19760713 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA

AT MWANZA (J . C 4~, (PC) CIVIL APPEAL NO0 244 OF 1975 (From the decision of the disric courLof Bukoba at Bukoba in Civil Appeal No0 122 of 1975 Before A 0 N Russeta 7 D N0) JOSEPH POLICARPO 0 0 0 0 0 0 0 0 0' 0 0 0 0 0 0 0 PPELLJJT Versus BENEDICTO KANYABO 0 .0 0 0 0 ... 0 0 0 0 0 0 0 0 0 0 • RESPONDENT CLAIM: Inheritance by wil1

J U D G M E N T KATITI, J0: Joseph 'Polikalipo the appellant sticcess fully filed a suit in Kato,in Primary Court, claiming that he was entitled to inherit all the imn9wtb,le. estate of the late Kyeleta, as the' said late Kyeleth had willed the ,sarn, t o him through a-will Written in 19580 He claimed that the re,sondent and another'.wre not entitled," . . The appellant and the tespondent are all AGIRI" by clan0 An'd in terms of blood relationship proximity, lat,e Kye1eta father of the .appellant. ,nd father of the 'respondent were brothet, so that the deceased, ws the ..parternal uncle of the respondent inas'much as he was the same tothe appell'ant. 'So that 'is-a--vis the deceased the, parties are equal distant relationship-wiseOA4-- Tire deeaSed 'died in 1954 childless and that 'his estate coisi.std, of two shama 'is very clear oh the evidence' The deceased also outlined his. wives who erê widowed by iis death. They were Bi e. Oakiwa,w/o K:oleta. , and Rugenia.Tibeshana w'/o Kyeleta ech occupying a samba of her own0 The appellant claimed that before the deceased died he wrote will,. in-the con'fiience of Martina, who incidentally never some evidence, bequeathing all his immovable property'to him and appointng.the appellant's father as their guardian 0 Th1 will was'writhen in 1958 and it was tendered in Court as Exh 0 'A. It is' only.ignedby thedeceased'and his two wives 0

,However, a,the deceased enjoyed long -' erlease ' of life, than feared 2 he wrote anOthe will dated 25/5/1962 bequeathing all his immovable property to his,, •,,,wive. castigating .all and sundry in the clan, ,and in fact purôortin'g to disinherit the clan, for neglecting him diring the period he'wa sick,. One'of the'deéaseds wives Bi Otakiwa w/o Kyeleta died in 1966 leaving "her" shamba in' the hands of the out.iving widow Bi-Rugenia Tibes-hana who died in 1975 leairing a "bill" exh. 'C' dated 21/7/1969 bequeathing the two 8hambas to.three people one shaiuha to' be wholly inherited by the .-- appellant, while' the second shamba to be shared by the rspondent,.and one Yustace:Byanyunua0 This distribution of estate was endorsed by.the.Bagiri clan Council..,! It is agalnsL his decision that the appeilart h a s bee labouring agalnsc claiming that the 1958 'il1" should bv.een adheLed With the facts clear 2 I shall now 'dwell on' the legal ,im1catious invoLved In the first place it is settled that the inimovablé proper*Cy. I. involved is a "Bagiri 9 clan property 0 We have two "wills'" one writt in 1958 and another written in 1962 by the deceased Ke1eta 0 The question as to their relative significance is very important. For while the appellant capitalises on the 1958 one, the deceased virtually disiharited every-body except his wives in the 11 1962 will" 0 The 1958 t$qjct was never

witnessed by any bod;- oxcept nis two wives. This raises the issue of the validity of written wills'whch were purported to have been -excutd. by the testator, The ansut:er to issue is to be found in the laws of inheritance (Government Notice No 0 436 of 1963) which provides in clause (3) thus; •" - 2 "A will should be attested by proper witnesses who must be present at the same 'time". And as to who are recognised as witnesses.. we, have clause 19 providIng; "A written will was the witnessed persons who can read and write at least 2 witnesses (one of them kinsman and the other unnelated to the testator) the statotor can read and write and at least 4 witnesses (2 of them kinsman and 2 relation) of the testator himself is illiterate". From the above provisions, for a written will to he valid, it must be attested by one kinsman and one uflrelated prsqn, if the testator is literate and must sign, or 2 kinsman and 2 unrelated persons if the testator is illiterate. And although wives present must also sign, they are vide clause (5) besides the recognised witnesses. It is therefore obvious that the 1958. 11will" lacked in the essentials of avalid will and the District Court was therefore right to condemn it as invalid. The appellant cannot therefore be heard to depend on it. Coming to the 1962 "will", in which the testator purported to bequeath his shabas to his wives and disinherit

the clan, we have two isSue rEtiseda The first one is whether the testator of a clan land can disinherit the clans It would be a' 'contradiction. It is incompetent for the testator. to disinherit the clan, which in fact has the proprietary interest in the question1and ested on them communally. The 2nd issue which Is easily disposable is whether'thete'stator for what&ier reasons can obsolUti bequeath clan property to his wives. The anser is obviously a negative one for according.to the Law of Persons GoverNotice Nb. 297/l967. . . Clause 77 (1)(4) the widow is only entitled to cnjoy usufructuary rights of the shamba until she renarries or dies. And all the immovable property reverts to the deceased husband's fmily when the widow remarries or dies. From the above, the deceased's widowt can only be taken to havbeen allowed to enjo.usufructuary rights of the.sha.mba as they could not inherit the shambas in question in absolute terms, even if the testator wanted, so long as the deceased 1et relatives of his own clan. Thus., the 2nd will was equally void for the reasons above. .. . . . .' Another hurdle,that comes up is as pointed out abOve, that Bi—Rugenia TibeBhana, the last surving widow, pirported'to write a "willif . giving the two shambas to the anpellant who was to take one abamba and the respondent' and' Yustace Byanyuma to share the 2nd. I have already .above. indicated that

a widow has no propriet&ry interest in the immovable property of her late husband to pass to any—body., So ha€ this purported "wli" was of no 9ffect at all. ThiS, means as there was no valid will th aw of intestaSy whereby the clan council undertakes the distribution of, estate according the cirumstances and'cutomary 'laws rof the area had..to apply. In thI case :the.Bagiri clan' council,, though influenced ' by the widows "will" distributed the estate, the appellant coming out with the biggest share - the whole s.hamba while l .the responde'nt and one Yustade Byanyumasharing one.' Like the District,Court, Iatn'not disposed to interfere with the distribution of the Ostate, by. the clar as in all fairness, it was a balanced one. The appeal is therefore dismissed with costs. Mr. Rugarabamu present1