IN THE HIGH COURT OF TANZANIA

TEMEKE SUB - REGISTRY

(ONE STOP JUDICIAL CENTRE)
AT TEMEKE

CIVIL APPEAL NO. 34 OF 2022

(Arising from Matrimonial Cause No. 116 o f2021 at the Temeke District Court at the One Stop
Judicial Centre)

MWAJUMA MOHAMEDI MGANGA........................................ APPELLANT

VERSUS
MOHAMEDI SAID MOHAMED........................................... RESPONDENT

JUDGMENT

Date of last order: 02/06/2023

Date of Judgment: 25/07/2023
OMARI, J.

The Appellant in this matter is aggrieved by the decision of the District Court

of Temeke at One Stop Judicial Centre (OSJC) in Matrimonial Cause No. 116 of

2021 that was delivered on 30 May, 2022. Armed with 6 grounds, she came to

this Court for an Appeal seeking for orders that the Appeal be granted, the

judgment of the Temeke District Court at OSJC be quashed and set aside on

the issue of distribution of Matrimonial assets. She also sought for this court to

declare that House No. KND/M2M/IDR 14/21 located at Magomeni, Kinondoni

District in Dar es Salaam and a madrasa by the name Madrasatul Fauz

Wasalaam which is in Magomeni, Kinondoni District are matrimonial properties

acquired during the parties marriage and not 14&Afproperty. In addition to that

the Appellant sought for this court to declare a 50% for each party as division

of matrimonial properties acquired by the parties. Lastly for costs to be borne

by the Respondent any other reliefs, the court deems fit to grant.

The Respondent contested the Appeal as prayed for it to be dismissed for the

decision of the Temeke District Court at the OSJC made the correct distribution

based on the contribution of the Appellant and the said house and madrassah

are MteA/properties and cannot be subjected to distribution.

On the date set for hearing of this Appeal the Appellant had the services of

Karilo M. Karilo and the Respondent enjoyed the services of Ibrahim Shineni

both learned advocates.

In brief Mr. Karilo began his submission by stating that there are 6 grounds

however, he prayed to consolidate and argue collectively the first, second,

third, fourth and fifth grounds since they are related. The rest would remain

as is making the grounds only two. Thereafter, he submitted that the parties

were neither tenants in a house and that is where the Respondent started a

madrassah, later on, one Ahmed Abdallah Ibrahim (also referred to as Ahmed

Ibrahim) who was SU1 in the trial court bought the property. Counsel further

submitted that because the parties were required to vacate the house the

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buyer bought a plot of land where they built their house with the said

madrassahon the side. This according to counsel makes the house matrimonial

property jointly acquired by the parties. He went on to submit that during trial

the Respondent maintained that it was not matrimonial property rather it was

UteA/property donated by Ahmed Ibrahim that is SU1.

The learned Counsel turned to submit at length on the procedure for giving

property for Wakf\n that if it is joint property in accordance to Islamic Law the

other owner has to be informed and the said donation not to exceed one third

of the property being donated as Wakf. He also made reference to chapter 16

:90 of the Qur - an and averred that Islamic law should not be used to hide

evil intentions stating both the Respondent and SU1 purported the said Wakf

property to deprive his client of her right to the property which is contrary to

the Qur-anic teachings. Counsel further submitted that despite testimony that

it was SU1 who bought the said plot which the house and madrassah are on it

is the Respondent's name that is on the Residential Licence that is of Mohamed

Said Hariri who is also known as Mohamed Said Mohamed, the Respondent

herein.

Mr. Karilo vehemently argued that, although the Respondent and SU1 testified

the dispute property was Wakf property nothing was adduced as evidence of
the same being so either per the teachings of Islam or as per the land law. He

stated that, in his view the exhibit marked D4 tendered by SU1 was admitted

but the trial court could not confirm its authenticity as it has no direct

relationship to the Wakf. This, in Mr. Karilo's view was a contravention of

section 10(1) and section 11 of the Evidence Act Cap RE 2022 (the TEA). He

went on to challenge the existence of the institution of the Madrasatul Fauz as

being non-existent for not being registered and there no evidence adduced as

to its existence. This, he went on to state is one of the reasons they argue that

the trial court erred by not looking into its existence yet concluded the disputed

property was Hte/rfproperty.

