Matinde Matiku Mbaratani vs Leonida Yusuph & Another (Civil Appal No. 547 of 2025) [2026] TZCA 467 (30 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA fCORAM: WAMBALI. 3.A.. MAIGE, J.A. And MDEMU. J.A.1 ) CIVIL APPEAL NO 547 OF 2025 MATINDE MATIKU MBARATANI ................................................... APPELLANT VERSUS LEONIDA YUSUPH............... ................ ...............................1 st RESPONDENT BONIFAS SAMSON ......... ..................... ............................ 2 nd RESPONDENT (Appeal from the decision of the High Court of Tanzania at Shinyanga) ( Massam, J.l dated the 4th day of October, 2024 in PC Civil Appeal No. 14186 of 2024 JUDGMENT OF THE COURT 14th & 30th April, 2026 MAIGE. J.A.: This appeal traces its root from matrimonial proceedings at the primary court of Shinyanga (the trial court) between the respondents. In those proceedings, the first respondent sued the second respondent for, among others, a decree of divorce and division of matrimonial assets, including a house at plot No. 2800/ Block "GG" at Kitangili area within the Municipality of Shinyanga (the disputed property). The disputed property appears to be the link between the appellant and the case. The appellant maintains that he purchased the property from the second respondent prior to the current dispute, Although he was not a party to the initial trial proceedings, the issue of the property being sold to a third party surfaced as the first respondent informally requested the trial court to stay the proceedings pending determination of a suit she allegedly commenced at Ngokolo ward tribunal. Having noted that the respective proceedings at the ward tribunal had no nexus with the trial proceedings, the trial court continued with the trial at the end of which, it decreed a divorce and ordered the division of the disputed property between the first and second respondents at a ratio of 35% and 65%, respectively. It is a worth of a note that, although none of the original parties challenged the trial court's decision through appeal or revision, the appellant who was not a party to the initial proceedings, applied to the Shinyanga District Court ("the revisional court") for a revision of the decision. The primary grounds for revision were set forth in paragraphs 9 and 10 of the affidavit as follows: "9. That, the tria l Magistrate having received evidence that Plot No. 2800/1 Block "GG" Kitangiii Shinyanga M unicipality had already been sold by the second respondent ought to have ordered the second respondent to personally refund 35% o f the purchase price as the first respondent's contributions towards acquisition o f Plot No. 2800/1 Block ” GG" Kitangiii Shinyanga M unicipality since that property was no longer the respondents' m atrim onial property. 10, That, the tria l Magistrate act o f including Plot No. 2800/1 Block "GG" Kitangili Shinyanga M unicipality as one o f the respondents'm atrim onial properties on 21st August ; 2023 while the same had already been sold by the second respondent since lf f h September, 2022, has seriously occasioned m iscarriage o fjustice on the applicant because the applicant who is a bonafide purchaser o f Plot No. 2800/1 Block "GG" Kitangili Shinyanga M unicipality was condemned unheard . " After hearing the parties and considering the nature of the trial court's proceedings, the revisional court took the view that the matter was not subject to revision. It, therefore, dismissed the application. For the sake of clarity, the relevant portion of the court's decision is reproduced below: 7 have realized that the property in dispute has already been sold to the applicant by the second respondent before the m atrim onial cause No. 11/2023 a t M jini prim ary court. Again, through my further perusal, I have realized that the applicant was not a party to the suit, m atrim onial cause No. 11/2023 a t M jini prim ary court. In these circum stances, the applicant ought to prefer either objection proceedings before the tria l court in claim that his property is included in the m atrim oniai dispute o f other persons. A g a i n a s the issue involves the house, the parties ought to prefer their dispute directly to the D istrict Land and Housing Tribunal, the proper forum for determ ining the dispute surrounding the su it property under sections 3 and 4 o f the Land Disputes Courts Disputes Act, Cap. 2016." Aggrieved, the appellant appealed to the High Court of Tanzania at Shinyanga (the High Court). In the said appeal, aside from questioning the correctness of the District Court's determination of the issue of distribution of the disputed property between the respondents in disregard of his alleged ownership interest in his first five grounds of appeal, the appellant doubted the legality of the trial court's determination of the matrimonial proceedings in the absence of a valid certificate from marriage conciliation Board. In addressing the first five grounds, the High Court focused on two primary aspects namely: whether the trial court correctly determined that the disputed property was matrimonial; and whether that decision denied the appellant the right to be heard. Concerning the first aspect, the High Court resolved as follows: " It is undisputed that the first respondent before the tria l court in the com plaint form petitioned among others, for division o f m atrim onial assets including the house in dispute. The second respondent whiie during the conduct o f the trial, raised a fact that the house was already sold by him as his personal property as opposed to m atrim onial asset In norm al circumstances, the second respondent was duty bound to prove the existence o f the said sale, that the house is his personal