IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE SUB-REGISTRY OF MTWARA

PC CIVIL APPEAL NO. 8610 OF 2024

(Arising from Matrimonial Appeal No. 08 of 2023 from District Court of Masasi at Masasi
and Originating from Lisekese Primary Court on Matrimonial Cause No. 22 of 2023)

BENSON GWEJUNG MWAKIPESILE............................................... APPELLANT

VERSUS

MAGRETH EDWARD NG'ONYE........................................................RESPONDENT

JUDGMENT

12th June & 18 July, 2024

MPAZE, J.:

The respondent, Magreth Edward Ng'onye, petitioned for divorce and

division of matrimonial properties against the appellant, Benson Gwejung

Mwakipesile, through Matrimonial Cause No. 22 of 2023 before Lisekese

Primary Court (henceforth the 'trial court'). Upon hearing the petition, the

trial court granted the decree of divorce and ordered the division of

matrimonial properties.

i
 The respondent was awarded one house and a plot of land, while the

appellant was awarded two houses and a plot of land. As for the household

items, each party was awarded 50%.

Being dissatisfied with the order of division of matrimonial properties, the

appellant appealed to the District Court of Masasi (hereinafter the 'first

appellate court7) via Matrimonial Appeal No. 08 of 2023. Having heard both

parties, the first appellate court upheld the trial court decision.

Again, the appellant was not amused with the first appellate court

decision, therefore, he filed this second appeal on the following grounds;

1. That the learned appellate magistrate of Masasi District erred in law

and facts by holding that one house be taken by the respondent

without considering that all houses were acquired by the sole efforts

of the appellant and no improvement was done by the respondent.

2. That the learned appellate magistrate of Masasi District Court erred in

facts by holding that there are two plots of land and each party to take

one plot without ascertaining its existence.

3. That the appellate magistrate of Masasi District Court erred in law and

facts by excluding one car from the list of matrimonial properties

2
 without considering that it was acquired during the subsistence of

marriage and the appellant contributed 7,000,000/=.

4. That the learned appellate magistrate of Masasi District Court erred in

law and fact by dividing home appliances equally to the parties herein

without ascertaining the existence of the same.

5. That the learned appellate magistrate of Masasi District Court erred in

law and facts for failure to evaluate evidence properly, hence arriving

at an erroneous decision.

At the hearing of this appeal, both the appellant and respondent appeared

unrepresented. The appeal was disposed of orally.

Supporting his appeal, the appellant explained that after being dissatisfied

with the decision of the trial court and the first appellate court, particularly

on the issue of the division of matrimonial properties, he decided to appeal

to this court.

The appellant's complaints on this issue include the failure of both lower

courts to consider that all three houses are not matrimonial properties. He

also faulted the two lower courts for failing to consider the motor vehicle as

3
a matrimonial property. Additionally, he complained about the trial court's

failure to find out that there were no utensils that deserved division.

In explaining that the three houses are not matrimonial properties, he

began by stating that the first two houses are his personal properties and

not matrimonial properties. The appellant contended that he built the two

houses while the respondent was schooling, questioning how the respondent

could have contributed to acquiring those houses if she was studying.

The appellant told this court to consider the evidence of PW3, who stated

that from 1990 to 1994, she and the respondent were studying at Mkonge

Secondary School, and PW1, who stated that she studied with the

respondent at Ndikwa Teachers' College.

From his submission, the appellant wanted this court to believe that the

respondent had no contribution to the acquisition of matrimonial property

because she was a student and thus did not contribute anything.

Additionally, he emphasized that the respondent claimed in her testimony

that she was a teacher. If this is the case, the appellant questioned when

we could say the respondent supervised the builders to amount to her

contribution in acquiring the said properties.

4
 The appellant emphasized that the respondent did not contribute

anything to both houses because she was studying, funded by his father.

Thus, he requested this court to exclude those houses from the division as

they were his personal properties and should not have been included in the

division because they were not part of the matrimonial asset but rather his

personal property.

Regarding the third house that was awarded to the respondent, the

appellant argued that he was the one who bought the plot from Dadi Ngalo,

who was the respondent's fellow teacher at that time, and he had the offer

that he tendered but it was not considered.

