MATRIMONIAL APPEAL CASE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA MATRIMONIAL APPEAL NO. 22180 OF 2024 (Arising from Matrimonial Cause No. 1/2023 of the District of Nachingwea at Nachingwea) TATU NAOMI MAZIBA @TATU MAZIBA MAKANGA............................APPELLANT VERSUS SABO JUMA DISHON................................................................. 1st RESPONDENT MOSI FRANCIS JOSEPH............................................................ 2nd RESPONDENT JUDGMENT 27h January & 2(Jh February, 2025 MPAZE, J.: It all started after efforts to reconcile the appellant and the 1st respondent through the Marriage Reconciliation Board hit a rock. As a result, the 1st respondent decided to file a petition for divorce at the Nachingwea District Court, seeking both divorce and child maintenance. As is customary, once a petition is filed, it must be served to the respondent to allow him to respond. This procedure was duly followed, and the petition was served to the appellant. Upon receiving it, the appellant filed a reply along with a cross-petition, in which she joined the 2nd respondent, i alleging that she had entered into an unlawful marriage with the 1st respondent. In her cross-petition, the appellant prayed for divorce, equal division of matrimonial properties, custody and maintenance of the children, and an order for the respondents to pay her punitive damages amounting to TZS 30,000,000/= for contracting an illegal marriage while her marriage with the 1st respondent was still subsisting. As for the 1st respondent, upon receiving the appellant's reply, he submitted his response. However, the 2nd respondent did not file any response. Consequently, the matter was scheduled for hearing. However, before the hearing commenced, the 1st respondent opted to withdraw his petition and prayed the trial court to proceed with the cross-petition. During the hearing, the matter proceeded ex parte against the 2nd respondent. It was an undisputed fact that the appellant and the 1st respondent had contracted a civil marriage in 2005 at Nachingwea District Council. Throughout their marriage, they were blessed with three children and lived happily until the appellant claimed that she fell ill, at which point the 1st respondent allegedly deserted her. 2 It was further alleged that during the period of the appellant's illness, which led to her hospitalization, the 1st respondent married the 2nd respondent. According to the appellant, she became aware of this marriage through their child, Elizabeth Sabo Alex (PW2). PW2 informed her about the wedding and even showed her a video of the ceremony, which she claimed to have found on the 1st respondent's laptop. It is based on this evidence that the appellant decided to file a cross­ petition against the two respondents, seeking the claims outlined earlier. The 1st respondent denied the allegations against him but did not object to the divorce, stating that they had voluntarily separated and no longer lived together. Consequently, he prayed for an order granting the divorce and child maintenance. Upon hearing the case, the trial court was satisfied that the marriage between the appellant and the 1st respondent had irretrievably broken down. Thus, it proceeded to grant a divorce. However, out of the properties the appellant sought to be divided, only one was apportioned. Additionally, she was not granted custody of one of the children as sought, nor was she awarded compensation for adultery, as the claim was not proven. 3 Dissatisfied with this decision and believing that justice was not served, the appellant decided to bring the matter before this court on four grounds of appeal, namely; 1. That the trial court's magistrate erred in law and fact by holding that the appellant and respondent had only acquired one matrimonial property (House No. 41 situated on Plot No. 547Mutex Area, Rwamlimi 'V' street in Musoma Mjini) during the subsistence of marriage. 2. That the trial court's magistrate erred in law and fact by awarding the appellant only 30% of the matrimonial property in (1) above, instead of awarding 50% on the ground that the 1st respondent unequivocally admitted in his pleadings that the said property was a matrimonial property. 3. That the trial court's magistrate erred in law and fact by holding that the 2nd marriage between 1st and 2nd respondent did not amount to adultery because the appellant had condoned the said marriage and therefore, the court erred in failing to award the appellant any damages for the said act. 4. That the trial court's magistrate erred in law and fact by granting full custody of the issue of marriage (Wenzeia Sabo Alex) to the 1st 4 Respondent instead of the appellant without assigning any good reason as to why she should be subjected to live with her step mother (2nd respondent) who is the product of an illegal marriage, instead of her own mother (the appellant) who has been caring for her since she was born. During the hearing of this appeal, which proceeded by way of written submissions, the appellant was represented by Mr. Charles G. Lugaila, learned advocate, while the 1st respondent was represented by Mr. Rainery Songea, learned advocate. The 2nd respondent did not enter an appearance, and the appeal proceeded ex parte against her. On the first ground of appeal, Mr. Lugaila submitted that the appellant and the 1st respondent acquired matrimonial properties, including house No. 41 on Plot No. 547, Mutex Area, Rwamlimi V Street in Musoma, and an unsurveyed plot with a seven-room foundation at Nyarubundu village. However, the 1st respondent admitted only house No. 41 and disputed ownership of the Nyarubundu plot. Mr. Lugaila argued that PW1 testified the plot was a gift from the 1st respondent's father, which