19730105 TZHC Mwanza

IN THE RICH COURT OF TANZANIA T M 'NZA cI (PC) CIVIL APPEAL NO. 97 OF 1971 OF (From the decision of the District Court1FEB1W3..j of Bukoba at Lukoba in Civil Appeal No, 45/71 - beforeg J. Mboneko isq., D,.M,. AI and Nyakato Primary Court Civil Case No.. 39 of 197 0 ) C LJMjNCAI BhRNAID ..... . o a a a a . a , ......• • • , • .............. APPELLANT versus NES'ro±Y BARTFiAZAR) . a •I•••• . • •• . . ... 0•• • •.• hESPOifl.2NTS. 1KLUMEYtJNGE ) • •• .....• • JUDGEMENT. EL-KINDY, J. The appellant, CLE14NCE BERNARD, took invaLaating proceedings, in the primary court of Nyakato, in respect of a :.i11, alleged to be the will of his late father, BERNADO TINABYONLEIRE. He alleged that the respondent- s, NJISTORY BALTHAZAR, the first respondent, and NAKW.&LU M'LJYtJNG., the second respondent, had forged a gill whichs father never made. The respondent's denied the allegations. The alleged will, Exh. A, was written, in Kihya, by the first respondent. It was dated the 29th day of September, 1967. It was written in ink. It was sined by the writter., the second respondent, and JUMA KYANLYAIYO. All the sinatories well alleged to be the clan members of the testator and, therefore, of the appellant. It was thunibprinted, and noted that it was the alleged thumb print of testator. Below the same document an entry of the 2nd August, 1968, appears and countersigned by one Chrysogoni Jacob and

Kajelelo (Village Executive Officer). The will itself reads, in English, as followsg- "Buhembe Kahigi, Nyakato, Kyamtwara 29. 9. 67 I, Bernado Tinabyombeleire, have today constructed my will annulling that one I made on 12.8.63. I wish to add some alterations my reasons being thatg Before I constructed my first will, I had given Clemence a piece of banana land but before I could write my former will, he left the land to grow weedy. Rven after I constructed that will, he continued to neglect that land. dhen the situation could not change I cleaned that myself in his presence and I told him that I was depriving him of this land. Therefore, I hereunder give my will respecting the banana lands:- I give to Anastazia iVlukalamagi the upper portion of land which is close to the land of Barthazar (boundaries defined). give to Juliana w/o Clmence the lower part of the shamba which Lis to use with her children. I give my house to Juliana and Anastazia who should live together such as they are now doing. Till now, 29.9.71, I have 5 goats. I give two goats to Anastazia.. The remaining 3 goats, in case I will not have sold them, will go to Juliana with her children. I had given some goats to Clemence who gifted one goat and the other one I. sold it to realize money for his debt which he had incurred from one man of Kiziba area. The land. of Kaabanye belongs to Clemence as he had developed

it himself. The small open land, which is near the path leading from the house of Bagoka is for Anastazia and Juliana who have been using it to grow crop. If Anastazia can wish to move away, let her leave the shamba to Juliana with her children. The writer of this will. (Sgd,) Makya K.B. Ne st or,, .... . . /. (Sgd.) Juma kyamulyango (Sgd.) Thomas hweyunge. Finger mark of: Bernado, Tinabyo Kalokora . 0 4444 4 4444 4 44 4 000 *• 2.8.1968: We have read this will before the public and it has been accepted. (Sgd.) Chrysogoni Jacob. (Sgd.) ILajelero (Village ixecutive Officer). The appellant was the only son of the testator. Bs had been married to the woman mentioned, in the will as Juliana, and he had children by her, but he claimed that he had been living apart from her for not less than 11 years. In the mean time, Juliana went to live in the hodse of the testator taking the children with her. Juliana shared the house of her father-in--law with her step motherin-1aw referred to, in the will, as Anastazia. Anastazia was the step-mother of the appellant. Upon the death of the testator, the will was read in public. It was accepted and confirmed by members of the thn as the valid and last will of the -testator, the father of the appellant. However, the appellant immediately raised objecti- ons regarding its validity, but the clan membars wore satisfied that it was valid, and proceeded

to distribute the property of the deceased as directed in the will. It was interpreted as having displaced the appellant as the principle heir and heir at all except on various mentionea items, and that his elder son became the princile heir. It was further interpreted that Juliana and Anestazia would have the use of their respective portions of the shambas and Juliana to share that shamba with her chuldren. She had six children. vihn the clans people confirmed the said will, the village Executive Officer, as is customary, signed on the will. The late Chrysogoni Jacobo, who was then the head of the clan, signed on behalf of the clan. This as done inspite of the appellant's clear protests. It was also known that the testor was literate, but at the time of making his will, he had been lying struck with paralysis. It was alleged that one side of his body, including his right arm, was not functioning, and, therefore, he could not write himself. It appears that he had been unwell for a considerable length of time, and he had even been in hospital, before he passed away. In his evidence-in-chief, the appellant said that his father had never made a will; that the purported will was a forged one; that his late father was literate and therefore he could have written the will himself and signed it; that it was not witnesed by clan members; that during his last days, his father had been

