19750923 TZHC Arusha

R1"c IN TUE HI COLUT OF TJ'NZANII. f.T A-R1fT1i (pa) CIVIL PFfL NO. 146 OF 1973 (FROH THE DECISION OF THE DISTRICT 0110U1.T OF TJ'T-A JT TNcrh IN CIVIL JPFEJL NO. 9 OF 1973) T.ICHIRYJVU HUSSEIN ..................... IPPELIJNT versus WEGU s/oKLTEO .. .............•........ RESPONDENT TTTfl1-'fl'Ti1FP NYALALI, 1I.G. J. The appellant- in this. case y nenely T CHIIIIMWTJ ItJSSEIN was married to ihe rcsponden namely sEGu s/o KUBO some year . ... back.. Although this marrago has no yet been legally dissolved, they are currently living separately and they , have been so separately living fbr :bino. Lfter the marriage, the parties cohabited. as wife and husocaid at Kin-' bi, iCing - , in fan a District, 1 eare some farm-land was acquired for purposes of growlng fooa and cash crops for the married couple. The land was bush-land and had to be cleared . ...fore cultivation of the crops some of which wore, annual crops and others were perrenial crops. The respondent was a polygamist an he was married to more than one wife • For years tiie land atinyatu was cultivated and crops, were grown in the course of the marriage. . •. Sometime after the nnr#-jes separated -. the evidence does not disclose exactly ij] they separated - the appellant/ wife claimed sole ownership of the land in question including the crops unoroin. The reepom iet/nrb:nd disi Led his wife.' s claim alleging that he had acquired the land himself and the appellant/wife used and cultivated the land before they separated only in performance of her duties to her husband. The matter was referred to the ol.ers and neighbours in the locality but without success. The trial primary court found that i could not decide on the question of ownership el the land since the marriage between the parties had not yet been legally dissolved but ruled that both partic.a were jointly, entitled to use the land until the marriage was legally dissolved. The appellant/ wife was aggrieved by the primary court decision and she appealed to the district court which ruled that, ... a wife cannot claim ownership of land she vvorked on when nnrried by a husband and decided the issue of ownership and' use in favour of the respondent/husband, 'The district court based its decision on the case of IDDI d/o KdKGUYh vs.'ALLI's/o T!TE (1967) H.C.D. No. 49, wnere a divorcee woman sued her former husband for shares of four shenbas owned by him but developed through:their joint efforts during marriage, it was held by SIDI, J.. as he then was: wife . . . . . . . . . . . -2-- ... , wife owes her hue . 'ahd a duty to assist him with his gaiii±ul work, whether it be cultivation, shopkeeping, or any other lawful ongagement and that in the absence oi a contrfbu -GiOfl of capital by. the wife, ,or.sona special agreement between husband and wife, the dvorcod wife will not be tcctcd as a. prtnr ii the ants exru orpriesil. I t'iinit the loerned di fict' LrgJ atca La ongly relied on that cose for two reasons. Firstly, that case is different from the present case sin.ce in that case the parties were already divorced which is not the position in the present case. Sccondi, that case was decided before the law of Marriage ict 1971 was enacted which introduced some subatantial changes in the La r of iinrriage. V'hcn the Lwrri botvc.cn p thee is lojtlly dissolved, their rights in proper by acqurod or improved durn, the marriage is governed by Section 114 of the Law of Marriage Lct, which states: 114 7 (1) The court shall have power, when granting or subsequent to the grant of a decree of separation or divorce, to order the division betwoen the parties of any assets acquired by them during the marriaad by their joint efforts or to .... order the sale of any such asset and the division howeon the parties of the proceeds of sale. (2) In 'xcYcising tAe po crs conforrcd by subs action (1), the court shall have regard. - to the custom of the Community to : which the parties belong; • to the cxvni of the combributions made by. each Jarty in money, proprty or work towards accju.iringi of thç assets; (ô) to any debts owing by either party which ....were contracted fOr their joint benefit; a and .. (d) to the nee d s . of the infant chil.dron, if • ..,,• . a. any, of the marriage, and suject to those considerations, shall incliis towards equalitS of division, (3) For tao unrpo ec of tnis a.,ction, references bo asacs accjuirod aliring itarriege include assets owned before the. marriage by one party which have been substantially improved. during the marriage bythe otherparty or by their., joinb sfforcs ..T.his section is not of assistance in the p'dsent case since tin.. prtice have noitner bccn jediciall,y sopareted nor judiially divorced. The rights of the parties to i1operty during the subsistence of the marriage are governed by Part IVof the • Law of Marriage Let. The sections which are relevant to this case are sections 56,58 and 60. Section 56 gives a married woman tho. same capacity, like a man has, to acquire, hold or dispose of property. Section 58 declares - that marriage does not impose any disability upon the parties to the marriage in so far as each parbyts capacity to- acquire or hold roporty is concerned. Section 60 s -tates: 11 60. 