20110512 TZCA Dar es Salaam

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IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM {CORAM: MUNUO, J.A .• RUTAKANGWA, J.A., And MJASIRI, l.A.) CIVIL APPEAL NO. 119 OF 2009

NAIMA IBRAHIM AS A TRUSTEE OF MAHAMUD ABDURASUL ISMAIL. ................................. APPELLANT

VERSUS ISAYA TSAKIRIS •• ■ •••••••••••••••••••••••••••••••••• ■■ I■ ••••••••••••• ■■■ •• ■ •••••••••• ■ ••••• RESPONDENT {Appeal from the decision of the High Court of Tanzania at Dar es Salaam) {Mlay, J.) dated the 13th day of July, 2009 in Civil Case No. 151 of 2007

JUDGMENT OF THE COURT 23 March & 27 May, 2011 MUNUO, J.A.: This is an appeal against the decision of Mlay, J. in Civil Case No. 151/2007 in the High Court of Tanzania at Dar es Salaam. The facts of the case are straight ~orward. The late Halima Mohamed was, until the time of her demise, the owner of a house situate on Plot. No. , 65 Block 13, Kiyonga Street, Dar es Salaam City. It is the case of the appellant that the late Halima Mohamed bequeathed the material house to 1 her son, Mahamud Abdurasul Ismail by a will, Exhibit Dl. The will, Exhibit (Dl) reads in Kiswahili: "WOSIA Mimi HALIMA BINTI MOHAMED, ,, Islam, • umri miaka 71, wa Kiyonga Street/Jaribu H/No. 28 Magomeni Area, Dar es salaam, I Nikiwa na akili timamu, bi.la ya kulazimishwa na 11 mtu yeyote, nikiwa sina mshirika. Natoa wosia huu leo tarehe 22 Novemba, 1999 kuwa endapo nitafariki dunia natamka kuwa:- 1: 1. Nyumba moja Plot No. 65, Kitalu 13, nyumba Na. 28 iliyoko Kiyonga Street, Magomeni Area, Dar es salaam. 11 2. Shamba moja la heka mbili na nusu lililoko Kibaha kwa Mathias.

3. Kiwanja kiko Kidenge, Mwembe Tayari, I kwa mjumbe YAHAYA HAMISI, eneo ambalo halikupimwa huko Kibaha • kwa Mathias. Natoa wosia huu kuwa ehdapo nitafariki, mali zote hizo nilizotaja hap¢ juu nimemrithisha mjukuu wangu ambaye ni MAHAMUD 'I I· ABDURASUL ISMAIL mvyenye umri wa miaka : mitano na miezi mitatu. 2 Kutokana na hayo, nafuta wosia niliyoutoa hapo awali niliyomtolea HABIB SEIF MOHAMED nimefuta na usitambulike tena. Katika uhai wangu wote, mali zote niliyozitaja hapo juu zitakuwa katika mamlaka yangu hadi nitakapofariki. Na ikiwa nitafariki kabla MAHAMUD ABDURASUL. ISMAIL hajafikisha umri wa miaka kumi na nane msimamizi awe ni mama yake mzazi ambaye ni NAIMA IBRAHIM. Nathibitisha yote niliyotamka hapo juu ni kweli tupu.

SAHIHI YA MTOA WOSIA (Right thumb print of Halima Mohamed) (HALIMA MOHAMED) SAHIHI YA SHAHID! WA MTOA WOSIA (ABDU SAIDI CHAMBUSO) I Wosia huu umetolewa mbele yangu leo tarehe 22 November, 1999. MBELE YA M. S. MLAWA SAHIHI: ...................... . CHEO: HAKIMU 3 TAREHE: 22/11/1999 MAHAKAMA YA !MWANZO ·I MAGOM6NI WILAYA YA KIN;ONDONI" By the above will, the late Halima Moha~ed bequeathed to the son of the present appellant, all her properties listeq in the will namely: ! I 1. The house on Plot No. 6$, Block 13, House No. 28 Kiyonga Street, Magomeni Area, Dar es Salaam. 2. 2 ½ acres farmland at Kwa Matias, Kibaha.

