19980703 TZHC Dar es Salaam

... ' IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM (PC) CIVIL APPEAL NO. 9 OF 1998 (FROM BAGAMOYO DISTRICT NO. 24 OF 1996 ORIGINAL BAGAMOYO PRIMARY COURT N0.13/95) WAZIRI MANENO CHOKA........................ APPELLANT versus --- ABAS CHOKA............................................ RESPONDENT ----------------- J_l.ID__GEMENT MWITA,L This is an appeal from the District Court of Bagamoyo on a matter which originated from the Bagamoyo Primary Court. Briefly stated the facts are as follows: In February 1995, Maneno Choka, a Muslim, died leaving a will bequeathing all his property , to W AZIRI BIN MANENO CHOKA. There is evidence that the deceased never contracted a marriage in his life time. He cohabited with Waziri's mother and begot Waziri. In other words Waziri was born out of wedlock. However the deceased brought up Waziri as his child and he appears to have acknowledged him as his legitimate son. Even in his will he refers to Waziri as his son. He states in his will (in swahili): "4. Na husiya kwamba milki yangu yote, kinachosema na kisichosema kama banda, nyumba, pesa taslimu na shamba langu ambalo liko Nunge Tarafa ya Bagamoyo ni mali ya mwanangu pamoja na mali yeyote niliyonayo na nitakayokuwa nayo wakati nitakapo kufa viwe ni vyote mali ya mtoto wangu W AZIRI BIN MANENO CHOKA ... " After the death of Maneno Choka, his younger brother, A bas Choka applied to the Bagamoyo Primary Cou~t for letters of administration. This application was opposed by Waziri Maneno Choka. Eventually the Bagamoyo Primary Court Magistrate appointed Waziri 2 Maneno Choka administrator of the Estate of Maneno Choka, deceased. Being dissatisfied by the Primary Court's decision Ahas Choka appealed to the Bagomoyo District Court against that decision. The District Court Magistrate up held the Primary Court's decision appointing Waziri Maneno Choka administrator of the estate of Maneno Choka, deceased. He held, further, that since a muslim cannot by will Dispose of more than a third of his estate the share of Waziri Maneno Choka is only one third and not the whole of the estate as indicated in the will. Waziri Maneno Choka, being dissatisfied has appealed to this court. At the hearing of this appeal the Appellant was represented by Mr. H:.J. Muccadam; learned Advocat_e, and_ the Respondent Mr. AJJa_s Choka =-- _ - appeared in person. In his memorandum of appeal the Appellant has put forward two grounds of appeal, namely: 1. That the learned Magistrate erred both in law and facts in holding that the Appellant was not entitled to inherit his father's estate when the said deceased father by a properly executed will appointed the Appellant as his administrator and heir of the estate. 2. That the learned Magistrate erred in law and on facts in placing great reliance on Indian Law of Inheritence whose local conditions are different from the local conditions obtaining in Tanzania. At the hearing of this appeal Mr. Muccadam emphasised the fact that the Appellant is the natural son of the deceased, that the deceased brought up the Appellant and accepted him as his son; that since the deceased left a will directing that the Appellant should inherit all his property the Appellant should inherit as intended by the deceased. Mr. Muccadam conceded that the deceased was not married to the Appellant's mother. No case was cited to the effect that Muslim law in India was different from Muslim law of inheritance in Tanzania. 3 __,/ It is not disputed that the law applicable in this case is Muslim law. I shall first deal with the issue of a acknowledgement of a child and then deal with the matter relating to the will. In SAFI D/O TUHUMA v. JAWITA D/O TUHUMA, Appeal No. 1 of 1947 the Governor's Appeal Board held that according to Mohamedan law of inheritance the child of an irregular union is entitled to share as an heir provided that the father has acknowledged the child as his own. In ZENA BINTI REHANI V. AHAMED REHANI (1976) LRT ls,. n. 42 the East African Court of Appeal held that: 1. Muslim Law permits a man to acknowledge another as his legitimate child. 