David Robert Makange vs Linda David Robert Makange (Civil Appeal No. 12 of 2023) [2025] TZCA 856 (13 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM IC Q R AM : NDIKA, J.A., KENTE. J.A. And MANSOOR. J.A.^ CIVIL APPEAL NO. 12 OF 2023 DAVID ROBERT MAKANGE...............................................................APPELLANT VERSUS LINDA DAVID ROBERT MAKANGE................................................RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania Temeke One Stop Centre) (Muqeta, J.) dated 14thday of November, 2022 in Civil Appeal No. 29 of 2022 JUDGMENT OF THE COURT 1st August & 13th August, 2025 MANSOOR, J.A.: The appellant David Robert Makange was married to the respondent, Linda David Robert Makange under Christian rites since 2001. They were blessed with two issues, Aaron Joba David Makange and Robert David Robert Makange. Years later, the marriage went sour thus irreparably broken down resulting in a petition for divorce filed by the appellant in the District Court of Kinondoni in 2020. The trial court issued a divorce and had ordered equal distribution of shares (fifty - fifty) in the property situate at Plot No. 9, Block C, Mbweni Malindi, Kinondoni, Dar es Salaam, (the property). The trial court also ordered

the appellant to maintain his estranged wife from the date of separation to the date the judgment of divorce was issued at the tune of TZS 500,000/= per month. Aggrieved, the appellant appealed to the High Court where an order of equal distribution of shares in the property was confirmed, while an order for maintenance was quashed and set aside. Still aggrieved, the appellant filed the present appeal presenting two grounds of appeal as follows:

1. The High CourtJudge erred in law and fact inconfirming the decision of the trial court and finding that the respondent is entitled to a 50% of the property on Plot No. 9, Block C, Mbweni Malindi, Kinondoni, Dar es Salaam on assumptions that because the appellant was unemployed between 2004 to 2011, he depended on the respondent who was then employed without regard to the evidence on record.
2. The High CourtJudge erred in law and fact byassuming that because the respondent was employed, she automatically contributed to the acquisition of the property on Plot No. 9, Block

C, Mbweni Malindi, Kinondoni, Dar es Salaam, thus entitled to equal share. Mr. Nereus Mutongore, learned counsel for the appellant submitted in support of the appeal stating that the respondent did not adduce any evidence to support the extent of her contribution in the acquisition of the property so as to be entitled to 50% shares in the property. Mr. Mutongore also faulted the first appellate court for making assumptions on the facts of the case instead of re-evaluating the evidence. He said the High Court erred to assume that the appellant was not earning anything just because he was unemployed. He states that it is true that the appellant was not employed but he was doing business. Mr. Mutongore argues that there was uncontroverted evidence at trial which shows that the appellant was a businessman, he was earning enough income to even pay fees for his wife's postgraduate studies. He suggests that the High Court fell into error when it assumed the facts and had reached into an erroneous conclusion which occasioned miscarriage of justice. Mr. Mutongore also attacked the impugned judgment of the High Court, saying it assumed the fact that the three children have been 3

fathered by the appellant with other women. He argues that since the issue of three children of the appellant was introduced by the respondent, it was the respondent who under section 110 of the Evidence Act, carried the burden of proof that indeed the father of those three children is the appellant. On this argument on burden of proof, Mr. Mutongore relies on the holding in the case of Paulina Samson Ndawavya vs Theresia Thomas Madaha, (Civil Appeal No. 45 of 2017), 2018 TZCA (12 October 2018). On another aspect, Mr. Mutongore submits that the respondent was not able to prove the facts she averred in her pleadings. Specifically, the respondent was not able to prove the facts she pleaded in paragraph 13 of her reply to the petition when she alleged that she paid for health insurance, school fees for the children, also, she took a loan for the construction of the property. He argues that the respondent never tendered as evidence annexure LM3 attached to her pleadings which would have proved that she indeed paid for health insurance for the family, she paid school fees for the children and that she took a loan for the construction of the property. Mr. Mutongore therefore submits that since there is no evidence on record entitling the respondent to the share in the property, the High Court should have

