ELIZABETH SAIWA v YOHANA MPAHI 1984 TLR 56 (HC)

ELIZABETH SAIWA v YOHANA MPAHI 1984 TLR 56 (HC)

Court High Court of Tanzania - Dodoma

Judge Lugakingira J

December 3, 1985

CIVIL APPEAL 56 of 1984 G

Flynote

Family Law - Inheritance - Right of childless widow to share in assets of marriage -

Whether contingent upon any considerations - Para 77 of the Customary Law

Declaration Order, G.N. No. 279/63. H

-Headnote

The appellant was married to the respondent's brother for twenty years and had no

child of the marriage. In January 1984 the husband died in circumstances evoking

local suspicions and the appellant was expelled from the village. She then sued the

respondent, the administrator of the deceased's estates for her share in the property

acquired during her marriage. In the absence of I evidence as to the

1984 TLR p57

LUGAKINGIRA J

A nature and quantity of assets the District Court had reduced the lower court's

award of nine head of cattle, thirteen goats, one sheep and Shs. 1,500/- to four head of

cattle and 1,500/- as reasonable marriage gratuity. The present appeal challenges that

award.

B Held: (i) The right of a childless widow to a share in assets of the marriage is not

contingent upon any considerations but is one secured by statute under para 77 of the

Customary Law Declaration Order, G.N. No. 279/63;

C (ii) in the absence of evidence on the assets, it is impossible to satisfy the

requirements of para 77 of G.N. No. 279/63 and it was entirely to the discretion of the

court to decide what payment was reasonable in the circumstances of each case.

Case Information

D Appeal dismissed.

No case referred to.

[zJDz]Judgment

Lugakingira, J.: The appellant was married to the respondent's brother for twenty

years. They had E no child but the husband had children from another union. In

January 1984 the husband died in circumstances evoking local suspicion and the

appellant was expelled from the village. She then sued the respondent, the

administrator of the deceased's estates, for her share in the property acquired during

the marriage.

F From the beginning the respondent's defence has been that he did not expel the

appellant, but the village did. True; the appellant's banishment was preceded by two

villagers' meetings, but the argument has no merit since the respondent was a party

to, and the moving spirit in, the illegal G enterprise. Besides, the right of a childless

widow to a share in assets of the marriage is not contingent upon any considerations -

superstitious considerations least of all - but is one secured by statute (see para. 77 of

the Customary Law Declaration Order, G.N. No. 279/63).

The problem of the lower courts, the problem I also face, is that there was no

evidence of the H existence, nature and quantity of the assets acquired during the

marriage. It seems that the appellant relied on the inventory annexed to her

pleadings, but, unfortunately, pleadings are not evidence. In his own evidence the

respondent claimed that the deceased was survived by four head of cattle and I that

these comprised his entire estates. He certainly was not believed by the trial court

which awarded the appellant nine head of cattle,

1984 TLR p58

thirteen goats, one sheep and 1,500/- for household items as prayed. In the absence of

evidence, A however, the District Court reduced this to four head of cattle and

1,500/- as reasonable gratuity for a marriage that lasted 20 years. The present appeal

challenges that award.

It is difficult to fault the approach of the District Court. In the absence of evidence on

the assets, it is B impossible to satisfy the requirements of para 77 aforesaid. The

burden was on the appellant to adduce that evidence and its absence meant a

corresponding weakness in her case. It was then entirely to the discretion of the

Court to decide what payment was reasonable in the circumstances C of the case.

Bearing in mind that the marriage lasted 20 years and considering the appellant's

expulsion as a superstitious aberration, I think four head of cattle and 1,500/= satisfied

the justice of the case. The appellant will have that or 5, 500/- in cash.

The appeal is therefore dismissed but there will be no order as to costs. D

Appeal dismissed.

1984 TLR p58

E