Salimu Ng'henu vs Wile Maige (PC Civil Appeal No. 76 of 1997) [2000] TZHC 559 (12 September 2000)

J IN THE HIGH 6JURT OF TANZANIA A_T __ a&'.28!1 (PC) CIVIL APP.EAL NO 76 OF 19!7 (Original Mwand•ya Primary Court Civil Case N•• 31/19,7 ,,. and Meatu District Court Civil Appeal No. 28 of 1997) eALIMU NG,' HENU II e •• • 0 •• •• APPELLANT VERSUS WILE MAI GE o a . .. •• I)., Cl • •• - RESPONDENT

JUDGMENT MASANCHE 2 J.: This is an appeal by a persf'-n called Salim s/• Nyf1M'1 against his fermer wife Wile. d/.9.,....Ii~• These two were husband and wi-fe. They had lived toge the.:,_• f !r 28 years o Later in 19,7, they sent eaeh ther to Curt •. ·-:n1e woman sent the man t·• Ce..urt, ·;. in the Primary Ceurt ,t M\ttey~ .i~ Meatu Jistriet. She had --1~~~'(. .. ;_: ':'·: . ,· asked •r three things: df~~j;ce 9 <:1.. distribution •f matrimonial · assets and eempensa.tit1n fiJ;r kving-< been a wife. In fact she asked i'.er ... Shs.1 millin f;r being :: -, a wife for these 28 years, asserting that she was Cfking for him and ma.de the bed in th ,;:;~ merning for him and many -ther things This last request was ·,.'A, quickly thrown-•verboard f.y the Primary C"'urt. Mro Mla.wa PDM, wh• toek up the first appeal also threw•it overboapa.. The learned Magistrate has ~~ed tba.t~ •· "If Geurts wre to a.ll·;?W such claims t·• ; auceed then there wou:ld be a flo-.d gate .?f cases in that rezpect., After all, not enly a marri~d wife works f?,r the husband but even the husband fights f: r,r ffi;re survival of his wife and the children, if any, -8f the marriage. Sh•uld we allow all.men to ledge claims against their. ex-wives for compe_nsati.Jn ftr work done

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during subsistence 0f1he arriage? The answer is definitely in the negdtive". On the divorce issue, indeed 1 the Primary Court granted it. It alse made a division in the matrimonial assets. The husband, however, get aggrieved at the deeisien •.f the Primary Ccurt, ioeo on the divorce issue, and the divisiep of matrimonial property. The appeal having been tr", □ threwn overboard in ... ·- ... ,_ the district c~~rt, the appellant (the man) now appeals te this The memorandum of appeal filed by the appellant, has, actually, one issue: The appellant disputesw the divis1,n ef .. the assets. He w,μld have loved to ee his ex-wife geing awa:y from the matrimill:al home empty handed. New the two Courts bel,w have, ·indeed, made reference to the case of Bi Hawa !'!•hamed .v: Ally Seffu - civil AE;e_ea.l No. 9/ (riw reported in {:1983J T.L.R. at page 32) a cE;lcbrntted'.3. case in these matters ef di visin of matrimonial ass etc. Ne male will .. w ' /,.' ~ ./- be heard saying that a woman, because she hadgot married to him, $hould go away from the matrimonial home empty handed. Wifely duties like coeking, washing clothes, cleang the house have been held to be contributed §;ntributions towards the well being ef the family. That decisil"ln .'of the Court of Appe is the law nl".IW in Tanzania, although before that law became embedded in the statute books, some of my br"the:rs expressed a different view: See, ... ,;f 11r exanple, the views of a brother judge in the case· ef Mariam Turnbo v: Harold Turnbo High Court Mat-rimtnial Cause Ne. 1/82 (Dftdema) now reported in {:1983J T.L.R. at page 2,3: The facts were that disharmony started when the wife, afjrnr ,_the birth of the seventh child, started to be a "victim ) ,/': -;"!· . r ·.,,, . . ,,ef Ulipredictable on sets of menswull w.rutii:ilaiJi--.nb L as the judge

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put it. He married an•ther woman~ The wife sought divorce, after undergoing a turbulatin r problems: On division •f matrim.enial property, the judge said at page 308 (I am ta.lking ef Tumbe's cae): ' "There is a s9'hool i' thought, and I-think a judgment ef this Cturt, which advances the idea that in considering the issue of joint acquisi ti•n or O'mersh:i,p,,,ef property, regd :· -,: . . . !,r.:{."( . should be ha.a. to the fact that the wife is the house keeper and that this releases the husband to engage in production. The proposition migh~ be attractive but I cannot and do not believe that is the lawt't In GCcordance with s. 114 (2)(b) ~f the Marriage Act, the Ceurt is required in exercising its power of division of assets to have regard "to the extent ef the ; contribution made by each part.Jin money, property or work towards the acquiring of e.ssets" I wr,uld require c. ;,.;,::-:;::r:~b.L0 considerable persuasion to come to the giew that 11 werk" refers to er includes the fulfilment of wha.t are purely conjugal obligations. Housekeeping is a. conjugal obligation,. I think, with respect, that nwork" refers to physical participati._en in the production 0f assets itself••••• There ,i-ethwewise appear to be no basis in the _,, statute for the housekeeping idea. The rule is a rbis ls non est reced·endum i.e. thou shall not vary the words of the sta.tutefl I am unable to find on the state of the law '· today, that the petitioner is entitled to share in the assets named by <;:.,".? here

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4 I accordingly reject her prayer .• 11 These views were, however, expressed in the High Court. They, therefore, do not become authoritaa3 in the light of the Court ·-r Appeal decisiona The distribution of the matrimonial assets, in the case at hand, that wa.s done in the Primary 0-urt ha.s been endorsed by the first appellate Court., It is tho.t the ex wife should get:

1. 15 cattle out of the 180
2. 2 goats
3. 3 sheepo
4. One bicycle('> The appellant has been given: le 3 cattle 2.. 3 goats 3o A cart 4,. One bicycle 5., 14 of the total acrerage of their farms 2/. of the total acrerage •f iheir farms is 7'l- t-: given to the childreeno After a careful analysis of the case, I also enderse this distribution pattern .. Dividing matrimonial assets is not an easy thing. The distribution is best done by the trial O.urt - C•urt which would have the advantage of seeing witnesses testify. These Courts~ againr quite often do have the advante.ger .-,f seeing the· matrimonial assets themselves. Appellate Courts should respect their distribution patterno This appeal is dismissed with costs.

• \ ; I \ At Tabera. 12th September, 2000e Appellant: presente Respft!.dcnt: Absent~ .... J e. E, C. MABANCHE, JUDGE.,

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