Amina Taratibu Mbonde vs Selemani Ahmedi Mtalika (Misc. Civil Appeal No. 3 of 1997) [1999] TZHC 509 (2 March 1999)

56 TAVZAV' A LAW REPORTS [2060] TL.R. I therefore over rule the objection and direct that the application will proceed to hearing on a date to be appointed after due compliance with rule 52( 1). B AMINA TARATIBU MBONDE v. SELEMANI AHMEDIMTALIKA c HIGH COURT OF TANZANIA ATMTWARA D (Kaji, J) MISC. CIVIL APPEAL No. 3 OF 1997 (From the decision of the District Court of Mtwara in Probate and Administration E Cause No. 2 of 1996) Islamic Law - Administration of Estates - Deceased professed Islam until he died intestate - Law applicable in distributing his estate. f Islamic Law - Inheritance - Children born out of wedlock - Whether a child born out of wedlock can inherit deceased father s estate. Islamic Law - Administration of Estates - Assessment of the widow s “ thumni ” — Whether the court should take into consideration the extent of the widows G active participation in running the deceased ’ s shop. On 27 December 1992 Amina Said and Kaisi Saidi Kaisi, got married under Islamic rites. Prior to that marriage they had lived together as “ lovers ” and on 8 March 1988, they got their only child named Said Kaisi. On 4 May 1996, Kaisi Saidi Kaisi passed H away intestate at Mtwara. The respondent Selemani Ahmedi Mtalika was appointed administrator of the deceased ’ s estate. With the assistance of the Mtwara District Court together with the advice of the Sheikh wa Mkoa, BAKWATA, Mtwara, the respondent proceeded to distribute the deceased ’ s estate in accordance with the said I advice whereby the son was excluded from inheritance. The appellant the widow, was dissatisfied with the distribution. She, consequently, lodged this appeal.

AMINA TARATIBU MBONDL v M I I M\Ni AHMI'DI MTALI KA Held: (i) Since the deceased was a Moslem who professed his religion until his death, the distribution of his estate was governed by Islamic law; (ii) His son Saidi Kaisi Saidi who was bom outside wedlock was not entitled to inherit anything from his father's estate. (iii) There is nothing indicating that under Islamic law, in assessing the widow ’ s “ thumni ” the court must also take into consideration the activeness of the widow in running the deceased ’ s shop where they had a shop. (iv) Obiter: Under Customary Law marriage of the son ’ s mother by the deceased was sufficient to legitimate him and make him a rightful heir, depending on the particular tribe. Appeal dismissed JUDGMENT (Delivered 02 March 1999) KAJI, J.: This appeal has been lodged by the appellant Amina Taratibu Mbonde, against Selemani Ahmed Mtalika challenging the distribution of the deceased ’ s property by Mtwara District Court in Probate Cause Number 2 of 1996. It is common ground that the appellant and the late Kaisi Said Kaisi were both Moslems. On 27 December 1992 they got married under Islamic rite whereby they were issued with Marriage Certificate Number 02123 of 27 December 1992. Prior to that marriage they had lived together as “ lovers ” whereby on 8 March 1988 they got a child whom they named Saidi Kaisi. Thus when they got married on 27 December 1992, they already had a child who was by then about 4 years old. On 4 May 1996 the deceased Kaisi Saidi Kaisi passed away intestate at Mtwara. From 27 December 1992 when they got married till 4 May 1996 when the deceased died they had no child of the marriage.

TANZANIA LAW REPORTS [2000] T.L.R. A On 29 September 1996 a Clan Baraza was convened whereby the respondent Seleman Ahmed Mtalika was proposed as the Administrator. He was officially appointed by Mtwara District Court on 30 January 1997. Around March 1997 the respondent presented to court an inventory B showing the total value of the Estate and the persons who had survived the deceased. The value of the Estate was as follows: Those who had survived the deceased were as follows: (i) Cash in hand TZS. 520 000 (ii) Value of the property in shops TZS. 4 968 910 (iii) Value of the Chikongola house TZS. 2 382 355 (iv) House holds: (a) Video valued at TZS. 350 000 (b) Air Conditioner valued at TZS. 120 000 (c) 2 deep freezers valued at TZS. 450 000 (d) Music System valued at TZS. 300 000 (e) A container valued at TZS. 300 000 (f) A generator valued at TZS. 300 000 Total value TZS. 9 691 265

1. Saidi Kaisi - Father
2. Amina Taratibu Mbonde - Wife/Widow
3. Mshamu Saidi Kaisi - Brother
4. Zubeda Saidi Kaisi - Sister
5. Mwanahamisi Saidi Kaisi - Sister
6. Saidi Kaisi - Son (born before marriage) The respondent sought the assistance of the court as to how he should distribute that Estate. The court reques ted the Sheikh wa Mkoa B AKWATA I Mtwara to sort out as to who, according to Islamic Law, were the rightful heirs and which percentage each of them served.

