HIGH COURT DIGEST 1969
Peter John v. Richard Barongo, [1969] HCD 19
(PC) Civ. App. 202-M-68, 8/1/69
Bramble J.
Disinheritance of beneficiary – Beneficiary cannot challenge.
Disinheritance of customary heir – Heir may challenge.
Distribution of "the big house", the Nyaruju – Haya law.
Promise to make person heir in return for gifts – Contract
Herman, by his will in 1953, made the respondent a beneficiary provided that the latter looked after his needs. The respondent spent Shs. 6,280/50 up to 1967, when Herman changed his will in favour of the appellant because he claimed the respondent did not build a new house for him. The lower courts thought that a will is "property" for they held "according to customary law nobody can be deprived of a property for which he has offered 'appropriation gifts' even if he has done something to his father," and since the respondent had paid 'appropriation gifts', he was entitled to the will.
Held:
(1) A customary heir may challenge a will if he is disinherited by a testator who is alive. But this cannot be done by an ordinary beneficiary and neither the respondent nor the appellant was a customary heir. Herman then was free to revoke his will.
(2) "The true position between the respondent and Herman is that on the basis of a promise to make the former heir to a shamba he has spent monies in the interest of Herman …. The true nature of the claim was a claim for damages for breach of contract".
Constantine Bulagile v. Bi. Genereza Mashakala [1969] HCD 20
(PC) Civ. App. 103-D-67, 21/11/68,
Georges C. J.
Women – May not inherit immovable – Haya law
The dispute in this case concerned the ownership of a shamba which belonged to one Mashakala, now deceased. The respondent alleged that she was an illegitimate daughter of the deceased, acknowledged by him, accepted in the family and declared by him in a written will as his heir to the property. However, the document purporting to be a will was not produced in court and no explanation was given as to what had happened to it. The appellant on the other hand denied that the respondent was the daughter of the deceased and contends that he was the deceased's nephew and was appointed by him as his heir before his death. It was not disputed that the respondent's mother was married to one Rubeshelwa when the respondent was conceived and born. Her witnesses however testified that she was daughter of the deceased, Mashakala, who was first cousin of the respondent's mother – within the prohibited degree of consanguinity according to Haya customary law. The respondent's mother died when she was very young and her aunt looked after her and later took her to her father, Mashakala, who paid Shs. 50/- for her clothes and kept her till her marriage. On the question of the legitimacy of the respondent, the Primary Court quoted s. 181, (a) and (b), Declaration of Customary Law of Persons, and held that none of the methods of legitimating a child there set out had been followed. The District Court, however, reversed this and held that the respondent had been legitimated under Haya custom by the payment of Shs. 50/- by her father to hr aunt. Both lower courts applied the law of Inheritance under G.N.436/63.
Held
(1) Section 181, Declaration of Customary law of Persons, could not be applicable to a legitimation which must have taken place in 1944 or thereabouts. Hay Customary law was applicable and therefore the respondent as legitimated by the payment of Shs. 50/- by her father to her aunt, which was according to Haya customary law.
(2) Questions of succession to the estate of the deceased and the validity of his will can only be decided by the law as it was at the time of his death, i.e. Haya customary law before the Declaration. According to section 28 of Cory and Hartnoll, "should a man name in his last will a female as heiress of his immoveable property, even with the consent of the witnesses, such a testament would be considered void".
(3) Even if (2) above is ignored, the will was not sufficiently proved. It was not produce in court and the witnesses to its execution are interested parties. Moreover the only partly independent witness did not sign as a witness.
(4) The choice of the appellants' heir was supported by two independent witnesses who had nothing to gain by supporting it. Appeal allowed.
In the matter of Antonio Natalicchio, [1969] HCD 142
Prob. And Admin. Cause 64-D-65, 9/4/69
Hamlyn J.
Wills – References to money held in specific bank accounts cannot be construed as applying to money in other bank accounts.
