Joseph Kikoti vs Maria Alois (Criminal Appeal No. 161 of 1997) [1998] TZHC 2142 (4 September 1998)

' ,, MvVTTA 2 J: IN 'THE HIGH COURT OF TANZANIA AT Di~ ,1 ES SALAAM PC. CIVIL APPEAL NO ••• 161/1997 JOSEPH KIKOTI • • • • . • . • • • • . . • • • . • • • . • • • • APPELLANT Versus MArUA ALOIS ••••••••••••••••••••••••• ·• • RESPONDENT .. 'JUDGEMENT In 1996 the Appellant, Joseph Kikoti bought a parcel of unsurveyed land in Morogoro District from one Henry Martin. ·; The purported s9le was opposed by members of Henry Martin's family, particularly his wife Maria Alois, .and his son, Joseph Mkala. Joseph Kikoti a suit at the Kingolwira ' Primary Court and the said sale was declared. to be lawful. Maria Alois and her son appealed against that decision to the Morogoro District Coutt. Their appeal was successful. JosE::ph Kiko ti, being dis·satisf ied, has appealled to this court. At the hearing of this appeal the Appellant appeared in person. He was not represented by counsel. There is evidence on record that the Respondents refused to receive notice of dat~ of hearing~ Hence they did not appear on the date · fixed for the hearing of this appeal. Hence the appeal /.' ,, '. was heared in their absence'" ,_,,, v' • It is not in dispute t,hat the disputed parcel of land· is part of the parcel of land allocated to Henry Martin and Mpria Alo is, as husband· and wife, by the village authorities .. :in J..974. It is also noi;; disputed that in March, 1996 Joseph Kik6'ti, .the Appella1:,t _bought the disputed parcel of land from.Henry Mqrtin for Shs. 110,006/=. On 7th April, 1996 while Joseph K.ikoti was making preparations to errect a house·on the disputed parcel of land, he learned for the first time that members of Henry Marti;-i' s family were opposed,. to the purported sale Soon .,thereafter the Village authorities in-formed him net to proceed with the constraction of the house due to the sai~ dispute·~ ,t one stage Joseph Kikoti was agreeable to the idea of being rfuni~. ri-;::the purchase price and abaμdon the sale. • •••• / 2

= 2 = Due to delay in being refunded, he went to court. The issue here is whether the sale was valid~ The Primary Court came to the decision that the sale was valid and Joseph Kikoti had acquired good title to the disputed parcel of land. On appeal the learned Resident Magistrate set aside the Primary Court's decision and held that the sale of the disputed parcel of land to Joseph Kikoti by Henry Martin without leave of his wife, Maria Alois, wax a nullity. He based his decision upon the provisions of Section 59 of the Law of Marriage Act, 1971. He stated in his judgment. 11 I indeed affirm that under Section 59 (1) of the Marriage Act, 1971 matrimonial property cannot be disposed of by one spouse without the counsent of the other spouse because under subsection (2) of the sa~e provision the spouses are both entitled to the property untml they are lawfully portedn o This is not wholy correct. It should be noted that the provisions of section 59 of the Law of Marriage Act apply only to the matrimonial home. They do not apply to other matrimonial assets. There is anaple evidence that what Henry Martin purported to sell was not the matrimonial , J )iome but a parcel of land v,rhich was being used as a farm. -.:, Indeed Maria Alois was required to harvest her crops in .,_ order that Joseph Kikoti could prepare the area for constru- ction of a house. That does not mean that Henry Martin had right to dispose of that parcel of land. There is evidence ,. that· the parcel of land which Henry Martin purported to sell to J:oseph Kikoti is part of the parcel of land which was allocated to him jointly with his wife, Maria Alois, by the village authorities in 1$)740 Section 60 of the 1·aw of Marriage Act, 1971 provides:- 11 60. 'Where during the subsistence of a marriage any property .is acquired- (a) --- - - - - - - - (b) in the names of the husband and wife jointly, there sho.11 be a rebutable presumption that their beneficial interests their in are equal 11 • . ... /3

= 3 = Hence, since Henry Martir1 and M.ari~- Alois have an equal interest in the parcel of land allocated· to them_j9r1tly in ..... ' 1974, and since no partition has taken place no one among ·the . .t\10 has a right to dispose of any part of that parcel of land without the concurrence of the otherparty. It follows:- that the purported sale to Joseph Kikoti is a nullity. However, Joseph Kikoti,. the Appellant is entitled to a refund of the purchase price plus interest. The Appellant ix not entitled to any compensation in respect of any improvements he may have carried out on the disputed parcel of lands, because he became aware the parcel of land is disputed as soon as he paid the purchase price, before he had an apportunity to carry out improvements on that parcel of land. :,_,;;- The amount of interest will be assessed by the District {' ,/-) Registrar. As the Appeal has been partially successful the Appellant is award half the costs of this apr:81, MWITA JUDGE 4/9/1998. Delivered in Chambers in the presence of the appellant this 4th day of September, 1998 M'vHTA JUDGE 4/9/19998. CERTIFIED TRUE CCPY OF THE ORIGINAL, ,,,,.,-\ , /F< s. 14sHom) SENIOR DITRICT REGISTRAR