awarded her nothing, and if she was to be awarded some share in the property, the High Court should have considered the evidence on record and given her a share commensurate to the proof of her contribution in either the acquisition of the property or constructing it. He argues further that since the respondent did not prove her contribution in the acquisition or construction or improvement of the property, her evidence should have been ignored as held in the case of Yara Tanzania Limited vs Ikuwo General Enterprises Limited, Civil Appeal No. 309 of 2019 (unreported), when we held that "parties are bound by their pleadings and that any evidence produced by the parties which does not support the pleaded facts or is a t variance with the pleaded facts m ust be ignored" The Counsel urged the court to see that the High Court has misapprehended the nature and quality of the evidence of the appellant which has occasioned miscarriage of justice and that the appellant is highly prejudiced. Mr. John Seka, learned counsel who appeared for the respondent, made a very brief reply submission supporting the lower courts' findings. He states that, the only issue for determination is on the distribution of the matrimonial asset in respect of the property as there 5

is no dispute that the property in question is a matrimonial property. Also, there is no dispute that the respondent was the wife of the appellant having been married for over twenty years and having together two children, now already adults. That, there was proof of financial contribution as well as domestic contributions in the acquisition as well as the improvement of the matrimonial property. He submits further that there was no proof of any higher contribution made by the appellant to entitle him to a higher share, on the contrary there was proof that for almost 8 years, the appellant was not in employment or was jobless and thus he had no income and the family was solely supported by the respondent who was fully employed. Having heard the counsel's submissions and after going through the record, before we determine the core issue of this appeal as to whether the lower courts erred in awarding equal distribution of the matrimonial property, we find it apt to first determine the allegations made by Mr. Mutongore in his grounds of appeal as well as his submissions that the High Court had assumed facts instead of evaluating the evidence on record. Mr. Mutongore argues that the High Court assumed that since the appellant was not employed from 2004 to 2011, he had no income to 6

either financially support his family or contribute to the acquisition of the property. To this end, Mr. Mutongore does not dispute that indeed the appellant was not in any formal employment but says he was doing business. The learned Judge at pages 7 and 8 of the impugned judgment said that the fact that the appellant was not employed from 2004 to 2011 is not disputed. Contrary to the argument by Mr. Mutongore, as can be gleaned from the record, this fact is pleaded as well as stated by the appellant himself during the hearing of the petition before the trial court. The appellant who testified as PW1 in th trial court said at page 123 of the record that he was employed by TCC from 1996 to 2004 and thereafter he started doing business but never stated what business he was doing and how much he was earning from the business. Therefore, this fact was not assumed by the first appellate court, it was there on record. What the first appellate court had said at pages 7 and 8 of the judgment was that the appellant only alleged that he was doing business and was earning from that business but failed to prove what kind of business he was actually doing and proof of his earnings. The learned Judge said at page 7 paragraph 2 that: "My further review o f the evidence has shown that appellant quitted em ploym ent in 2004 7

and entered the business world. There is no evidence on what he earned from 2004 to 2011 when he inherited the land a t Disunyara which he divided into plots and sold the same to generate incom e." Again, on an issue of the three children born by the appellant out of his marriage, the learned judge did not assume this fact and as correctly held by the learned judge during the determination of the first appeal, and on the reflection of the record, particularly page 125 of the record of appeal, the appellant himself had admitted during cross examination that he has five children. He even named them as Aaron Makange, Simon Makange, Robert Makange, Daniel Makange and Lisa Makange. Out of these five children, only Aaron and Robert are the children of the respondent who were born within the marriage. The Judge was also correct to hold that the evidence of the appellant regarding his parental status to the three children was changing hence unreliable as sometimes he would agree that these are his children and sometimes disowning them. Indeed, as held by the learned judge, the creditworthiness of the appellant was shaky hence unreliable. Again, since there was admission of this fact, and as correctly held by the learned judge, the burden to prove this fact was discharged.

