19801128 TZHC Mwanza

C au e --s IN. CHL HIGH IDURT OF TANZANIA

AT MWANZA • (i CIVIL APPLOL NO. 49 'F 1971 (From the decision o' hé District Court of BUXOB at BUKOBA in • Civil A?1-eal No. 4 of 171). BI. ASTERIA VLR5US (i) HASSAI BBISIGA(O * RLSI ONDLNTS (2) DA61E MUTASA ' " • 5UBJECT: Inheritance

JUDGMENT KATITI. J.: Upon the death 'of their sister Halima Babisigayo, the first reepondert Hassn'Bbisigayo produced .a doáamerit, that he calle. the late Halitfla Eabi'igayo's will, The said document pp.orted will a shamba, a plot with foundation, to the first respondent, and the bags and otier movbl' properties to the appellant6 A?parently the clan members administered the property according to the same, after which the first respondent sold the plot and foundation, to the 2nd respondent. The a?pellant filed an action first claiming that, although the deceased's will was executed according to the wishes of he deceased, the plot plus its foundation were not mentioned in the wilL She contended., that, since the will, willed ten bags of oment to her, the clan el.ére dec4ded to give to her the plot and its foundation. She claimed therefore that, the first"respondent illegally sold the plot to the 2nd respondent, and further unlawfully failed to surronder the ten bags to her. Therimary Court 1 as well as the District Court, found the appellarrt's claims without foundation. First as regards cement, the evidence ie,overwhelming that, nobody, including the first respondent 1 knew where it was, and it would be unfair to impute the same upon the first respondent. As regards the plot on which the foundation waj built, while thl 2nd respondent admitted to have boaght the same the

appellant b'a'es he' claim to the same 1 through inheritance of the same through the; clah Cóunoil But nóne of the clan members was prepared to supot heti The 8jpellarit herself said as-hereundr- "Mimi, sina shahidi kwa sababu, waku.0 Wa ukoo wote wamekatea kunitolea ushahidi, kwa sababa, nilizozana nao, kwa hiyo sina ashahidi wowote, waku.nisaidia". I cannot imagine how all the clan members would have failed to give evidence in support of her claim, if she was right in making such a claim. But all the same the claim, that the plot and foundation was inherited by her through the clan council is mere assertion, and therefore unproved. But again, the respondent No. 1 claimed to have inherited a shamba, and the claimed plot through the will exh. B. The trial court, found the said will invalid. However having so foun, it procoeded to endorse the administration of the deceased's property, according to the same said invalid document. The question in such an event is, would the o44 council have administered the said property in the same fashion and manner, if Ao such document, had been produced? I think the right approaoh, after irWalidating the document, would have been, to send the parties aok to the clan council for the administration of estate, in the maner .. 2/.. • . : C - 2 irevailing inthe area, and as if the said document had not.been produced,, Since the apjlicants claim did

not sicceech andsincetIerasondent 70. ls produced will, is invalid 1 then triero is a ±o. 'roLer dmiiiistrtion as the pxrty ..wotUd remain hang two. It is therefore ordered 7 that clan Council administer the rocrty 7 as they would have dore without a wills Loch party to bear its own cost .. ............. MWANZA L b KATITI 1B JxNJRY, 1981 JDG - •.. ...--. .. .. ii ....... ia C - .11 1 . I • .•; •. •..•• o. . -1:'' . . .. ..... ;• •: - •.. L •.. -. • : .:.- :.;.1 •-'. • .-::..'' :.: -' ; b ... • :., •-.- . . .. • ••, . . .. •• :: • .•, - 2- The defendant maintain that Anne Ylabula (P:..W.3) never made the four depositsas she cla.imed. The. defe.ndant1ed evidence to show that the pay -in slip forms alleged to have hfl fille.d by PW I and given to PW. 3 had not been stamped with the hank's tamp nor signed by an employee of the hank. The defendant ma-intain therefore that Anna abula (Pw 3) never made the deposits at all.. - - This case esentallytates on the -issue of credibility... t closelyexamined Anna VIa'nula (PW 3). She gnerally gave her€vidence in a straight forward way and without h tati on3xcept when it got to an issue of some procedures wheYi making. deposits...ThelearYied counsel for the defendant has submitted that her repliesi.i this regard should be taken to mean that the witness (Pw3) was telling lies and consquentIy she should be taken as an anrelahIe tness. Aftcr

dUe consideration, I am unahle to accept this submtssion. 1 t It is in evidence that Anna Mahula (rw 3) had been to the bank on those assignments for a'öut two weeks prior to 29/TI/7 8 . On my a'oservation of her, she is fairly rural; the hank activities may very well have confused her, It is not of—course the submission of the defendant that P11.3. had never been tothe bank for any oier. bifle.5 of theplaintiff hence her failure to sufficiently or properly decribe some banking procedures, I accept that ArnaMabuld (pw 3) had made some deposits at the hank on behalf of pantiff prior to 29/11/78 and that her fdilure to corrdctly explain a hankingprocddure should not he taken as evidence that she acttia1y never made the four deposits that form the subject matter of this case. I accept her as a relahle witness worthy of credit, I aloThôcept the evidence of superitendent John 3mmanuzl Bunga that exhibits A, F, C and D were not starped with the bnk's stamp, .1 further accept his evidence that the signature on exhibits A, F., C, and D does not resemble that of teller number three, Having so found, on myassessment of Anna labula (w 3) 9 I accept her evidence that she did make the four deposits, forming the subject matter of the case, at the bank and that she 'did this at the counter manned by teller number three. I accept as valid thelerned counsel for the plaintiff's si.hmi.ssion that

all tht the plaintiff has to prove to suced 1.8 that An±iaYJabuia (i 3) had paid i,nt.o the bank Shs. 26,450/= asevde.nced by exhibits A, B, C and D. It is not necessary for the pla-inti,ff to further prove that the stanip usedbelonged to the hank and thtthe teller's signatur was genuine. That exercise would be difficult if not impossihle to accomplish, It is enough to show that the moneywas de.posted into the bank, within banking hours 2nd that the deposits werereceived by an employe of the hank who to the customers had the authority to accept the deposits. In the present case, I accept as estahlishd that 'Anna la . bula made the deposits at the Funk's counter and within banking hours, It was nbt Anna \ahula's duty to endure that the hank teller waF3 usingan offibi,al hank stamp or was appending ai,gnature that was ordinarily h15. In lightThf the above, I would answer issues ?iumher 1, 2 1 3 1 4, and 5 positively. Imccordingly enter Judgment in the sum of shs. 26 9450/ for th ai ,f a t an interest of 9% per annum from the date of depØib 'töfi ,-'rnent of the same. # / - \4

YPHYI RIJT 8/ii/ 80 1 JUDrTE