AMINATARATIBU MBONDE i: SELEMANI AIIMH'I MTALIKA 59 On 31 March 1997 the Sheikh wa Mkoa BAKWATA clarified as follows: a (a) The rightful heirs were only the deceased's father Saidi Kaisi and the deceased ’ s wife Amina Taratibu Mbonde; and that the father deserved % and the widow deserved 'A of the value ot the estate. B (b) The deceased ’ s brother Mshamu Saidi Kaisi and his sisters Zubeda Saidi Kaisi and Mwanahamisi Saidi Kaisi were not entitled to inherit anything as the deceased ’ s father was still alive. (c) The deceased ’ s son Saidi Kaisi was not entitled to inherit anything C because he was born outside wedlock. Upon that advice the deceased ’ s estate was distributed as follows: (i) Saidi Kaisi (Father) TZS. 7 263 448-75 being 3 / 4 of the total estate value of TZS. 9 691-265 (ii) Amina Taratibu Mbonde (widow) TZS. 2 422 816-25 being 'A of the total estate value of TZS. 9 691 265. It is against this distribution that the appellant has lodged this appeal. E In her Memorandum of Appeal she raised seven grounds of appeal which can conveniently be summarized into 6 grounds of appeal as follows: F (i) That the trial court had grossly erred in its order which excluded the only son of the deceased from being an heir of his father ’ s estate, and instead gave deceased ’ s father the right to inherit the lion ’ s share purportedly basing on the Sheikh ’ s view, G (ii) That the trial magistrate misdirected and contradicted himself in finding that the son was born outside wedlock while the court was told that although the son was born before marriage, he was legalized under customary norms and traditions, it was therefore not fair and proper not to consider him as one of the heirs. (iii) That the amount which the appellant got in the distribution was too small taking into account that she was not just sitting idle at home but took part effectively in running the shop from the time the appellant ( and the deceased got married until when the deceased died.

60 TANZANIA LAW REPORTS [2000ITI FL A (iv) That some properties listed by the respondent were not supposed to be included because they were the appellant's personal properly; and others were given as gifts to the son personally by the deceased; that is, (a) the container which is her personal property ( b ) the house B at Chikongola whose Title Deed is in the name of the son, including the video and air condition. (v) That TZS. 2 600 000 was not included in the total value of the deceased ’ s state. C (vi) That the trial magistrate erred in directing that part of the appellant ’ s inheritance would have to be realized from the debts which the deceased was owed and that she would have to collect the said debts by herself. D She therefore prayed for the following: (a) That the container should be handed over to her as her personal property. (b) That the house at Chikongola, video and air condition should be handed over to the son who is the legal owner. (c) That the respondent be ordered to present before the court TZS. 2 600 000 which should be distributed fairly. F (d) That the money given to the deceased ’ s father Saidi Kaisi TZS. 7 268 448-25 which is too much should be reduced and the appellant be paid additional amount from it taking into account that she is staying with the son. G In reply the administrator who is the respondent replied as follows: (i) That the trial magistrate was right in excluding the deceased ’ s son from inheriting his property because under Islamic Law a child born outside wedlock cannot inherit any property from his father. The H share given to the deceased ’ s father was proper according to Islamic Law, in that it was % of the total value of the deceased ’ s estate. (ii) That under Islamic Law a child born outside wedlock cannot be j legalized by marrying its mother to the extent of entitling it to inheriting any property of its father.

