ABDUL SADIKI v WILFRED RUTAKUNIKWA 1988 TLR 167 (HC)

 

ABDUL SADIKI v WILFRED RUTAKUNIKWA 1988 TLR 167 (HC)

Court High Court of Tanzania - Mwanza

Judge Moshi J

19 September, 1988

Flynote

Administration of Estates - Inheritance - A will by an illiterate person - Conditions

for validity B thereof.

-Headnote

Upon death of one Miria Nsheke, the respondent presented to the administrator of

her estate a will purportedly executed by the deceased, who was illiterate, witnessed

by two C clan members and two non-clan members.

Later, the appellant too came up with yet another will purportedly executed by the

deceased and witnessed by two clan members and one non-clan member.

Held: Rules 19 and 21 of the Local Customary Law (Declaration) (No. 4) Order of D

1963 clearly provide that if a testator is illiterate, a will executed by him must be

attested by a minimum of two clan members and two non-clan members. As the

testator in this instance was illiterate, the will presented by the appellant was not

properly attested. E

Case Information

Appeal dismissed.

Katabalwa, for appendant F

[zJDz]Judgment

Moshi, J.: The appellant, Abdul Sadiki, was the unsuccessful party in Bukoba Urban

Primary Court Civil Case No. 15 of 1987. The subject matter of the claim was a

shamba which the respondent, Wilfred Rutakinikwa, established to have inherited

from G one Miria Nsheke. The appellant's appeal was dismissed by the Bukoba

district court, and hence this second appeal.

It was established in evidence before the Primary Court that Miria Nsheke was the

grandmother of the appellant, whereas the husband of Miria was the uncle (baba H

mdogo) of the respondent. The husband of Miria died without issue, and the

respondent, who was staying with them, thought that he had a better title to their

shamba, which is the shamba in dispute, than Miria. He filed a suit against Miria

claiming the shamba which culminated in High Court (PC) Civil Appeal No. 97 of

1973. The I decision of the High Court was that the shamba in dispute was not clan

land and that it was the

1988 TLR p168

MOSHI J

sole property of Miria who could dispose of it in any manner she liked. A

Upon the death of Miria on 13/10/86 the respondent presented to a purported head of

clan and administrator of the estate of Miria, Laurean Rugonzibwa (PW2) a Wili (Ext

G) B dated 29.9.86 in which Miria had bequeathed the shamba in dispute to the

respondent, Miria was an illiterate woman, and Ext G bore her thumb-print as well as

two signatures of clan membes and two signatures of non-clan membes. PW2

allegedly refused to accept the Will (Ext G). It would appear that no other Will was

declared or presented at that time. The appellant was at that time staying with Miria.

The respondent C was in charge of and supervised, the funeral arrangements.

When the mourning period came to an end on 30.11.86, the clan members and the

villagers met (Matanga) to devide the property of Miria. The shamba in dispute was

D entrusted to the respondent, and he was placed in possession thereof. It was in

writing (Ext. J), and all the clan members - Banyaruganda wa ukoo and the villagers

participated. It would then appear that the appellant, spearheaded by PW2, came up

with, and presented, another Will (Ext C) allegedly executed by Miria on 17.8.86 in E

which the shamba in dispute was bequeathed to the appellant. The Will (Ext C) bore

two signatures of clan members and one signature of non-clan members, and the

thumb-print of Miria appeared below the signatures of the witnesses. The two Wills

then gave rise to these proceedings.

In a well reasoned judgment, the Primary Court found the Will (Ect C) presented by

the F appellant to be invalid mainly on the ground, among others, that it was not in

conformity with Rules 19 and 21 of the Third Schedule to the Local Customary Law

(Declaration) (No. 4) Order, 1963 - G.N. 436/63. Miria had been illiterate, and the

Will did not have two non-clan members as its signatories. It only had one non-clan

member G signatory. Furthermore, the purported thumb-print of Miria on the Will

came after, and not before, the signatures of the signatories. The same court found the

Will (Ext G) presented by the respondent to be in conformity in all respect to Rules

19 and 21 of G.N. 436/63, and therefore valid, and declared the respondent to be the

lawful occupier H of the shamba in dispute. These findings were upheld by the

district court on first appeal, and the appellant has now come to this court.

In his submission before me, Mr. Katabalwa, learned advocate, stated that both courts

below erred in holding Ext C to be invalid as the irregularities in connection

therewith I were, according to him, minor. With a genuine respect to the learned

advocate, I find no

1988 TLR p169

MOSHI J

substance in that argument. The law governing the subject of Wills as proclaimed

under A the Local Customary Law (Declaration) (No. 4) Order of 1963 is clear and

unambiguous. If a testator is illiterate, a Will executed by him must be attested by a

minimum of two clan members and two non-clan members. Miria was illiterate, and

Ext C was not thus attested. This could not have been a minor irregularity under my

B consideration. The irregularity was, in my view, very material in that it offended

the provisions of the relevant law, and thus puts to question the validity of Ext C. In

my view, the findings that Ext C was invalid, and Ext G was valid, could not, on the

evidence, be faulted. Ext C was not in conformity with the law. It was not presented

or C made known immediately upon the death of Miria. It was not read at the burial.

Ext G was confirmed by the clan members meeting of 30.11.86 when they put the

respondent into the possession of the shamba in dispute in writing (Ext H.). I am

satisfied, as were both courts below, that, on the evidence, Ext. C was an invalid Will,

and Ext G was the D valid Will. A view is expressed in the memorandum of appeal

that a proper suit ought to have been one for an application by either party for letters

of administration. In my view, this would have been an irrelevant consideration for

purposes of this suit. Miria did E not die intestate. She had left a Will (Ext G), found

to be valid, which clearly stated who was to get what of the properties of the deceased

Miria. The respondent was clearly justified to sue for his share in the estate of Miria

on the basis of Ext G - a move which was in conformity with what the clan members

had earlier sanctioned in its meeting F of November, 1986. On the facts, and on the

law, I am satisfied, as was the trial court, that the respondent is the lawful possessor of

the land in dispute. He should not be disturbed.

For the foregoing reasons, I find no merit in this second appeal, which is hereby

dismissed with costs. G

Appeal dismissed.

1988 TLR p170

A