Court name
High Court of Tanzania

John Ngomoi vs Mohamed Ally Bofu () [1988] TZHC 13 (01 June 1988);

Law report citations
1988 TLR 63 (TZHC)
Media neutral citation
[1988] TZHC 13

Msumi, J.: Respondent petitioned to the Primary Court for letters of administration in respect of the estate of the deceased Hadija Manzi. Among other things, deceased left a C house situated along Uhuru Street, Dar es Salaam. While the respondent's petition was pending, appellant filed objection claiming that the said house was given to him by the deceased vide her will executed before her death in the presence of four witnesses. All the alleged four witnesses testified before the court of the said Will. However, the D court was not satisfied with the genuineness of the alleged Will hence dismissed the appellant's claim over the house. He unsuccessfully appealed to the District Court. Hence this is his second appeal.
In dismissing the appellant's claim both lower courts were greatly influenced by the fact E that none of the four witnesses to the alleged Will was related to the deceased. To the contrary, three of them appear to have some relation with the appellant. This observation was strongly attacked by Lamwai, the learned counsel for the appellant. He argued that since deceased had no relatives, it was quite proper for her to choose any person to F witness the Will. With respect, I don't agree with this argument. The requirement that at least half of the number of witnesses to a will executed under customary law must be related to the testator is intended to act as a safeguard against any possible fraud against the testator and the lawful heirs to the estate. In this case it is not true, as the learned G counsel for the appellant wants us to believe, that the deceased had no relatives when she allegedly executed the Will in question. According to the record four people, including the respondent, testified before the Primary Court claiming that they were related to the deceased. For example respondent testified, inter alia, that his mother and H that of the deceased were sisters. The claims of all these witnesses have not been countered by any evidence.
But even if deceased had no relatives at the material time, the need to dispel the possibility of fraud on the Will still remains. For this reason, I totally associate with the lower courts' suggestion that in the absence of the deceased's relatives, her ten cell I leader ought to have been included as among the witnesses to the alleged

Will. This requirement was particularly necessary in this case bearing in mind the fact that A deceased was a very old illiterate woman and at the time when she allegedly executed the Will she was bedridden with long time illness. This fact reasonably explains why Mr. F.S. Mbuya, the learned advocate who drew the Will had to go to the house of the appellant where the deceased was staying to get the Will executed. B
Besides the alleged Will not being witnessed by relatives of the deceased, there are three other noticeable factors which make the Will suspect. First it is in evidence that prior to the alleged Will, deceased had executed two wills in respect of the house in question. In C the first will she had given the house to her husband. Later on she executed another will in which she specifically revoked the grant of the house to her husband and instead she donated the said house as a Waqf. Both wills were executed before Ilala Primary Court according to the rules of Islamic Law. Appellant was aware of this fact. Hence in D the absence of any reasonable explanation it is amazing to note that deceased had freely decided to depart from her previous practice of executing her wills before the Primary Court in accordance with Islamic law. The fact that in her second will, deceased donated the house as a Waqf clearly expresses her intention to have her personal E matters governed by Islamic law.
Secondly, according to the evidence of the appellant and four witnesses to the Will, the advocate who drew the Will had to go to where the deceased was staying for the purpose of executing the Will. It would appear that that was the only time when the F advocate met the deceased in connection with the Will. In other words when the advocate went to see the deceased on the alleged day he had already drawn the Will ready for execution. The question which still remains unanswered is when and where did the learned advocate confer with the deceased before he drew the Will. Or does it mean G that all the transactions, that is getting deceased's instruction, drafting of the Will, typing it and the execution were done on the same occasion. I find such suggestion rather odd in that it implies that the learned advocate had to move his office, that is his secretary together with the typewriter, sheets of paper and his office seal, to mention a H few, to the house of the appellant where deceased was bedridden. And even more odd, this suggestion means that while the advocate was conferring with the deceased and the Will was being typed all the four witnesses had already been lined up ready to put their I signatures on it. This sounds more of an operation than routine office working practice.

Thirdly, according to the record, deceased died in April 1985. And under the alleged A Will appellant was appointed administrator of the deceased estate on 9/1/85. Under this circumstance one would have reasonably expected the appellant to take the necessary legal steps in order to effectuate the terms of the alleged Will. For example appellant was B expected to file probate administration cause in the appropriate court. It is thus surprising to note that appellant took no such step and instead he remained quiet till over one year later when he raised objection against the respondent's application for letters of administration. This dilatoriness can be explained by the reasonable possibility that the C alleged Will was drawn and executed after the death of the deceased. I say this because of the evidence of the three of the four witnesses to the alleged Will regarding the date of the death of the deceased. To the astonishment of the Primary Court, these three D witnesses positively testified that deceased died in April 1986. At the material time all these witnesses were tenants in the house in question hence they were bound to get first hand information of the death of their landlady. As deposed in the alleged Will, all these three witnesses are literate and responsible people. One of them is described as E administrator while the other one is "a consultant". Hence their positive assertation that deceased died in April 1986 while deceased died in April 1985. The lapse of time was too short to be confused. Actually what the witnesses were saying is that deceased died about three months previous to the time they were giving their evidence. F
Appearing for the respondent, Mr. Muccadam submitted that the applicable law in this case is Islamic law and since appellant is a christian he cannot inherit the estate of the deceased who is a moslem. Admittedly this is a strong argument. However, I don't think G it is necessary to pursue this argument in order to determine this appeal. Like the two lower courts, I have decided to confine myself to the question of genuineness of the Will in issue. I am of the considered view that the cumulative effect of all the factors pointed out in this judgment renders the alleged Will suspect. The circumstances surrounding the execution of the said Will irresistibly lead to the conclusion that there are some fraudulent H conducts involved. This appeal is therefore dismissed with costs.
  I Appeal dismissed.