mentally unsound as he had been sick for a long time and therefore, if he had made any will, it was invalid; and that the will was bad as in customary law it willed property to a non-clan member i.e, Juliana. In support of his claim, the appellant called a number of witness. Ndibalema Kahaba (pw.i), his paternal uncle and junior brother of his father, said that he was aware that his brother had made a will and that it was bjch. A. He submitted that the appellant's son was made tie principal heir (Musika) in place of the appellant. He agreed that the appellant was die-inherited because he did not maintain the deceased. As it can be seen, the evidence of Ndibalema was contrary to his ôause and in favour of the respondnt. On appeal in this court, the appellant submitted that the evidence of Ndibalema should not have been accepted because he had not been present when the will was made. This was a rather stranger submi- ssion bearing in mind that he was bia witness, but, because he gave evidence contrary to hathe expected, he sought to disown him. It is true that Ndibalema was not present at the will-making, but he claimed that his late elder brotherhad informed him that he had already made his wil1 It may well be his evidence was weak, but there was no reason.to believe that the deceased had not told him since they were real brother. Ndibalema had no cause to favour the children of

the appellant rather than the appella nt himself. If he had been unaware of the will, he would, certainly, have spoken the truth. The fact that he agreed that he was aware of the will goes to show that it was not true that the deceased had not made a will as the appellant suggested in his evidence. •t••p ./3. His next witness was Baijtxka Tikwatana (P: 1 .2), another brother of the deceased. He was unagare that the deceased had made any will, but he did accepted the will, read in public, that it was the genuine will of the deceased. Therefore, although he was not present when the will was made, he had no cause to think that he ought to have been called when the will was made or that he produced will was not genuine. Benedicto Mwangi (P4.3) said that he knew nothing about the will as he had not oven been present at the funeral, Kajelelo Byehulilo (PW.4), who was the Village &ecutive Officer at the material time', said that after the fu±iera,l and after the will have been read and confirmed, he signed it in his offici capacity to certify confirmation by clan members. So far as he was concernud, he did not know whether the said will was legal or otherwise. And Ngaizi Kagaruki (Fyi.?) said that the deceased had been his friend and that the deceased had been sick for "many days". He said that he once asked the deceased if he had made his will, but he told him that there was no need

as he had only one son. To his knowledge, the deceased had not made any will.. Nevertheless, he said, he kias present when the contents of the will were read. And in cross exaiaination, he said that the deceased was literate, but he could not then write, bec;us''was in complete sense to enable him to construct the will." He said that his hands were then trumbling. Even Ngaiza Xagaruki's evidence is not strong evidence in favour of the appellant. There was no obligation placed on him (Ngaiza) to be present at the time ' of executing the will or be told about it. His evidence left no reasonable doubt that, although the testator had been sick for "many days", he was mentally sound. This went against the allegation of the appellant that his late father was mentally sick, The first respondent said that he wrote the said will in the presence of the second respondent and Juma and that the contents of Exh. A were the last words of the deceased. He agreôd that the clan head was not present when the will was written on the 29th day of 3eptember, 1967.. He said that the deceased told them that he was willinS against the appellant baaue he had not helped him in domstic affairs. The second respondent, inter ali, said that clan members were present at the makin, of the will. Jurna iimula- yugo (Dvl.3), another brother of the deceased, said that he was present when the will was executed. With

the above evidence, thtrial court dismissed the appellant's allegation, as they found that the will was the true will of the deceased and that will was not only witnessed by members of the clan, but was, subsequently, confirmed. It was therefore, not necessary that the clan head should have been present as the appellant said. The second allegation was '- that his father vJas mentally unsound. This again has no merit. The evidenc. showed that he was quite sound and did compose his will. The appellant conceded that his father could have denied him inheritance for sufficient cause. The will itself and the evidence of the respondent No. 1, showed that he had been disobedient, and, therefore, he could have been disinhe'rited in the manner the deceased did it. In my view, therefore, I agree with the lower courts that the appellant failed to show that the document Exh. A was not the genuine will of his late father. A will is a sacred document of the maker. It should not be inte'rferred with easily and without strong evidence. The testator had the liberty to give his last words as to the distribution of his property within the bounds of his customary law. Appe- llant was unsuccessful on appeal in the District Court. I allowed the appellant to speak to his full in this court, and he spoke for a considerable length of time. In the course of his speech, he had even attempted to suggest

immorality on the part of the respondents with the women mentioned in the will. However, this appeal can only be determined on the basis of the evidence on record. On his own admission, the respondents and Juma were members of his clan. The second respondent and Juma signed the will. Therefore, the will was witnessed by members of his clan. There is no limitation as to the number of witnesses required ender the original Haya Customary law (see Corry and Hatnol: Customary law of the Haya tribe,.paxa 38, p.12) or the Local Customary, law (Declaration) (No, 4) order, 1963, ON 436 of 1963, the third sohedu1 - SHERIA ZA' WOSIA, which apply to the case. It was, legal. I cannot say that the deceased vialated any provisions at Law, ctL$tomaz7 ox statntø.rr, in"varving his will S. •. . A. in the manner stated in Exh. A. As a result this appeal is dismissed with costs. If there is any dispute as to the amount of costs to be paid to the respondents, the D.C. of Bukoba is directed to hear and determine such an issue.. And as I indicated to..the parties, they should be notified of the results of this appeal. Delie.red at Mwanza on the 5th day of January, 1973. . 2 (z N. El-Kind,y) tttfft*# ;: S