On the second ground of appeal the learned counsel argued that the trail court

erred by not distributing the matrimonial property in accordance to section 114

(l)(2)(b) of the Law of Marriage Act, Cap 29 RE 2019 (the LMA). He argued

that the Contribution of the Appellant in the acquisition of the said properties

was explained in the trial court and in addition to others she has counselled

and advised the Appellant on how to acquire the properties they have. Mr.

Karilo further argued that the trial court should have considered the parties

efforts especially because the Respondent could not even testify how the said
properties were acquired. Having said that the learned counsel reiterated the

prayers as in the Memorandum of Appeal.

When Mr. Shineni took the floor, he began his submission by acknowledging

that Mr. Karilo had consolidated the grounds thus, he would also submit along

the same lines. Mr. Shineni then went on to argue that his learned brother's

submission connotes that he does not know that matrimonial property is

likewise l/t&Z/property. He challenged Counsels contention that Wakfcan only

be in one third of the property and said that was not true and that rule only

applies to matrimonial property which the property in question is not.

The Respondent's counsel went on to submit that the property in dispute was

given to Madrasatul Fauz by SU1 so it is not matrimonial property rather it is a

Wakf property given to the madrassah; thus, the one third rule is irrelevant.

The learned counsel went on to submit that a Wakf Deed was adduced and

admitted as Exhibit D4, however, there are other documents showing the

purchase of the property all the way to the Wakf. He went on to submit that

section 63 and 64 of TEA is clear on how documents are to be admitted and it

is not the role of magistrate to judge a conflict regarding a document and this

is what the trial magistrate did. He argued that the Appellant's counsel brought

up the relevance of evidence because he has failed to understand the

difference between Wakfproperty and matrimonial property; the former being

a donation from an individual to the madrassah.

As for the parties contribution to the acquisition of the said property Mr. Shineni

argued that it cannot be there since the Wakf Deed is clear and gives directives

on the use of the property this was dealt with by the trial Court; making the

Appellant's Counsel submission on there being unethical conduct seeking to

deprive the Appellant's right to matrimonial property in the name of religion

lacking in any legal basis so long as the Wakfis in existence.

Further to that the advocate submitted that the development of both the house

and madrassah was done through charitable donations as it was testified in

the trial court thus, no contribution was done by the parties. On the submission

that the madrassah does not exist counsel argued that the registration or non

- thereof on institution does not affect a H^A/donation that being the case

even the madrassah cannot be divided as matrimonial property. As for the

Residential Licence from 2013 bearing the Respondent's name, the counsel for

the Respondent stated that the Wakfwas denoted in 2003 and up to the time

when the donor testified it was intact and in existence; thus, the trial court did

not error in admitting the Wakfdeed.

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Submitting on the second ground of appeal counsel averred that the court

considered the parties contribution and divided the properties the way it did.

He went on to argue that section 114 of the LMA applies to matrimonial

properties jointly acquired by the parties in this case the properties are not and

then he cited the Bi Hawa Mohamed v. Ally Sefu [1983] T.L.R 32 case as

a case that recognizes contribution of domestic activities which they are not

contesting only that the property in question is not matrimonial.

Counsel concluded by averring that the Appellant's advocate prayed for the

judgment of the district court to be quashed and set aside without considering

she was given the Tanga property thus, he prayed for this court to find the

appeal unmeritorious and it be dismissed with costs.

In his rejoinder Mr. Karilo spoke to section 10 and 11 of TEA which he cited as

regards to relevancy of the evidence adduced then disputed the treatment of

the said property as Wakfon the basis of Exhibit D4 which event the trial court

called "Karatasi ya Wakf meaning it had no registration. Mr. Karilo added to

his argument that the said property is in the name of the Respondent thus,

SU1 could not have given anything since he has nothing to give, adding that if

the Wakf\s for 2003 yet the licence for 2006 and the 2013 renewal all read the

Respondent's names why did he then build on the institution's property,

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likewise, if the house was built by volunteers then why is there nothing on

record to show for this. He argued that the Wakf is fictious because this

individual is hiding in a MteZ/while a Wakfcan only be given to an institution.

He conducted his submission by stating that the house and the madrassah are

on the same property thus one and the same thing matrimonial property.