'Whore during the subsistence of the' marriage, - any qroporty is acquired - • '- (a) in the name of the husband or of the wife, there shall be a rebuttable presumption that the property bc-longs absolutely to • •: that person 2 to the excluion of his or - -- her spouse; - (b) in the names of the husband and wife • - jointly, there shall ho a rebuttable • - preSumptIon that tioir beneficial interests therein are equal. This section provides the answer -to the problem in this - case. If thcland in dispute was acquired in the name of the husband, there will be a rcbuttablc presumption that the - land belongs exclusively to the husbandç but if it was acquired in the name of the wife, there, will be similar presumption that- the land exclusively belongs to the wife. And if the land was acquired in the joint names of the- husband 'end wife, both of them will have an equal share in the land. - So the most important point to consider in this case is in whose nz:u_,,c, the land acquired? As expected, there is no written evidence to help-us hero since the- - land appears to have been acquired under the customary practices of the Wadigb' 'triboLl ConauLuüty, to vihict the parties belong. The evidence adduced at the trial showed however that the husband was a polygamously married. This shows that the Wadigo community, recognizes polygamovs mar riac5. A court in this country that in polygamous communities, the husband is recognized as '-the head or leader of his family. The r e s pond ent/hus band must thorof ore have been the head or leader of the family based on th3-marriage between him and the appellant/wife. - - • -. - - - I think the position whore property is acquired in the-. course 'of marriage for the sustainance of the family bsod on that marriag'e, must give rise to a rebuttable presumption that such property belongs to the head or leader of the family. The presumption is based upon the ground that such head or loader of the fainil-, hELS the obligation to maintain his family. The presumption can be rebutted by evidence showing that the property in question was not in fact acquired by the head or ic-ador of the family. In . . . . . . . . . . . . ./4 In the preseilt case wnore t1TL r051)011dent/husl3and was the head or leader of ihc fainilj bcd oii the marriage ith cho appellant/wife and where by virtue of the povisions of section 63 of the Law of Marriage ict he'was obliged to naintoin bnc ap llent/iifo and LL1d in fec b na±nba3n ho appellant/wife, it is prcswr1ed that the land in dispute was acquired by the respondeni/hus eand for the sustainance of the family, based on his marriage with the appellant. The ap'pellaXit/wife did not adduce any evidence to rebut, this prCsumption The only, evidence sho adduced showed that she used towork alone on the land. But I think she wos duty bound as a wife. of the respondent to work on that land.. The fact that she was not assisted by the respondent/husband to work on the land would he a very relevant consideration in debcrninin' ir shilre i the division and distribution of the crops when the inarriae is legally dissolved, but it cannot be considered as evidence to support her claim of exclusive ownership of the land in dispute during the subsistence of the marriage. The position regarding the crops is that neither the husband nor wife can claim exclusive use of the crops, as long as they are not judicially separated. nor judicially divorced. Pending a judicial separation or divorce, when the question of division and distribution of , property will be coiiii'dered....nd decided, the only coeze.of action open to the parties concerning the crops is either to agree between them as o the usc. of bh crops, or each pruy to consume no more than is necessary for his or her usual requirenents, since any parts tn coasums ore of the crepe tao u he or she is ontitlea to will be liable to pay conpcnsetion to the other party whon tha prtiec gt judicially sopora.od or divorced. This apecal therefore fails in so far as the clai to ownership of the land is conqerned and partly sucoeds in respect of the u-c of the crops. Si1.cc cone of the pertice appeore d bfore ais Court I dill iek . no order as to costs. I will also direct -tae U t a. judge sent oe delivered obne pertice bjr he cistrict Tstrae of Tina Dtrivih6 should bovided with a copy for the (f . ARUSHJ: 23/9/75 (P. L. LLLI) LG. JUDGE. PLN/MTPM '