Gosbert Bayona vs Lilian Bayona (Civil Appeal No. 533 of 2023) [2026] TZCA 459 (29 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: NPIKA. 3.A.. MURUKE. J.A. And MGEYEKWA. J.A.) CIVIL APPEAL NO. 533 OF 2023 GOSBERT BAYONA ................................................................... APPELLANT VERSUS LILIAN BAYONA.................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Tanga) (Agath&J.) dated the 19th day of October, 2022 in Matrimonial Appeal No. 1 of 2022 JUDGMENT OF THE COURT 17t h & 2SfhApril, 2026 MGEYEKWA. JA: The appellant, Gosbert Bayona is aggrieved by the decision of the High Court sitting at Tanga in Civil Appeal No.01 of 2023, delivered on 19th October, 2022. The genesis of the matter lies in matrimonial proceedings instituted in the Resident Magistrates Court of Tanga (the trial court), which culminated in the grant of a divorce, custody and division of matrimonial assets between the parties. The parties had lived together as husband and wife after contacting a civil marriage on 8th October, 1993 in Arusha and thereafter had their marriage solemnized in Roman Catholic denomination at St. Peter's Church at Tanga. The parties were blessed with three issues namely Godwin Gosbert Bayona born in 1992, Victor Gosbert Bayona born in 1996 and David Gosbert Bayona born in 2004. Due to conflict between them, the respondent filed a petition praying for divorce, division of matrimonial properties and custody of their children. The reason for the petition, the respondent alleged that the appellant had extramarital affairs with another woman and had been blessed with four children. On his part, the appellant alleged that the respondent denied him conjugal rights and had harassed him and his family. From the record, the parties acquired the following properties; a house at Saruji, Plot No. 166 Block 10 House No.8, a house at Pongwe, Sumbawanga area, a house at Kilapula, a house and a farm in Bukoba Region at Mbale village, a farm at Kisimatui, Tanga, 1 and half acres, a Plot at Bunhu Plot No. 156 of which was sold by the appellant, Mark II Grade T. 389 CVE, Mark II Grande T. 585 CKY, RAV 4 T. 626 BYE, Hiace T. 685 BEW, Motorcycle Toyo MC 696 ABL which encountered an accident, a Motorcycle T. 282 BPD and one Bajaj rickshaw. The trial court heard both sides and was satisfied that the marriage between the them was irreparably broken down as per section 107 (2) of the Law of Marriage Act Cap.29. It also placed the custody of the third child with the respondent. The trial court further distributed the 2 matrimonial assets as follows: (a) A house at Saruji was divided 75% to the appellant and 25% to the respondent (b) The farm and a house at Mba/e village in Bukoba 75% to the appellant 25% to the respondent. (c) The motor vehicle Mark II Grand with Registration No. T. 389 CVE and T. 585 CKY Mark II were divided in a share o f 50% each. (d) The motor vehicle, make RAV 4 with registration No. T. 626 BYE, Hiace with Registration No. T 685 BEW and motorcycle with Registration No. MC 696 ABL were distributed to the respondent at 100%. The respondent did not contest the dissolution of the marriage or the issue of custody of the children, save for the distribution of matrimonial assets. Dissatisfied, the appellant preferred an appeal to the High Court of Tanga. In her judgment, the learned Judge substantially agreed with the trial court's distribution of the motor vehicles namely, RAV4 registration No. T 626 BYE, Toyota Hiace registration No. T 685 BEW, motorcycle registration No. MC 696 ABL, and motor vehicles Mark II Grand bearing registration Nos. T 389 CVE and T 585 CKY, which were equally shared 3 between the parties. However, the first appellate court varied the order on the division of matrimonial property to the extent that the house at Saruji was redistributed in the ratio of 60% to the appellant and 40% to the respondent. Further, the learned Judge departed from the trial court's findings by awarding the appellant the house at Pongwe, while the respondent was awarded the house at Kilapula. The appellant, being dissatisfied with the decision of the High Court, has preferred this appeal founded on four (4) grounds of grievance as follows: 1. That, the Honourable Judge erred in taw in increasing the respondent's share o f distribution for the House at Saruji Tanga and farm and House at Mbaie Bukoba by 15%, when the respondent failed to show her contributions in acquiring them. 2. That, the Honourable Judge erred in law for revising the distribution o fassets by including houses at Pongwe and Kilapula respectively which were proved; at the trial court in Matrimonial Case No. 1 o f 2019; to be acquired and owned by Schoiastica Christian (DW2), but was not owned by the appellant had no contribution in their acquisition. 