3. An unsurveyed Plot at Kitenge, Mwembe I i Tayari at Kwa Matias, Kibaha. The three properties were vested in the appellant to hold on trust for the 1 I beneficiary Mahamud Abdurasul Ismail) then aged five years and three 11 1: ,1 months. His mother, the appellant, woul~ hold the said properties on trust !1 ;i until her son Mahmud Abdurasul Ismail attains the age of 18 years. ;j !i 11 ,I The will, Exhibit D1, was witnesse~ by Mr. Abdu Saidi Chambuso in the presence of Mr. M. S. Mlawa, a Primlry Court Magistrate at Magomeni Primary Court in Kinondoni District within! Dar es Salaam Region. i, 4 r' At the hearing of the suit, the appellant testified as D. W.1. She asserted that the deceased was her landlady, not a relative. She was single at the time of her death. DWl stated also that Halima wrote the will, Exhibit Dl, bequeathing her properties to D.W. l's little son, Mahamud Abdurasul Ismail to be held on trust by his mother until he attains the age of majority. When Halima Mohamed passed .away, her nephew, the present respondent was appointed by Halima's clan to administer the estate of the ' deceased. Upon the respondent applying for letters of administration in the High Court of Tanzania at Dar es Salaam, the appellant entered caveat under the provisions of sections 58 and 59 of · the Probate and Administration Act, Cap. 358 R.E. 2002, The matter was then converted into

Civil Case No. 151 of 2007 which was determined in favour of both parties to administer the estate of the deceased jointly. Dissatisfied with .. the decision of the High Court, the appellant instituted this appeal. Counsel for the appellant filed two grounds of appeal namely that: 1 1. That the learned trial jjdge erroneously held i that the late Halima Mohamed could not vest 5 the whole estate to a stranger, Mahamud Abdurasul Ismail.

2. That the learned trial judge failed to consider that the house in dispute has already been sold to a third party. In his written submission, counsel for ;the appellant contended that the I late Halima Mohamed was entitled to bequeath the whole of her estate as she did in her _will, Exhibit D1. He further contended that the will was made in the primary court so it is not an Islamic will subject to Islamic Law. On this, counsel for the appellant found support in the evidence of DW3 Sheikh Zuberi Yahya Musa. That being the position, counsel for the appellant maintained that the testatrix, Halima Mohamed, lawfully bequeathed her properties to the beneficiary ,, Mahamud Abdurasul Ismail and duly appointed the child's mother, the present appellant, to hold the said properties on trust for the beneficiary until he attains the age of 18 years. Counsel for the appellant cited the case of Julius Petro versus i,, Cosmas Raphael (1983) TLR 346 wterein it was held that a testator's I desires expressed in a will should be complied with. I I i i I ; 6 Furthermore, counsel for the appellant submitted that Article 24 of the Constitution of the United Republic of Tanzania, allows a person to own lawfully acquired properties just as the late Halima Mohamed did so it would be unlawful to deprive her of her properties against the wishes she expressed in her will, Exhibit D1. Even if Halima

Mohamed was married, counsel for the appellant observed, her properties would still be protected I by the provisions of section 59 of the taw of Marriage Act, 1971, Cap 29 R.E 2002. He further urged us to ma,ke a finding on the status of the i house which the respondent sold to a third party. The respondent submitted that the authenticity of the purported will is doubtful because he only saw it in Court. The appellant did not inform the relatives of the deceased anything about the will during the lifetime of the deceased or even when the relatives went to collect the body for burial, the respondent stated. The issue before us is the validity of the will of the deceased, Halima Mohamed. 7 I I I ; I A scrutiny of the record does not suggest that the deceased had ' I i I renounced Islam during her lifetime. Since I the deceased; professed Islam and died a Moslem, we are of the cqnsidered opinion: that her estate I i should be administered according to ;Islamic Law prihciples. If the i i deceased had decided to depart ~rom Islamic · principles in the I administration of her estate, she would Have stated so in her will. Had she I . I done so, she would in effect have disinh~rited her natural: heirs. As it was, I the deceased did not take that course.i, We are therefore of the settled I view that the learned judge correctly applied Islamic , I Law to the i administration of the