"The testator, Antonio Natalicchio of Morogoro, died in that town on 26th July, 1965 having some five years before his death executed two wills. He adopted this mode of disposing of his estate as he had, at the time that the wills were drawn, two separate bank accounts, one being in the Standard Bank, Dar es Salaam and the other in Barclay's Bank, Dar es Salaam. Each will dealt with a separate account and save for this and for a divergence which appears later, the two wills were identical; both were executed on the same date and disposed of his property in such accounts in the same manner. Subsequent to the execution of he wills and at some time during the five years thereafter which preceded his death, the testator opened a further account, a savings-account in the Standard Bank, Morogoro, which now has a credit balance of Shs. 593/75. On 17th July, 1964, he also made a payment to the same bank as a fixed deposit account, which presently has a sum of Shs. 9,000/- as a credit to the estate. Neither of these two latter accounts is mentioned in the two wills. The dare s Salaam account in the standard Bank was subsequently closed by the testator, who deposited the proceeds in a current account in the same bank; this he drew upon during his life-time until the credit was exhausted and the account was finally closed. The Barclay's Bank account was also closed by the testator, who transferred all the monies there in to the Standard Bank current account, but thereafter placed the money so transferred on fixed deposit in the same bank. At the date of his death therefore, the testator had in his name the two Morogoro accounts and also the Standard Bank, Dar es Salaam fixed –deposit account. The learned Administrator General, who seeks the directions of his court in this matter, has drawn my attention to one matter which raises a difficulty in respect of the deposit account in the Standard bank, Dar es Salaam. The two wills of the deceased, as I have noted earlier, are not completely identical …. The Barclay's Bank will (if I may thus speak of it) deals with "all money, interest and property now held by me on Barclay's Bank, Dar es Salaam and all money, interest and property that shall be my due in the future in the aforesaid bank". …. The Standard Bank will (to use a similar convenient phrase) specified "all money, interest and property now held by me in the standard Bank, Dar es Salaam and all interest that shall be my due in the future in the aforesaid bank. That is, the testator has seen fit to deal with all future "money, interest and property" in Barclay's Bank, Dar es Salaam, while in the case of the Standard Bank, Dar es Salaam he has referred only to future interest. As a result of the testator's financial transactions prior to his death, the dare s Salaam Barclay's Bank account has ceased to exist and the Administrator General now seeks directions as to the monies lying in the two Standard Bank Morogoro accounts and also the principal money on fixed deposit in the Standard Bank, Dar es Salaam; interest in respect of the letter account is already the subject of the Standard Bank will".
Held:
(1) "Now in so far as the Morogoro monies are concerned, both wills are entirely silent, for these accounts were brought into existence after the two wills were executed. Section 24 of the English Wills Act, 1837 reads: "Every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will". I do not think that any doubt can exist but that the English Act applies in matters of this sort and Section 2(2) of the Judicature and application of Laws Ordinance, 1961 appears to govern the matter. It is clear that when the wills speak of money, interest and property in the two Dar es Salaam Banks, those expressions cannot have reference to the Morogoro accounts. It is immaterial that, at the date of the execution of the wills, there was money deposited to which the expressions would have reference. It is also immaterial that the testator before his death may have transferred monies from one of the Dar es Salaam accounts to Morogoro. Re. Gillins: Inglis v. Gilins (1909) 1 Ch. 345 makes it clear that interpretation of the wills must be as at the date of the death of the testator and not otherwise. And as Wood V.C., in Goodlad v. Burnett 6 (I.K. & K. 341) observed, "Testator must be taken to know the wills Act." The wills are not sufficient to pass the new thin which the testator acquired and there is ad emption – Lane: Loard v. Lane (1880) 14 Ch. D. 856. The test is as to whether the property at the date of the death is "substantially the some thing " as that spoken of in the will. I do not think that by any stretch of imagination could monies lying in the Dar es Salaam Bank be retrograded as substantially the some as other monies lying in the Morogoro Bank. While a bequest of money is ordinarily a general legacy, it may be specific and the fact that in the instant case the particular accounts were referred as being liable for the payments would appear to render the legacies specific ones. There are, it is true, conflicting decisions on this class of gift, but he circumstances and wording of the two wills do not enable me to hold that the testator, having made clear general gifts, merely pointed out particular funds which would be primarily liable, on failure of which the general personal estate would remain liable. I consequently find that the Morogoro account cannot be utilized as a source of payment of the Dar es Salaam bequests".
(2) "In so far as the Standard Bank deposit account is concerned, the will concerned bequeaths future interest only and not future principal. The testator in that document spoke of "all money, interest and property now held by me in the Standard Bank, Dar es Salaam and all interest that shall be my due in the future in the aforesaid Bank". While the introduction of the word "now" into a testamentary document has never been construed so as to produce an intestacy, the circumstances of the present case are somewhat different from the run of English decisions, for the testator here uses the word in respect of property which has wholly ceased to exist and was subsequently replaced by other property from a different source, while the future property concerns interest only. The bequest as to the principal amount fails under the will and any interest that may have accrued in the Dar es Salaam Standard Bank savings account will pass under the legacy in the Standard Bank will."