2. The presumption of paternity resulting in acknowledgement is conclusive unless rebutted. Mustafa, J.A. at p. 163 said: "According to Muslim law a man can acknowledge another as his legitimate child. Wilson's Anglo-Muhammedan Law 6th Edition section 85 reads: '85 . If a man has acknowledged another as his legitimate child, the presumption of paternity arising therefore can only be rebutted by- (a) Disclaimer on the part of the person acknowledged. He or she being of an age to understand the transaction; or (b) such proximity of age, or Seniority of the acknowledgee, as would render the alleged relationship physically impossible; or (c) Proof that the acknowledgee is in fact the child of some other person; or 4 (d) Proof that the mother of the acknowledgee could not possibly have been the lawful wife of the acknowledger at any time when the acknowledgee could have been begotten." Mustafa J.A. said at p. 164: "This principle of acknowledgment as far as I am aware,is accepted by all the schools of Muslim Law, Shia and Sunni, including the Sunni Shafei sect to which presumably most of the African Muslims in Tanzania belong." In Mulla's Principles ofMohamedan Law 18th Edition, it is said at pp.354-355: "The main point in cases of paternity and legitimacy is marriage. It is so also in the case of acknowledgement. This appears clearly from the following passage in the judgment of the Privy Council in HABIB UR RAHMAN v. ALTAF ALI:- By the Mohamedan law a son to be legitimate must be the offspring of a man and his wife or of a man and his slave; any other offspring is the offspring of ZINA, that is illicit connection, and cannot be legitimate. The term "wife" necessarily connotes marriage; but as marriage may be constituted without any ceremonial the existence of a marriage in any particular case may be an open question. Direct proof may be available, but if there is no such, indirect proof may suffice. Now one of the ways of indirect proof is by acknowledgement of legitimacy in favour of a son: Acknowledgement or prolonged cohabitation as husband and wife raises a mere presumption. So, where evidence has been led that there was no marriage at all when the children were begotten, the issue cannot possibly be legitimated by acknowledgement: RAZIA BEGUM v. SAHEBZADI ANWAR BEGUM (158) A. Andrea Pra 195. 5 J At p. 358 of 44119 it is stated: "In other words, the doctrine applies only to cases ofuncertain_iy as to legitimacy, and in such cases acknowledgement has its effect but that effect always proceeds upon the assumption of a lawful union between the parents of the acknowledged child." It is clear, therefore, that Islamic law permits a man to acknowledge another as his legitimate child. That principle is acceptable to African Muslims in Tanzania. It is also clear that acknowledgement proceeds upon the assumption of a lawful union between the parents of the acknowledged child and if no marriage did in fact take place between the acknowledger and the mother of the acknowledgee, the acknowledgement is of no effect. In this case there is ample evidence that the deceased was not married to the mother of the Appellant. In such circumstances, the acknowledgement of the Appellant by the deceased as the son of the deceased can not have a legitimating effect to entitle the Appellant to share as an heir in the estate of the deceased. By his will dated 14th July, 1993 Maneno Bin Choka, deceased, bequeathed all his property to W AZIRI BIN MANENO CHOKA, the Appellant. It appears that such action is not proper according to Islamic law. At p. 140 of Mulla's Principles ofMohamedan Law it is stated: "118. A Mohamedan cannot by will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequests in excess of the legal third cannot take effect, unless the heirs consent thereto after the death of the testator" It is therefore clear that, the Appellant cannot share as an heir. Under the will the Appellant is entitled to one third of the estate according to Islamic law. He could have taken all the property as I.. 6 indicated in the will had the other heirs consented after the death of the testator. This is not the case here. The appeal is accordingly dismissed with costs . . _:-JjJ,:_,-fb ~~~ JUDGE Delivered in Chambers this 3rd day of July, 1998 in the presence of the parties and Muccadam Ad<vo~ _ : . ~ ~~ JUDGE 3/7/98