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Q&A – 11 September 2017

Divorcing a mentally challenged wife

I celebrated a Christian marriage with a girl five years ago. Our marriage is blessed with one boy who is nearly three. In January 2008 my wife fell sick with malaria and was mis-diagnosed and treated with wrong medication. She then fell into a coma and was hospitalized for three months before being discharged. Ever since her discharge she is mentally challenged and cannot eat, take a bath or walk on her own. I have tried very hard to adjust, but have failed to keep up with this. I wish to support her for life but wish to divorce her. Is this a good ground for divorce? What ground of divorce can I come up with to be successful? Please note that two of my wife’s brothers are lawyers.
JL, Mwanza

We are sorry to hear about your wife. We will take you down memory lane and remind you of the vows you made during your wedding ceremony when you undertook to live with your wife in any situation be it during happiness or sadness, sickness or good health. The same applies in law in that sickness is not a ground for divorce, separation or annulment of a marriage.

The case would have been different if your wife had this problem before you contracted your marriage and this was concealed from you. Had this been the case, your marriage would have been voidable and we could have advised you to go to Court for its annulment. Since you have revealed the truth, we as officers of the Court are duty bound not to mislead any Court and do not see the need of discussing other grounds that you want to cook.

We have also taken note that two of your wives brothers are lawyers- this fact is relevant to the extent that she will have good guidance on this matter and you should be weary of that. Having brothers who are lawyers will not change the laws of the land.

Father dead, properties being misused

My father passed away few weeks ago without leaving behind a Will. Since I am the first born and our mother predeceased my father, we agreed with my young brothers and sisters that I should apply for a letter of administration of his estate. Before the grant of the letter of administration, a woman appeared from the blue, who has challenged my application claiming she was also a wife of my father. I have never seen this woman in my life and the matter is before Court. We have realized that a number of our father’s properties are being misused in his absence. His other assets including his car are in the possession of his driver who doesn’t seem to show good intentions. My father’s business partners are also behaving weirdly and not disclosing details of certain transactions. The Court case will take long. What can we do at this juncture from stopping this pilferage.
BB, Dar

The letter of administrations you have applied for will not be granted until the application made by this alleged wife of the deceased is disposed off. You have correctly pointed out that this will take time and time being of essence, you need to stop this pilferage and misuse of assets.

Our law allows granting of a letter of administration with limited powers. Such a temporary letter of administration will empower the administrator with all the rights and powers of the general administrator except for the powers of distributing the estate. In law this is referred to as grant of letters of administration pendent lite. We recommend that you immediately apply for this letter of administration to preserve your late father’s estates whilst you are fighting it out in Court. This application should be filed under certificate of urgency for it to get a quick hearing date.

Execution against a third party

In 2005 I won a case against a man whom I had sued in the High Court of Tanzania for adverse possession of my piece of land; this man died few years later. The background is that the deceased had built a house in the suit land which he rented out to another family. Last year I filed an application for execution for vacant possession of my land but my application failed because the occupants of the said house objected, alleging to be the owners having bought the suit land from the deceased. The Judge entertained their objection despite there being a judgment against the deceased. Is the Judge’s decision not wrong? How can a Judge make a mistake?
LJ, Dar

The facts you have given us do not tell in detail particulars of the objection put forward by your opponents (objectors), to enable us understand why the Judge decided the way he did. However from a legal point of view, we can say that as far as you and the objectors are concerned, there is no basis of treating your application for vacant possession as being in execution of the decree you obtained against the deceased. Your victory against the deceased was a Judgement good only against the deceased and any one claiming under him. Strictly speaking, these objectors are not claiming under the deceased. They allege to be lawful owners of the suit land. The Court cannot, on the basis of that Judgement alone, order for vacant possession against the objectors. From the facts, our opinion is that the Judge was right in entertaining the objectors’ objection. Unfortunate for you, but you will now have to file a suit for trespass against the objectors.

You have also asked, how can a Judge make a mistake? A Judge is not an angel or a superhuman. He or she is a normal human just like you and us. There is no shortage of case law where Judges have made mistakes- some of these mistakes have embarrassed some of the most senior Judges, not only in Tanzania but around the world. That is the reason there is an appeal mechanism, to ensure that justice does prevail.

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