3. That, the Honurabie Judge erred in law for observing that Hon. V . M. Nongwa-PRM, committed illegality in distribution o f 75% shares o f matrimonial houses and farm in Bukoba to the 4 appellant, when in the Ruling in Misc. Civil Application No. 10 o f 2022, Application for Extension o f time, the samejudge observed that there was no illegality which was committed by Hon. Nongwa in her decision which was a subject o f the intended appeal. 4. That, the Honourable Judge erred in law for displaying a predisposition in his decision by not determining the respondent's appeal in accordance with law. When the appeal was called on for hearing, Mr. Ladislaus Ngomela, learned counsel, appeared for the appellant, whereas Mr. Domitian Rwegosgora, learned counsel, represented the respondent. Before the hearing commenced, Mr. Ngomela, prayed to abandon the fourth ground. The application was granted, and the appeal proceeded on grounds one, two and three. In his written and oral submissions, Mr. Ngomela argued the three remaining grounds together. He faulted the learned Judge for, on the one hand, not finding error in the trial court's distribution of matrimonial assets, and yet, on the other hand, proceeding to re-open the matter and redistribute the same assets without demonstrating how the evidence was re-evaluated. The learned counsel further contended that the house at Pongwe was proved, through documentary evidence tendered by DW2, 5 to belong to a third party, yet the learned Judge included it in the distribution without assigning reasons. In his conclusion, the learned counsel for the appellant urged the Court to allow the appeal. In reply, Mr. Rwegoshora adopted the same style of submission and started by defending the High Court decision as sound and reasoned. He contended that the learned Judge properly discharged his duty as a first appellate court by re-evaluating the entire evidence on record, as enunciated in Jamal v. Francis James, Civil Appeal No. 110 of 2012. He asserted that the said properties were acquired during the subsistence of the marriage and redistribution of the house at Saruji 60% to the appellant and 40% to the respondent was justified by evidence. The learned counsel for the respondent further argued that the property at Pongwe and Kilapula also were acquired during the subsistence of the marriage and that the respondent contributed towards its development. He further argued that DW2 was aware that the said Plots were at stake but did not made any effort to joined in the case to enable her to protect her interest if any in the properties. Mr. Rwegashora, therefore, implored us to dismiss the appeal. Having carefully considered the rival submissions, we are of the settled view that the appeal turns on a single issue, namely, whether the 6 matrimonial properties were properly identified and distributed by the first appellate court. The governing law is section 114 of the Law of Marriage Act, Cap.33 (the LMA), which vests the court with the power to divide matrimonial assets acquired through the joint efforts of the parties. For ease of reference, we consider it apposite to reproduce the said provision, which states as follows: "114- (1) The court shall have power, when granting or subsequent to the grant o fa decree o f separation or divorce, to order the division between the parties o f any assets acquired by them during the marriage by theirjoint efforts or to order the sale o fany 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 acquisition o f the assets; (c) any debts owing by either party which were contracted for theirjoint benefit; and (d) The needs o f the children, if any, o f the 7 marriage\ and subject to those considerations, shall incline towards equality o f division. (3) For the purpose o f this section, references to assets acquired during the marriage include assets owned before the marriage by party which have been substantially improved during the marriage by the other party or by theirjoint efforts". In our view, the import of the above provision is that the division of matrimonial property acquired by parties by their efforts during the pendency of the matrimonial requires the court when considering this issue to ensure that extent of contribution of each party is the prime factor. The assets to be determined are also those which have been owned by one party but improved by the other party during the marriage. The jurisprudence of this Court, as laid down in Bi Hawa Mohamed v. Ally Seif (1983) T. L. R 32, we held