property and the existence o f debts if any that prom pted him to se ll the house if it was a m atrim onial asset by at least giving detailed descriptions o f the sale agreement, proper proof that he was the sole owner in order to assist the tria l court to distribute the same. Looking a t the tria l court's record, the same was not done hence the tria l court rightly proceeded to distribute the said house between the respondents as their m atrim onial asset which was yet to be sold." Regarding the second aspect, the High Court held that since neither party disclosed the name of the alleged purchaser, the trial court could not be faulted for denying the appellant the right to be heard. As to the final issue regarding the appellant's status as a bona fide purchaser, the High Court observed: "The claim o f bonafide purchaser can and may be claim ed by the appellant as suggested by the D istrict Court during the attachm ent and sale o f the su it house and or by instituting a fresh su it against the seller (the 2nd respondent herein if one wishes) but not raising the same a t the stage o f a revision as done by the appellant" Regarding the final ground of appeal, the High Court held that the trial court was competent to hear the petition because a valid certificate from the conciliation board was included in the record. Still unhappy with the concurrent decision of the three courts bellow, the appellant commenced the current appeal faulting the High Court for: one, failure to hold that in terms of section 103(2) of the Law of Marriage Act, the Kitangili Marriage Conciliation Board had no mandate to mediate the respondents; two, holding that attaching a certificate from marriage conciliation board to the petition for divorce was enough contrary to the principle that annexures not tendered into evidence is not part of the record; three, failure to hold that the decision of the trial court is a nullity for denying the appellant the right to be heard; four, failure to hold that the appellant as a none party to the trial court's proceedings, had a right to apply for revision to the District Court; five, holding that the appellant was required to file objectional proceedings at the trial court despite that such a remedy is only available to the trial court in terms of rule 70 of the Magistrate Courts (Civil Procedure in Primary Courts) Rules GN 310 of 1964 which was yet to be issued in this case; six, failure to hold that it was the 6 first respondent who was obliged to challenge the sale of the disputed property to a competent court. At the hearing, the appellant was represented by Mr. Pharles Malengo, learned advocate who held the brief of Ms. Marceline Steven Haule, also learned advocate, with the instructions to proceed. Through the aforementioned counsel, the appellant filed written submissions in support of the appeal prior to the hearing. Although both respondents filed written submissions in opposition, the first respondent appeared in person without counsel, while the second respondent was absent despite having been duly served with a notice of hearing. Given that the written submissions were already on record, we deemed it fit to conduct the hearing in the constructive presence of the second respondent, treating the matter as if he had appeared and opposed the appeal. Such a course of action is authorized by rule 106(12)(b) of the Tanzania Court of Appeal Rules, 2009, which provides: "(12) Where an appeal or application is called on for hearing and written subm issions have been duly filed and- (a) Neither party nor their advocates appear to present orai arguments; or (b) Either party or his advocate appears to present oral arguments, the appeal shall be treated as having been argued and sh all be considered as such:" Be it noted that, during hearing, Mr. Malengo withdrew the first two grounds of appeal. He then adopted the written submissions to stand as his oral arguments, subject to brief clarifications. The first respondent likewise adopted her written submissions in their entirety and moved the Court to dismiss the appeal with costs. We begin by addressing the third ground which raises an issue whether the appellant was denied the right to be heard. Mr. Malengo argued that because the trial court's decision affected the appellant's interest in the disputed property without his involvement, his right to a fair hearing under article 13 of the Constitution was violated. It was contended that despite being informed of the appellant's interest via an informal application to stay proceedings, the trial court failed to refrain from adjudicating the matter. In the affidavit in support of the application for revision, it was submitted, there were attached copies of the relevant sale agreement and the second respondent's affidavit that he was unmarried. The respective attachments, it was submitted, established that the appellant purchased the disputed property before the commencement of the matrimonial proceedings. He prayed, therefore that, the appeal be 8 allowed and the decision of the trial court to the extent that it affects the disputed property, be invalidated and the first respondent be directed to commerce an ordinary suit to establish her claim on the disputed property. It was contended that in proceeding to determine the same while fully aware of there being interest of a third party, the trial court breached the appellant's fundamental right to be heard which rendered the decision thereof a nullity. In Mr. Malengo's view, the District Court on revision, if not the High Court on appeal, ought to have noted this apparent curtailment of the appellant's right to be heard and nullify the decision and proceedings thereof. To substantiate