Q&A – 17 July 2023

Both parties claim divorce

Six months after marriage, I left for overseas to study, leaving my wife behind at my parents’ home. Whilst there I got bad news that my wife had left my parents’ home and joined a former boyfriend. I decided to fly back and immediately upon my wife finding out I was in town, she rushed to Court to petition for divorce on the ground that my absence is denying her conjugal rights. Can I also file a counter claim for compensation for adultery against my wife and her boyfriend?
UT, Mtwara

It is unfortunate to hear that your marriage which was expected to last for your joint lives is on trial. For the decree of divorce to be issued by the Court, our law requires that the parties must prove that the marriage has broken down irreparably. Further, in deciding whether the marriage has broken down irreparably or otherwise, Courts consider among others, incidents of adultery, cruelty, sexual perversion, and mental illness as evidence. In your case, you see, to have evidence of adultery which is a ground for divorce.

However, regarding your desire to file your own petition and claim compensation from your wife and her boyfriend, the law provides that when responding to your wife’s petition, you could include your cross-prayers and allege that adultery committed by your wife be considered in the already filed divorce proceedings. You need to bear in mind that the law restricts filing of divorce proceedings for couples who have not stayed in the marriage for at least 2 years. Since your marriage has not met the minimum required duration of 2 years, your wife will need to seek leave of the Court before her petition for divorce is entertained.

Also, before going to Court, the law requires the dispute to be mandatorily referred to the Marriage Conciliation Board. In your factual account above, we see that such reference has not been complied with, hence it is likelier than not that the Court will not entertain the filed divorce matter.

Finally, since there is a possibility that your wife’s currently filed divorce petition may not go through as the conditions discussed above have not been met, we advise you to file a separate civil suit against your wife’s boyfriend and you can rightfully claim compensation for the adulterous relationship he has been having with your wife.

Uncle steals title deed

Our father died and left us with properties including apartments in some prime areas. We have recently noticed that some of the title deeds are missing from our father’s file of documents. We suspected our uncle and reported him to the Police. A search was conducted in his house and the police found him with title deeds hidden under his mattress. We have been surprised that Police have charged him with a minor offence of concealing the title deeds instead of stealing them. When we asked the Police why the accused has not been charged with stealing title deeds, they claimed there is no such offence in law. Is this assertion correct?
VF, Arusha

Yes, Police are right in saying that there is no offence of stealing a title deed. A title deed is not a property having any value but evidence of title to the land. It is the land which is a property having value but in law, land cannot be stolen because it is immovable. In order to charge the offence of stealing, the thing stolen should have value and should be movable. Title deed is movable but does not in itself have the value which can be quantified and written in the charge sheet. The proper offence with which your uncle can be charged is concealing a deed contrary to section 278 of the Penal Code [Cap.16 R.E 2022] as he intended to defraud you.

Graphics designer infringes trademarks

There is a smart graphics designer in town who specializes in copying and infringing trademarks. What he does is directly copies trademarks that are well known to make logos for his clients without the client knowing this. The logos are well packaged and expensively priced. Is this not an offence?
PP, Mwanza

Apart from contravening the Trade and Services Marks Act of Tanzania, the graphics designer might also be committing a criminal offence under the Cyber Crimes Act of 2015.

Section 24 of the Act states that (1) A person shall not use a computer system with intent to violate intellectual property rights protected under any written law. This law further states that a person who contravenes subsection (1) commits an offence and in case the infringement is on (a) non-commercial basis, is liable to a fine of not less than five million shillings or to imprisonment for a term of not less than three years or both; or (b) commercial basis, is liable to a fine of not less than twenty million shillings or to imprisonment for a term of not less than five years or to both, in addition, be liable to pay compensation to the victim of the crime as the court may deem just.

A trademark is a type of intellectual property that consists of a recognizable sign, design, or expression which distinguishes products or services of a particular source from those of others. Trademarks can be based on words, phrases, symbols, logos, or a combination thereof. Trademarks are some of the most fiercely guarded intellectual assets of a company that have resulted in various innovations because of the protection they come with when registered. Many companies manage IP rights like financial assets because of the rewards that come with such rights and thus the violation by this graphics designer has serious consequences.