Now coming to the core issue of the appeal on whether the respondent is entitled to 50% shares in the property, the appellant basically states that, he acquired the property by himself through inheritance and the respondent did not contribute in any way to its acquisition as although she was employed, she never spent her money towards the acquisition of the property or to the financial support of the family. The appellant argues that if the respondent had made any contribution to the property, she should have given evidence to support her allegation by producing annexure LM3 to the evidence, and would have been included in the registration. The appellant states that since her pleadings were not supported by proof, then they should be ignored as held in the case of Yara Tanzania Limited (supra). The appellant states that he acquired the property through the proceeds of his inheritance. That he had inherited the farm in Disunyara Kibaha and divided it into several plots which he sold and used the proceeds to acquire the property. Furthermore, the appellant states that the respondent's contributions for marketing the plots in Disunyara was paid off as she was paid her commissions. The appellant states further that he acquired the property from the proceeds of the sale of

his Disunyara Farm and solely registered it in his name. That, he has carried out all the developments on the said property with a zero contribution from the respondent. Thus, he argued that the respondent is entitled to nothing, and if at all she is entitled to anything, it should not be equal shares. It is trite law and as held in a plethora of our decisions including the case of Bi Hawa Mohamed vs Ally Seif [1983] TLR 32, Gabriel Kurwijila vs Theresia Hassan Malongo [2020] TZCA 31, and Mohamed Abdallah vs Halima Lisangwe [1998] TLR 197, that ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition and improvements, and shall be divided between the spouses if they divorce or their marriage is otherwise broken down. This is also provided in section 114 (1) and (2) of the Law of Marriage Act, which provides: 114.-(1) The court shall have power, when granting or subsequent to the grant of a decree of separation or divorce, to order the division between the parties of any assets acquired by them during the marriage by their joint efforts or to order the sale of any such asset

and the division between the parties of the proceeds of sale. (2) In exercising the power conferred by subsection (1), the court shall have regard to - (a) the customs of the community to which the parties belong; (b) the extent of the contributions made by each party in money, property or work towards the acquiring of the assets; (c) any debts owing by either party which were contracted for their joint benefit; and (d) the needs of the children, if any, of the marriage, and subject to those considerations, shall incline towards equality of division Under subsection 2 (a) of section 114 of the LMA, a party claiming a share in the property must adduce evidence of her or his contribution in terms of money, work, or property towards the acquiring of the assets, however, the word work has been interpreted in case laws, such as, Bi Hawa Mohamed (supra) to include the house chores or ii

domestic chores of a wife. Under subsection 2 (d) of section 114 of LMA, the courts are required to incline towards equality of division, when dividing matrimonial assets between spouses, meaning that a just and realistic evaluation of a spouse's contribution should not be only on absolute terms of cash value or direct financial contribution, but a relative approach should also be on equality between financial and non- financial contribution to the acquisition of the matrimonial assets. Furthermore, the term "joint efforts" as provided under Section 114 (1) of the Law of Marriage Act has been judicially interpreted to have a broad meaning, extending beyond direct financial contributions. As we held in Bi Hawa Mohammed (supra), and further clarified in Asile Ally Said vs Irene Redentha Emmanuel Soka & Another, Civil Appeal No. 80 of 2020, contributions to the acquisition of matrimonial property can take various forms, including domestic chores, child-rearing, and managing the family's welfare. These non monetary contributions are of equal importance to direct financial contributions. The evidence in this case, particularly the respondent's testimony that she was the family's sole financial provider for a significant period and actively participated in the development of the 12

