19970722 TZHC Dar es Salaam

IN THE HIGH COOH'l' Oli' TAN'MNIA ~--~-----..-- AT TJAE SI\LJ\AI"-1 E;.c_i Nt\ME OF u;<-;c·~//3ED: J\BD,\LJ/':i ClMARI K\NDA

RULING .,~__._...... ,.. ....;-.;-• The court h2.s b2en called upon by the Executor of the will of the ~ deceased AEn/1. iLA){ Ollt:\B :-C\ND.t~, the N'\'i'IOl\T/~L B!\.NK Q.L, COWTERCE to give. a prope. interpretation of the l;c:;t paragraph of Group Vlll of the la.st will of the deceased as to w1:2ther or not the shop shot1ld rema.in in T:Iouse No. lo4 8haurimoyo even after transfer of a Title Deed has been effected to the relevant beneficiarieso It is in ~he record that on 6th J o.nuary, 1987 the deceased Abdallah Omar Kanda prep3.rod a will bequeathing his properties to his beneficiarfo,s and appointing the National Bank of Commerce as the Executor of that will upon his deatho . ;..., In that will the deceased bequea_thed house Noo 101+ at Shaurimoyo ' to .3 beneficiaries, namely (1) UP~K,"\. doo ABDAUM{ (2) t!S:~:,I~dL.o ABD11.LL!~H and ( 3) ~%;Ji:'\_ dfo .;;;_[~J ,Lf',Il:. ;\.I In one room of that house the dec0as1d wan operoting G. spare parts shopo He bequeathed the sale products fro~ tl1at shop to his wife RI\TTJLI and his cl1ild;reno The deceased died on 16/3/1988. On 24th October 1992 this co1.1rt gr2nted probti.te to the National Bank of Commerce B.S directed in the will. That will has no disputeo But in the course of executing.that will tho National Bank of Commerce found itself in a dilemma 1ihen the beneficiar ,s ' + of thn. t house w&ntGd the s}10p business to

oo moved sorne,,,hc,.re · else and , the deceased's widow resisted on behalf of othet beneficiaries who where bequathed th,2 enjoyment of th0 sale prod11ct.s from th.:tt si,op 0 The benefici'1 .ef• of that house wanted the shop business to be moved somewhere else to enable them full enjoymunt of their inhr'oritance. The deceased 1 s··widow . ' resisted on tb.2 ground th;3·I; ,shifti115 the shop sorrnwhere else would be a.r,ainst the deceased' s vrish who had directed the shop to continue being opc rated in 0 that house. 2 Secondly, she said, she has nowhere to shift tha.t shop. But the benefi cia.ries of that ~·1ouse spc;arheaded by Upeka said the same could be moved to the other hou,se which was bequa.-thed to Ba.tuli and other beneficiari 3 as per Group 1 of the will. Since there was no cornpromiso the matter was referred to this court for a proper interpretation of the relevant clause of the will. In short that is the gist of the mattero There is no doubt that the will is not contested. In that will under clause 4(b) Group I the house on plot No. 550 Bungoni Ilala was benequathed to the followinc children of the rlecoased:- 1. Mwaaburo Abdallah 2. .SFIUDII /'.JlT)/\.tT.f;H 3a OM.\i] ABDJ\.LT.-Illi ; 4. Kti..NDA fl.!3D/\.LT.J1H and Under G:::-oup II house No. 101~ .Shaurir:Joyo I1ala wa,s bequathed to the following da.uthters of the dece<.1.sed:- ( 1) UPEi<L'. '\.BDALLAE (2)

r1IT(AMI'l'I t:..SDALL!'i.H and ( 3) ASH!: ,'IJ3DAL1AH. Then under Group Vll Par2, 1 the deceased bequathex- e.s fol1m-,s:- "Na na0nd,.:lca kutarnka lmwa duk-'l lr:i~g,, la spca 1ililopo Shaurimoyo Ila.la D 1 Salaam liendeJ.Ge kufanya kazi chini ya u;3_nga.1izi i-,a m.jomba ,,o.o JS'.ifil Ht\M'.!~,.ZI'fil na i!lEtpato yatok,mayo n.:1 duka hilo yatumike kuhudw•1ia mk,1 wan@:u na watoto ,.-,angu pamo,j a n,~ gb2rama za masorno ya watoto wangul 1 It is this parairaph which the court has been called upon to give its proper interpretation. According to the beneficiaries of that house spear headed by Upeka the true and proper meaning of Viat paragraph is th.3.t the shop business would continue to be conducted in that room c1-s long as the beneficiaries of that house allo .,1ed, 1 ·---------···------- 3 a..'1d that it ,:.1ot.1lcl. moved some1:!here else ,_.,hen the beneficiaries of that house wanted fuJ.1 use of th::tt house. She said since now they 1,m.nt full use of it and are in a process of selling it go that t!1ey can share the prpceeds, it is hig11 timi:.) that that shop business should now be removed from there and be Inbved to the house of the benefici2,ries in Group I who are using the proceeds of that shop with BatuJ.i. She said although the proceeds of that shop was supposed to benefit all the children of the deceased, yet 3 of them ( i e Upeka, Mkamati a11d Asha) were

getting nothing and were not claiming for anything. What they need is only vacant possession of their house for full and free use of their inhr,ritance •. She i•,ent on statin.<; that thc.1t shop is now merely a matter of definition because the room is empty and the few remcining goods are with Batulio But according to Batuli on beh8.lf of the other beneficiaries in Croup I the true meaning is that thnt shop is to continue to be operated ;i.n that house indefinitely and thctt shifting it somewhere else would amount to' disobeying the dec-~ased. 1 s wish 0 Secondly, she said, she hr1.s nowhere to estc-.blish another sho1Jo However she conceded that that room is ?:1ow empty and the few goods left are ·with h0.re But she accused the 3 beneficiaries for st ~aling or misappropric::ting som,:) of themo I have carefully considered the contents of the will ;:,md the overall circumstances surrounding this case to·gether ·,.;ith the arguments by the partieso After such a careful consideration of the m.:1tter I have been quite satisfi,~d that a proper intr;rpretation of that para~raph is that the deceasec::. bequeathed only the business of th:1t shop to all of them and not the room in which the shop wD..'3o The. room which. forrnGd part of the house bequeathed to the 3 beneficiaries romainod their property 0 The shop business would continue to be conducted there as lone: as the owners of

thnt house have not indicated thfl.t they want full use of their houseo It was not mea.nt to be operated there for ·, ife. The deceased had wanted the shop 11usiness to re:11c1.ii: in existence but not necesarily in th--::it house 4 It ·could be moved anywher0, Since the 3 beneficiarie3 n01-., we.nt full a.nd free use of their house 1 and since the ben-:cficiarics of Group I have their own house, the 3 beneficiar :s in Group II are now entitled to have full and fr2e use of th,~.t houseo - 4 ... They can even sell it (if they wish) free of any encumbrance. As that room is now said to be empty, it is hereby ordered that neither Batuli nor the other beneficiaries of Group I nor the said uncle Hamisi Hamza Ziwa is allowed to re-occupy it without free consent of the 3 beneficiaries of Group II or from any proper authorityo The National Bank of Commerce as executors of the will and holder of the Probate to continue exercising their duties justifiablyo s. N. KAJ!

JUDGE 22/7/1997 Court: Rulihr; has been delivered in the presence of Mr.i Sanze learned counsel for administrator NFC~ Batuli, Upeka and /\sha this 22nd day of july, 19970 S/ N. I<AJI

JUDGE 22/7/1997