Dauson Nemweli Sindato vs Stella Sossi Ngowi (Civil Appeal No. 548 of 2024) [2026] TZCA 487 (5 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: SEHEL. J.A.. KIHWELO. J.A. And AGATHO. J.A.^ CIVIL APPEAL NO. 548 OF 2024 DAUSON NEMWELI SINDATO........................................................APPELLANT VERSUS STELLA SOSSI NGOWI...............................................................RESPONDENT (Appeal from Judgment and Decree of the High Court of Tanzania, (Temeke High Court Sub-Registry) at One Stop Judicial Centre at Temeke) (Omari, J.) dated the 6th day of May, 2024 in Civil Appeal No. 57 of 2023 JUDGMENT OF THE COURT 17thApril & 5th May, 2026 KIHWELO. J.A.: The appellant, Dauson Nemweli Sindato and the respondent Stella Sossi Ngowi were husband and wife having contracted a Christian marriage on 6th May, 2000. They enjoyed matrimonial ecstasy for a while and were blessed with two issues of marriage who at the time the dispute ensued were aged eighteen and ten years old. Theirs was a fairly-tale marriage until when it was overshadowed by problems. When the problems reached a boiling point and the situation was intolerable, parties became irreconcilable. It is then, the respondent petitioned for divorce at the Court 1 of Resident Magistrate of Dar es Salaam at Kisutu in Matrimonial Cause No. 30 of 2020. In that petition, the respondent sought for divorce, division of matrimonial property, custody of the minor child, maintenance, medical treatment and school fees for children. At the height of the trial, the court found it proven that the marriage between the duo is irreparably broken beyond salvage. It ordered the following: (a) The marriage between the parties is dissolved and a decree of divorce is hereby issued. (b) The court ordered division of the houses/property located at Boko among the parties. That the appellant, then respondent shall have 60% share of the value of the area and the respondent, then petitioner was given 40% of the share of that property. The division shall take place upon disposing that property or either party may compensate the other and remain with the property. (c) Custody of the child of ten years hereby granted to the respondent, then petitioner and access to the appellant, then 2 respondent. The appellant, then respondent must be responsible for the maintenance of his child. (d) Each party to bear its own costs. Irked by that decision of the trial court, the appellant challenged it before the High Court. He criticized the validity of the divorce decree vis a vis the provisions of section 107 of the Law of Marriage Act, Cap 29 R.E 2023 ("the LMA"). The appellant further faulted the trial court for what he termed inappropriate distribution of matrimonial property. He also criticized the trial court for placing custody of the child to the respondent. Upon hearing parties on merit, the High Court partly allowed the appeal to the extent of division of the house at Boko/Bunju with 70% being given to the appellant and the remaining 30% to the respondent. Otherwise, the High Court dismissed the remainder of the grounds for being wanting in merit. The High Court decision ignited the instant appeal before this Court in which the appellant has preferred the following nine (9) grounds of grievance: 1. That, the Honourable Judge erred in law in confirming the trial court holding that the marriage between the appellant and the respondent is irreparably broken down; 2. That, the Honourable Judge erred in law in upholding and confirming the decree for divorce having admitted that the desertion was not persistent for three years; 3. That, the Honourable Judge erred in law in granting division of matrimonial property of 30% to the respondent without analyzing and confirming her contribution; 4. That, the Honourable Judge erred in law in quantifying contribution and distribution at 30% and 70% between the respondent and appellant respectively; 5. That, the Honourable Judge erred in law in failure to consider other properties owned by the respondent as matrimonial properties and henceforth make distribution between the respondent and appellant; 6. That, the Honourable Judge erred in law in finding the inconsistences and contradictions as minor and that do not go to the root of the matter contrary to the principles of pleadings; 7. That, the Honourable Judge erred in law in confirming the distribution of the house which was not pleaded in the respondent's petition contrary to the principle that parties are bound by their pleadings; 8. That, the Honourable Judge erred in law in confirming the grant of custody of the child to the respondent; and 9. That, the Honourable Judge erred in law and in fact by failure to re assess and re-analyze properly the evidence on record henceforth reached to the wrong conclusion. We heard the parties on 17th April 2026 and the appellant was represented by Mr. Tarzan Mwaiteleke, learned counsel while the respondent was represented by Mr. Deogratius Ogunde Ogunde learned counsel who teamed up with Mr. Elifuraha Eliudy also learned counsel. In support of the