IBRAHIM SHAHA v MTUMWA SHAHA 1992 TLR 211 (CA)

 IBRAHIM SHAHA v MTUMWA SHAHA 1992 TLR 211 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Makame JJA, Omar JJA, Mfalila JJA

18th August, 1992

Flynote

Islamic Law - Wakf - Whether a valid wakf created. F

-Headnote

The respondent and her brother, one Khamisi, inherited a house when their sister

died childless. The respondent and Khamisi decided to create a wakf and dedicate the

house to a mosque. There was an authentic document to that effect. When Khamisi

died the G appellant, administrator of Khamisi's estate, wanted to include Khamisi's

portion of the house in dispute in Khamisi's estate but the respondent resisted arguing

that a wakf had been created over the house. It was argued that although there was an

authentic document evidencing creation of wakf no valid wakf had been created. H

Held: Since there was no evidence that Khamisi was paying rent to the mosque the

property had not been conclusively dedicated as wakf. I

Case Information

Appeal allowed.

19902 TLR p212

MAKAME JJA, OMAR JJA, MFALILA JJA

Semzaba, for the appellant A

Mwajasho, for the respondent.

[zJDz]Judgment

Makame, Omar and Mfalila, JJ.A.: The parties are Brother and Sister. When their

sister, Mwanabasi Shaha, died childless her properties were inherited by her siblings.

B The present appellant got two houses and four cows, - while the respondent and a

brother called Khamisi inherited a house. This property is House No. 20, Sukuma

Street, Dar es Salaam, the object of a dispute which has now come to this Court on

third appeal: After Khamisi's death the present appellant, the administrator of C

Khamisi's estate, wanted to include Khamisi's portion of the house in dispute in

Khamisi's estate, but the respondent resisted this, asserting that she and her brother,

the deceased Khamisi, had created wakf over the property and dedicated it to the

Rufiji Mosque in the City of Dar es Salaam. The Primary Court agreed with the

respondent D that the house was wakf property but on appeal to the District Court,

Ilala, (Kayombo, SDM) reversed the Primary Court decision, so in turn Mtumwa

appealed to the High Court where Kazimoto, J. re-instated the decision of the

Primary Court, holding that there was a valid wakf. That decision is now appealed

from by Ibrahim, advocated E for by Mr. Semzaba, learned Counsel, while Mr.

Mwajasho, learned advocate, appeared for the respondent Mtumwa.

We think that all along there was no serious dispute about the authenticity of Exh. B,

the document purporting to create the wakf. We think also that the intention of

Khamisi F and Mtumwa to create a wakf and dedicate the house to the mosque

comes out clearly and is not at all in doubt. The issue however was whether a valid

wakf had been created.

There was evidence by Mtumwa that after the house had been declared to be wakf in

G favour of the mosque she was paying rent to the mosque for the portion she was

occupying and also passing on to the mosque the rent being paid by tenants. The

learned high Court judge was right that Mtumwa's assertion on this had not been

disproved but, with respect, she was only one of the intending wafiks. There was no

H similar evidence regarding Khamisi. There was, that is, no evidence that he was

paying rent to the mosque so it must be assumed that he continued to live in the

house rent - free; and that, quite rightly, bothered the learned Senior District

Magistrate. Mr. Semzaba submitted that it meant that the property had not been

conclusively dedicated as wakf. Mr. Mwajasho's references to Mulla's Principles of

Mohamedan Law were I quite apt with regard

1992 TLR p212

to transfer of physical possession and title. His submissions however left unanswered

A the important issue of non-payment of rent by Khamisi, which rendered the

purported wakf not absolute.

This appeal must succeed, however regrettable it may sound. We accordingly allow

the appeal and make no order as to costs.

We note that Mtumwa is entitled to a portion of the house in her own right, having

B inherited the same from Mwanabasi, and that she is also entitled to a portion of the

deceased's Hamisi part of the house. According to the evidence on record Mtumwa

and Ibrahim are Khamisi's heirs.

C Appeal allowed.

1992 TLR p213

D