Reverian Byamanyilwohi v. John Mutegana, (PC) Civ. App. 196-M-68, 27/11/68, Seaton J.

 

Reverian Byamanyilwohi v. John Mutegana, (PC) Civ. App. 196-M-68, 27/11/68, Seaton J.

The respondent John claimed in the Primary Court a banana and coffee plantation, which he had inherited firm his deceased aunt, Bi. Gwezile, in 1956. The appellant Reverian disputed the claim insisting that he is the true heir, having been adopted by Bi. Gwezile as her son. John produced two Wills dated 20^th July, 1956 and 22^nd July, 1956 respectively, by which Bi. Gwezile bequeathed to him the plantation. Reverian produced a later will dated 15^th May, 1963 in which Bi Gwezile cancelled her previous bequest to John and conferred it instead on Reverian. Each party produced several witnesses who testified in support of his title. The primary court found that John’s will was still valid because Bi. Gwezile did not call and inform him of the cancellation of her previous bequest. However, the court held that Reverian was entitled to a portion of the himself and which he had been given by the deceased Bi Gwezile during her lifetime in the presence of John. Both assessors concurred with the magistrate in this judgment that the disputed plantation should be thus shared between the parties. On appeal to the District Court, John challenged that part of he judgment which awarded a portion of the plantation to Reverrian. The District Court, John challenged that part of the judgment which awarded a portion of the plantation to Reverian. The District court upheld the primary court’s decision, citing Cory and Hartnoll’s Customary Law of the Haya Tribe in holding that according to the Rules of Customary Law which were applicable at the time, that is to say, prior to G. N. 436 of 1963, the two 1956 wills are invalid since they were not witnessed by any clan member. However, the District Court gave effect to the invalid will since the latter was not questioned by the respondent Reverian, citing High Court Appeal (PC) Mwanza No. 239, 1966. The learned District Magistrate had a different ratio decidendi for upholding the disposition in Reverian’s favour. Whereas the Primary Court held Reverian was entitled to a share of he plantation because of a disposition inter vivos, the learned District Magistrate held the 1963 will to be valid and concluded: “My viewing the portions of the testator’s holding I have become both satisfied and happy that these are almost equal shares, as each of them had contributed to her guardianship and as the litigants possess equal degrees of relation to the testator.” Reverian has now appealed.

Held: (1) “It is nowhere indicated in the record when the testatrix died but at the hearing of this appeal, the appellant stated that it was some time in 1967. The law of wills, G. N. No. 463 of 1963, came into force on the 1^st October, 1963 but it was directed to be the Local Customary Law binding upon Africans in the areas subject to the jurisdiction of the Buhaya District Council by G. N. No. 605 of 1963, which came into force on the 1^st January 1964. Is it the provisions of the Law of Wills, G.N. No. 463 of 1963, or the customary Law prior to its promulgation which should determine the validity of Wills made in 1956 and 1963 but coming before the Court for enforcement in 1968? In their introduction, the learned authors of the Customary Law of the Hay Tribe are at pains to point out that their book can in no way be considered a code but that their book is a collection of Customary Law as it stood at the time of complication, which was 1945. they also note that rigid observance of small matters has never been a rule in the application of customary law, thus when their book states that 10 witnesses are necessary to a will, it is intended to convey that “approximately 10”, that is to say, 8 or 11

would normally suffice. The object of the Local Customary law (Declaration No. 4) Order, G. N. No. 436 of 1963 was to state the law in a form as concise and accurate as possible and at the same to make such modifications as seemed expedient and compatible with written law. This may be ascertained by reference to section 53A of the Local Government Ordinance, Cap. 333, under which the order was made. No doubt it was though that the advantages of uniformity and predictability were greater than any possible loss of spontaneity and natural growth. It seems to me that to hold one is bound, despite G. N. No. 436 of 1963, to apply to the 1954 and 1963 wills inflexibly rules set out in 1945, would be to forego the advantages of the Declaration of Customary Law and to use the work of Cory and Hartnoll in a manner against which these learned authors had expressly warned.” The court here referred to Paulo Ferdinand v. Frugence Begutu, 1968 H.C.D. number 29. (2) It appears from the evidence in the present case that the appellant and the respondent are cousins, equally related to the deceased Bibi Gwezile and equally entitled to be her heir-at-law. If she had preferred either by her will and disinherited the other, the latter could have applied to the family council, or failing that the court, as to whether the disinherited the other, the latter could have applied to the family council, or failing that the court, as to whether the disinheritance was justified. [Clause 35, Law of Wills, 1963]. It seems that by her bequest to John and her inter vivos gift to Reverian Bi. Gwezile has given approximately equal shares to each potential heir-at-law. As both magistrates of the lower courts and both assessors concur that this is an equitable sharing of the estate, I see no reason for this Court to interfere.” Appeal dismissed.