appeal, Mr. Mwaiteleke prefixed his substantive submissions by first of all adopting the written submissions which were earlier on lodged in Court on 9th October, 2024 in terms of rule 106 (1) of the Tanzania Court of Appeal Rules. The learned counsel abandoned grounds 1, 2 and 8 of the appeal while consolidating grounds 3 and 4, grounds 6 and 7 as well as grounds 5 and 9 as they are closely intertwined. In support of grounds 3 and 4 of the appeal which were argued conjointly and whose gist of criticism is the award of 30% of the share of the suit property to the respondent while leaving the appellant with 70 % of the suit property, Mr. Mwaiteleke faulted the High Judge for awarding 5 that distribution knowingly that the suit property was jointly owned by the appellant and his brother DW4 referring us to page 294 of the record of appeal. For that matter, Mr. Mwaiteleke was of the view that, it was erroneous and wrong for the High Court Judge to have awarded 30% to the respondent. Elaborating further, Mr. Mwaiteleke submitted that, there was no basis upon which the High Court Judge arrived to that percentage which was awarded to the respondent considering that the respondent did not adduce any evidence leave alone sufficient evidence to substantiate her extent of contribution. In his considered opinion, the High Court Judge misdirected herself in interpreting section 114 (2) of the LMA by ignoring the fact that the plot and the suit property were acquired and built before the duo got married and therefore, the respondent had very minimal contribution if at all. He took the view that, the appellant had strong evidence than that of the respondent to indicate that her contribution was insignificant, but the High Court Judge gave little weight on this, otherwise she could have awarded the respondent less than that. In support of grounds 6 and 7 of the record of appeal, Mr. Mwaiteleke argued that, the High Court Judge erred to find that the 6 contradictions and inconsistences were minor in relation to reference to Bunju/Boko house as opposed to house at Bunju which was pleaded in the Amended Petition. In his opinion this was major contradiction which went to the root of the matter and drew our attention to the general rule that, parties are bound by their own pleadings. For that, he cited to us the celebrated case of James Funke Gwagilo v. Attorney General [2004] T.L.R 161 to demonstrate his proposition. He finally, submitted that, the Boko house and Bunju house are not one and the same and therefore, the court wrongly made division of the house at Boko without there being an amendment to the pleadings. Next, we turn to grounds 5 and 9 which were equally argued conjointly. Mr. Mwaiteleke submitted that, it was erroneous for the High Court Judge not to have considered other properties owned by the respondent as matrimonial properties and therefore subject of division among the parties. Illustrating further, he argued that, the court ought to have divided the other properties too which were mentioned at paragraph 5 of the Amended Reply to Petition, since they were acquired during the subsistence of the marriage and the appellant also contributed a lion's share of the capital to run the family business. In his view, the appellant's business incurred loss and the respondent built her own business empire 7 using what she said was money gotten from her mother, but quite unfortunate, the mother did not testify. He was of the strong opinion that, the High Court Judge ought to have relied on the provisions of section 114 (1) and (2) of the LMA to divide those other properties amongst the parties, being matrimonial properties jointly acquired during the subsistence of the marriage. The learned counsel submitted that the respondent was unable to account how she accumulated the wealth which enabled her acquire all those properties in her own name and it was on that account the appellant associated the loss incurred in the family business with the unexplained wealth of the respondent. Mr. Mwaiteleke therefore, urged us to allow the appeal and set aside the judgments of the courts below with costs. Conversely, Mr. Ogunde in response he argued the appeal in the pattern followed by Mr. Mwaiteleke but had an opposing view in respect of the appeal. Submitting in reply to grounds 3 and 4 of the appeal, he contended that, the argument that the suit property in part belongs to DW4 was not part of the grounds of appeal hence is a new ground because grounds 3 and 4 faults the quantum of distribution and not ownership of 8 the suit property. Be what it may, that property was a matrimonial home, Mr. Ogunde argued. Responding further, the learned counsel submitted that, exhibit D2 which was executed between the appellant and DW4 was entered on 3r d June, 2020 while the marriage was subsisting and without involving the respondent hence exhibit D6 is invalid in terms of section 59 of the LMA for lack of spousal consent. In further responding, Mr. Ogunde contended that, the suit property which was divided by the trial court and the High Court belonged entirely to