19821012 TZHC Mwanza

IN THL HIGH COURT OF TANZANIA AT IVIWANZA (IC) CIVIL Alt EAL NO. 64 OF 1979 (From the decision of the District Court of Muinu at Mugumu in Civl Ap67978) NYANGI GATI ... ............ .A}LLLANT versus C }{ACHA MWITA . • • . . . . . . a • • • • a a.. •.••.ao. Oa•••e.. . RESkONDENT JUDGMNT CHUA J: In the Irimary Court Muguma the a.pe1lant Nyangi Gati c1airred for a share of matrimonial roperty which she assessed to be 20 heads of' cattle. The Irimary Court unanimously found that she was entitled to return of her own articles which she had sent to the matrimonial house on the wedding day and a share in one heifer which aparently was the only property pin.ointed by her as having been earned jointly during the period of 10 years that the parties lived together prior to divorce. The share in the heifer was converted to 100/= shillings, it being argued that Government price put on a heifer is 200/= shillings. The respondent was aggrieved and appealed to the District Court. His appeal was dismissed. The appellant now appeals to this court. In her memorandum of appeal she avers that the evidence she adduced in the krimary Court was misconstrued in that she had stated that during the subsistence of their marriage they used to earn one, head of cattle each year. I have perused the e record carefully but have failed to find, any such statement. All she stated in court was that they had sold crops and bought one heifer which she left with the respondent before it had delivered.. If she wasted 'to say that each year they had bought one heifer then she ought to have told the court how many heads of cattle she had left the respondent with. On the other hand in the District Court she had changed her story and talked of 2 heads of cattle. Surely this is not the same as saying one head of cattle per year for 10 years which should give the figure of 10 heifers. Taking into account progenies then the number of cattle would liae swollen to a considerable figure. The appellant is therefore changing her original story which, I have no cause to suspect, re1erred to only one heifer. Apparently the appellant would like to share the 40 heads of cattle which were returned to the respondent after divorce. These catte cannot be taken as property earned during the matrimoniial life because the same number of cattle were paid before the marriage crne -to existence. The cattle were so to speak a deposit which was refundatle - when the marriage broke down. The appellant has averred in her memorandum of appeal that she should be compansated for loss of her youthfulnes4 and for servIces she rendered to her husband. But with due respect to the appellant the law of Marriage does not envisage mutual compensation for services rendered nor for wear and tear. It deals with with property earned through joint efforts. Thus section 60 of the !ct stipulates:- Where during the subsistence of a marriage any property is acquired in the name of the husband or of the wife, there shall be a rebuttable presumption that the property belongs absolutely to that person to the exclusion of his or her spouse. in the names of the husband and wife jointly, there shall be a rebuttable presumption that their benefiial intcrests therein are equaL ' Of course the type of environment in which the parties lived in this case did not allow for sophisticated means of controlling property such as registration and of course no registrable property was ever mentioned. To give effect to the spirit of the section, in my view it would be sufficient for the appellant to show that she contributed to the acquisition of the property which under customary law is deemed to belong to the husband solely. By adducing evidence that she tilled the lnd and grew crops which were ultimately converted to cattle I think she has shown that she is entitled to a share in the one head of cattle earned. Finally I refer to the share that the apellant was offered. She was offered 100/= shillings that being taken as a 50% share in the head of cattle. But asit is well known, a head of cattle is worth considerably more than 200/= shillings in the open market. To be fare to the appellant the head of cattle 9 or any other one head of cattle from the respondent should be sold in public auction and the proceeds shared aqu.aily between the parties after deducting any nece- ssary costs incurred in carrying out this order. To sum up, the appellant is to be paid she. 2701= being the value of her artices left with the respondent plus half the proceeds from the sale of one heifer to be seized from the respondent. Costs to follow the event. L. J. R. CHUJ J1DGE