He complained about the district court's act of awarding the house to the

respondent on the grounds that the respondent contributed to its purchase

and that she was an employee and a wife, without considering that she did

not contribute to its acquisition and that they have been separated since

2016. From his perspective, he believed that due to their separation, she no

longer deserved to be called a wife.

The appellant continued that although he bought the plot a long time ago,

it was not built until 2021 after he retired. Thus, he insisted that this house

5
also does not amount to matrimonial property. He expressed surprise at the

respondent's claim of making some improvements in the said house,

asserting that the house was built in 2021 and was still new. He questioned

what improvements could have been made when the house was still new

and why the respondent failed to bring forward any builders to prove this or

even mention their names.

Apart from the division of the houses, the appellant was also not satisfied

with the division of other properties.

Starting with the car, the appellant faulted the first appellate court for

failing to observe that the car was also matrimonial property following his

contribution of Tshs 7,000,000/= towards its purchase. Thus, he prayed that

this car also be included as part of the matrimonial property subject to

division.

Regarding the plots of land, the appellant argued that he only

purchased one plot, not two as stated in the judgment. He added that the

plot is located in Nyasa West, and he bought it from Patrick Soko. He insisted

that the respondent did not contribute to its acquisition.

6
 Regarding the household items, the appellant argued that there are

none left as they have worn out. He added that when the respondent moved

to Nanyumbu, she took the household items with her. According to him, if

the household items need to be divided, the respondent should bring back

the items she took, and they will see their condition and if they can be divided

or not.

The appellant rested his submission by asking this court to carefully

examine the evidence so that it can recognize the appellant's personal

properties, including the house that was awarded to the respondent,

property acquired after separation, and matrimonial property, and allow the

appeal.

In response, the respondent denied the appellant's allegations that she

did not contribute to the acquisition of the two houses because she was in

school when they were being built. The respondent did not deny being in

school but said that even going to school to study teaching from 1994 to

1996 was due to the appellant's initiatives.

7
 The respondent contended that they started living together with the

appellant in 1993 in a rented house, and later they acquired plots and built

two houses, which the appellant refers to as his personal properties.

However, regarding the house that was awarded to her, she said that

she was the one who bought the plot from the said Dadi for Tshs. 50,000/=

and started construction using fired bricks. Later, the appellant demolished

it and started rebuilding it with block bricks in 2010. Thus, she stated that

the appellant's claims that she never contributed to the acquisition of the

said properties are not true.

Regarding the plots, she argued that they bought the Nyasa West plot

together. She added that the appellant had already given the second plot to

the child, and she had no problem with that. She agreed with the appellant

that the remaining plot was the Nyasa West plot.

Regarding the car, the respondent argued that the appellant never

contributed to its acquisition because when she left, he never helped her

with anything. She added that she bought it with her own money, and after

purchasing it, she informed him, and he was happy to hear that.

8
 The respondent concluded by stating that since 2011, each of them

has been living their own lives independently. However, she emphasized that

she contributed to the acquisition of all the properties that were divided and

therefore prayed this court to dismiss the appeal.

In rejoining the respondent's submission, the appellant reiterated his

earlier submission and added that they separated with the respondent in

2016, not 2011, and maintained that he contributed to the acquisition of the

motor vehicle, hence it should be subject to division. The appellant insisted

that the plot in Nyasa West does not concern the respondent at all; it is his

property.

Having examined the rival submissions of the parties in light of the

grounds of appeal, the main issue for determination for this appeal is

whether this appeal has merit.

As this is the second appeal, this court usually refrains from intervening

in the concurrent findings of facts made by the lower courts unless there is

a misapprehension of the evidence, miscarriage of justice, or a violation of

some principle of law or practice. See the case of Amratlal D.M t/a

Zanzibar Silk Stores v A.H. Jariwala t/a Zanzibar Hotel [19801 TLR

9
31, Bomu Mohamed v. Hamisi Amiri Civil Appeal No.99 of 2018, and

Helmina Nyoni v. Yeremia Maqoti Civil Appeal No. 61 of 2020 (Both

unreported).