Jackson Lesirango v. Pantaleo KirboI [1969] HCD 277
(PC) Civ. App. 108-D-67, 26/8/69,
Georges, C. J.
Intestacy – Women's rights to inherit land – Chagga law
The plaintiff, a schoolboy of 14 years, sued the defendant in respect to a piece of land in Kilimanjaro district, which defendant planned to sell, but which plaintiff claimed as his own.
Both parties claimed to have inherited the land from a certain deceased person, who was the full brother of the defendant, and also the father of the defendant, and also the father of the plaintiff's mother.
Held:
(1) "I am not aware what the present practice is but would rule that in cases where it is necessary for a young child of that age to sue in order to protect a legal right, or where it may be necessary to sue him in order to do so, his legal guardian should sue or e sued as the representative of the child."
(2) The defendant was successful before the District Magistrate who held that it was clear law that if there were males in the clan, widows could not inherit or give away land belonging to the clan …….. The burden of the plaintiff's complaint in the memorandum of appeal was that the defendant had not behaved properly towards the deceased …… This does not, in m view, affect the validity of the argument advanced by the District Magistrate that a widow cannot inherit clan land when there are male relatives of the clan eligible to inherit."
(3) Appeal dismissed.
Re Innocent Mbilinyi 1969 [HCD] 283
Deceased. Prob. & Ad. 50-D-68; 31/10/69;
Georges C.J.
Conflict of laws – Rejection of Chagga law by deceased
The Administrator General applied for directions concerning question which have arisen in the course of the administration of the estate of Innocent Mbilinyi deceased. The affidavit in support states out that the deceased, a Roman Catholic by religion and Mngoni by tribe, died in an accident on 29th February 1968. Surviving him were his widow Elizabeth whom he married by Christian rites, three infant children of the marriage, his father, his mother, four brothers and five sisters. The deceased died intestate and accordingly the succession to his prop could be determined either by the customary law of the Wangoni as set out in the Customary Law Declaration G.N. No. 436 of 1963 or according to the law applicable o Christians who die domiciled in Tanzania, that is to say the Indian Succession Act. The widow, through her advocate contends that the Indian Succession Act is applicable while the father and the brothers and sisters state that customary law is applicable. Leave was given to the widow and to the brother Hustiene to file affidavits setting out facts from which the mode of living of the deceased could be inferred. The widow has filed an affidavit. Despite several adjournments to enable him to do so no affidavit has been filed by Hustiene or by any of the brothers and sisters. The widow is a Mchagga by tribe and also a Roman Catholic. She says that she had learned from her husband that he had left Songea when he was about 7 years old and had been educated entirely outside the Region. In or about the year 1956 he went to Makerere College where he graduated as Bachelor of Arts in 1960. In 1961 he took up employment with Shell E.A. Ltd. as a salesman and after training was stationed in Moshi. That very year he was transferred to Dar es Salaam where he met her. In March 1962 they were married and thereafter lived in Mbeya and Moshi. In 1964 the deceased joined Government service and was in 1967 promoted Deputy Director of the State Lottery. She avers that the fact that the deceased and herself were of different tribes helped to separate both of them from their tribal backgrounds. The elders of both of them from their tribal backgrounds. The elders of both tribes appeared to disapprove of the attachment and the subsequent marriage. She states that the deceased had very often expressed his happiness at the fact that they were both Christians and had made it clear that he did not wish to have any of his affairs regulated by customary law. She had visited her husband's family once in 1962 and she describes her reception as cool if not actually unfriendly. They visited again in 1964. Apart from these visits she was not aware that there had been any contacts between the deceased and his relatives. As far as she was concerned the deceased relatives were strangers. Neither during the lifetime of the deceased nor after his death had they ever visited her nor had they ever brought gifts for the children or attempted in any way to win their affections. She states also that the deceased had told her that he had made her the beneficiary under two policies of insurance on his life. Those policies are the principal assets in the estate. Neither policy was in fact ever assigned to the widow, but in one of the policies the deceased names her in the application form as his proposed beneficiary.
