Mohamed Selemani God vs Mwajuma Mohamed Ndewa (Civil Appeal No. 1293 of 2025) [2026] TZCA 473 (5 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA fCORAM: KEREFU. 3.A.. MWAMPASHI, J.A., And ISMAIL, J J U CIVIL APPEAL NO. 1293 OF 2025 MOHAMED SELEMANI G O D .............................................................. APPELLANT VERSUS MWAJUMA MOHAMED N D EW A ......................... .......................RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Temeke Sub-Registry, One-Stop Judicial Centre at Dar es Salaam) (Mwipopo. J.) dated the 14thday of May, 2025 in fP O Civil Appeal No. 31196 of 2024 JUDGMENT OF THE COURT 23^ April, & 5th May, 2026 KEREFU, J.A.: This is a third appeal from the decision of Temeke Primary Court, One Stop Judicial Centre at Temeke (the trial court) in Matrimonial Cause No. 376 of 2024. In that case, the respondent herein, petitioned to the trial court claiming for reliefs of divorce, division of matrimonial properties, custody and maintenance of the four issues of the marriage. Briefly, the essential facts of the matter as obtained from the record of appeal giving rise to the present appeal indicate that, the appellant and the respondent contracted an Islamic marriage on 20th October, 2018. During the subsistence of their marriage, they were blessed with four issues of marriage and they jointly acquired various properties. At the trial, the controlling issues were: One, whether the marriage between the parties had irretrievably broken down; two, whether the parties jointly acquired matrimonial assets; three, to whose custody the matrimonial issues will be placed; and four, what reliefs are the parties entitled to. In her testimony, the respondent, who testified as PW1, stated that, due to irreconcilable marital differences which were contributed by the appellant's acts of cruelty towards her, 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) one completed house, situated at Matosa- Serengeti Goba, Kinondoni in Dar es Salaam Region (the completed house); (ii) one unfinished house situated at the very same plot (the unfinished house); (iii) three plots at Kisarawe, Kibaha and Matosa; (iv) one Bajaj; and (v) two motorcycles. She also prayed to be awarded the completed house where she would live with her children. The evidence of PW1 was supported by Mohamed Said Ndewa (PW2), Saria Abdallah (PW3), Amina Mcheka (PW4) and Mwajuma Ally Mirambo (PW5), who mainly supported the evidence of PW1 in relation to the appellant's cruelty with no more. On his part, the appellant, who testified as DW1, admitted that he was duly married to the respondent and blessed with the said issues of marriage. On the alleged acts of cruelty, he contended that, the source of their misunderstanding and conflict was caused by the respondent's habit of going out from the matrimonial home without any justifiable cause and coming back later at her own pleasure. As for the alleged matrimonial assets, the appellant only listed the completed house. He stated that, the said house was acquired by him from his own sources of income. That, he has always been maintaining his children and the entire family without support from the respondent. He thus, also prayed to be given the said house where he would continue living and taking care of his children. The testimony of DW1 was supported by Salum Said (DW2), who testified mainly on the issue of misunderstanding and conflict between the appellant and the respondent. 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. The trial court further proceeded to order division of matrimonial assets, whereby the respondent was awarded, (i) the completed house; (ii) one plot at Kisarawe, and (iii) one motorcycle of her choice. On his part, the appellant was awarded, (i) the unfinished house; (ii) one plot at Matosa; (iii) one Bajaj; and (v) one motorcycle. Tlien, the children were placed in the custody of the respondent, while the appellant was ordered to provide maintenance for their welfare and granted access to visit them. Aggrieved, the appellant appealed to the District Court of Temeke, where he mainly challenged the division of the completed house and the custody of the children. The District Court, upon hearing the parties, confirmed the decree of divorce issued by the trial court together with the division of matrimonial assets. It however quashed and set aside the order for custody of the children and directed that, independent opinions of the said children be taken in the presence of a social welfare officer. In addition, the custody of the last-born child, who by then was aged four (4) years, was placed under the respondent. Still dissatisfied, the appellant appealed to the High Court armed with five grounds of appeal challenging both, the division of the completed house and custody of the children. Having heard the appeal, the High Court (Mwaipopo, J.), quashed and set aside the decision of the first appellate court and confirmed the decision of the trial court. Still undaunted, the appellant has come to the Court, premising his grievances on five grounds, namely: 1. That, the second appellate court erred in law in holding that the extent o f contributions is not o f utm ost im portance to be determ ined when the court is faced with a predicam ent o f division o f m atrim onial property; 2. That ■ the second appellate court erred in law in failure to equally and fa irly divide the only com pleted m atrim onial house despite adm ission by the respondent that the same be equally divided between the parties, thus leading to m iscarriage o fjustice; 3. That, the second appellate court erred in law in failure to hold that in deciding whose custody a child should be placed, the param ount consideration is the welfare o f the child; 4. That, the second appellate court erred in law fo r failure to properly evaluate the evidence on record regarding the extent o f contribution by the parties towards the acquisition o f m atrim onial assets; and 5. That, the second appellate court erred in law in holding that a ll issues o f m arriage were below eighteen (18) years old. At the hearing of the appeal, the appellant entered appearance in person, whereas the respondent had the legal services of Ms. Elizabeth Majagi, learned counsel, who entered appearance virtually through video conference linked to her office located in Dar es Salaam, Tanzania. The 5 respondent was also present. 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. Submitting in support of the first, second and fourth grounds, the appellant faulted the lower courts for failure to properly evaluate the evidence on record and arrived at a wrong decision regarding division of the completed house. To underscore his point, the appellant referred us to the testimony of the respondent before the trial court and contended that, despite the fact that, in her sworn evidence, the respondent testified that she did not contribute financially towards the acquisition of the said house, the lower courts erroneously awarded her 100% ownership of the same. He contended further that, at the trial, there was no evidence adduced by the respondent on the extent of her contribution to justify the decision taken by the trial court. That, even the record of both, the first and second appellate courts is silent on how the respondent contributed towards the acquisition of the said property. He thus urged us to find that, under the circumstances, the lower courts were not justified to award the respondent 100% ownership of the said house in his exclusion, while he greatly contributed by more than 99% towards acquisition of that property. That, the lower courts did not consider the extent of contributions by each party in the spirit of section 114 (2) (b) of the Law of Marriage Act, Cap. 29 of the Revised Laws (the LMA). To support his proposition, he cited cases of Wedaeli Philipo Marwa v. Janeth Alex Chuma, Civil Appeal No. 28 of 2020, Gabriel Nimrod Kurwijila v. Theresia Hassan Malongo, Civil Appeal No. 102 of 2018 and Bibie Maulid v. Mohamed Ibrahim [1989] T.L.R. 162. On the third and fifth grounds, the appellant faulted the learned Judge for failure to comply with the provisions of section 125 (1), (2) and (3) of the Law of Marriage Act, when placed the custody of the children to the respondent. He contended that, since before the trial court the respondent testified that she was jobless and had no any means to maintain the children, it was erroneous for the learned Judge to grant the custody of the said children to her. He added that, in deciding in whose custody the children should be placed, the trial court, erroneously, did not give the said children an opportunity to express their independent opinions on the matter. To underscore that point, he referred us to the case of Charles Rugembe v. Mwajuma Salehe [1982] T.L.R. 307. The appellant also faulted the second appellate court for holding that, all children were below the age of eighteen (18) 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 response to the first, second and fourth grounds, Ms. Majagi, supported entirely the decisions of the lower courts regarding the division of matrimonial assets. She thus vehemently challenged the submission made by the appellant of attempting to reduce the respondent's role to mere monetary contribution, while ignoring her other valuable contributions during the subsistence of their marriage. 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 her proposition, she referred us to Bi Hawa Mohamed v. Ally Sefu [1983] T.L.R 32, Reginald Danda v. Felichina Wikesi, Civil Appeal No. 265 of 2018 [2020] TZCA 1748. Ms. Majagi equally wondered, as to why the appellant is only disputing the division of the completed house allocated to the respondent and did not raise any concern on other assets allocated to him. That, if the appellant accepted the distributions of other assets, it is unreasonable for him to single out the completed house awarded to the respondent. On that basis, she urged us to find that the first, second and fourth grounds are devoid of merit. As regards the third and fifth grounds, Ms. Majagi challenged the submission by the appellant by arguing that in granting the custody of the children to the respondent, the second appellate court considered many factors itemized under section 125 (1), (2) and (3) of the LMA, including the persistent physical assaults made by the appellant towards the respondent witnessed by the children. That, the lower courts correctly found that, due to the appellant's acts of cruelty, could not be trusted with the custody of the children. She added that, the fact that the