Having in mind the legal principle governing the second appellate

court, this court now delves into the examination of the grounds of appeal

in the standard expected as the second appellate court.

In my determination of this appeal, I will discuss the first, second,

third, and fourth grounds of appeal collectively as they are centred on one

main complaint which is based on the division of matrimonial properties while

the fifth ground of appeal will be argued separately.

The major complaint in the issue of the division of matrimonial property

by the appellant is the lower court's finding that the first and second houses

are matrimonial properties while he claims they are his own personal

properties. He was also displeased with the allocation of the third house to

the respondent as he claims she contributed nothing to its acquisition.

According to the trial court's record, after hearing the evidence from

both sides, it reached the decision that the parties had three houses that

amounted to matrimonial properties. The parties named the houses as the

io
first, second, and third houses. Therefore, in the course of determining the

appellant's complaint, this court will describe the houses in terms of the

numbers given by the parties themselves during the trial.

In his submission, the appellant argued that the respondent has no

contribution to the acquisition of the said houses and that they were not

matrimonial properties. He stated in this appeal that the first two houses are

his personal properties, and therefore, they should not have been part of the

division of assets. However, as he continued with his submission, he also

claimed that the third house was also his personal property.

The main reason the appellant claimed all the houses are his personal

properties is that, according to him, the respondent never contributed to the

acquisition of any of the said houses. He argues that during the acquisition

of the first and second houses, the respondent was studying, and for the

third house, he built after retiring, meaning she did not contribute at all.

On the other hand, the respondent claims that all three houses are

matrimonial properties and that she contributed to their acquisition.

At this juncture, it is pertinent to highlight what constitutes matrimonial

properties. The term " matrimonial property' has not been defined under

11
the Law of Marriages Act Cap 20 R.E 2019. However, numerous decisions of

the Court of Appeal have clarified its meaning. For example in the case of Bi

Hawa Mohamed v. Ally Sefu [1983] TLR 32 the Court of Appeal provided

insight. Also, in the case of Gabriel Nimrod Kurwijila v. Theresia

Hassan Malonqo Civil Appeal No. 102 of 2018 (unreported), defining what

matrimonial property entails the Court had this to say;

' The position in India, which we take inspiration from, is quite similar

to that in our jurisdiction when it comes to interpreting the phrase

'matrimonial assets,' which, in our view, is similar to the phrase 'family

assets' used in the Indian Act. They refer to those properties

acquired by one or other spouse before or during their

marriage, with the intention that there should be continuing

provisions for them and their children during theirjoint lives.'

[Emphasis added].

From the above definition, it is obvious that matrimonial properties

constitute properties acquired by one or both parties during the subsistence

of the marriage with the intention that there should be continuing provisions

for them and their children. This also includes properties acquired before the

12
marriage by one party but have been substantially improved during the

marriage by the other party or by their joint efforts.

At the trial court, the appellant testified about when the houses were

built and the respondent's whereabouts at that time. For ease of reference,

let me paraphrase part of the appellant's testimony as reflected on page 12

of the trial court-typed proceedings;

V bui/t the first house between 1991-1994 while the claimant was

studying at Mkonge Secondary Schoo! in Lindi, the second house was

built between 1995-1996 while the claimant was studying at Ndikwa

Teachers' College, and the third house was built between 2003-2004

while the claimant was studying at the Continuing Education College

in Nachingwea. Since then, I have done nothing as I was paying for

the claimant's studies at the Open University, where I paid Tshs

900,000/= per year for about 4 years.'

On page 14 of the trial court proceedings, the appellant testified

further;

Two years before retiring, I started finishing the second house,

completing it on January 25, 2021. The third house was bui/t while the

13
claimant was studying in Nachingwea. I built up to the windows, and I gave

the claimant money to buy the plot.1

When cross-examined, the appellant replied that he moved with the

respondent to the first house in 2002.

On the other side, the respondent testified that they built three houses

together. She failed to state when the houses were built.

From the appellant's reply in cross-examination, it is obvious he moved

with the respondent to the first house in 2002, and they continued to live

there as husband and wife until their dispute arose.

As for the second house, the appellant stated he started to build the

house before he started to live with the respondent, but he completed it two

years before he retired in 2021, meaning the house was improved while his

marriage with the respondent subsisted.