Held:
"On these facts which are in no way contraverted I am satisfied that it can be said that the deceased had abandoned the customary way of life in favour of what may be called a Christian and non-traditional way. There is satisfactory evidence that he was to a large extent alienated from his family and that his children had no connection whatever with them. Accordingly I would direct that the law to be applied in the administration of the estate of the deceased should be Indian Succession Act."
Re Robert William Stafford Bird, deceased. [1969] HCD 297
Prob. & Ad. Cause 12-A-69; 13/10/69;
Platt J.
Probate – Verification by witness of petition for probate dispensed with under s. 57 of Probate and Administration Ordinance Cap. 445.
Wills Construction – Reference to "my wife" sufficient to indicate wife subsequently divorced and remarried
An application was made for grant of probate to Margaret Fox formerly Margaret Bird, of the will of Robert William Stafford Bird. The will was dated 26th June 1951 and was properly signed and attested under clause 3 of the will, the testator provided as follows: - "If my wide Margaret Bird shall be living at the expiration of seven clear days (excluding the day of my death after my death I gibe her absolutely all my property of whatsoever kind and whosesoever situated and appoint her my sole executrix" [sic]. Clause 4 continued: - "If my said wife shall not be living at the expiration of the period aforesaid then the following provisions shall take effect". In the next paragraph, the testator appointed his sister and the brother of Margaret Bird to be executors and trustees of his will and guardian of his infant children and each executor, who should act, was given a legacy. The testator then bequeathed all his real and personal property, to the trustees upon trust for sale, to divide his residuary estate amongst his children living at the time of his death and his grand-children on certain terms. In September 1962, the testator and Margaret Bird were divorced. Margaret Bird later remarried.
Held:
(1) "The application involves two questions. The first is whether Margaret Fox having divorced the testator, is still entitled under the will to all the testator's property and to be appointed his sole executrix. Secondly, there is an application for dispensation with the verification of the petition for probate by one attesting witness of the will of the deceased Therefore, so long as Margaret Bird was living after the period specified in Clause 3, she was entitled to all the testator's property and to be appointed his sole executrix.
(2) "The question then is whether the reference to "my wife Margaret Bird" is a sufficient and suitable reference to Margaret Fox so as to entitle her to the property of the testator and to be appointed executrix. The will did not envisage the situation which might arise if the testator should divorce his wife Margaret Bird. The only condition to her receiving all the property and being appointed executrix was that she should be living at the time of the testator's death. Bur it might be thought that she must be his wife and that as she was not his wife at the time of his death, she must be excluded from the will as the testator's wife at the time that the will was made, and the testator having possession of the will and having made one alteration due to the death of his mother, must be taken to have intended that Margaret Bird was still to be entitled under Clause 3 of the will. No East African authority could be discovered, but he referred the court to Jarmans on Wills 8th Ed. Vol. 2, p. 1239, from which it would appear that a divorce does not ipso facto revoke the will. He also referred to Halsbury Vol. 34, where in dealing with the voluntary revocation of wills, the learned author sets out the only events in which such revocation would be effected (See paragraph 107 of 2nd Ed. Or Vol. 39, 3rd Ed. Para 1354) Nothing is stated as to divorce.
The most useful authority quoted would appear to be In re Boddington, Boddington v. Clariat (1883) 22 Ch. D. p. 597, in which the testator by his will gave the proceeds of the sale of his residuary estate to trustees on trust to pay his wife Emily Caroline within one month after his decease, a legacy of ₤300, commencing from the date of his deceased, "or otherwise in lieu and in substitution of the said annuity, at the option of my said wife, if she shall prefer it, a legacy of ₤2000." After the date of the will, the marriage was declared null on the ground of the impotency of the testator. The latter died without altering his will. It was held that the former wife was entitled to the legacy of ₤200, but that she could not claim the annuity, inasmuch as she never had been in law the wife of the testator and never could be or continue his widow. The annuity was therefore given for a period which could never come into existence. Fry, J….. explanted that there was no doubt about the identity of the person named in the will, since the misdescription could not be of importance, and that although she was described in the will as the testator's wife, which she was not at the time of his death and in law never had been, nevertheless, she was prima facie entitled to the legacy of ₤200. The learned Judge went on to consider the authorities, but held that here being no false assumption by the lady of the character of a wife, she was entitled to that legacy. At he same time, he refused to grant her the annuity because she could not properly be described as having been his widow. As far as the legacy of ₤200 is concerned, there is no material difference between the facts in Boddingtons's case and the instant case. It is true that Margaret Bird has remarried, but I cannot see that that can make any difference. Accordingly I am satisfied that Margaret Fox is the identical person to Margaret Bird, who was described by the testator as his wife, as indeed she ten was. As the testator did not alter his will, and as the divorce did not operate as a voluntary revocation, Margaret Fox is entitled. Under Clause 3, to the testator's property and to be appointed his sole executrix. By way of strengthen the position; learned Counsel adduced the consents of the two children of the marriage to Margaret Fox being granted probate. I am also told that the two other executors have both deceased.
