Ikongo v. Nyuha (PC) Civ. App. 12-D-71; Sept. 1971; Mwakasendo Ag. J.

 

Ikongo v. Nyuha (PC) Civ. App. 12-D-71; Sept. 1971; Mwakasendo Ag. J.

The respondent unsuccessfully instituted the suit in the primary court of Kariakoo claiming one house and other property belonging to the deceased, his material relative, on the ground that he was her frightful heir at her death. The appellant represented the children of the deceased’s paternal uncle. On appeal to the district magistrate court the judgment of the primary court was reversed in favour of the respondent. In the High Court the judge made the following findings (1) the deceased was a Nyamwezi by tribe; (2) “In 1957 she dictated a will to her tenant (on Bundala) appointing her paternal relative from Mwanza as her heir. The beneficiary was present during the dictation of the will. It was, after completion, read over to her and upon her agreeing that it was correct, she acknowledged it as her final testament by affixing her thumb-print on the document; so did the beneficiary after which Bandala signed as a witness.

            Held: (1) “[The] will is governed by Nyamwezi Customary Law. The law on the subject which would apply to this matter would be the Nyamwezi Law as it existed in 1957. it follows then that the Local Customary Law (Declaration) (No. 4) Order 1963 and the Local Customary Law (Declaration) (No. 8) Order 1963 are wholly inapplicable in this case as the rules codified by these Declaratory Orders in 1963 were not part of the Nyamwezi Customary Law in 1957.” (2) “As to what was the Customary Law and practice of the Nyamwezi people in 1957 one naturally turns to Hans Cory, an accepted authority in this field. In 1955 Hans Cory complied a book on the Customary Laws of the Wanyamwezi. The book is printed in Kiswahili by the Government Printer under the heading “SHERIA NA KAWAIDA ZA WANYAMWEZI”. At page 78 of this book, paragraph 609

under the heading” (b) Kwa kuandika” (By writing), Cory states the law relating to Written Wills in the following words in Kiswahili:- “609. Jambo la kuandika wosia halijaonea bado wala hakuna sheria zinazoeleza utaratibu fasihi juu yake. Kwa vyo vyote wosia uliyoandikwa haukubaliwi kama umepita kinyume cha sheria za kawaida, hat ikiwa uliandikwa na kushuhudiwa katika baraza.” This statement rendered into English would read – “The institution of making a written will is not yet widespread and no rules for the correct procedure have been issued. In any case no written will be accepted as valid if contravenes the Customary Law. This condition even applies where a written will has been witnessed before a Court.” It follows from this statement of the Nyamwezi Customary Law that a written will could be made by a testator in any form provided always that the testator did not contravene any of the accepted customary rules relating to inheritance etc.” (3) “The rules relating to inheritance are described in Chapter X of the “Sheria na Kawaida za Wanyamwezi”. The relevant paragraphs for our purpose are 532 and 543 (a). Paragraph 532 provides as follows:- “Urithi hufuata upande wa baba” (Inheritance is Patrilineal). And paragraph 543(a) provides as follows: - “Watoto wanawake wasioolewa na wake wasio na watoto; mrithi ni baba; kama hayupo – kaka na dada tumbo moja; kama hakuna – kaka na dada wa mama mbalimbai kama hakuna – baba mkumbwa au baba mdogo; kama hakuna – jamaa wa kuumeni.” The English translation of paragraph 543 (a) would be – “Unmarried girls and wives without children the heir is the father; failing him, full brothers and sisters; failing them, half –brothers and half – sisters; failing them a paternal uncle; failing him, the nearest paternal relating.” Applying the cited Nyamwezi Customary rules to the present case, it is abundantly clear that the deceased’s will is in full compliance with the Nyamwezi customary Law. By appointing her paternal uncle heir she was within her rights under Nyamwezi Customary Law and in any case under that Law the respondent in this case could never, under any circumstances, be declared her heir.” (4) “In my opinion therefore the will of the deceased is a valid one and in accordance with the Nyamwezi Customary Law, the testator’s tribal Law. That being so it is the duty of this Court to ensure that she wished as declared in the will are given effect and executed. If the Court were to appoint an heir other than the person appointed by her in the will or his descendants, it would plainly be tantamount to frustrating the testator’s declared intentions.” (5) Appeal allowed.