Petro v. Petro (PC) Civ. App. 212-M-70; 26/7/71; El-Kindy Ag. J.

 Petro v. Petro (PC) Civ. App. 212-M-70; 26/7/71; El-Kindy Ag. J.

The appellant is the step-brother of the respondent who was the elder and therefore the principal heir (MUSIKA) of their deceased father. The father had made two wills before he died. In the first will which he signed, he bequeathed his house (NYARUJU) to the appellant, but in the second will which was not signed, the NYARUJU was handed over to the MUSIKA. Immediately after the father’s death and after the reading of wills, the appellant occupied the NYARUJU. The respondent then sued unsuccessfully in the primary court to recover the NHYARUJU. On appeal he was successful. The first will could not be produced in court because it had been destroyed. The appellant led evidence of its contents. The respondent on the other hand alleged that the will had been destroyed by the testator himself after revoking t and replacing it by the second will. The issue was whether the first will had been revoked according to Haya Customary law.

Held; (1) “if a will is to be revoked its witnesses or the majority of them must be called and be informed of the revocation, but where this is not possible at least 10 witnesses have to be called to be present in order to make a valid revocation (paras.51 and 52 of Cory $ Hartnoll; customary law of the Haya Tribe). Two of the defence witnesses (Sadik Igalula, non clan member and Luca Lwakilala) were not called to witness the revocation. And it is not clear whether Rwenyagila Rwemhinda, the clan head, Rutabano Rwenyagila Matunda Rwenyagila, Thoddo Rwenyagila and Deogratias Bilhamis were witnesses in the first will although they claim that they were present when the deceased caused the first will to be revoked. In the circumstances, therefore, the customary rule contained din paragraphs 51 and 52 of Cory & Hartonll cannot be said to have been complied with in the light of the evidence on record. There was no indication why the witnesses to the first will were not called at the time of the alleged revocation of the first will if it was revoked at all.” (2) “In addition to this there was a serious conflict of evidence as to which will was in fact read. If the first will was revoked as alleged this conflict should not have arisen at all. Taking into account all these matters, I am satisfied that the evidence did not establish that the first will was revoked. In the absence of such proof, the appellant cannot be prohibited from inheriting the NYARUJU.” (3) “As the appellant right pointed out, where a will is lost he is entitled under his customary law (see paragraph 53 of Cory & Hartnoll above unquoted) to lead evidence as to the contents of the will. In this case, the written will was not available as it was in the hands of the adverse party, and therefore the evidence he led was admissible in law as to the contents of the will.”  (4) Appeal allowed.