PW2 corroborated, stating she was shown the property by her grandmother. He faulted the 1st respondent for failing to call 5 his mother to refute PW2's testimony, asserting that this omission warranted drawing an adverse inference against him. Additionally, he criticized the trial court for failing to order the division of housewares, contending that leaving the matter to the parties' discretion could lead to abuse. Given that the parties lived together as husband and wife, he urged this court to order that the housewares remain with the appellant and her children. On the second ground of appeal, Mr. Lugaila invoked the well-established legal principle that parties to a suit are bound by their pleadings, asserting that any issue raised beyond the pleadings should be disregarded as an afterthought. He argued that since the 1st respondent expressly admitted in paragraph 9 of his reply to the cross-petition that house No. 41 was jointly acquired matrimonial property, the trial court ought to have ordered its equal division. However, the appellant was only awarded 30% share, which he found unjustified. He thus urged this court to rectify the division and grant each party an equal 50% share. On the third ground of appeal, Mr. Lugaila contended that the trial court's record clearly established that the 1st respondent contracted a second 6 marriage with the 2nd respondent on 11th July, 2021 as evidenced by Exhibit Pl (a video recording in a flash drive, authenticated through a certificate filed on 12th October 2023). He argued that this marriage was null and void ab initio since the 1st respondent was still in a subsisting monogamous marriage with the appellant, as per their marriage certificate dated 10th March, 2005. Consequently, their cohabitation amounted to adultery. He further asserted that the 1st respondent's decision to marry the 2nd respondent despite knowing he was legally married to the appellant constituted a breach of marriage, entitling the appellant to monetary compensation. Citing sections 74 and 109 of the Law of Marriage Act, Cap 29 R.E. 2019, he urged this court to reassess the trial evidence and award damages. In determining the compensation, he asked the court to consider the length of the marriage, the sacrifices made by the appellant, and the fact that she had been a devoted wife and mother to their three children. He emphasized that the appellant had supported the 1st respondent throughout his career in TPDF, yet now the 2nd respondent was reaping the benefits of his pension while the appellant endured hardship. Therefore, he maintained that awarding compensation would serve the interests of justice. 7 On the fourth ground of appeal, Mr. Lugaila challenged the trial court's decision to grant custody of Wanzela Sabo Alex to the 1st respondent. He argued that the order was unjust as it separated the child from her mother, who had never mistreated her, without considering the child's preference. Additionally, he pointed out that the court failed to grant the appellant visitation rights, further limiting her relationship with the child. He contended that due to the 1st respondent's demanding job, the child would primarily be under the care of the 2nd respondent, who, as a stepmother, might mistreat her. Furthermore, he questioned the 1st respondent's character, noting that he initially denied any association with the 2nd respondent despite clear video evidence of their wedding. He also highlighted the 1st respondent's hostility toward PW2, which escalated to the point of refusing to pay her university fees after she exposed the video. Given these concerns, Mr. Lugaila urged this court to reverse the trial court's decision and grant custody to the appellant, with the 1st respondent ordered to provide maintenance, including a monthly allowance, school fees, medical expenses, and other necessary costs for the child's wellbeing. Responding to the appellant's submission, the respondent's counsel began by emphasizing the cherished legal principle that the party who 8 alleges must prove his claims to obtain a decree, as stipulated under sections 110(1), (2), and 111 of the Tanzania Evidence Act, [Cap 6 RE 2022] (the TEA). He asserted that, given the civil nature of the dispute, the standard of proof was on the balance of probabilities, as provided under section 3(2)(b) of the Tanzania Evidence Act, meaning that the court would uphold the evidence that appeared more credible and convincing. He further contended that the burden of proof never shifts to the opposing party unless the petitioner sufficiently discharges it. To support this argument, he referred to Sarkar's Laws of Evidence, 18th Edition, and the case of Paulina Samson Ndawavya v. Theresia Thomas Madaha, Civil Appeal No. 45 of 2017 [2019] TZA 453 (11 December 2019). Additionally, he reminded the court of its duty as the first appellate court to reassess the evidence and draw its own conclusions, while giving due deference to the trial court's credibility findings, citing D.R, Pa nd ya v. R [1957JE.A. and Jamal A. Tamim v. Felix Francis Mkosamali & The Attorney General, Civil Appeal No. 110 of 2012 (unreported). On the first ground of appeal, Mr. Songea argued that the appellant had the duty to prove that the house in Nyarubundu village constituted matrimonial property to justify its division by the trial court. He contended 9 that in disputing this claim, the 1st respondent called DW3, who testified as the owner of the said house, and referred to his testimony recorded between pages 54 to 57 of the trial court proceedings. Citing section 114 of the Law of Marriage Act, [Cap 29 R.E 2019] (the LMA) and the case of Bi Hawa Mohamed v. Ally Sefu [1983] TLR 32, he asserted that matrimonial assets must be jointly acquired