respondent is unemployed cannot justify the appellant's argument that she should not be granted custody of her children. That, the legal duty of the appellant cannot be diluted or affected when the custody order is granted to the respondent. On the age of the children, Ms. Majagi faulted the argument advanced by the appellant by arguing that, the second appellate court was bound to refer to the trial court's proceedings and the evidence adduced by the parties at the trial. That, the evidence adduced before the trial court, clearly indicated that, all children were below eighteen (18) years. In conclusion and based on her submission, Ms. Majagi prayed for the entire appeal to be dismissed for lack of merit. In a brief rejoinder, the appellant reiterated what he submitted earlier and, once again, prayed for the appeal to be allowed. We have dispassionately considered the grounds of appeal, the parties' written submissions and the oral arguments for and against the appeal advanced by the parties. The crucial issues we are called upon to decide are, one, whether it was proper for the second appellate court to hold that the respondent is entitled to 100% ratio of the completed house; and two, whether it was proper for the second appellate court to deny the appellant the custody of the children. Before determining the above issues, we wish to state that, this being a third 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 10 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. Starting with the first issue, it is a common ground that, matters of division of matrimonial assets are 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 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 sate 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 sh a ll 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 for 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. ii (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 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 criterial 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. It is noteworthy that, although, issues of matrimonial properties are governed by the LMA, the said law has not specifically defined the term ! m atrim onial property or assets.' Through case law, the said term has been defined to mean those assets which were acquired by one or the other spouse before or during their marriage, with intention that 12 there should be continuing provisions for them and their children during their joint lives. They include assets which may have been owned by one party prior to the marriage but improved by the other party during the marriage on their joint efforts. See for instance, Bi. Hawa Mohamed (supra), Gabriel Nimrod Kurwijila (supra) and Bibie Maulid (supra). In particular, in the former case, the Court stated that: " The first im portant point o f law for consideration in this case is what constitutes m atrim onial assets for purposes o f section 114. In our considered view the term \'matrimonial assets' m eans the same thing as what is otherw ise described as fam ily assets." Under paragraph 1064 o f Lord Hailsham 's HALBURY'S LAW OF ENGLAND , 4 h Edition, p. 419, it is stated- ...The phrase 'fam ily assets' has been described as a convenient way o f expressing an im portant concept; it refers to those things which are acquired by one or other or both o f the parties, with the intention that there should be continuing provisions fo r them and their children during their jo in t lives, and used for the benefit o f the fam ily as a whole. The fam ily assets can be divided into two parts (1) those which are o f capital nature, such as m atrim onial home and the furniture in it (2) those which are o f a revenue 13 nature - producing nature such as the earning pow er o f husband and wife." In addition, it is important to note that, section 56 of LMA provides equal rights in acquiring and owning properties for both husband and wife, white section 58 of the same law is permissive as it empowers the said spouses to acquire those properties in their separate names. However, in order to protect interests of the said spouses in the properties registered on a name of one party, section 59 of the same Act is providing for a requirement of consent in disposition, lease and mortgage of such properties. Furthermore, section 60 of the same Act is protecting the interests of spouses in all other properties acquired by one spouse in his/her own name. It is therefore, clear that, in marriage, there are two categories of matrimonial assets, those which are jointly acquired by the spouses prior or during the subsistence of their marriage and/or those which are individually/separately acquired by one spouse in his/her own name. For an asset to be termed a matrimonial asset or otherwise, is a question of law and facts to be established by evidence. That, a party who is challenging a property owned separately by one spouse in a marriage, has a burden to establish that, the property in question is a matrimonial asset. 