(3) As to the second question, there is provision in section 57 of the Probate and Administration Ordinance Cap. 445 giving the court power to dispense "with verification by a witness where it is satisfied that it cannot be obtained, in that it cannot be obtained without undue delay or expense"…… Accordingly I grant the application for the dispensation with the verification as generally required by section 57 of the Ordinance." (4) "In the result, probate is granted to Margaret Fox of the will of the testator Robert William Stafford Bird."
HIGH COURT DIGEST [1972]
Abdallah Shant v. Mussa [1972] HCD 9
(PC) Civ. App. 123-D-70; 20/1/72
Onyiuke, J.
The appellant and respondent, African Moslems, were married according to Islamic Law. The marriage ended by divorce by talk 18 years after solemnization. After the divorce the respondent filed a suit in the Primary Court claiming Shs. 3,300/= as representing her contribution to the costs of erecting two houses and a but during the subsistence of the marriage. The respondent's case was that shortly after their marriage the appellant who was then working as a house-boy for a certain expatriate found her a job as a yaya with the same employer. It was agreed between them that the appellant was to take her wages as her contribution to the building of some houses. It was part of the agreement that one of the houses would eventually be given to her. On the basis of the agreement the appellant received her wages for the whole period of her employment and built two houses. When the expatriate left they went to live in Bagamoyo where the respondent's relatives gave them a piece of land on which they cultivated rice. They used the proceeds of the sale of the rice to build yet a third house. When the marriage broke up the appellant refused to give her any of the houses. The appellant disputed the claim. He admitted that the respondent was employed as she alleged but denied receiving her wages and that there was any partnership or arrangement between them. The primary court magistrate concurred with the assessors that there was not sufficient evidence for a finding of partnership and held that the respondent could not simply allege partnership by virtue of being the appellant's wife. On appeal to the district court the magistrate set aside the decision and awarded the respondent the amount claimed. He disagreed with the findings of the assessors and held that the respondent's story was consistent and held that the respondent's story was consistent and was sufficient to support her claim. In making his order he relied on the English case of Balfour v. Balfour [1919] K. B. 521. He stated that that case established the principle that contracts between husband and wife were enforceable if they were intended to have legal consequences. In the High Court counsel for The appellant conceded that the respondent did contribute but argued that since this was an appeal from a primary court the law to be applied was either Moslem law or customary law. He submitted that the district magistrate was wrong to apply English law.
Held:
(1) "I agree … that the proper law applicable to the case was customary law or Islamic law and that it was wrong for the District Magistrate to import the principle of English law."
(2) "I am of the view however that the District Magistrate's conclusions were fully justified on the basis of customary law and/or Islamic law. That Islamic laws as well as Customary Law are equally applicable to Africans converted to Islam is fully established by the decisions in Hussein Mbwana v. Amiri Chongwe (Tanzania High court Civil Appeal No. 1 of 1969) and Re. Kusudwa [1965] E. A. 248. In the latter case Sir Ralph Windham C. J. stated as follows:- "The fact that a tribe may have been converted to Islam does not necessarily mean that its customs, particularly those relating to land tenure are thereby changed." In the former case Spry J. (as he then was) made the following observations: - "It has sometimes been argued that Islamic law is to be regarded as applying to Africans as part of their customary law. In my view this is not a sound proposition. Customary law is the body of customs which b usage has acquired the force of law. As such it is constantly changing with changing ways of life. It cannot therefore, in my view include a complete and fully developed system of Religious law. Some elements of Religious law may, of course, be absorbed into the customary law but they are then to be judged and are subject to change as part of the customary law and they lose the attributes of the Religious law from which they were derived. I hold therefore that there are two systems or law which may apply in an African Muslim Community, Religious law in matters personal, such as marriage, and customary law which may apply in all spheres of life."