Before going into the grounds of Appeal raised by the Appellant I find it

pertinent to do two things. The first is to admit that I am aware and are paying

heed to the decision of the Court of Appeal in the case of Faki Said Mtanda

v. Republic, Criminal Application No.249 of 2014 (Unreported) where the

Court cited the decision of then East African Court of Appeal in the case of

R.D.Pandya v. Republic [1957]EA 336 quoting the same where it was stated

that:

'It is a salutary principle of law that a first appeal is in

the form re- hearing where the court is duty bound to
re-evaluate the entire evidence on record by reading
together and subjecting the same to a critical scrutiny
and if warranted arrive to its own conclusion'
This being a first appeal then I am mandated to go back to the evidence that

is available on the record and re-evaluating the same and arrive at a

conclusion, see also Rashid Abiki Nguwa v. Ramadhan Hassan Kuteya

and Another, Civil Appeal No. 421 of 2021.

The second thing I have to do is to make an elucidation as to the concept of

Wakfand as alluded by Respondent's counsel perhaps put it in context of the

case at hand. HteA/(which can also be spelled as Waqf) is an Arabic term which

in its literal meaning it means to detain property; see Guelida, B., eta/(2022)

The Moroccan Waqf and the Common-Law Trust: A comparative

Study in UUM Journal of Legal Studies, 13(1), 283-309 at

https://doi.ora/10.32890/uumils2022.13.1.12. WaKf\s an established practice

in Islam from the time of advent of Islam to date. It has its foundations Qur

anic verses enjoining charity and perpetual charity. According to Mufti Faizal

Dhada in his unpublished work titled A Legal Analysis of the Compatibility

Between Waqf and the English Trust, Presented at De Montfort

University, 2017 the majority of Islamic jurists define Wakfas\

'...confining property, which is possible to take benefit

from whilst its corpus remains intact [i.e. it is non
consumable], by cutting off right o f usage in its
ownership from the settlor and others, [for the benefit
of] an existing object or by spending its yield upon a
noble cause or [some] good, [with the intention of]
gaining closeness to Allah, the exalted.'

In other words when a person dedicates a Waki they are detaining the property

so dedicated for use and purpose that the donor has identified. Another

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definition which in my view is a much simpler and perhaps a user-friendly form

of explaining what a Wakf\s found in the forward of a 2015 study titled:

Comparing the Effectiveness of Waqf and English Charitable Trusts/

by the Islamic Relief Academy, Birmingham, UK available at

https://pure.coventrv.ac.uk/ws/portalfiles/portal/30177061/Comparinq the E

ffectiveness of Waqf and English charitable Trusts Enalish.pdf. Wakf is

described as:

'In its simplest form, a Waqfis a charitable endowment

that allows a person to dedicate his or her property to
Allah (God) for the benefit o f the public good. In
conventional terms, this would often be in the form of
building mosques, schools and hospitals all aimed at
perpetually benefitting local Communities.'
In the Tanzanian legal context, a Wakf is a recognized entity, for instance the

Probate and Administration of Estates Act, Cap 352 RE 2019 Wakfxs defined

by section 140 as:

'An endowment or dedication in accordance with

Islamic law of any property within Tanzania for
religious, charitable or benevolent purposes or for
maintenance and support of any member o f the family
o f the person endowing or dedicating such property.'
In other words, a Wakf is a dedication of one's property for a charitable or

other religiously acceptable purpose. The Person giving or detaining property

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as a Wakfis surrendering such property to the cause or purpose they have so

chosen. According to the decision of the Court of Appeal in Hassan Matolla

v. Kadhi wa Msikiti wa Mwinyi Mkuu (1985) TLR 54 a Wakfcan be created

by the donor/endower either intervivos or by Will. The alleged donor in the

present case created a Wakfintervivos. Furthermore, Wakfis also provided for

in the context of registration of landed property that has been dedicated or

donated as Wakf. Section 80(4) of the Land Registration Act Cap334 RE 2019

states:

An estate which has been validity dedicated or

endowed as Wakf when registered shall be in the name
of the trustee or mutawalli, with addition after his name
o f the words as "mutawalli"or in the name of the Wakf
commission as the case may be.'

Having established what a Wakf is and can be the question that remains is

whether the disputed property is a Wakfor not and in any case whether it is

matrimonial property.

Matrimonial property is not defined in the LMA but has received broad

elaboration through case law. In the case of Gabriel Nimrod Kurwijila v.

