JOHN NGOMOI v MOHAMED ALLY BOFU 1988 TLR 63 (HC)

 JOHN NGOMOI v MOHAMED ALLY BOFU 1988 TLR 63 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Msumi J

4th June, 1988 E

Flynote

Administration of Estates - Execution of a will - Whether proper to choose any

person to witness the execution under customary law- Essence of witnesses especially

when the testator is old and illiterate.

Administration of Estates - Fraud - Whether fraud vitiates the validity of the will. F

-Headnote

Respondent petitioned the Primary Court for letters of administration in respect of

the estate of the deceased Hadija Manzi. The deceased left a house situated along

Uhuru G Street, Dar es Salaam. While the respondent's petition was pending,

appellant filed objection claiming that the said house was given to him by the

deceased in her will executed before her death in the presence of witnesses who

testified before the court in his favour. The genuineness of the will was disputed,

hence dismissed in both lower H courts. Hence this appeal.

Held: (i) The requirement that at least half of the number of witnesses to a will

executed under customary law must be related to the testator is intended to act as a

safeguard against fraud; I

(ii) where a will is surrounded by fraud, it is void.

1988 TLR p64

MSUMI J

Case Information

Appeal dismissed. A

No case referred to.

Lamwai, for the appellant.

Muccadam, for the respondent. B

[zJDz]Judgment

Msumi, J.: Respondent petitioned to the Primary Court for letters of administration in

respect of the estate of the deceased Hadija Manzi. Among other things, deceased left

a C house situated along Uhuru Street, Dar es Salaam. While the respondent's

petition was pending, appellant filed objection claiming that the said house was given

to him by the deceased vide her will executed before her death in the presence of four

witnesses. All the alleged four witnesses testified before the court of the said Will.

However, the D court was not satisfied with the genuineness of the alleged Will

hence dismissed the appellant's claim over the house. He unsuccessfully appealed to

the District Court. Hence this is his second appeal.

In dismissing the appellant's claim both lower courts were greatly influenced by the

fact E that none of the four witnesses to the alleged Will was related to the deceased.

To the contrary, three of them appear to have some relation with the appellant. This

observation was strongly attacked by Lamwai, the learned counsel for the appellant.

He argued that since deceased had no relatives, it was quite proper for her to choose

any person to F witness the Will. With respect, I don't agree with this argument.

The requirement that at least half of the number of witnesses to a will executed under

customary law must be related to the testator is intended to act as a safeguard against

any possible fraud against the testator and the lawful heirs to the estate. In this case it

is not true, as the learned G counsel for the appellant wants us to believe, that the

deceased had no relatives when she allegedly executed the Will in question.

According to the record four people, including the respondent, testified before the

Primary Court claiming that they were related to the deceased. For example

respondent testified, inter alia, that his mother and H that of the deceased were

sisters. The claims of all these witnesses have not been countered by any evidence.

But even if deceased had no relatives at the material time, the need to dispel the

possibility of fraud on the Will still remains. For this reason, I totally associate with

the lower courts' suggestion that in the absence of the deceased's relatives, her ten

cell I leader ought to have been included as among the witnesses to the alleged

1988 TLR p65

MSUMI J

Will. This requirement was particularly necessary in this case bearing in mind the

fact that A deceased was a very old illiterate woman and at the time when she

allegedly executed the Will she was bedridden with long time illness. This fact

reasonably explains why Mr. F.S. Mbuya, the learned advocate who drew the Will

had to go to the house of the appellant where the deceased was staying to get the Will

executed. B

Besides the alleged Will not being witnessed by relatives of the deceased, there are

three other noticeable factors which make the Will suspect. First it is in evidence that

prior to the alleged Will, deceased had executed two wills in respect of the house in

question. In C the first will she had given the house to her husband. Later on she

executed another will in which she specifically revoked the grant of the house to her

husband and instead she donated the said house as a Waqf. Both wills were executed

before Ilala Primary Court according to the rules of Islamic Law. Appellant was aware

of this fact. Hence in D the absence of any reasonable explanation it is amazing to

note that deceased had freely decided to depart from her previous practice of

executing her wills before the Primary Court in accordance with Islamic law. The fact

that in her second will, deceased donated the house as a Waqf clearly expresses her

intention to have her personal E matters governed by Islamic law.

Secondly, according to the evidence of the appellant and four witnesses to the Will,

the advocate who drew the Will had to go to where the deceased was staying for the

purpose of executing the Will. It would appear that that was the only time when the

F advocate met the deceased in connection with the Will. In other words when the

advocate went to see the deceased on the alleged day he had already drawn the Will

ready for execution. The question which still remains unanswered is when and where

did the learned advocate confer with the deceased before he drew the Will. Or does it

mean G that all the transactions, that is getting deceased's instruction, drafting of the

Will, typing it and the execution were done on the same occasion. I find such

suggestion rather odd in that it implies that the learned advocate had to move his

office, that is his secretary together with the typewriter, sheets of paper and his office

seal, to mention a H few, to the house of the appellant where deceased was

bedridden. And even more odd, this suggestion means that while the advocate was

conferring with the deceased and the Will was being typed all the four witnesses had

already been lined up ready to put their I signatures on it. This sounds more of an

operation than routine office working practice.

1988 TLR p66

MSUMI J

Thirdly, according to the record, deceased died in April 1985. And under the alleged

A Will appellant was appointed administrator of the deceased estate on 9/1/85. Under

this circumstance one would have reasonably expected the appellant to take the

necessary legal steps in order to effectuate the terms of the alleged Will. For example

appellant was B expected to file probate administration cause in the appropriate

court. It is thus surprising to note that appellant took no such step and instead he

remained quiet till over one year later when he raised objection against the

respondent's application for letters of administration. This dilatoriness can be

explained by the reasonable possibility that the C alleged Will was drawn and

executed after the death of the deceased. I say this because of the evidence of the

three of the four witnesses to the alleged Will regarding the date of the death of the

deceased. To the astonishment of the Primary Court, these three D witnesses

positively testified that deceased died in April 1986. At the material time all these

witnesses were tenants in the house in question hence they were bound to get first

hand information of the death of their landlady. As deposed in the alleged Will, all

these three witnesses are literate and responsible people. One of them is described as

E administrator while the other one is "a consultant". Hence their positive assertation

that deceased died in April 1986 while deceased died in April 1985. The lapse of time

was too short to be confused. Actually what the witnesses were saying is that

deceased died about three months previous to the time they were giving their

evidence. F

Appearing for the respondent, Mr. Muccadam submitted that the applicable law in

this case is Islamic law and since appellant is a christian he cannot inherit the estate of

the deceased who is a moslem. Admittedly this is a strong argument. However, I don't

think G it is necessary to pursue this argument in order to determine this appeal.

Like the two lower courts, I have decided to confine myself to the question of

genuineness of the Will in issue. I am of the considered view that the cumulative

effect of all the factors pointed out in this judgment renders the alleged Will suspect.

The circumstances surrounding the execution of the said Will irresistibly lead to the

conclusion that there are some fraudulent H conducts involved. This appeal is

therefore dismissed with costs.

I Appeal dismissed.

1988 TLR p67

A