his contention, the learned counsel placed reliance on among others, the celebrated cases of Abbas Sherally & Another v. Abdul S.H.M. Fazatboy, Civil Application No. 33 of 2002 (unreported), Mbeya Rukwa Auto parts Transport Ltd v. Jestina George Mwakyoma [2003] T.L.R. 251 and National Housing Corporation v. Tanzania Shoe Company & Others [1999] T.L.R. 251. In effect, these authorities are in support of the proposition that the right to be heard is so basic that a decision made in violation of it would be a nullity regardless that the outcome would have been the same had the innocent party been heard. In further support of his argument, the learned counsel cited our decision in Mariam Juma Mohamed v. Mariam Nassoro Kipinduka 9 and Another (Civil Application No. 285/1 of 2023) [2024] TZCA 1103 (13th November, 2024 TANZLII), where, on allegedly similar facts, we observed: 7/7 the circum stances, we find that the decision o f the 1st and 2nd appellate courts in respect o f equal division o f the alleged m atrim onial properties affected the applicant who was neither a party to the dispute nor was afforded right to be heard and defend his interest, since the 1st respondent knew the existence o f the applicant as alluded above, the division o f the alleged properties acquired jo in tly during their presum ption o f m arriage could not be divided without involving the applicant It appears therefore; the applicant was not afforded the right to be heard (audi alteram partem ) on those assets." In rebuttal, the first respondent contended that the trial court did not err regarding the right to be heard, as neither the appellant nor the second respondent had disclosed the appellant’s interest in the disputed property during the initial proceedings. It was concluded, therefore that, the trial court was under no obligation to protect the interests of a party unless such claim was clearly made known to it. On his part, the second respondent fully joined hand with the appellant. After careful consideration of the rival submissions, we are firmly of the view that the concurrent findings of the three lower courts are beyond reproach. Although the trial court was made aware of a vague ownership 10 dispute involving the first respondent, the second respondent, and an unidentified third party, no specific evidence was provided to link this interest to the appellant. In the absence of a sale agreement or proof of a transaction and given the failure to disclose the appellant's name or role in the alleged sale, the trial court lacked the factual foundation necessary to involve the appellant. A court cannot be expected to adjudicate interests that remain undisclosed. In our view, the duty to uphold natural justice is triggered by established facts rather than speculation or the assumption of claims. The attachment of the alleged sale agreements to the affidavit in support of the revision application at the District Court cannot be a basis for faulting the trial court. These documents were never introduced during the trial and, as a result, they did not form part of the record upon which the trial court could have acted. Therefore, unless these documents were produced as additional evidence in accordance with relevant procedural law, they could not be considered part of the trial court's record. Consequently, the District Court could not rely upon them to find fault with the trial court's decision. We, therefore concur with the High Court and the District Court that the trial court properly identified this peripheral claim as irrelevant to the matrimonial proceedings before it. Accordingly, the appellant was not 11 denied the right to be heard. The authorities in Abbas Sherally & Another v. Abdul S.H.M. Fazalboy (supra), Mbeya Rukwa Auto parts Transport Ltd v. Jestina George Mwakyoma (supra) and National Housing Corporation v. Tanzania Shoe Company & Others (supra), are, therefore distinguishable and in applicable in the circumstances of this case. The case of Mariam Juma Mohamed v. Mariam Nassoro Kipinduka & Another (supra ) is also materially distinguishable from the present matter. While both cases arise from matrimonial proceedings, the applicant in Mariam Juma' case was the sole wife of the second respondent and sought revision to challenge distribution of matrimonial assets, asserting that they were jointly acquired between her and the second respondent. Critically, she lacked any alternative legal forum to pursue her claim, and her interest in the property by virtue of being the wife of the second respondent was substantiated by concrete evidence. In the current case, however, the appellant is a stranger to the respondents' matrimonial relationship and there was no evidence during trial to suggest that the appellant had a personal interest in the disputed property. As the underlying matter sought to resolve matrimonial issues exclusive to the spouses, the appellant remained a stranger to the suit. Indeed, the proceedings were strictly in personam , and, therefore, as a stranger to the marriage, the appellant had no right to be heard in those proceedings. As a result, he cannot be heard blaming the matrimonial court for denying him a right to be heard. In view of the foregoing, therefore, we ftnd the third ground of appeal devoid of any merit and it is hereby dismissed. Turning to the fourth ground of appeal, the appellant contends that the High Court erred in holding that revision was not the appropriate remedy due to his status as a non-party at the trial level. While this position found support in the second respondent's written submissions, the first respondent countered that the High Court's stance was legally sound. She argued that since the disputed property