for shared use and benefit. While the appellant claimed that the house was jointly acquired, Mr. Songea argued that her evidence was inconsistent. Mr. Songea pointed out contradictions in appellant testimony, particularly during cross-examination, where she admitted that she had no proof that the plot was gifted to them. She further stated that only the 1st respondent father could testify to that effect and expressed uncertainty about whether the plot belonged to the 1st respondent's father. These inconsistencies, as noted on page 30 of the proceedings, cast doubt on her claim, according to Mr. Songea. Mr. Songea maintained that such evidence was insufficient to establish the house as matrimonial property subject to division. He further cited the case of Paulina Samson Ndawavya v. Theresia Thomas Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453, which reaffirmed the principle that io if evidence is evenly balanced, the benefit of the doubt must be given to the opposing party. He also relied on the case of Antony M. Masanqa v. Penina (Mama Nqesi) & Another, Civil Appeal No. 118 of 2014 (unreported), which underscored the requirement that a fact must either be proved or not, and if the party bearing the burden of proof fails to discharge it, the claim fails. Applying these principles, he contended that the photocopy of the plot document admitted as an Exhibit did not establish ownership. Furthermore, there was no testimony from Masesa Sabo Alex, the person who allegedly produced the photocopy. Mr. Songea emphasized that, according to the appellant's own admission, DW3 was the one capable of verifying ownership. Notably, DW3 testified that the house belonged to him. In light of this, the trial court correctly found that the house was not matrimonial property, as the appellant failed to discharge the burden of proof on a balance of probabilities, submitted Mr. Songea. To support his argument, he referred to the case of Barelia Karanqiranqi v. Asteria Nyalwamba, (Civil Appeal No. 237 of 2017) [2019] TZCA 51 (1 April 2019), which reiterated that the burden of proof lies ii on the party asserting a fact. He further contended that even the testimony of PW2 did not substantiate the appellant's claim of joint ownership, as there was no evidence that she contributed to purchasing or developing the plot. He noted that the appellant failed to explain who constructed the foundation found on the plot, reinforcing his position that the claim lacked merit. In light of these arguments, Mr. Songea urged the court to dismiss this ground of appeal as unfounded. On the 2nd ground of appeal, Mr. Songea submitted that the appellant was required to justify her contribution toward the acquisition and development of the matrimonial property to be awarded 50% share. According to him, the 1st respondent admitted that the plot was given by DW3 and the same was developed during the subsistence of marriage and where he obtained the money used for developing the same. Counsel for the appellant claimed that during cross-examination, the 1st respondent's testimony was not challenged by the appellant. To support this argument Mr. Songea referred to the case of Browne v. Dunn f 18931 6R. 67, H.L, where it was held that failure to cross-examine a witness at all or at a particular point is tantamount to an acceptance of the unchallenged evidence as accurate. 12 He added that, the 1st respondent being the civil servant applied for a loan for developing the house and requested the appellant to travel to Musoma to supervise construction but she denied and the money remained in the account until 2017 when he travelled himself referring pages 41 and 42 of the proceedings. Again, the 1st respondent testified in 2019 he requested a loan to top up construction and his evidence was not challenged because the appellant knew how the property was developed. Mr. Songea insisted that section 114 (2) (b) of the LMA requires the appellant to prove the extent of the contribution made in money, property or work towards acquiring the assets but she failed to prove how she participated in developing the property unlike the 1st respondent who testified how he obtained the plot from his father as a gift, how he obtained the money for construction from bank and peacemaking mission and his testimony was corroborated by DW3. Mr. Songea maintained that the case should be decided based on the weight of the evidence rather than sympathy. He was of the view that the percentage awarded by the trial court was high compared to the strength of the evidence on record. As this is the first appellate court with the power to 13 reevaluate the entire proceedings, they believe it will concur with them that the appellant's evidence was too weak to justify the 30% award. To cement his argument, he invited this court to read the case of Hemed Said v. Mohamed Mbilu [1984] TLR 113 where it was held that the party whose evidence is heavier than that of the other is the one who must win the case. Mr. Songea joined hands with the appellant counsel's submission that parties are bound by their own pleadings, he stated that the house was pleaded to be obtained during the subsistence of marriage but the same does automatically bring the court to order equal division to the parties, however, the parties ought to bring evidence in compliance with section 110 and 111 of the TEA along with section 114(2) (b) of the LMA. Mr. Songea argued that the division of the house was fair and justifiable. Referring this court to the case of Peters v. Sunday Post Limited [ 19581 EA 424 and Stanlaus Ruqaba Kasusura and Another v. Phares Kabuye [1982] TLR 338, he stated that if this court scrutinize the entire evidence it will realize the appellant was entitled less than what she obtained and decreed by the trial court, hence this ground has no merit. 