(3) "The District Magistrate was therefore not strictly correct when he held, in effect, that Islamic law was exclusively to be applied to the case before him. There can be no doubt that a contract such as the on under consideration is enforceable under Customary law. Even under Islamic law a Muslim wife is not obliged to provide anything for household expenses, a Muslim wife's wages are her personal property and there is nothing, in principle, to invalidate or to prevent the enforcement of an arrangement such as the present one under Islamic law."
(4) "The District Magistrate was fully justified in his finding on the fact. The reasons given by the Primary Court for dismissing the respondent's claim were unsound."
(5) Appeal dismissed.
TANZANIA LAW REPORTS [1983-1997]
CELESTINA PAULO v MOHAMED HUSSEIN 1983 TLR 291 (HC)
Court High Court of Tanzania - Bukoba
Judge Mushi .J
September 5, 1985
CIVIL APPEAL 223 OF 1982
Fly note
Probate and Administration - Religion - Whether the difference of religion can affect an ascertained will in appointing an administrator of an estate.
Probate and Administration - Clan linkage - Whether the difference in clan linkage can prevent a person from administering the property of a deceased person of another clan.
Head note
The appellant appealed against the decision of the District Court of Bukoba which reversed the decision of the Primary Court which appointed the appellant the administrator of the estate of Sawia d/o Balegu on the basis of oral evidence and a written will. The District Court had reversed the Primary Court's decision purportedly because the appellant was of different religion and clan from that of the deceased.
Held:
(i) Where there is an ascertained will the same must be respected in letter and spirit notwithstanding the difference of religion between the deceased and the appointed administrator;
(ii) where personal property is bequeathed the person bequeathing the property has an absolute right to choose an administrator of her own choice and the clan has no right to interfere with the same.
Appeal allowed.
HASSAN MATOLLA v KADHI WA MSIKITI, MWINYI MKUU STREET 1985 TLR 53 (HC)
Court High Court of Tanzania - Dar Es Salaam
Judge Ruhumbika J
21 October, 1982
(PC) CIVIL APPEAL 2 OF 1982
Fly note
Islamic Law - Inheritance - "Wakf" dedicating deceased's house to the Mosques for religious reasons - "Wakf" conditional upon failure of deceased's daughter coming forward to inherit -Deceased's daughter did not show up - Deceased's brother's son claimed to be a rightful heir -Whether the mosque is entitled to any share in the property of the deceased.
Head note
The deceased, a father of only one child who was living outside the country, dedicated by "Wakf" his house to a mosque for religious reasons. The "wakf" was given conditional upon failure of the deceased's daughter coming forward to claim inheritance. After his death the daughter did not show up. However, a son of the deceased's brother applied in a Primary Court for and was granted letters of administration of the estate of the deceased. He also claimed the right to inherit the house of the deceased. The Primary Court decided that he was entitled to inherit the estate of the deceased as heir under Islamic Law. The Court, however, required him to cash down 23,330/= to the mosque in terms of the "Wakf", being 1/3 of the value of the house. The appellant appealed against the court's order that the appellant should pay Shs.23,330/= to the mosque before he could inherit the house.
Held:
(i) The appellant has the right to inherit the house and the dedication of the house to the mosque in the "Wakf" is rendered non-effective thenceforth by the reason of the act of the appellant inheriting the house;
(ii) the requirement to pay 1/3 of the value of the house to the mosque would arise only if the deceased had set up an unconditional "Wakf" dedicating the house to the mosque permanently after his death without the clause that the house should pass to the heir when that heir was available.
Appeal allowed.
SEIF MARARE v MWADAWA SALUM 1985 TLR 253 (HC)
Court High Court of Tanzania - Mwanza
Judge Katiti J
June 10, 1979
(PC) CIVIL APPEAL 37 OF 1978
Fly note
Administration of Estates - Application for appointment of administrator of deceased's estate - Duty of the court in appointing administrators.
Conflict of Laws - Application for appointment of administrator of a deceased's estate - Conflict between Islamic Law and Customary Law - Primary court has jurisdiction to decide the law applicable.
Head note
The respondent sought and obtained from the Primary Court her appointment as an administrator of the Estate of the deceased. She maintained that as the sister of the deceased she was entitled to administer the Estate under Islamic Law. The appellant, a nephew of the deceased's husband who had himself died much earlier, disputed the respondent's appointment as administrator. His objections failed both in the Primary Court and in the District Court, hence this appeal to the High Court.
