IN THE COURT OF APPEAL OF
AT
DAR ES SALAAM
(CORAM:
RAMADHANI, J.A, KAJI, J.A and KILEO, J.A)
CIVIL
APPEAL NO. 51 OF 1999
WAZIRI MANENO CHOKA…………………..…………..APPELLANT
AND
ABASI CHOKA…………………………….…………….RESPONDENT
(Appeal
from Decision of the High Court of Tanzania
at Dar
es Salaam
(Mwita
J.)
Dated
the 23rd
September 1998
In
PC
Civil Appeal No. 9 of 1998
-------------------------------
JUDGMENT OF THE COURT
16th
October & 16th Nov. 2006
KILEO
J,A.
This
is an appeal from the decision of the High Court of Tanzania at Dar es Salaam
The
late Maneno Choka left a will bequeathing all his property to the appellant.
The Primary Court Primary Court Primary Court
1. That
the learned magistrate erred in law and on the
facts in
holding that the Appellant was not
entitled to inherit his
father’s estate when the said
deceased father by a properly
executed will appointed the
Appellant as his heir of the
estate.
2. That
the learned magistrate erred in law and on the facts in
placing great
reliance on Indian law of Inheritance whose
local
conditions are different from local conditions obtaining in
In
the High Court, Judge Mwita, dealt at length on circumstances under which a
Moslem can acknowledge another as his legitimate child. He observed, after making reference to
various authorities on Mohamedan law that it permits a man to acknowledge
another as his legitimate child. He observed however that the acknowledgment
proceeds upon the assumption that there is a lawful union between the parents
of the acknowledged child.
The
learned Judge found that since the deceased was not married to the mother of
the appellant then the acknowledgment of the appellant by the deceased as his
son did not have a legitimating effect to entitle the appellant to share as an
heir in the estate of the deceased.
The
learned judge while making reference to “Mulla’s Principles of Mahomedan Law”
18TH Edition found that the appellant could only be entitled to one
third of the estate of the deceased according to Islamic Law.
The
appellant was not satisfied by Judge Mwita’s decision and he has come to this
Court. His memorandum of appeal contains
only one ground and that is:
“That
having regard to the fact that the appellant was acknowledged by his deceased
father as a son for all intents and purposes and having so acknowledged him in
his will, and the deceased father having lived and cohabited with the
Appellant’s mother under the same roof over thirty years, the court below erred
in law in failing to hold
that the appellant was entitled to inherit the deceased’s whole property in the
absence of other issues of the deceased father under Islamic law.”
Both
the appellant and the respondent appeared before us in person. We must confess that we had a lot of
difficulty in hearing what the appellant was trying to say. Most of the time he was talking in a hardly
audible voice though it became apparent to us that he was very much capable of
raising his voice for us to hear. At the
end what we could gather from him is his argument that the High Court erred to
award two thirds of the property to the respondent and that he (appellant)
should have been awarded the whole estate.
The
respondent on the other hand argued that the appeal has no merit, as the matter
had already been determined in accordance with Islamic law.
May
be we should start by putting the record straight for the benefit of all
concerned. We are given the impression
that the appellant thinks that the High Court and District Court awarded two
thirds of the estate to the respondent. The
true position however, is that the District Court and the High Court did not
award the respondent two thirds of the estate.
What the High Court and the District Court said is that the appellant
could only be entitled to one third of the estate in consideration of the fact
that there was a will left by the late Maneno Choka. To our understanding the remaining two thirds
was to be distributed amongst lawful heirs of the estate of Maneno Choka. Conversely the appointment of the appellant
as administrator of his late father’s estate has not yet been revoked. It is
the appellant who was entrusted with the responsibility of distributing the
estate, in other words he is the one who is to decide how much each one who is
entitled to a share in the estate is to be apportioned.
The
question before us, as was the question in the lower courts is whether the
appellant should be entitled to the whole estate in accordance to the will of
the late Maneno Choka.
There
is no doubt that the deceased Maneno Choka was a Moslem. There was no marriage solemnized between him
and the appellant’s mother. The appellant was born out of wedlock. The appellant’s mother admitted that much at
the trial – she said, “Marehemu pamoja na kuishi muda wote huo lakini
hatukuwahi kufunga ndoa yoyote ile si ya Kiislamu wala kimila ila tulielewana
na tukaishi hadi umauti ulimpomkuta tukiwa wote kwa upenzi tuu. ”.
The
appellant’s mother in her own words as quoted above informed the trial court
that she neither contracted an Islamic marriage nor a customary one but merely
lived with the deceased Maneno Choka as a concubine throughout the time they
lived together.
We
have had occasion to study the works of various authors on Mohamedan Law. Those, whom we have studied, all agree that
testamentary disposition may not exceed a third of the estate. This applies irrespective of whether the
disposition is to an heir recognized under Mohamedan law or a stranger.
In
MINHAJ ET TALIBIN
A Manual of Mohamedan Law According to the School
of Shafii by Nawawi (1914) as translated by E.C. Howard it is
stated at page 260 – 261 that;
“Testamentary disposition may not exceed a third of the
estate; and those made in contravention of this precept of the law, may be
reduced to the portion which may be disposed of, upon the application of the
legitimate heir. If the heir declares his approval of the disposition, it is
effective, whatever it amounts may be; but according to one jurist it is then
considered as a mere donation upon the part of the heir, and the legacy itself
remains void for as much as exceeds the third”
The above principle is also spelled out
in Principles & Precedents of Moohummudan Law –A selection of
legal opinions involving those points, delivered in the several courts of
Judicature by W. H. Macnaghten and William Sloan The
authors in their preliminary remarks at page xxi observe that;
“The disposition of a testator is
legally restricted to one third of his estate but little uncertainty can exist
on the doctrine of wills and testaments. If the legacy exceed the amount above
specified, the will is considered inofficious, and its provisions will be
carried into effect pro tanto only”.
Again,
M. Hidayatullah and Arshad Hidayatullah on Mullas’ Principles of Mohamedan
Law (18th Edition) at pg. 140 making reference to the limit of
testamentary power state:
“A Mohamedan cannot by will dispose of more
than a third of the surplus of his estate after payment of funeral expenses and
debts. Bequeaths in excess of the legal
third cannot take effect, unless the heirs consent thereto after the death of
the testator.”
In
view of the principles of Mohamedan law underlying legitimacy of children and
testamentary disposition as discussed above we find no reason to fault the
decision of the High Court.
In
the circumstances we find no merit in this appeal and we accordingly dismiss it
with costs.
DATED at DAR ES SALAAM this 30th
day of October, 2006
A. S. L. RAMADHANI
JUSTICE OF APPEAL
S. N. KAJI
JUSTICE OF APPEAL
E. A. KILEO
JUSTICE OF APPEAL
I certify that this is a true copy of
the original.
N.
P. Z. CHOCHA
DEPUTY
REGISTRAR
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