the appellant and was not jointly owned by the appellant and DW4 as the counsel for the appellant would want the Court to believe. He went on to submit that the quantum of division of the matrimonial property based on contribution and considering that the respondent was a Personal Secretary hence she also paid for the improvement of the house in question. Illustrating further on this point, Mr. Ogunde submitted that, in as far as the quantum of distribution is concerned the trial court awarded 60 per cent share for the appellant and 40 per cent share for the respondent which was reversed and adjusted by the High Court to 70 per cent share for the appellant and 30 per cent share for the respondent. In his view, the 9 High Court Judge in so doing, did thorough analysis as reflected at pages 520 and 521 of the record of appeal and came to the conclusions which led to the adjustment. The learned counsel, thought that reducing further the share of distribution for the respondent will be doing grave injustice to her, as she contributed significantly to the improvement of that property. He argued that, grounds 5 and 9 have no merit. In response to grounds 6 and 7 of the appeal, Mr. Ogunde contended that there was no contradictions or inconsistences in relation to where the matrimonial house was located that is Boko and/or Bunju. He took the view that, this was clearly clarified by the evidence on record and the High Court Judge made it clear in her judgment. The learned counsel admitted that, the Amended Petition at paragraph 5 mentioned House at Bunju and in the reply to Petition at page 84 paragraph 4 the appellant did not dispute about the existence of that property, the only dispute was that he was given by his brother Adam Nemwel Moshi. Elaborating further, Mr. Ogunde argued that, the description of that property was made during trial by PW1 at page 232 of the record of appeal, PW2 at page 233 and PW3 at page 265. He further argued that, certainly, exhibit P3 at page 283 of the record, is a Reconciliation Board of Bunju Ward where the dispute was referred hence 10 reference to Boko and Bunju interchangeably did not create any contradiction or inconsistence, he argued. The learned counsel submitted further that, the Judge of the High Court made it clear that the house is on the boarder of Boko and Bunju and that it would be rather sketchy for us to quash the order of the trial court on such a flimsy reason. For that, he referred to us pages 517 and 518 of the record of appeal. He therefore, wrapped up by submitting that, since there is a concurrent finding on this aspect this Court should not disturb it. Reliance was paid to the case of Sixbert Bayi Sanka v. Rose Nehemia Samzugi [2003] TZCA 227 TANZLII in which we referred to a number of our earlier decisions including Amratlal Damodar Maltaser and Another t/a Zanzibar Silk Stores v. A.H. Jariwala t/a Zanzibar Hotel [1980] T.L.R. 31 for the proposition that, the second appellate court should be reluctant to interfere with the concurrent findings of the two courts below unless there is misdirection or non-direction. Arguing in response to grounds 5 and 9 of the appeal, Mr. Ogunde was of the considered opinion that, it was right for the two courts below not to disturb the other properties owned by the respondent and cited section 60 of the LMA which permits spouses to own properties in their own li names during the subsistence of the marriage. He pointed out that, it was for the same reason the house at Marangu was not included in the distribution on account that it was owned by the appellant in his own name. Arguing further these grounds Mr. Ogunde contended that, the evidence on record do not support the allegations by the appellant that he gave the respondent capital citing the testimony of the appellant at page 243 of the record of appeal. Mr. Ogunde further argued that, the allegations that the respondent caused loss to the appellant's business was mere allegations not supported by evidence on record and not even DW6's testimony. In his view, the only evidence that remains on record is the evidence of the respondent that she was given capital by her mother which DW6 also supported at page 243 of the record. He reiterated that, this too is a concurrent finding of the two courts below which need not be disturbed. In all, he urged us to disallow the appeal for being devoid of merit. In rejoinder submission Mr. Mwaitekele was fairy brief and argued that, the High Court erred to hold that therespondent contributed substantially towards the acquisition and renovation of the suit property. He further contended that the business at Boko belonged to the appellant and the respondent was merely supervising that business. In further submission Mr. Mwaiteleke argued that, there was no any evidence to prove that the 12 respondent was employed, the fact that exhibit P2 indicated that her occupation was a secretary is not a proof that she was employed as such, and there is no any evidence on record to prove that she was employed. Upon our prompting regarding the validity of the agreement