estate of the late .Halima I Mohamed. 1 I I i The learned judge considered the ~alidity of the will of the deceased I I and held that: ,I I "There is no dispute therefore that under I~lamic ,I I or Mohamedan law, a testator I cannot bequeath . more than 1/3 of the estate unless the heirs ... I ' have consented to the syrplus bequeath .. j .. no i evidence has been adduced ' to show thatI the i heirs of Halima Mohame;d subsequent t0 her i death, consented to the: bequeath of al 1 her 1 property to Mahamud Abdl:]rasul Ismail." i I I 8 I I I ' I The learned judge further observed that L 1 1 1 " ... the bequeath of more ~han 1/3 of the estate I I does not invalidate the wilL Islamic la~ states: ,: I :1 ' "Bequeath in excess of the llegal one cannot!take effect." i I i, : I The learned judge further cited Mullasl Principles of Mohamedan Law at Ii I I page 104 in which the author cited Hidaia 6.7P stated: i I: i I "If the heirs do not conseht, ·; the remainingI two thirds must go to the f:heirs in the, shares I, 11 I • prescribed by law. The testator cannot redu~e or I enlarge their shares, nod can he restrict the 1 enjoyment of their shares. ,,J/ I I On the format of a valid Islamic wm,1: the learned jud~e quoted Mulla's Principles of Mohamedan Law cited sup~a, at page 101 Jherein it is stated I that: - Ii I . I "Under a Mohamedan Lawi: no writing is required 1 , I to make a valid will and rio particular fotm is I necessary. Even a verb~I declaration ·is ~ will. The intention of the testatbr to make a willi must i ' be clear and explicit and fo:rm is immatedal..l. I[ ~ I 9 ! __J..

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I I I I A Mohamedan will, though i'li writing, does not require to be signed, nor ev~n if signed does it ; I I require attestation. The reason is that, a I I Mohamedan will does not require to be in writ\ng I at all."

I I I The High Court held that the will of Halima Mohamed was ,'valid because it was witnessed by one Chambuso who ht since died an~ the magistrate I I ' who attested it. Furthermore, the High Gourt held that: th~ will in dispute ' , I is unambiguous and clear, that the testatf X Halima Moham:ed was of sound mind, and that she voluntarily bequeathed her property to a minor, 11 I Mahamud Abdurasul Ismail on the 22/11~1999. ' I i Under the circumstances, we agree. with the lea·rned :judge that under I I Islami~ Law, the appellant is only entitled to 1/3 of the deceased's estate /1 ' I to hold the same on trust for her so@, Mahamud Abd~rasul Ismail, as bequeathed by the testatrix, Halima Mohamed. On .ho~ the beneficiary would get his l/3 share of the estate Jf the deceased, fhe learned judge properly directed that the properties lisJed under the wU, be valued. The i : beneficiary, Mahamud Abdurasul should get 1/3 of the v:alue of the estate l I of the deceased as ordered by the High Court. The : remaining 2/3 of I I 10

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I I I i I ' i-.i•---J.. Halima's estate should be distributed among the heirs, the learned judge, further held. Hence, the High Court ordered that the letters of administration be issued jointly to the parties. If one of the houses has been sold, the price of the house would be its value. We find no justification to interfere with decision of the High Court. In view of the above, the appeal is devoid of merit. We accordingly dismiss the appeal. Either party to bear their costs. DATED at DAR ES SALAAM this lih day of May, 2011. E.N.MUNUO

JUSTICE OF APPEAL E.M.K. RUTAKANGWA

JUSTICE OF APPEAL S. MJASIRI

JUSTICE OF APPEAL I certify that this is a true copy of the original. J. S. MGETTA (DEPUTY REGISTRAR)

COURT OF APPEAL 11