was jointly acquired during the subsistence of the marriage, and, there being no spousal consent for its transfer as per section 59(1) of the Law of Marriage Act, the matter remained strictly within the ambit of a matrimonial dispute. She submitted that, the appellant did not establish any illegality with the decision of the trial court which could justify revision. We have carefully evaluated the rival arguments and, with due respect to the learned counsel for the appellant, we find this grievance to be entirely misconceived. A perusal of the record reveals that neither court questioned the appellant's standing to initiate the revision or the District Court's jurisdiction to entertain the same. Instead, both courts determined 13 that a revision was improper in view of the nature of the grievance. In particular, both courts considered that the appellant's claim was an unsubstantiated third-party land dispute that fell outside the jurisdiction of a matrimonial court. We find no error in this approach. Consequently, the fourth ground of appeal is dismissed. Regarding the fifth ground of appeal, the appellant contends that the High Court erred by failing to hold that objection proceedings were not the appropriate course of action. It was argued that such proceedings were inapplicable because, under rule 70 of the Magistrates' Courts (Civil Procedure in Primary Courts) Rules, GN No. 310 of 1964, objection proceedings are only available after the property in question has been attached, While the second respondent aligned with the appellant's counsel on this issue, the first respondent who opted to argue the fourth and fifth grounds of appeal jointly, offered no specific submissions addressing this particular point. Upon a discerning review of the record against the rival submissions, we find this contention to be misplaced. In our considered view, the District Court did not issue a formal determination on this point but rather, it merely suggested a potential way forward. This observation did not constitute a binding order, but was simply advisory in nature. As the parties were under no compulsion to follow this suggestion, it cannot form a valid 14 basis for an appeal. Without much ado, therefore, the fifth ground of appeal is dismissed. Finally, we address the last ground of appeal that the High Court erred in failing to hold that the burden lay with the first respondent to challenge the alleged sale in a land court rather than within matrimonial proceedings. In line with what she submitted in respect to the fourth and fifth grounds of appeal, the first respondent contested the said contention. As expected, however, the second respondent absolutely shared the same view with the appellant in his submissions. In the first aspect, we think, as no evidence of the alleged sale was ever produced at trial or included in the record, neither the District Court nor the High Court had a factual basis to determine which party bore the burden of initiating further litigation. We, therefore, fully subscribe with the concurrent findings of the lower courts that any such ownership dispute must be referred to a competent land court for adjudication. Concerning the second aspect which suggests that the dispute was resolved in the matrimonial dispute, we have no doubt that it is misconceived. A careful reading of the record of appeal reveals that the validity of the sale was never an issue before the trial court, nor was it determined. This is precisely why the High Court and District Court noted that the door remains open for the claim to be litigated in the proper forum. Furthermore, the 15 declaration that the disputed property is matrimonial is conclusive only between the respondents, who were parties to the suit. It does not bind a third party unless their specific claim was heard and determined. As the appellant's interest remains unadjudicated, the last ground of appeal is without merit and is hereby dismissed. Before concluding, we must address the High Court's determination regarding the propriety of the trial proceedings, specifically concerning the presence or absence of a certificate from the Marriage Conciliation Board. In our view, since the appellant was not a party to the matrimonial proceedings and his claim was confined to the disputed property, he lacked the standing to challenge the validity of the matrimonial suit of which he is a stranger. Furthermore, the procedural correctness of those proceedings was never challenged on appeal, nor was it raised as a ground of complaint in the District Court. It follows, therefore that, by adjudicating the validity of the matrimonial proceedings under these circumstances, the High Court effectively usurped the jurisdiction of the District Court and entertained a grievance brought by a party without standing. In the final result and for the foregoing reasons, this appeal lacks merit. The High Court correctly determined that the dispute can be best resolved through land litigation, which remains an option for either party. Consequently, the appeal is dismissed. As the dispute stems from the 16 actions of one spouse regarding alleged matrimonial property, and noting that the second respondent supported the appeal, we find it just that each party bears their own costs. DATED at DODOMA this 29th day of April, 2026. F. L. K. WAMBALI JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL Judgment delivered virtually this 30th day of April, 2026 in the presence of Mr. Pharles Malengo holding brief of Ms. Marceline Haule, learned counsel for the Appellant, 1st Respondent appeared in person and in the absence of the 2n d Respondent, Ms. Hilda Mcharo Court Clerk; is hereby certified as a true copy of the original. 17