Theresia Hassani Malongo, Civil Appeal No. 102 of 2018 (unreported) as

regards matrimonial property the Court of Appeal stated that:

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 'On the other hand, the phrase matrimonial property
has a similar meaning to what is referred as matrimonial
asset and it includes a matrimonial home or homes and
all other real and personal property acquired by either
or both spouses before or during their marriage. '
In an earlier case of Yesse Mrisho v. Sania Abdul, Civil Appeal No. 147 of

2016 (unreported) it was stated that:

1Matrimonial properties are also those which may have

been owned by one party but improved by the other
party during the marriage on joint efforts.'
The LMA vests courts with the powers to order division of the properties jointly
acquired when issuing a decree of divorce or separation, section 114 (1) of the
LMA provides:

'...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 o f any such asset and
the division between the parties of the proceeds of
sale.'
Moreover, section 114 (2) in part states:

'In exercising the power conferred by subsection (1),

the court shall have regard to: -... (b) the extent o f
the contributions made by each party in money,
property or work towards the acquiring o f the
assets;... '(emphasis supplied)

Additionally, section 114(3) of the LMA provides further guidance to the courts
as regards what is to be distributed as matrimonial property; it states:
 'For the purposes o f this section, references to assets
acquired during the marriage include assets owned
before the marriage by one party which have been
substantially improved during the marriage by the other
party or by theirjoint efforts.'
From the above provisions and the cases of Pulcheria Pundungu v. Samwel

Huma Pundungu[1985] T.L.R 11 and Samwel Moyo v. Mary Cassian

Kayombo (1999) T.L.R 197 in exercising the powers conferred under section

114 of the LMA a court has to ensure three conditions are established. The

three conditions are; that the assets set for distribution must be matrimonial

assets, they must have been acquired by the parties during the subsistence of

the marriage and they must have been acquired by the joint efforts of the

parties; see also Bi Hawa Mohamed v. Ally Sefu (supra).

Guided by the said conditions this court has to interrogate whether the house

in dispute is matrimonial property and whether the Appellant had any

contribution in its acquisition. I am well aware that in the trial Court the

Respondent presented a Wakf Deed in the form of Exhibit D4 and when

testifying about the Residential License of the disputed property he stated as

is reproduced on page 28 of the typed proceedings:

'Mwaka 2008 Wizara ya Ardhi ilitangaza majengo yote

ambayo yapo eneo ambalo halijapimwa yapate leseni
za muda. Ikabidi tukae kikao pale Madrassah na
 wenzangu wakasema niandike jina langu kwenye
Leseniya Makaziya muda'
In this context one might assume that the above testimony might have been

a result of being aware of the provisions of section 80(4) of the Land

Registration Act, however, the question that there is no descriptor any kind

after the Respondent's name as per his own testimony and that of the

Appellant. I will however leave the question of the registration disputed

property which is Wakf in the name of the Respondent for another time since

assumptions are not good in law.

As for the Appellants contention that a Wakf can only be one third of the

property if the Wakf is of matrimonial Property this should not detain me for

counsel has mixed up the concept of M/aX/and that of Wasiyyah. The former

I have already described and the latter is basically an Islamic Will or a Will

under Islamic law. In the practice of Wasiyyah the testator is permitted to

bequeath by Will only one third of his property. See Waziri Maneno Choka

v. Abas Choka, Civil Appeal No. 51 of 1999, Re the Estate of the Late

Suleiman Kusundwa [1965] EA 247 and this court's decision in Salma

Moshi Athuman v. Asha Kimolo, Probate and Administration Cause No. 37

of 2007 all of which discuss the one third rule. Although it is prudent to mention

that there are varying opinions and interpretations by jurists of the various

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schools of Islamic jurisprudence {fiqh)] however, that is also a subject for

another forum.

In the current Appeal the alleged Wakf is intervivos thus, the one third rule

does not apply or it would only apply if the Wakf were to come into operation

after death of the donor/endower which is not the case.

The Respondent in his defence produced Exhibit D4 which is a document

supposedly executed by Ahmed Ibrahim (SU1) stating the following:

'Mimi Ahmadi Abdallah Ibrahim wa SLP 36531 Dar es

Salaam nimenunua Banda na Kiwanja kilichopo mbele
ya Banda hilo I'a vyumba vitano; kuinunulia Madrasatul
Fauz Wassalam na nimeitoa kama hadia (Wakf) kwa
ajili ya madras hiyo pasomwe Qur-an ya Allah (SW)
milele na mi/e/e. WABILLAH TAWFIQ ALHAMDULILLAH
RABBILAALAMINA.'
Though done clumsily the document constitutes an endowment and the

purposes of which is clear. The only question that remains would be the

connection between the said Wakfand the Respondent for he is not named as

the trustee or mutawalli of the Wakf From the trial court's proceedings his

attempt to adduce a Registration Certificate for the madrassah showing that

he is the owner were not successful. His testimony is that the name in the

Residential Licence was because he is the one who is responsible for the

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madrassah. The Appellant on the other hand did not adduce any evidence in

this regard during trial other than her testimony and that of SM2.