14 Regarding the third ground, Mr. Songea contended that the appellant's allegation that the 1st respondent had contracted marriage with the 2nd respondent required proof through a marriage certificate, especially since the 1st respondent had denied the claim. He noted that apart from the flash disc, the appellant failed to produce any supporting evidence. He further argued that allegations of adultery require strict proof under sections 110 and 111 of the TEA. He asserted that in proving adultery, the appellant was required to establish that the woman was legally married, that she engaged in sexual intercourse with a man other than her husband, and that the man was aware of her marital status, as held in Atashasta Owen v. Simeon Syprian Manjulunqu (DC Civil Appeal No. 15 of 2021) [2023] TZHC 17501 (23 May 2023). Mr. Songea opined that if the flash disc submitted by the appellant substantiated her claims, it could have served as crucial evidence in proving the allegations. Moreover, he argued that the adultery claim ought to have been filed separately from the present case and that the appellant was required to prove all the essential elements rather than merely raising unsubstantiated allegations. 15 On the fourth ground, which concerns the custody of a 12-year-old child, Mr. Songea argued that the child is enrolled in a boarding school, with the 1st respondent fully covering all necessities, including school fees, food, and accommodation, as established by the trial court. He further contended that the law is clear on matters relating to child custody, emphasizing that in determining custody, the court's paramount consideration is the welfare of the child above all else. He referred to Glory Thobias Slema v. Allan Philemon Mbaqa (Civil Appeal No. 46 of 2019) [2020] TZHC 3794 (13 November 2020) to support this position. Addressing the present case, Mr. Songea conceded that the trial magistrate did not conduct an inquiry into the appellant's income beyond her testimony, which merely indicated that she is an entrepreneur. He opined that while it is the father's duty to provide for the child's needs unless he is unable to do so due to physical or mental incapacity, the court lacks the power to impose a maintenance order without first conducting a proper inquiry, as required under sections 44 and 45 of the Law of the Child Act [Cap. 13 RE 2019]. He also cited Anyinqisye Mlawa v. Tukulamba Kibweia (Civil Appeal No. 27 of 2020) [2021] TZHC 7104 (5 November 2021) and asserted 16 that, as the first appellate court, it has the power to invoke its revisional jurisdiction under section 44(l)(b) of the Magistrates' Courts Act [Cap. 11 RE 2019] to remit the case to the trial court for proper consideration of custody procedures and fundamental principles governing child maintenance. Mr. Songea concluded by stating that apart from the matters conceded in relation to the fourth ground of appeal, the remaining grounds lack merit and should therefore be dismissed. In rejoinder, counsel for the appellant reiterated the arguments submitted in the submission in chief and further contended that the appellant successfully proved that the unsurveyed plot with a foundation at Nyaburundu village, Musoma, constitutes matrimonial property. He asserted that the plot was gifted to the couple after their marriage under customary rites in 1995 and is known as such by their children, PW2 and Masesa Sabo Alex, who also took pictures of the plot (Exhibit P2). The appellant's counsel argued that DW3 was not a credible witness, as his testimony was merely intended to assist the 1st respondent in retaining the property for himself. Regarding house No. 41, situated on Plot No. 547, Mutex Area, Rwamlimi 'V' Street, Musoma Mjini, Mr. Lugaila argued that the 1st 17 respondent's admission warranted a judgment on admission and an equal division of the property. He asserted that if the 1st respondent had intended to dispute the appellant's contribution, he should have explicitly done so in his reply to the cross-petition, thereby allowing the appellant the opportunity to gather and present evidence in support of her claim. Since no such challenge was raised, counsel maintained that the appellant was not required to provide further proof. The counsel contended that the 1st respondent's account during his testimony was not only an afterthought but also unsubstantiated, as it lacked corroborating evidence. Consequently, he argued that the division of 30% to the appellant and 70% to the 1st respondent was unjust and that the property should be equally divided (50-50) based on the 1st respondent's admission of the relevant facts. With respect to the third ground of appeal, counsel for the appellant challenged the claim that there was no proof of marriage between the 1st and 2nd respondents, calling it unfounded. He referred to Exhibit Pl, which he argued clearly demonstrates that the 1st and 2nd respondents contracted a marriage before the office of the District Administrative Secretary (DAS). 18 According to him, this serves as sufficient proof of a second marriage, and given that the marriage lasted for over two years, it is reasonable to infer that multiple instances of sexual intercourse occurred. He stated that this act constitutes adultery. Furthermore, counsel contended that since the second marriage was void ab initio, the appellant is entitled to compensation, as there is no wrong without a remedy. For the last ground Mr. Lugaila reiterated what he has submitted in the examination in chief, and concluded that the appeal be allowed with costs. I have dispassionately considered the rival submission of counsel for the parties, the grounds of appeal and the trial court's record. I find the main issue for consideration is whether this appeal has merit. Before dwelling on the main issue, it is crucial to state that this is the first appeal which takes the form of a rehearing. As rightly submitted by counsel, this court has a duty to reevaluate the entire evidence on record by reading it together and subjecting it to critical scrutiny and if warranted arrive at its own conclusion of fact. See the case of Jamal A Tamim v. Felix Mkosamali and another Civil Appeal No. 110 of 2012 (unreported). 