Regarding the third house, the appellant stated he built it while the

respondent was studying in Nachingwea, but he provided the money for the

respondent to buy the plot.

Considering this evidence and the definition of what constitutes

matrimonial properties, it is clear that all three houses are matrimonial

14
properties because they were acquired during their marriage. The fact that

the appellant failed to state the years the houses were built or who the

builders were does not change the fact that the houses are matrimonial

properties that should be involved in the division. Therefore, the appellant's

claim that the houses are his personal properties has no merit.

In addition to his claim that the three houses were not matrimonial

properties, the appellant also complained that the first appellate court failed

to recognize that the respondent never contributed to the acquisition of the

said properties and thus erred in awarding the respondent the third house.

From this complaint, the question is whether the first appellate court

wrongly upheld the order of division of the third house to the respondent.

The extent of contribution of each party in the acquisition of

matrimonial properties is a predominant factor for consideration by the court

when dealing with the issue of the division of matrimonial assets. That

contribution may be monetary, property, or work towards the acquisition of

those properties. See Section 114 (2) (b) of the Law of Marriage Act.

The Court of Appeal in Tumaini M Simoqa vs Leonia Tumaini

Balenqa Civil Appeal No. 117 of 2022 (unreported) elaborated on the

15
considerations for determining the extent of each party's contribution

towards matrimonial assets;

'In essence, the extent of contribution made by each spouse is not

restricted only to material or monetary contribution; it can extend to

either matrimonial obligation or work or intangible considerations such

as love, comfort, and consolation of the wife to her husband, the peace

of mind, and the food prepared by the wife for her husband as

observed by the High Court.'

Given the above decision, it is obvious that the wife's contribution to

domestic work is considered part of the contribution towards the acquisition

of the property, as it has long been a legal position following the decision in

Bi Hawa Mohamed v. Ally Sefu {supra}.

It should be noted that the wife's contribution to fulfilling family

responsibilities is not a measure for being given fifty per cent of the

matrimonial properties. The key factor is the contribution of each party to

the acquisition of the property, which assists the court in delivering the

decision on how much each party should be entitled to the properties

16
acquired during the marriage. See also Yesse Mrisho v. Sania Abdul Civil

Appeal No. 147 of 2016 (unreported).

In deciding the division of matrimonial properties, the extent of the

contribution is of utmost importance. The Court of Appeal in Gabriel

Nimrod Kurwijila vs Theresia Hassan Malonqo (supra) insisted that;

' The extent of contribution is of utmost importance to be determined

when the court is faced with a predicament of division of matrimonial

property/

The important question is how the court can determine the extent of

each party's contribution towards the acquisition of matrimonial properties.

The answer to this question can be found in Gabriel Nimrod Kurwijila

(supra), where it was stated that the evidence of the parties is what leads

the court to determine the contribution of each party. The Court stated that;

'In resolving the issue of the extent of contribution, the court will

mostly rely on the evidence adduced by the parties to prove the extent

of contribution.'

Thus, for this court to answer the appellant's complaint, it must

consider the evidence presented by the parties in the trial court.

17
 After examining the trial court records, I find that the appellant, when

giving his evidence, explained the year he built the house awarded to the

respondent. He also stated that the house was built up to the windows stage

when the respondent was studying in Nachingwea, and regarding the

acquisition of the plot, he gave the respondent money to buy it.

On the other hand, the respondent in her evidence outlined the

properties they jointly acquired with the appellant, including the house she

was awarded. She further stated that she was a teacher and contributed to

the purchase of building materials and the import of electricity into the house

where the appellant was residing while the respondent was on duty.

During cross-examination, the respondent stated that she bought the

third house plot from Dadi Ngaro with her own money. She denied that the

appellant sent her to buy the plot, claiming instead that the money came

from her salary.

Following the evidence presented by both sides, neither party tendered

sufficient evidence to prove their extent of contribution to the acquisition of

the third house. Both parties claimed to have bought the plot but failed to

18
provide proof of purchase, details of the purchase price, or testimony from

Dadi Ngaro.