Held:
(i) On application for appointment of an administrator of a deceaced's estate, the duty of the court is to appoint as administrator a person who has an interest in the estate, and according to the wishes of the deceased if any are expressed;
(ii) as the applicant in this case could only sustain his claim of having an interest in the Estate through Customary Law and the respondent could only sustain her similar claim through Islamic Law, either party may be the interested party depending on what law the court decided to be the law applicable;
(iii) the Primary Court (having jurisdiction under both Islamic and Customary Law) applied no wrong principles in appointing the respondent the administrator.
Appeal dismissed.
SOFIA SAID AND YUSUF MOHAMED MUSA v AWADH AHMED ABEID & THREE OTHERS 1992 TLR 29 (CA)
Court Court of appeal of Tanzania - Dar Es Salaam
Judge Ramadhani JJA, Mnzavas, JJA, Mapigano Ag. JA
28 February, 1992
Fly note
Islamic law - Inheritance - Principles of inheritance where a person dies intestate;
Islamic law - Inheritance - Importance of proximity to the deceased person in intestate succession.
Head note
Fatuma d/o Sefu who was a Sunni - Shaffii Moslem died intestate in 1983. After an application in the Kariakoo Primary Court by the could be heirs the Court appointed the fourth respondent as the administrator of the deceased estate. On the same day the court made an order that the assets of the deceased be sold by auction. There was no dispute that under Islamic law Mgeni Hemedi, the surviving husband of the deceased was entitled to take half of whatever fell to be decided. The issue was the method to be adopted for the distribution of the remaining part of the estate. Several relatives from the uterine and agnate sides competed for a share. The matter was taken to the District Court. The District Court held that since there were no Koranic heirs other than Mgeni Hemedi, heirs on the uterine side are entitled to inherit along with those on the agnate side. The appellants are aggrieved by this decision and they appealed to the High Court. The High Court upheld the decision of the District Court. They appealed further to the Court of appeal.
Held:
(i) In the Islamic law of succession the principle of proximity is of great importance in that within the limits of each class the nearer of blood excludes the remote;
(ii) under the Islamic law of inheritance there are three principal classes of heirs - the "sharers" or "koranic heirs"; "Residuaries" and the "Distant Kindred". The rule regarding their right of inheritance prescribes that residuaries inherit only where there are no koranic heirs or where the inheritable estate is not exhausted by the Koranic heirs and the distant kindred inherit only where there are no sharers of residuaries;
(iii) as the Koranic heir, Mgeni Hemedi, did not exhaust the estate the only person who has the right of inheritance in the circumstances is a residuary i.e. the second appellant. The rest of the claimants have no right under Islamic law.
Appeal allowed.
SCOLASTICA BENEDICT v MARTIN BENEDICT 1993 TLR 1 (CA)
Court Court of Appeal of Tanzania - Mwanza
Judge Nyalali CJ, Makame JJA and Omar JJA
CIVIL APPEAL NO. 26 OF 1988
9 March, 1989
(From the Judgment and Decree of the High Court of Tanzania at Mwanza, Moshi, J.)
Fly note
Civil Practice and Procedure - Functus officio - When a court becomes functus officio.
Probate and Administration - Administration of estates - Administration of registered land - Whether primary courts have jurisdiction.
Magistrates' Courts Act - Jurisdiction - Administration of estates - Subject matter of administration is registered land - Whether primary court has jurisdiction - Sections 14 and 15 of the Magistrates' Courts Act, 1984 and Government Notice No. 320 of 1964.
Head note
The appellant's husband died intestate in 1971. He was survived by two wives and a number of sons and daughters. The deceased left to his heirs substantial property including motor vehicles, farmland, cattle and houses. The administrators of the deceased's property distributed the property and the interests therein to the heirs in accordance with the guidance of the clan council acting under Haya customary law. None of the widows of the deceased inherited any property of the deceased; instead they were required to reside with and be maintained by their respective children according to Haya customary law. The respondent, one of the sons of the deceased by his first wife, was given, among other things, a house on plot Nos. 17 and 19 Block `D' in Bukoba township, in which the appellant, the second wife of the deceased had been living with her deceased husband. The only daughter whom the appellant had sided with the deceased was given, among other things, a farmland including a house in need of some repair at Kanoni Shamba.
The appellant filed a civil suit in the Urban Primary Court of Bukoba challenging the administration of the estate of her deceased husband, particularly in respect of the house on plot Nos. 17 and 19 Block `D' in Bukoba township. The defendants resisted the suit on the ground, inter alia, that the primary court had no jurisdiction on the subject-matter. The primary court overruled the defendants who successfully appealed to the District Court whose decision was confirmed by the High Court.