19 Also as submitted by parties, in civil suit, the burden of proof lies on the person who alleges anything in his or her favour. This principle is well established under sections 110 (1), (2) and 111 of the TEA. See also the case of Registered Trustees of Joy in The Harvest vs Hamza K. Sungura (Civil Appeal 149 of 2017) [2021] TZCA 139 (28 April 2021). Furthermore, the burden of proof never shifts to the adverse party until the party on whom the onus lies discharges his and that burden of proof is not diluted on account of the weakness of the opposite party's case. See the case of Paulina Samson Ndawavya {supra). In my determination, I will address the grounds of appeal in the order in which they were argued and submitted by the counsel. Starting with the first ground of appeal, the appellant contended that the trial court magistrate erred in law and fact by holding that the appellant and the 1st respondent had acquired only one matrimonial property house No. 41 situated on Plot No. 547, Mutex Area, Rwamlimi V Street in Musoma Mjini during the subsistence of their marriage. Elaborating on this complaint, the appellant's counsel primarily challenged the trial court's failure to acknowledge other assets, including an unsurveyed plot with a foundation of seven rooms located at Nyaburundu 20 village in Musoma and housewares, as matrimonial properties that ought to have been subjected to division. On the other hand, the 1st respondent refuted the appellant's claim regarding the plot in Nyaburundu village, asserting that the trial court was correct in excluding it from the division of matrimonial property since it did not belong to both the appellant and the 1st respondent but was instead owned by the 1st respondent's father (DW3). However, regarding the housewares, the 1st respondent did not provide any response. The question to consider is whether the trial court erred in failing to distribute unsurveyed plot with a foundation of 7 rooms at Nyaburundu village in Musoma along with the housewares. It is a settled legal principle that when a court determines that a marriage has irretrievably broken down, it proceeds to dissolve the marriage. Upon dissolution, the trial court has the power to order the division of matrimonial assets acquired by the parties during the marriage through their joint efforts, as stipulated under section 114(1) of the LMA. The provision states; 21 '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 theirjoint efforts or to order the sale of any such asset and the division between the parties of the proceeds of sale. '[Emphasis added]. In exercising the powers granted under this provision, the court must consider three key factors; first, whether the assets in question qualify as matrimonial assets; second, whether they were acquired during the marriage; and third, whether they were acquired through the joint efforts of both parties. See the case of Tumaini M. Simoqa v. Leonia Tumaini Balenqa (Civil Appeal No. 117 of 2022) [2023] TZCA 249 (12 May 2023). What constitutes a matrimonial asset has not been explicitly defined under the LMA, which is the principal legislation governing matrimonial proceedings. However, the Court of Appeal has, on various occasions, provided interpretations of what qualifies as matrimonial property. In the case of Gabriel Nimrod Kurwijila v. Theresia Hassan Malonqo (Civil Appeal No. 102 of 2018) [2020] TZCA 31 (20 February 2020), the Court held that; 22 '...The position in India, from which we draw inspiration, is quite similar to that in our jurisdiction when it comes to interpreting the phrase 'matrimonial assets,' which, in our view, is akin to the phrase 'family assets' used in the Indian Act. These refer to properties acquired by one or both spouses before or during the marriage, with the intention of providing for them and their children during their joint lives.'See also Bi Hawa Mohamed v. Ally Sefu {supra) Having established the legal position regarding matrimonial property and its division, I now turn to the case at hand. As previously noted, the dispute revolves around two specific assets; an unsurveyed plot with a foundation of seven rooms at Nyaburundu village in Musoma and house wares. Considering the established legal criteria outlined in Tumaini M. Simoga and Garibiel Nimrod Kurwijira {supra), I will first assess whether the unsurveyed plot with a seven-room foundation located in Nyaburundu Village, Musoma, qualifies as matrimonial property. From the trial court's record, the appellant testified that; '... We also have a plot of land located at Nyarubundu street within Musoma district. To prove it, I have the photograph of the foundation of a house with seven rooms. The photo was taken with 23 my son, one Masesa Sabo Alex, and forwarded to me... The said plot we were gifted by his parents after customary marriage. However, during cross-examination, the appellant appeared uncertain about the ownership of the said property, stating; 'Is your father who can prove to have gifted us two plots. The plot with a foundation of seven rooms is nearby your parents' house. I don't know whether it is your father's property or not. PW2, who is the parties' child, testified that; 'In 2020, after completing