19760606 TZHC Bukoba

.: - 7 Z TJuZ!NIA AT MWANZA (PC) CIVIL r'tEfL i-O 31 C1' 1975 (Frcm the decision of the Ditrict Court of ukoha at Bukobai.n : Cvil Appeal No. 172 of 1974 before A.N. Russeta, Esa., D.I'. & Kashasha primary Court Civil Cbe INo. 25 of 1973) JOSEPH KAHALILA 0 0 • . •. APPELLAN.T • Versus CHRI TIAN KALII3ANJULA • . RESPOND JUDGMENT MFALILA, J0: This is a second appeal by the appellant JOSEPH KASHALILA who sued the respondent. CHRISTIAN KALIBAJULA in the Primary Court of Bukoba district at Kashasha claiming that the respondent should restore to him a sharnba worth Shs. 2,000/= which he claimed was wrongly beqthed to the respondent by his respondent's grondmoher the late Bi 0 Cecili. These claims were rejected by the Prima .-i Court which held that the appellant had no legal claim to the portion of the sharnba he was claiming. His appeal to the district cour± was dismissed on the same grounds. Hence his appeal to this Court. During the hearing of this appeal, Mr 0 Sangani who appeared on behalf of the appellant argued forcifully that the will of the late Bi 9 Cecilia should not be given effect to because it was invalid for the following reasons:- (a) This will was not road at the funeral of the testator as required by Bahaya Customary Lsw. (h) The will was made at the time the testator was seriously ill hence she could not have been in full control of her faculties. (c) The testator did not state in the said will why she was disinheriting the appellant. In ordinary circumstances, these defects in the will if proved would have definitely invalidated the will of the late Si. Cecilia, for the rules of customary law on these points are quite clear. But the appellant's position is by no means ordinary, for before he could successfully challenge the validity of the will, he had to prove in the first place that he was the deceased's legal heir and that his right to inheritance in the deceased's real estate ranked higher than the respondent's. After a careful reading of the evidence he led in the trial court, I am satisfied that far from doing so, he did not even establish his right to inherit the deceased's estate. It appears that the deceased Cecilia died leaving no thildren of her own and that to all appearances she was not married. The appellant's relationship to the testator has been variously described, he himself described himself as a stepson of the deceased. But other witnesses described him as an nephew of the deceased i.e. the sister's son. On the other hand the respondent has been described as a grandson the evidence is not clear how. Paragraph 15 of Cory & Hartnoll sets out the customary rules of the Bahayn tribe governing the hetz' of of women who dio unmarried or those married but without children. It is provided that the property of such women.psses to the father, failing whom, the eldest brother (full blood), failing whom, the eldest sister (full blood), failing whom the eldest brother (half brother) failing whom the-eldest sister (half sister) failing ihom the noxt paternal relative. It is emphasized that the inheritance of the Bahaya people is partrilineal. The appellant did not prove his lineage which gave him priority over the 0000 ./2 other claimants to enable him to claim that the wili was invalid as it failed to state why he was disinherited. ! In fact hewas lucky. to ciet what he did in the will oarticularly if the evicience of his own witness P.W.2 Bi Terezia Bwiruka is taken into account. I am satisfied that only uncô- ntrolled greed led him to challenge the res:ondent's right to retain what he was giyen.bythe late P1. Cecilia, For all these reasons, I agree with the views of both the Primary and Distct Cous dismissing the appellant's claims and allegations which are based as remarked on uncontrolled greed0 His appeal is accordinqly dismissed, but as the respondent did not appear, I will make no order for costinhis favour. BUKOBJ, L. MFALILA grd ±une, J7 J1J)GE - • • a