BILIMBASA ZACHARIA v JARVES JOHN 1983 TLR 67 (HC)

BILIMBASA ZACHARIA v JARVES JOHN 1983 TLR 67 (HC)

Court High Court of Tanzania - Mwanza

Judge Bahati J

October 25, 1983

(PC) CIVIL APPEAL 203 OF 1982

Flynote

Customary Law - Haya - Succession - Inheritance of land by female member of the

family. D

Customary Law - Guardianship - Maintenance of minor by elder children of same

family.

-Headnote

The appellant was an elder child of deceased entrusted with maintenance of his

young E sister. Before his death, deceased distributed his land among his children,

including female members. One of the daughters was a minor, whose guardianship

fell on the appellant. Appellant failed to maintain the minor and even sold the land

that the minor had inherited from their deceased father. On appeal the appellant

argued that the minor F as a female member was not entitled to inherit the land.

Held: (i) No heir can take full possession of a plantation until the death of his wards:

G

(ii) a sister may claim maintenance from her full brother whether he inherited

property from their father or not.

Case Information

Order accordingly. H

No case referred to.

[zJDz]Judgment

Bahati, J.: This is an appeal by Bilimbasa Zacharia who was the defendant in the

Primary Court. Jarves John, the respondent in this appeal appeared as next friend on

I behalf of Theopista Zacharia who was the plaintiff in the Primary Court. In

1983 TLR p68

BAHATI J

the Primary Court Theopista Zacharia through her next friend Jarves John sued the A

appellant Bilimbasa Zacharia claiming Shs. 4,000/= for a piece of land which she had

inherited from her father Zacharia and which Bilimbasa had sold away. According to

the evidence adduced, Zacharia now deceased was the father of Bilimbasa and

Theopista and also one Paulina the elder sister of Theopista. Because Bilimbasa had

quarrelled B with his father Zacharia and because Bilimbasa behaved like a knave or

hooligan, guardianship of Theopista who was hardly a year old was entrusted to

Paulina. Furthermore the deceased Zacharia apportioned his land to Bilimbasa and

his two C sisters Theopista and Paulina. Each one of them inherited a portion of

their father's land. Then Bilimbasa sold the piece of land which Theopista had

inherited to another person without the consent of either Theopista or Paulina, his

two sisters. Moreover Bilimbasa who was supposed to provide the infant Theopista

with necessities of life as her guardian D did not do so. This suit was brought to

recover Shs. 4,000/= from Bilimbasa who had sold even the portion of land for use by

Theopista.

In the Primary Court it was held that women cannot inherit clan land. The Primary

Court Magistrate cited section 20 of the second schedule to the Government Notice

No. 436 E of 1993 which states thus:

Women can inherit except for clan land which they may receive in usufruct

but may not sell. F However if there is no male of that clan, a woman may inherit

such land in full ownership.

The suit was then dismissed.

On appeal to the District Court, the learned District Magistrate referred to s.20 cited

above. He however, held Theopista was entitled to inherit because that was the wish

of G her father. He also held that the buyer of the shamba which was sold by

Bilimbasa ought to have known that the shamba was in dispute and that it was not

supposed to be sold. Thus the buyer bought the shamba at his own peril, concluded

the learned District Magistrate. He then allowed the appeal of Theopista and ordered

the buyer of the H shamba to vacate it forthwith and to claim any expenses incurred

together with the purchase price from Bilimbasa. Against this decision Bilimbasa has

appealed to this court.

In my evaluation of the evidence I do not think either the Primary Court or the

District I Court arrived at a correct conclusion. The District Court brought in a

foreign element in the case and that

1983 TLR p69

BAHATI J

is of bringing in the buyer of the land in dispute. The buyer of this land (whatever his

A name is) was not a party to the suit nor was he made a party to the suit in any way.

He therefore cannot be penalized unheard. Secondly, the claim in the Primary Court

was for Shs.4,000/= because Bilimbasa had sold that piece of land which was for use

by the infant Theopista. The claim is not for a shamba worth shs. 4,000/=. Therefore,

the relief B which the District Court purported to give was not a relief which had

been claimed. For these reasons, the decision of the District Court cannot be left to

stand. It is hereby set aside. But that does not mean that Theopista has no relief. I do

accept the law cited C above with regard to the right of women to inherit clan land

(s.20 of 2nd schedule to G.N. 436 of 1963). But in this case even if Theopista did not

inherit the land, certainly she had it for her own use. The appellant Bilimbasa sold

this land thereby depriving her of her means of livelihood and this Bilimbasa who

was supposed to be her guardian in D law was not providing her with anything for

according to Cory and Hartnoll:

No heir can take full possession of a plantation until the death of his wards.

And paragraph 261 of Cory and Hartnoll provides: E

A sister may claim maintenance from her full brother whether he

inherited property from their father or not.

In this case both paragraphs cited above are relevant. Bilimbasa being the only heir of

his F father's plantation, is not permitted to take full possession of the plantation

until the death of his wards namely Theopista and Paulina his sisters, for he is the

guardian of these 2 sisters. In this case he not only sold his own land left to him for

his use, he even sold the land meant for use by Theopista. It is clear that because

Bilimbasa went against paragraph 261 of Cory and Hartnoll, she is entitled to claim

maintenance from G Bilimbasa. In this case not only is Bilimbasa not maintaining

Theopista, but he has sold even the land which would go towards the maintenance of

Theopista. It follows from the above that the claim for Shs. 4,000/= is justifiable and

should have been allowed. The claim of Shs 4,000/= from Bilimbasa, therefore,

succeeds. The decision of the Primary H Court is reversed but for different reasons

from those of the District Court. The decision of the District Court is therefore set

aside and judgment is entered for the respondent Bilimbasa in the sum of Shs. 4,000/=

with costs as claimed in the plaint. I

Order accordingly.

1983 TLR p70

A