Form Four, our grandmother, Wenzeia, sent us to the plot which had a foundation of seven rooms and said it was my father's property.' On the other hand, the 1st respondent strongly refuted the appellant's claims, asserting that; 'Concerning the plot of land which the petitioner in the cross suit claimed to have the foundation of a house with seven rooms at Nyaburundu, it is not our property; it is my father's plot...' This testimony was corroborated by DW3, the 1st respondent's father, who testified that; '...During their life, they managed to build one house at Musoma in the plot which I gifted the respondent in 2003, and it has the foundation. In 2014, when the 1st respondent returned from Sudan, 24 where he was sent for peacekeeping, he continued to develop the structure up to the roofing stage, though not completed to the required standard. I confirm that the parties have no other property than the named house.' During cross-examination, DW3 maintained his position, stating; 'If the petitioner in the cross suit claimed that they had a plot at Nyaburundu, that is not true. I also reside at Nyaburundu, and ifshe said they had a plot with a foundation there, she is lying; that is my plot, and it has the foundation of seven rooms...' Based on this evidence, can I, without any hesitation, conclude that the disputed plot qualifies as matrimonial property? According to section 114(1) and (3) of the LMA, a property is deemed matrimonial if it was acquired by the spouses during the marriage through their joint efforts or if an asset owned by one party before the marriage has been substantially improved during the marriage by the other party or through their joint efforts. From the evidence adduced, there are conflicting positions regarding ownership. The appellant alleges that the plot was gifted to them by the 1st respondent's parents, while the 1st respondent and DW3 claimed that the 25 property solely belongs to DW3. The appellant's uncertainty during cross­ examination further weakens her claim, as she admitted; V don't know whether it is your father's property or not...' Additionally, DW3, as the purported original owner, firmly stated that he is the rightful owner of the land. His testimony aligns with that of the 1st respondent, who contended that the property does not belong to the parties but rather to his father. Moreover, PW2's testimony, which relies on a statement made by her grandmother, does not constitute concrete proof of ownership, as it is merely a narration of what she was told rather than documentary or independent evidence proving the alleged gift. The appellant, in her submissions, faulted the trial court for failing to draw an adverse inference against the 1st respondent for not calling his mother as a witness to confirm whether the property was gifted. However, upon careful consideration, this argument lacks merit. PW2's own testimony indicates that her grandmother merely stated that the land belonged to her father (1st respondent). 26 The fact that the land belonged to her father does not automatically make it matrimonial property. The principle of he who alleges must prove applies since it was the appellant who claimed that the 1st respondent's mother confirmed ownership, she bore the responsibility of calling her as a witness. The 1st respondent had no obligation to call his mother as a witness. Applying the principles established in Tumaini M. Simoga {supra) and Gabriel Nimrod Kurwijila {supra), there is no compelling evidence that the disputed plot was acquired jointly by the parties during their marriage. The appellant's assertion that the property was gifted remains unsubstantiated. There is no clear proof of transfer of ownership. The trial court was therefore justified in excluding the plot from the matrimonial division. Given the lack of credible evidence supporting the appellant's claim and her own uncertainty during cross-examination, the trial court's decision remains legally sound. Moving to the housewares, the appellant, in her submissions, faulted the trial court for failing to issue an order for their division. Notably, in his response to this appeal, the 1st respondent did not address this issue. Upon 27 examining the trial court record, it is evident that no order was made regarding the division of housewares, nor did the trial magistrate make any reference to them in the judgment. This raises the question of whether the trial magistrate erred in omitting the housewares from the division of matrimonial property. To answer this, I revisited the appellant's evidence. In her testimony, she stated; '... ive were blessed to have the following matrimonial properties: (1) One house located at Musoma at Lwamlim Street with Plot No. 47/41. (2) A plot of land at Nyaburundu Street within Musoma District, which has a foundation of seven rooms. (3) A motorcycle, make Saniage, registered as MC 677AGN, which we bought in 2014. (4) One bicycle known as 'Mkodisho'(both the motorcycle and bicycle are under the 1st respondent's custody and are often used by the 2nd respondent's son). (5) A laptop, though I do not know its brand or whereabouts. Ipray for the dissolution ofthe marriage because it has broken down irreparably and for the division of matrimonial properties. 