that: "(i) Since the welfare o f the family is an essential component o f the economic activities o f a family man or woman it is proper to consider contribution by a spouse to the welfare o f the family as contribution to the acquisition o f matrimonial or family assets; and (ii) The joint efforts and work towards the acquiring o f the assets have to be constructed 8 as embracing the domestic efforts or work o f husband and wife The central question for our determination is whether the division of the matrimonial assets, namely; the house at Saruji in Tanga Region, the farm and house at Mbale in Bukoba Region, and the house at Pongwe was properly undertaken by the courts below. It is not in dispute that the house at Saruji, Tanga, and the farm and house at Mbale, Bukoba, were acquired during the subsistence of the marriage through the joint efforts of the parties. The trial court apportioned these assets in the ratio of 75% to the appellant and 25% to the respondent. Upon re-evaluation of the evidence, the High Court revised that apportionment to 60% and 40%, respectively. As was aptly observed by this Court in Yesse Mrisho v. Sania Abdu, Civil Appeal No.147 of 2016, in determining the appropriate share of each party it held as follows: " There is no doubt that a court when determining such contribution must also scrutinize the contribution or efforts o f each party to the marriage in acquisition o f matrimonial assets" Guided by the above principle, and upon our own reappraisal of the record of appeal, we are satisfied that there was sufficient evidence of both monetary and non-monetary contribution to justify the adjustment made by the first appellate court. The revised ratio, in our view, represents a proper exercise of judicial discretion in accordance with section 114 of the LMA. We therefore find no basis upon which to interfere with that aspect of the judgment. Accordingly, we affirm the redistribution of the house at Saruji, Tanga, and the farm and house at Mbale, Bukoba, as determined by the first appellate court. A different conclusion must, however, be reached in respect of the properties at Pongwe and Kilapula. We are, therefore, inclined to agree with learned counsel for the appellant that the record of appeal discloses that this properties were neither proved to be a matrimonial asset nor shown to have been acquired through the joint efforts of the parties. In particular, the evidence of DW2 pointed to ownership independent of the parties to the marriage. Worse still, no credible evidence was adduced by the respondent to demonstrate any contribution towards the acquisition or development of the said houses. It is trite law that both the existence of a matrimonial asset and the extent of contribution thereto are matters of evidence. A party who asserts that a particular property forms part of the matrimonial estate bears the burden of establishing, by credible and cogent evidence, not only that the property was acquired during the subsistence of the 10 marriage, but also that it was acquired through the 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. 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 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. We are unable to agree with Mr. Rwegoshora that the respondent's testimony to the effect that the property was acquired during the subsistence of the marriage was sufficient to warrant its inclusion as a matrimonial asset, in the face of uncontroverted evidence from a third-party asserting ownership thereof. Likewise, the contention by learned counsel for the respondent that DW2 failed to take steps to safeguard her interest by not joining the proceedings is misconceived. The record of appeal is clear that DW2 participated in the proceedings and adduced evidence establishing her ownership of the house at Ponge and Kilapula. In those circumstances, it cannot be maintained that DW2’s interest was left 11 unprotected. We accordingly find and hold that the learned Judge erred in including the said properties in the pool of divisible assets. In the end, we partly allow the appeal to the extent indicated above. We proceed to quash the judgment of the High Court in respect of the inclusion and distribution of the properties at Pongwe and Kilapula, and set aside the orders relating thereto. Orders accordingly. DATED at DAR ES SALAAM this 28th day of April, 2026. G. A. M. NDIKA JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Judgment delivered this 29th day of April, 2026 in the presence of Mr. Ladislaus Ngomela, learned counsel for the appellant, Mr. Domitian Rwegoshora learned counsel for the respondent and Mr. Ladislaus Msuba,