19770812 TZHC Mwanza

IN THE HIGH COURT OF ThNZJJJIA

AT MWAN ZA (PC) CIVIL APi2ELL NO, 268 OF 1975 : (From thde±sen cf the district-court of dukob at Buk(jbe in Civil A - ezl lqoi 157 of 1972 - before I. K. NACHUPU, ESQO, 'DISTRICT N1GISTR.TE)0 CLE1--,ENCE134dUKKI ) 00 00 00000 000 00000000 APPdLLANT dl FULI,Tj KIMd;tNI) • versus ' ANTk-1C-NY RES-'Oi'ftflINT JUDGENNT: LUGAKINGIRA, J,:. IL The disout 1 hLS suit concerns tn_ authenticity f a sud.lenient to a will.' I 'ws -allejed by the rosj5or1nt that i'n 1970 the aopellari -Ls conspired 'and ferged his °fdthe's i11 by ictroducing therein aterial •which was intn'1ëd to' deprive iim Oofhis. ,inheriti, The first aipel'iañt, Clemence Bolukeki, is the respondent's uncle and executor ef the respOvnt' s father's will. The scorid, a'pe11ont, Bi Felista Kimw -tni, is th res;andent's step mother, ' The rcspondent's father', Paulo Bashonzi I3alukcki, died on or b:.ut' 28 Septemhor 1961. Previous thereto, on 23 August, 1959 1 he had written a will h'equeathinq his propurtics'tc IUS various sans and r1eu-hters', 'However, in the exercise b - ok -holding the will, there are 'su lementa boquests dated 7 I'iay 1961 It is '-these ac;ainst which the respondent complains, clairnYig that they were added b' 'the appellants in 1970. He claima.: 'that 'the forgery was brought to his attention by a District Magistrate at Dukoba in whose possession the will had came in connectin with soic, ether

1iigation. - After' heerinc; the' evidence, the rimary court at K-rabagaine fouid 'that, indeed, the sU1ëme -it was written by the first appellant. But the court also found that this suppleinont was written with •4ho authority of the espund'et's fa-thib--t,'.hcfore he lied, and that he signed it. The court did sci after 'taking intO acount the evidence of Vitalis Dikabeha Who as present when the deceased clictatOd the sup.lement to the first apoellant and who also subscried his signatuie thereto 0 The primary court therefore hold that the suiapl'enlent Was not a forgery. And as the said supplement did not in anyway infrinqe upon the resacndent's inheritance toe curt d.isnissed the suit for want (.f merits, The respondent successfully appealed to the district court. In allowing the res'andent' s apocal the apoellate maiistrate had this to say:- "In considerinc the case carefully I hold that the issue to be cnsidered is whether a aerson can make an 'addition to his first will or he can't The issue concerninc' th. law it is clear no addition can be made to the first will given; but the will can only he revoked -icc .rdino to the rovisi' - ns of Para Na, 51 and 52 of Bahaya Customary Law by Cory and Hartnoll," He then set out th,.I said paragra ths and went en to hold that the 1959 will had not been validly revoked. He therefre h01d the Supplement to he 10v ±d, The appellants

a'pcaluc1 her 0 It is -at nco c1ar that the appellate mecistrat. c'i:fused himself in the c ursa of answerinq the issue h framed. 0 -2- T:Jh e r ea s the issue was whether anything can be added to a will, which he answered in the negative, his final conclusions were directed to the revacetion of the will0 In answer to the issue framed I would state, contrary to his views, that it is lawful to odd osupJauent or supplments to awill, These are tcchncally called :dicils. It should nt b difficult to macme such a aituotion arising prticplar1y if the testator lives lc.-iq after making his will and acquires additional property. asus, th rrL, -'re uhLther the sunl aent was maJle by the resoandent' s father and whether it revoked, his will0 I have found a difficulty in acceptiri the evidence of the first appellant. Anpa:ently, the res'- ondent' S father was a forgetful old mane The will itself was concluded, twice0. The supalem•::nt was c eicluded three times. He would acid sumetcing whenever it came iot.: his mind after coricludiric. Th supplerrient is thus signed three times by }hI' 'thh signature is the same as in the parent will 0 I therefore agree with the primary court that the supplement was dictated to the first apllant by the deceased This is confirmed by the corroborative ovide,nce of Vitalis Dikabeha who'subscribed his signature to this supplement Im thus satisfied that the

su)plomontt was not written posthumously but is a genuine document. The respondent had allpgcd that the forgery was drawn to his attention by a District iiaeistrate whomhe named. He did nec call this iaaistrate as a witcie ss although, to my knowledge., the 'istrate h a s all oloag been and remains staticed at Bukoha. His evidence was there -fere nure hearsay. Soco.dly, it is a fact-that the said su":plement did net, revoke. the.:'W1110 I have gano through it 'carefully and noted that it'des net even alter an -iota in the will. It only clarifies a boundary eoint between the resn:ndnt's br:thers Edward and Yoakimu, who have no interest in this suit, and ...... ':25 en to make bequests of certain moneys,, • 'In the light of th foregoing, I find that the appellate maoistrate erred in upsetting the decision ef the r:rimnr,r. court. I find that the will and the supplement thereto are both valid ad genuine. In 'fact oven the deceased's property 'was distributed according to the will so that it is ourely. academic :tb sak of its revocation. eac as the respondent' s inheritance lw ,as not infringed upon in any way it is in fact doubtful whether there was o cause of action here.. I accordingly allow: the appeoi and order the.respondentto bear the costs in all the three courts, , S. K.' LUGId(IIfGIRA, JUDGE: 12/8/77