28 Additionally, in paragraph 9 of her cross-petition for divorce, the appellant specifically listed housewares as part of the properties acquired during the marriage. This raises another critical question; Was the mere mention of housewares in the cross-petition sufficient to establish their existence and subject them to division by the trial court? While it is reasonable to presume that spouses living together during the course of their marriage acquire housewares, the law requires more than mere assumptions. The appellant neither provided details of the housewares nor led any specific evidence to establish their nature, quantity, or value. However, the trial magistrate was still duty-bound to consider all pleaded matrimonial properties and make a determination, even if to dismiss the claim for lack of proof. The principle that parties are bound by their pleadings applies here, as issues for determination in a case are drawn from the pleadings. Since the appellant listed housewares as part of the properties subject to division, the trial court ought to have addressed this aspect, rather than completely ignoring it. The failure to do so amounts to an omission of a material issue raised in the pleadings. 29 Given that the 1st respondent also remained silent on this matter, the proper course of action is to remit the matter back to the trial court for a determination on whether housewares exist as matrimonial property and, if so, how they should be equitably distributed. On the second ground of appeal, the appellant faulted the trial court for awarding her 30% share instead of 50% of house No. 41, situated on Plot No. 547, Mutex Area, Rwamlimi V Street, Musoma Mjini. The appellant contended that the trial court erred by failing to distribute the property on a 50-50 basis, especially given that the 1st respondent did not dispute its status as matrimonial property. In response, the 1st respondent refuted the appellant's claim, arguing that she failed to establish the extent of her contribution. He maintained that her evidence was insufficient to justify an entitlement beyond the 30% share awarded by the trial court. From the arguments presented by both parties and the evidence on record, it is undisputed that both parties admit the house No. 41, situated on Plot No. 547, Mutex Area, Rwamlimi 'V' Street, Musoma Mjini as matrimonial property. However, the key issue for determination is whether 30 merely mentioning a property as matrimonial is sufficient to warrant an equal 50-50 division. Section 114(2) of the Law of Marriage Act (LMA) provides guidance on how the court should approach the division of matrimonial assets. It states; '114(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 acquisition 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.' The Court of Appeal, in Gabriel Nimrod Kurwijila v. Theresia Hassan Malongo {supra), elaborated on the importance of determining the extent of each party's contribution in the distribution of matrimonial property, stating; 'The extent of contribution is of utmost importance to be determined when the courtis faced with a predicament ofdivision ofmatrimonial property. In resolving the issue of extent of contribution, the 31 court will mostly rely on the evidence adduced by the parties toprove the extent of contribution'. [ Emphasis added] From this legal position, it is clear that merely mentioning or admitting an asset as matrimonial property does not automatically entitle the parties to an equal share. The division must take into account the statutory factors, particularly the extent of contribution. Upon examining the evidence provided by the parties, it is apparent that the appellant merely listed the house among the matrimonial assets, stating that the land was gifted to them by the 1st respondent's parents. However, she did not provide any details regarding her specific contribution toward the construction or development of the house. Conversely, the 1st respondent provided a detailed account of how he acquired funds, including securing loans, to construct the house. Although the appellant did not adduce any evidence of direct financial or material contribution, the trial court acknowledged her role in domestic work and caregiving duties, which are renowned as contributions ultimately awarding her a 30% share. See Bi hawa Mohamed's case {supra) Based on the foregoing analysis, the trial court properly exercised its discretion in awarding the appellant 30% share of the house No. 41, situated 32 on Plot No. 547, Mutex Area, Rwamlimi 'V' Street, Musoma Mjini. The decision was consistent with both statutory provisions and judicial precedent, as it considered the extent of each party's contribution rather than merely admitting the house as matrimonial property. Therefore, the appellant's claim for an equal 50% share lacks merit. The appellant further on the third ground of appeal contends that the trial court erred in law and fact by holding that the 2nd marriage between the 1st and 2nd respondent did not amount to adultery, on the basis that the appellant had condoned the said marriage. She argues that the trial court wrongly denied her an award of damages for the alleged act of adultery. In support of this ground, the appellant's counsel submitted that adultery was sufficiently proven through a video recording (Exhibit Pl), which allegedly depicted the 1st and 2nd respondents contracting a marriage while the 1st respondent was still legally married to the appellant. The respondent's counsel opposed this submission, asserting that the appellant was required to prove her allegations through a marriage certificate rather than relying on the video evidence. Upon examining the submissions and evidence, it is clear that the appellant relied primarily on Exhibit Pl, which contained a video recording 33 purportedly showing the 1st and 2nd respondents contracting a marriage before the DAS at Nachingwea on 11th July, 2021. The appellant argued that this act constituted adultery because her own marriage with the 1st respondent, solemnized on 10th March, 2005 was still subsisting at the time. The 1st respondent, on the other hand, denied entering into the alleged marriage and further refuted any knowledge of the people appearing in the