between the appellant and DW4 in view of the provision of section 59 (1) of the LMA Mr. Mwaiteleke was quick to respond that, section 59 (1) of the LMA was not applicable since spousal consent is required where there is sale, gift or mortgage and the transaction in exhibit D6 did not fall in any of those categories. We have anxiously examined the record of appeal and dispassionately considered the rival submissions placed before us by the learned trained minds. We find it convenient to start with the complaint in relation to grounds 6 and 7 of the appeal whose gist is the alleged inconsistences and contradictions as to where the matrimonial house is located between Boko and Bunju. In our view, this does not need us travel very far distance for the simple reason that records are clear that while the respondent mentioned the property at Bunju in her Amended Petition the appellant did not dispute existence of that property in his Reply to the Amended Petition. We find considerable merit in the submission of Mr. 13 Ogunde that the alleged inconsistences and contradictions if any, is very minor and was clearly clarified by the testimony of witnesses and the other evidence on record. In that case, we find no justification in faulting the High Court Judge who referred to it as the house at Boko/Bunju because even the trial magistrate at page 335 of the record referred to it as the house located between Boko and Bunju and the High Court Judge correctly made it clear that, the said house is on the boarder of Boko and Bunju. It is our view that, reference to Boko and Bunju interchangeably did not create any contradictions or inconsistences which went to the root of the matter as rightly argued by Mr. Ogunde and therefore, this complaint is decidedly thin. We thus, find grounds 6 and 7 unmerited. We will next deliberate on grounds 5 and 9 of the appeal whose criticism is on the failure to consider other properties owned by the respondent as matrimonial properties and therefore, subject of division among the parties. Equally, these grounds need not detain us for the simple reason that the appellant did not lead any strong evidence to prove his contribution apart from the mere allegations that the respondent occasioned loss in the family business at the expense of building her own business empire, the fact which was not supported by evidence on record, not even the appellant's witnesses ably proved those allegations. In the 14 case of Gabriel Nimrod Kuwijila v. Theresia Hassani Malongo [2020] TZCA 31 TANZLII, we held 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. In resolving the issue o f extent o f contributionf the court will mostly rely on the evidence adduced by the parties to prove the extent o f contribution ." We, on our part, think the High Court, in respect of this ground of complaint, correctly resorted to the conclusion it arrived based upon the strength of the evidence on record. The law is very settled in this country like in any other jurisdiction, he who alleges a certain fact is duty bound to prove existence of that fact. This is the import of section 117 (1) of the Evidence Act, Cap 6 R.E. 2023. There is, in this regard a considerable body of case law. See, for instance, Mollel Electrical Contractors Limited v. Mantrac Tanzania Limited [2022] TZCA 316, TANZLII, Happy Kaitira Burilo T/A Irene Stationary and Another v. International Commercial Bank (T) Ltd [2022] TZCA 286 TANZLII and Helmina Nyoni v. Yeremia Magoti [2022] TZCA 170 15 TANZLII. We hold that grounds 5 and 9 of the appeal are untenable. They stand dismissed. Finally, we will deliberate on grounds 3 and 4 of the appeal whose gist of criticism is the award of 30 per cent of the share of the suit property to the respondent and 70 per cent to the appellant. We must admit that these grounds exercised our minds considerably, and the reason is not far fetched. Both learned trained minds did not dispute the fact that the respondent was entitled to a share of contribution in the suit property. However, they disagreed on the quantum of the share she is entitled according to her contribution, but also, they disagree on the joint ownership of the suit property between the appellant and his brother DW4. Starting with the joint ownership of the suit property, it is evident on record that the same is jointly owned by the appellant and his relative, DW4 according to exhibit D6 which was executed on 3r d June, 2020 as well as the evidence of DW4 at pages 266 to 268 of the record of appeal. It was erroneous for the High Court Judge to come to the conclusions that, DW4 relinquished his rights to the appellant by virtual of the said agreement. For clarity, we wish to reproduce part of exhibit D6 which reads: 16 "3: KWAMBA; kuanzia tarehe ya leo tunaposaini mkataba huu, eneo la mbe/e (linalopakana na nj'ia ya bagamoyo) ni mali ya Ndg PHARES N. Sindato na eneo la nyuma linalosalia baada ya ku/ipa deni ni mali ya DAUSONN. SINDATO" This is loosely translated to mean: "3. THAT; from the date o f signing this agreement , , the front part (the area that borders bagamoyo