The High Court, however, granted the appellant `liberty to pursue her claim' either in the District Court or the High Court. This liberty was not exercised.
The respondent, who was given the house on plot Nos. 17 and 19 instituted a suit in the Court of Resident Magistrate at Bukoba seeking, inter alia, to evict the appellant and her daughter from the suit premises. The trial court granted vacant possession to the respondent. The appellant's appeal to the High Court failed. On a further appeal to the Court of Appeal of Tanzania the Court upheld the decision of the High Court. In addition the Court considered when a court becomes functus officio and the question of jurisdiction of primary courts in administration of registered land.
Held:
(i) As a general rule, a primary court, like all other courts, has no jurisdiction to overturn or set aside its own decisions as it becomes functus officio after making its decisions;
(ii) The only exception to this general rule includes the setting aside of ex parte decisions and reviews of decisions induced by fraud or misinformation;
(iii) While section 15(1)(c) of the Magistrates Courts Act 1963 (now s. 19 of the Magistrates' Courts Act 1984) did not specify the particulars relating to the administration of estates, the order of the Chief Justice published as Government Notice No. 320 of 1964 conferred jurisdiction on primary courts in matters of administration of estates regardless of whether the subject-matter is land registered under the Land Registration Ordinance, provided the applicable law is customary or Islamic law, other than matters falling under the Marriage, Divorce and Succession (Non-Christian Asiatics) Ordinance.
Appeal dismissed in its entirety.
MOHAMED HASSANI v MAYASA MZEE AND MWANAHAWA MZEE 1994 TLR 225 (CA)
Court Court of Appeal of Tanzania - Dar es Salaam
Judge Kisanga JJA, Mnzavas JJA and Mfalila JJA
CIVIL APPEAL NO. 20 OF 1994
23 December, 1994
(From the decision of the High Court of Tanzania at Tanga, Msumi, J)
Fly note
Probate and Administration - Administration of Estate - Powers of the Primary Court to appoint and replace an administrator - Rules 2(a) and (b) of the First Schedule of the Magistrates' Courts Act, 1984.
Probate and Administration - Challenging validity of appointment of an administrator - Onus of proof.
Probate and Administration - Disposition of property - Whether consent from all heirs is necessary before sale of property.
Head note
This was an appeal against the decision of the High Court that the appointment of one Mfundo Omari as an administrator of the estate of the late Mzee Risasi was void because it was done under Rule 2(b) and not under Rule 2(a) of the Fifth Schedule to the Magistrates' Courts Act, 1984, and thus he had no power to dispose the property of the deceased's estate and, therefore, his sale of the house to the appellant was null and void. It was argued by the appellant that the appointment was valid under Rule 2(b) because it was a replacement and not a first appointment.
Held:
(i) Primary courts are empowered under Rule 2(a) of the Fifth Schedule to the Magistrates' Courts Act, 1984, to make first appointment of administrators of estate and Rule 2(b) of the same schedule for appointment of a replacement. Therefore the Judge was wrong to restrict the powers of Primary Courts to appoint administrators to Rule 2(a).
(ii) It is up to the person challenging the validity of appointment of an administrator by the court to show that the person so appointed does not have the required qualifications to administer the estate.
(iii) The administrator is not legally required to obtain consent of all the heirs before disposing of property or sale of a house.
Appeal allowed.
GEORGE A MMARI AND ANANDE A MMARI 1995 TLR 146 (HC)
Court High Court of Tanzania - Dar Es Salaam
Judge Mwaikasu J
(PC) Civil Appeal No 116 of 1994
May 14, 1995
Fly note
Probate and Administration - Wills - Attestation of wills - Will drawn by a literate person - When valid - Local Customary Law (Declaration) (No 4) Order 1963, GN 436 of 1963 Rules 5 and 19.
Head note
The appellants challenged the validity of a will drawn by their deceased father while hospitalized bequeathing a house to their stepmother. The will was attested by the said stepmother, i.e. wife of testator, and the doctor who was attending the deceased.
Held:
(i) For a will drawn up by a literate person to be valid it must be attested, besides the wife (wives), by at least two persons of whom one must be a relative of the deceased;
(ii) The deceased's will was not attested by a relative of the deceased, and it was defective for want of proper attestation.
Appeal allowed.