14 In the instant appeal, having thoroughly perused the record of appeal, we have observed that, despite the fact that, ail courts below dealt with the issue of division of the alleged matrimonial assets, there is no evidentiary support adduced by the parties at the trial to justify that course. In her evidence found at pages 13 to 15 of the record of appeal, the respondent, apart from listing some of the properties to form part of their matrimonial assets, she did not demonstrate the ownership of the said assets and or indicate as to when and how they were acquired. For instance, the respondent listed several plots located at Kisarawe, Kibaha and Matosa together with one Bajaj and two motorcycles, but there was no any documentary evidence which was tendered, such as, sale agreements and or motorcycle's registration cards to establish and prove the ownership of the same, lest the court should not embark on the exercise of partitioning assets which belong to other individuals. It is trite law that, both, the existence (ownership of alleged matrimonial asset) and the extent of contribution by a party are matters of evidence. A party who asserts that a particular property forms part of the matrimonial asset bears the burden of establishing, by credible and cogent evidence, not only that the property was acquired during the subsistence of the marriage, but also that it was acquired through the 15 joint efforts of the parties or substantially improved by such efforts. 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. This evidentiary burden is not discharged by mere assertion and or listing the said asset. It calls for proof, which may take the form of documentary evidence, direct testimony, or other material capable of satisfying the court that the property in question belonged to and or owned by the spouses and properly falls within the ambit of section 114 of LMA. In the absence of such proof, any such conclusion would rest on conjecture, in clear contravention of the law. In the circumstances, and since in this appeal that burden was not discharged by the respondent, it was erroneous for the lower courts to categorize the said properties as matrimonial assets and proceed to apportion them to the parties and termed them as matrimonial assets. As for the completed house, we have noted that, in his testimony, the appellant did not deny its ownership, but strongly challenged the ratio of 100% apportioned to the respondent by arguing that, the said house was acquired by him from his own sources of income before the marriage. That, since he personally acquired the said house, he ought to 16 have been given a lion's share in line with the stipulation of the law. In the circumstances, and since we have already found that there was no tangible evidence adduced by the respondent on her contribution towards acquisition of the said house, apart from provision of domestic services, we find the lower courts' decision of apportioning her 100% ratio was unjust, as we assert that her contribution was minimal. TTierefore, we find the first, second and fourth grounds merited. Consequently, and for the interest of justice, we vary the decision of the High Court by ordering the division of the completed house to the appellant and respondent at a ratio of 70% to 30%, respectively. Alternatively, the said house be evaluated by a Certified Government Valuer with an option to either of the parties to compensate the other on the given ratio above. The second issue is straight forward and should not detain us. There is no dispute that issues of custody and maintenance of children are governed by section 125 (2) (a) and (b) of the LMA read together with sections 4 (2), 26 (1) (b), 37 (4) to 44 of the Law of the Child Act, Cap. 13 of the Revised Laws (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 17 whose custody an infant should be placed, the paramount consideration shall be the best interest and welfare of the child. In the instant appeal, the trial court, having considered the evidence on the record, it was satisfied that, it was in the best interest of the children to stay with their mother. The second appellate court, having revisited the entire evidence, joined hand with the trial court that, the issues of marriage are better placed with their mother. It is our settled view that there is nothing on record to suggest that there is misapprehension of facts or evidence by the courts below. The said matter, being on pure points of facts, we see no justification to depart from that conclusion. We need to emphasize that, the appellant being a father of the of the said children, is obliged under the law, to maintain them by providing food, shelter and other basic needs regardless of whether they are under his custody or the custody of their mother. See the cases of Amri Yahaya Mfikilwa v. Fatuma Mohamed Nampembe, Civil Appeal No. 180 of 2022 [2025] TZCA 279 and Nacky Esther Nyange v. Mihayo Marijan Wilmore, Civil Appeal No. 169 of 2019 [2022] TZCA 507. Therefore, there is nothing on the record to warrant interfering with the concurrent finding of the lower courts. We accordingly find the third and fifth grounds devoid of merit. 18 In the upshot, we find merit in the appeal, which we allow to the extent stated above. Each party shall bear its own costs. DATED at DODOMA this 4th day of May, 2026. R. 1 KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered virtually this 5th day of May, 2026 in the presence of the Appellant and Respondent in persons - unrepresented and Mr. Shafii Kassim, Court Clerk is hereby certified as a true copy of the original. 19