The appellant claimed to have submitted the plot offer as evidence,

but the trial court records indicate that he never formally presented it as an

exhibit, and it is not included in the court's records. Additionally, neither side

detailed the cost of construction or how the funds were obtained to complete

the construction, which would allow the court to determine each party's

contribution.

Regrettably, both parties failed to provide adequate evidence to prove

their contributions to the acquisition of the house. Therefore, the appellant

cannot fault the first appellate court for concurring with the trial court's

findings regarding the house.

Given that the respondent was a teacher earning a salary and fulfilling

her duties as a wife, there is no reason to disturb the concurrent findings of

both the first appellate court and the trial court, which awarded her the third

house while the appellant was awarded two houses. Thus, the appellant's

complaint regarding the third house is without merit.

19
 Secondly, regarding the car, which was not divided as matrimonial

property, the appellant claimed to have contributed Tshs. 7,000,000/=

towards its purchase. He testified that he gave the respondent Tshs.

7,000,000/= to buy the car after their first car, a Toyota Stalled T127 ASK,

which he had contributed to, was involved in an accident and subsequently

sold, with the proceeds being equally divided between them.

During cross-examination, he mentioned the car's number asT887 CUJ

Rav 4 but admitted that he did not know where the respondent bought it

and that the motor vehicle card bears the respondent's name.

The issue of whether the car was matrimonial property arose during

the appellant's defence. The respondent, who petitioned for the dissolution

of the marriage and division of matrimonial properties, did not list the car as

part of the matrimonial assets.

According to the appellant's testimony, apart from his claim of

contributing Tshs 7,000,000/= towards the car's purchase, there is no

further evidence to support that the car meets the criteria to be considered

a matrimonial asset subject to division. Thus, the appellant's complaint on

this issue is unfounded.

20
 Thirdly, regarding the distribution of plots, the appellant alleged that

there is only one plot located in Nyasa West, which he bought from Patrick

Soko, and that the respondent did not contribute anything. The respondent

denied the appellant's claim, stating that they bought the plot together. She

also admitted that only one plot remained because the other plot had already

been given to their children, indicating that they originally had two plots.

After carefully considering the evidence presented by both parties at

the trial court, I find that the respondent included both plots as part of the

matrimonial properties. The appellant had the opportunity to cross-examine

her but chose not to question the existence of these plots. Consequently, he

implicitly agreed with the respondent's assertion of their joint ownership of

two plots.

Furthermore, the appellant did not address the issue of the plots in his

testimony. It was expected that he would provide evidence that only one

plot existed, but he failed to do so. Therefore, the first appellate court was

justified in affirming the trial court's decision to include both plots in the

division of properties, distributing them equally.

21
 Regarding the appellant's claim that one of the plots was given to his

child, this argument is considered new as it was not previously discussed in

either of the lower courts. Hence, I will not entertain it and will uphold the

decisions made by the trial and the first appellate courts concerning the

division of these plots.

Moving to household items, the appellant contends that there are no

remaining utensils, stating that the respondent left with the bed, mattress,

and some utensils. He further argued that these items should be returned

for evaluation before distribution. However, the respondent did not address

the issue of utensils in her testimony.

Reviewing the trial record, it is clear that she listed household items as

matrimonial property, and the appellant did not dispute this during cross­

examination, effectively agreeing with her claim.

In his testimony, the appellant acknowledged that the respondent had

left with some household items. However, this does not imply that no items

remained, which is why the trial court appropriately divided them as

matrimonial property after verifying their existence. Therefore, his complaint

lacks merit.

22
 Based on the above discussions, I find that the first, second, third, and

fourth grounds of appeal lack merit and are dismissed.

Regarding the fifth ground of appeal, where the appellant argues that

the first appellate court did not properly evaluate the evidence, I have

examined the first appellate court's judgment, particularly pages 5, 6, 7, and

8, and find that Magistrate adequately examined and analyzed the evidence

as required for the first appellate court. Therefore, this issue is also dismissed

for lack of merit.

In Upshot, this appeal is found to be without merit and is consequently

dismissed. Considering the circumstances of the case, no order as to costs

is made.

It is so ordered

23
Court: The Judgment has been delivered today in the presence of the

24