Ndewawiosia d/o Ndeamtzo v. Imanuel s/o Malasi, (PC) Civ. App. 80-D-66, 10/2/68, Saudi J.

Ndewawiosia d/o Ndeamtzo v. Imanuel s/o Malasi, (PC) Civ. App. 80-D-66, 10/2/68, Saudi J.

Plaintiff, the youngest daughter of deceased and the only unmarried daughter, appealed against a judgment awarding deceased’s land to defendant, the nephew of deceased. Deceased died twenty years ago survived by his five daughters, four of whom had married, and by the illegitimate son of plaintiff, whom he had recognized. Defendant bases his claim to the land on the fact that females are not entitled to inherit clan land and on the assertion that shortly before his death the deceased had asked defendant to take charge of the land. Both plaintiff and defendant are Wachagga.

            Held: (1) Traditionally, among the Wachagga and various other tribes of Tanzania, women were disabled from inheriting the property of their fathers in order that such property would stay within the clan. (2) The provisions of the Restatement of Customary Law [G.N. 436 of 1963, Cap. 333 of the Laws] are some what contradictory and do not appear to terminate this disability. Paragraph 29 declares a daughter to be a principal heir if the deceased has left no sons, but paragraph 20 provides, “Women can inherit, except for clan land, which they may receive in usufruct but may not sell”. (3) The disability preventing females from inheriting has been abolished in other areas of Tanzania.

[Citing Bi-Mwana Amina Mukubali v. Severini Shumbusho, Digest of Appeals from Local Courts 1955-1956, No. 88; Saidina d/o Angovi v. Saiboko Mlemba, Digest of Appeals from Local Courts, 1961 Vol. V111(No. 205.] The Court stated, “It is quite clear that this traditional custom has outlived its usefulness. The age of discrimination based on sex is long gone and the world is now in the stage of full equality of all human beings irrespective of their sex. Creed, race or colour. On grounds of natural justice  daughters  like sons in every par of Tanzania should be allowed to inherit the property of their deceased fathers whatever its kind or origin, on the basis of equality.” (4) In any event, the claim of plaintiff’s illegitimate son is superior to that of defendant, for an illegitimate child is a member of his maternal family. [Citing G.N. 279 of 1963, Cap. 333 of the Laws.] Appeal allowed and direction given that plaintiff and her son be put in possession of the Kihamba.