Albeit the Respondent's testimony having holes in it I am inclined to agree with

the trial magistrate that matrimonial property is property that was acquired by

joint efforts of the spouses, during the pendency of their marriage. The

disputed property is unfortunately not matrimonial property and at trial the

Appellant herself testified as reproduced on page 5 of the proceedings:

’wafadhili walikuja na wakajenga madrassah. Baada ya

hapo, Shehe Ally Mzee Kamoriani alimchukua na
kumpeleka kwa mtu ambaye angejenga nyumba nzuri
na choo. Na kama alivyo ahidi wafadhili walijenga 2003
tulihamia. Upade mmoja kulikuwa na chuo cha
madrassah, wakati sisi tulikuwa tulikuwa tunaishi
upande mwingine.'
In her own testimony the Appellant acknowledges the land was bought by SU1

the house and madrassah was built by donors. On the same page she testified

that during the formalization the Respondent got a Residential Licence of the

said land. Later on, she testified:

'Alpo safari kwenda Marca (sic) na alipopata pesa

akanionyesha. ALipo safari kwenda Marca(sic)
aliniachia pesa na kama tulivyo kubalina niliweka
magrih\ vigae (tiles) na nikanunua Tv.'
The Respondent did not contest this testimony in the trial court. On page 6 of

the proceedings she has further testified:

'Ugomvi uiiendeiea kuongezeka, Dugumbi ndipo nilipo

sikia eti nyumba sio yake ni Wakfu wakati sio kweli.
Sijawahi ona nyaraka. Hata watu wa benki walipo kuja
kutaka kuinunua nyumba, aliwapa picha yake nilipo
muuliza kwa nini hakunishirikisha, alisema kuwa
a/iandika jina tangu'
On the said issue it is in the proceedings that the Respondent testified:

'Ni/isema hivi huu mradi una/ipa majumba, nitakacho

kuwa nacho change mimi nitakupa'
He also said:

' Niiiandikajina tangu kwenye maiipo ya mradi kwa kuwa

mimi ndio msimamizi'
In my considered opinion the Respondent's testimony regarding having his

name as the owner of the said property yet the same is Wakfu does not

resonate with the picture he was trying to paint. This drives me to now look at

the district court's judgment. In his judgment the learned trial magistrate

stated:

'kwa mantiki hiyo, pamoja na kwamba kuna wakati

mjibu maombi a/ifanya marekebisho madogo madogo
na kubadiiisha majina kwa namna ambayo inaibua
maswaii, bado haifanyi eneo hito kuwa ni maii ya ndoa.
Kwa namna yoyote, eneo hiio linabaki kuwa ia
 Madrassatul Fauz ambalo mjibu maombi amejimilikisha
kimakosa.'
This is basically stating that the property is Wakf property that belongs to the

madrassah, however, the Respondent wrongly changed the names which

neither makes the Wakfvo\d nor make the property matrimonial property. I

am in agreement with the trial court magistrate that the said property is not

matrimonial property for from the evidence adduced by the Appellant it was

not acquired by either of the parties through their joint efforts.

However, the Respondent having done a chaotic job of administering the Wakf

to the extent of his spouse thinking it is their property though that testimony

also raises questions for the Appellant failed to explain if the said property is

not Wakfto the madrassah how the same shifted from being Ahmad Ibrahim's

property and making it matrimonial property for it was not testified in the trial

court that the same is a Wakfu to the parties. The Respondent also failed to

contradict the Appellant's testimony that he gave her money and she installed

grills, tiles and bought a television.

This in my view means the Appellant worked on the improvement of the said

property feasibly believing it is theirs; and in my considered opinion she entitled

to some of form of compensation.

Applying the restoration principle; see this court's decision in Mbarouk Suya

Bindo v. Mbonny Abdallah Maumba, PC Civil Appeal No. 41 of 2022 I order

the Respondent to pay to the Appellant 10% of the disputed property's value

to compensate her for the work that she was doing in the form installation and

or supervision of the installation of the grills and tiles among others thinking it

is hers and her husband's property and not an act of charity which seemingly

never set out to do. The other orders of the trial Court remain undisturbed.

It is so ordered.

A.A. OMARI
JUDGE
25/07/2023

Ruling delivered and dated 25th day of July, 2023.

A [
JUDGE
25/07/2023

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