inherited farm, firmly establishes her substantial contribution under this broader interpretation of the law. Under section 114 (2) (b) and (d), and as held in Bi Hawa Mohamed (supra), parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage, such equal rights extend to distribution of matrimonial assets and factors to be considered is monetary as well as non monetary contribution made towards the acquisition of the property. The court also is required under subsection 2 (d) to incline towards equality of division. We also agree as well as stated by Lord Morris of Borth-y-Gest in Pettit vs Pettit [1970] AC 777, in essence that property rights to couple may be kept separate and that marriage was not to result in any common ownership or co- ownership of the property, but the evidence on record in this case proves the respondent's contribution towards the acquisition in the property both in monetary and non-monetary terms. The evidence also suggests that what was inherited by the appellant is the farm in Kibaha. The evidence also supports and this was specifically the admission by the appellant that he inherited the farm while the marriage was subsisting, and that the respondent 13

actively participated in the survey and division of the Kibaha farm into several plots. The appellant asserts that he paid the respondent the commission for marketing the Kibaha plots, but no proof was adduced to court to prove that the respondent was working on a commission for her husband, and that she was already paid off her commission. These are mere words from the appellant lacking proof but also strengthened the respondent's version that she indeed contributed in improving the farm in Kibaha and that the proceeds of the sale of the plots in Kibaha were the income that were spent in the acquisition of the property, and to its improvement, to which she has a share. Secondly, as correctly held by the learned judge of the High Court that, the appellant was unemployed from 2004 to 2011 and had adduced no evidence whatsoever to prove that he was doing business as alleged and was earning from the business and that he had used the earning to support the family and to survey and divide the farm into plots. On the other hand, there was proof that the respondent was employed, she was receiving a good salary and was solely supporting the family financially for over eight years while her husband remained unemployed.

The appellant's contention that the respondent is not entitled to an equal share fails to consider the guiding principle established in Section 114 (2) (d) of the Law of Marriage Act, which requires the court to "incline towards equality of division". This principle does not mandate a fixed 50/50 split in all cases but instead directs the court to make a just and equitable division after a careful consideration of all relevant factors, including both financial and non-financial contributions. Given the evidence on record, where the respondent demonstrated a substantial contribution both in monetary terms as the primary breadwinner for a long period and in non-monetary terms by actively participating in the improvement of the inherited property, the lower courts were justified in finding that an equal division was the fairest and equitable outcome. In this case more efforts have been expended by the appellant to demonstrate that he acquired the property solely by his efforts and that the wife did not contribute to anything. As demonstrated hereinabove, in fact the evidence of the respondent is more supportive towards her direct financial contribution on the acquisition of the property. She has demonstrated that she was the sole bread winner for the family for over eight years, as she was employed and took care of all the family affairs. 15

She also was able to prove that she actively participated towards developing the farm in Kibaha, surveyed it and divided it in plots. That the plots were sold and the proceeds were spent in the acquisition of the suit property. Apart from her direct financial contribution which was proved, it has been stated in Bi Hawa Mohamed (supra) since 1983 that, it is not only the direct financial support that is required when considering division of matrimonial property between spouses but also indirect contribution in the form of domestic chores. In division of matrimonial assets during divorce, the court is duty bound to consider not only the direct financial contribution, but also the indirect contribution in domestic chores as well as equality in deciding what percentage to apportion them. In this matter, as correctly held by the High Court, the respondent was able to provide her support both directly and indirectly, in monetary and non-monetary contributions, and it was correct to apportion her 50 percent of shares in the property located at Plot No. 9, Block c, Mbweni Malindi, Kinondoni, Dar es Salaam. 16

Consequently, based on the above, the appeal lacks merits, and it is hereby dismissed. This being a family dispute, we shall order that each party to bear his/her own costs. DATED at DAR ES SALAAM this 13th day of August, 2025. G. A. M. NDIKA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL Judgment delivered this 13th day of August, 2025, in the presence Mr. Nereus Mutongore, learned counsel for the appellant and Mr. John Seka, learned counsel for the respondent, is hereby certified as a true 17