road) is the property o f Mr. PHARES N. Sindato and the remaining area behind upon repaying the loan belongs to DAUSONN. SINDATO". Clearly, the wording of clause 3 of the agreement does not in anyway, depict what the High Court Judge held at pages 518 to 519 of the record ofappeal that, "/£ would be rather strange for one to conclude that exhibit D6 was to the effect that the plot still also belonged to DW4". It is very clear from clause 3 of exhibit D6 that, while the front part of that plot was taken and belongs to DW4 the remaining part behind that plot belongs to the appellant. It therefore, defeats logic and common sense to hold that DW4 relinquished ownership of that plot. We therefore hold that, DW4 is a joint owner of the suit property according to exhibit D6 and therefore, any 17 division of that property should consider his share as described in exhibit D6. Parties have locked horns on the validity of the agreement between the appellant and DW4 considering that the same was executed on 3r d June, 2020 during the subsistence of the marriage, and there was no spousal consent in terms of section 59 (1) of the LMA. However, we find considerable merit in the submission by Mr. Mwaiteleke that, section 59 (1) of the LMA was inapplicable since spousal consent is required where there is sale, gift or mortgage and the transaction in exhibit D6 did not fall in any of those categories. For better understanding the provision of section 59 (1) of the LMA, we wish to restate hereunder as follows: "59.- (1) Where an estate or interest in the matrimonial home is owned by the husband or the wife, he or she shall not, while the marriage subsists and without the consent of the other spouse, alienate it by way o f sale, gift, lease, mortgage or otherwise; and the other spouse shall be deemed to have an interest therein capable o f being protected by caveat, caution or otherwise under any law for the time being in force relating to the registration o f title to land or deeds" [Emphasis is supplied]. 18 It is illustrative to state that, the provision above applies in circumstances where one of the spouses seeks to alienate a matrimonial home by way of sale, gift, lease, mortgage or otherwise. The transaction in exhibit D6 did not fall in any of the above circumstances. It is not insignificant to observe at this juncture that, the joint ownership of the suit property by the appellant and DW4 is clearly demonstrated by Exhibit D2, at page 286, in which the duo were given that property along with other properties by their brother one Adam Moshi. Trying as hard as we can to follow Mr. Ogunde's reasoning on this point, we are unable to see, how the provision above was applicable in the circumstance of the case before us since the transaction did not fall in any of the categories stated under that provision. We will next deliberate on the issue of quantum of the award of 30 per cent of the share of the suit property to the respondent and 70 per cent to the appellant. To start with, we find merit in the submission by Mr. Mwaitekele that the business at Boko belonged to the appellant and that, there was no any evidence to prove that the respondent was employed and her contribution towards the improvement of the suit property was limited to supervision during renovation only and all the expenses were borne by 19 the appellant. Furthermore, the suit property was acquired in 1999 before the duo got married and therefore, the respondent's contribution towards the suit property was very minimal when compared with the appellant. It bears reaffirming that, there is no arithmetic formula for considering division of matrimonial or family property in terms of section 114 (2) (b) of the LMA and each case has to be decided according to its peculiar circumstances and based on the evidence on record. There is, in this regard, a litany of authorities to support this proposition. In the case of Yesse Mrisho v. Sania Abdul [2019] TZCA 414 TANZLII, we stated with sufficiency lucidity that: "There is no doubt that a court, when determining such contribution must scrutinize the contribution or efforts o f each party to the marriage in acquisition o f the matrimonial assets." It is under those circumstances, we find it compelling in the appeal before us to adjust further the percentage of the parties share to 80 per cent to the appellant and 20 per cent to the respondent. For avoidance of doubt, the division of the suit property shall consider the ownership of DW4 as alluded to above. In the final analysis, we find and hold that the appeal is partly allowed to the extent stated. Otherwise, the rest of the grounds stands dismissed. We make no order as to costs. DATED at DAR ES SALAAM this 4th day of May, 2026. B. M.A. SEHEL JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL Judgment delivered this 5th day of May, 2026 in the presence of Mr. Tazan Mwaiteleke, learned counsel for the appellant also holding brief for Mr. Deogratius Ogunde, learned counsel for the respondent and Ms. Gloria Masige, Court Clerk; is hereby certified as a true copy of the original. 21