo ni uwanja ambao una nyumba, pia waiinunua kiwanja kipo wazi uliopo karibu na hapo wanaishi kitongoji cha Busagara. -Alidhaminiwa duka na Saidi na baa yenye wafanyakazi tu' -Yupo shahidi wa kuthibitisha hayo." li To prove that the shop belonged to other persons who contributed capital, the respondent summoned Nuru Saidi of Nyarubanda (SU3) who informed the court that the shop was established in 1997 and it belonged to Said Nyamgenda and Venas Petro who contributed TZs 25,000,000 each as capital and she was a witness in the agreement which was tendered and admitted as exhibit D2. The quoted portions of the evidence by witnesses of the parties above reveal a crucial fact about ownership of the properties alleged by the appellant to be matrimonial assets. That, the plot and a house in which the appellant and her daughters are staying and which was allocated to her by the Primary Court and a plot near it in which it is said the respondent resides, appear to certainly belong to the spouses. On the other hand, ownership of the rest of the assets mentioned by the appellant as being matrimonial assets is questionable, in particular, ownership of the alleged farms and two shops. SU2 claimed all the farms to be his and the respondent was just using them with his permission. There was also evidence that there is only one shop and according to SU2 and SU3, it belongs to two other persons who contributed capital to establish it and the respondent was just a worker in it as opposed to the appellant's 12 contention that there were two shops and they belong to the respondent. There was, again, evidence that the house the appellant stays is in bad condition while the respondent stays in a modern house which raises a question of value (status). It is plain, from our reading of the judgments of both the learned Magistrate and the learned Judge, that they faced difficulties in the determination of a fair division of the matrimonial assets. Strangely, however, under such circumstances, the learned trial Magistrate proceeded to allocate two farms to the appellant and the learned Judge upheld it despite the learned Judge's finding, as a fact, that the appellant proved nothing apart from just mentioning the assets. The finding meant that the appellant's evidence was wanting in proving existence and her contribution towards their acquisition of the alleged assets. It is common knowledge that a court will only engage itself in division of matrimonial assets when satisfied that the said assets were jointly acquired during subsistence of the marriage. This is provided for under section 114 of the LMA. In circumstances where existence, ownership, location and value of assets alleged to be matrimonial assets are in dispute as is the case herein, it is incumbent upon the trial Magistrate to stay the proceedings and ask the spouses to sort out such issues in a proper forum 13 before engaging himself in their division. The provisions of section 114 of the LMA presupposes that the assets subject of division are owned by the spouses or either of them and were jointly acquired during the subsistence of their marriage. Matrimonial proceedings are meant and limited to resolve disputes between the spouses arising from marriage, divorce, distribution of matrimonial assets and custody of issues of marriage. They have nothing to do with resolving issues relating to ownership of the properties alleged to be matrimonial assets between the spouses and a third party. Such disputes should be resolved through ordinary suits before matrimonial proceedings relating to division of matrimonial assets are instituted. That is to say, where division of matrimonial assets is at issue, the question as to ownership of the assets between the spouses and third parties should be settled first before the court determines the parties' contributions in their acquisition and later division. A smooth application of section 114 of the LMA takes place in situations where the matrimonial assets are free from any impediment. Otherwise, as did the trial magistrate herein, division of assets the existence and ownership of which are not in issue, can proceed leaving aside those disputed until the disputes are settled. Otherwise, engaging in 14 division of assets unilaterally and arbitrarily without due regard to their existence, ownership and value (status) may result in chaos and disaster. It is noteworthy that extent of contribution of the parties in the acquisition of the assets, in terms of section 114 of the LMA, should be considered and determined so as to arrive at a just and equitable division after the court has ascertained that the properties are truly and really matrimonial properties. Consistent with this, in Bi Hawa Mohamed v. Ally Sefu, [1983] TLR 32, in interpreting the phrase "matrimonial assets" as applied under section 114 of the LMA, the Court said: "In our considered view, the term " matrimonial assets" means the same thing as what is otherwise described as 'family assets' Under paragraph 1064 o f lord Hailsham's Haisbury's Laws o f England, 3 it is stated: The phrase "family assets" has been described as a convenient way o f expressing an important concept; it refers to those things which are acquired by one or other or both of the parties, with the intention that there should be continuing provision for them and their children during their joint lives, and used for the benefit o f the family as a whole. The family assets can be divided into two parts (1) 15 those which are o f a capital nature, such as the matrimonial home and the furniture in it (2) those which are o f a revenue - producing nature such as the earning power o f husband and wife, "(Emphasis added). In the instant case, the learned trial Magistrate did not see the need to take steps to ascertain existence, ownership and conditions (status) of the alleged assets. The appellant was, however, given the house on which she lives with her children, a mattress and buckets to which she appears to be comfortable with save for the condition of the house and the arability of the farms allocated to her. As the allocated assets, save for the farms, are free from any qualms and the respondent did not appeal against such division order, we uphold the trial court's order giving them to the appellant. As for the disputed farms; forest (msitu), good house in which the respondent allegedly stays and shops, we agree with the learned Judge that they needed proof which was wanting. If the appellant still wishes to pursue her rights over them, she is free to do so by instituting an ordinary fresh suit according to law against those claiming to be owners. It is after such ascertainment, that the appellant can institute a petition seeking for division thereof. For those items already ordered by the primary court and 16 are yet to be given to the appellant, that is, the order is yet to be complied with as complained by the appellant, the doors of the trial court are open for her to take steps to execute the order. All said and done, the appeal fails and is rectified as above stated. We make no order for costs. DATED at TABORA this 5th day of May, 2026. S. A. LILA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 6th day of May, 2026 in the presence of the Appellant and Respondent who appeared in person unrepresented, via video link to the Respondent from High Court Kigoma and Mr. Magesa Fabiane, Court clerk, is hereby certified as a true copy of the original. \ R. W. CHAUNGU W /S/PEPUTY REGISTRAR v / ¥ COURT OF APPEAL 17