video. Even assuming, for the sake of argument, that the appellant's claim is true and that the 1st and 2nd respondents did contract a marriage, the key question remains; does the mere existence of a second marriage in this case, in itself, constitute proof of adultery? I have examined the LMA to determine whether it defines the term adultery, but I did not find a specific definition. I also reviewed the Penal Code; however, since adultery is not a criminal offence in our country, I was unable to locate a definition there either. Nevertheless, after analyzing various judicial decisions, I understand that adultery is commonly known as cheating, being unfaithful, or having an affair with someone other than one's spouse. In legal terms, it is defined as a married person engaging in sexual intercourse with someone other than 34 their lawful spouse. See the case of Jenita Hussein Hinyura & Another v. Steven Kalenqe Lubezaji (Civil Appeal No. 1 of 2022) [2022] TZHC 12642 (19 August 2022). Proving actual sexual intercourse between two persons is often challenging. However, adultery may be established through circumstantial evidence, depending on the specific circumstances of each case. It is important to emphasize that the mere existence of a second marriage, where a monogamous marriage is already in place, does not automatically amount to adultery. For adultery to be established, there must be sufficient evidence demonstrating that the second union was consummated. In the present case, the appellant's evidence primarily sought to prove that the 1st and 2nd respondents had entered into a second marriage. However, she failed to provide any evidence establishing that the said marriage was consummated or that the 1st and 2nd respondents cohabited as husband and wife thereafter. The absence of such evidence significantly weakens her claim that adultery occurred. In Celestine & Halima Yusufu v. Restituta Celestine Kilala [1981] TLR 81 at 76, this court held; 35 'Where a married man contracts another marriage and cohabits with the woman under the mistaken belief that they are legally married, their cohabitation amounts to technical adultery.' This principle suggests that cohabitation between parties in an invalid marriage may, in certain circumstances, be considered technical adultery. However, in the present case, there is no evidence indicating that the 1st and 2nd respondents cohabited as husband and wife after the alleged marriage ceremony. Furthermore, the appellant was required to demonstrate that the 2nd respondent was aware of the existing marriage between the appellant and the 1st respondent at the time of contracting the alleged second marriage. However, she failed to provide any evidence to substantiate this claim. Given these evidentiary gaps, the appellant has not sufficiently proven the claim of adultery. Therefore, the trial court was justified in its finding that adultery was not established and in its decision to deny the appellant an award of damages on that basis. On the fourth and final ground, the appellant contended that the trial court's magistrate erred in law and fact by granting full custody of the issue of the marriage, Wenzela Sabo Alex, to the 1st respondent instead of the appellant. 36 The appellant argued that the trial court failed to provide any valid justification for placing the child under the care of her stepmother (the 2nd respondent), who is a product of an unlawful marriage, rather than her biological mother, who has been the child's primary caregiver since birth. This ground should not detain me much. Upon reading the submissions of both parties and examining the trial court's record, it is obvious that the procedures for issuing a custody and maintenance order concerning Wenzela Sabo Alex were not properly followed. Notably, the 1st respondent himself acknowledged that the process was flawed. Section 125 of the LMA and section 37(4) of the Law of the Child Act, [Cap 113 R.E 2019] indicates that the paramount consideration in custody matters is the welfare of the child. It is upon this court's examination of these legal provisions that it becomes evident the trial court failed to adhere to the required procedures in determining custody and maintenance. Having examined the record, I observed that the custody order issued by the trial court was erroneous. No evidence was given by either party to establish who was better suited to have custody of the child. Furthermore, at the time of the custody determination, the child was 12 years old, an age 37 at which her preferences ought to have been considered in accordance with established legal principles. See the case of Lilian Kokubelwa Myaka v. Athuman Mohamed Nchulla (Consolidated Civil Appeal No. 1 of 2022) [2022] TZCA 14483 and Dora Simon v. Ruben Ibrahim Mfanqa (PC Matrimonia Appeal No. 8 of 2021) [2021] TZCH 6872 (28 October 2021). However, she was not called to express her wishes. Given the procedural irregularities in the trial court's determination of custody, this matter, like the issue of housewares, must be remitted to the trial court for proper adjudication in line with the law. Having carefully analyzed all the grounds of appeal, I find merit in some of the appellant's grievances, as discussed above. Consequently, the appeal partially succeeds to the extent that the matters of custody and housewares are remitted to the trial court for fresh determination. The rest of the appeal is found to be without merit and is accordingly dismissed. Each party shall bear his/her own costs. It is so ordered. 38 — Dated at Mtwara this 20th February, 2025 H / M.B Mpaze Judge is delivered today in the presence of the appellant and 1st respondent but in the absence of the 2nd respondent. M.B Mpaze Judge 20/2/2025 39