AMINA TARATIBU MBONDE v. SEl.EMANI AHMI DI MTALIKA 61 (iii) That under Islamic Law a widow is entitled to inherit % of the value A of her deceased husband estate. Since the total value of the estate was TZS. 9 691 265 the amount of TZS. 2 422 816-25 she was granted is proper. B (i)(a) That although the receipt for the purchase of the container showed the name of the appellant, yet she purchased it from the money she dished out from the deceased ’ s shop before his death. But after his death she demanded to be paid back her 300 000 and surrender the container to the estate. She C was paid back her 300 000 and the container surrendered to the estate to form part of the estate as shown in the inventory. (b) That the 2 600 000 was realized from the sale of the goods from the shop after the goods had been valued at TZS. 4 968 910. D Therefore it was not separate money but part of the 4 968 910. (ii) That the house at Chikongola belonged to the deceased and the Title Deed showed his name and not that of his son. The E video and the air conditioner belonged to the deceased too and that there was no document showing that he had passed them over to his son. (iii) That the appellant was simply advised to assist him in identifying f the debtors as she knew them and that the duty of collecting debts remained his. He concluded by calling upon this court to dismiss the appeal. In short that is the gist of the matter. G There is no dispute that the deceased Kaisi Saidi Kaisi was a Moslem, and that until his death he was professing Islamic religion. There is also no dispute that the appellant Amina was, and probably is still a moslem. There is equally no dispute that the marriage between H the deceased and the appellant was solemnized under Islamic religion. Since the deceased was a Moslem who professed his religion until his death, the distribution of his estate was governed by Islamic Law. Under Islamic Law it is clearly stated as to who are rightful

62 TANZANIA LAW REPORTS [2000] TLR. A heirs where a man dies intestate and is survived by his father and his wife/widow and how much (percentage) each is entitled to, that is, % for the father and % for the widow. There is no dispute that the deceased ’ s son was born outside wedlock, B and that later the deceased married the mother of that son. Under Customary Law that was sufficient to legitimate him and make him a rightful heir, depending on any particular tribe. This can be found under the Local Customary Law (Declaration) G.N. 279 of 1963 C and G.N. 436 of 1963. But under Islamic law a child born outside the wedlock has no right to inherit anything from his father ’ s estate even if his father later married his (child ’ s) mother. This was made clear by the Sheikh D wa Mkoa and I have no reason to doubt its authenticity. It may sound very strange and unfair to the appellant. But it must be borne in mind that joining a particular religion is a matter of free will. Nobody is forced to join any particular religion. By joining a particular religion E you bid yourself to be governed by the rules and norms that apply there. Once a Moslem you die a Moslem and your estate must be distributed according to Islamic law unless you opted out before your death. p Since the deceased was a Moslem who professed Islamic until his death, and since his son Saidi Kaisi Saidi was bom outside wedlock, the said son is not entitled to inherit anything from his father ’ s (deceased ’ s) estate. The appellant ’ s plea would only bear fruits if G the deceased would have ceased to be a Moslem before his death or would have changed his way of life to that of customary norms whereby his estate would be distributed according to Customary Law. Another complaint of the appellant is that the amount she was given was too small and that it was small because in assessing that amount there were some important factors which were not taken into consideration by the court. These are: I

AMINA TARATIBU MBONDE v. M I I M\; AHMED! MTAI IKA 61 (a) That she was not just sitting idle at home but she took part effectively A in running the shop from the time she got married to the deceased until when the deceased died. (b) That in assessing her “ Thumni ” 2 600 000 was not included which g if included her “ thumni ” would have been higher than the present one. (c) That she is living and taking care of their son. I have carefully considered these grounds. The answers to her complaints c are as follows: (a) There is nothing indicating that under Islamic Law, in assisting the widow ’ s “ thumni ” the court must also take into consideration the activeness of the widow in running the deceased ’ s shop where they D had a shop. Had it been a partnership venture, each with his separate share, that would be another thing. Also had it been a problem of division of property in a matrimonial cause after divorce, the contribution in a form of running that shop and probably doing some other domestic E chores would be considered. But not in a case of inheritance such as this one. (b) The respondent had replied that the 2 600 000 was ralized by sale of the goods which were in the shop after the said goods had been 1 assessed to be valued at TZS. 4 968 910. But the appellant said the 2 600 000 was realized from the sale of other goods after the assessment. This does not sound convincing because she could not say as to from where these goods came from if not from the shop as stated G by the respondent. I accept what the respondent has said. (c) It is true she is living and taking care of their son. But since under Islamic Law the said son has no right of inheriting anything from 11 the deceased ’ s estate, my hands are tied up. According to the advice of the Sheikh wa Mkoa, under such circumstances there are only two possible solutions/remedies, that is: (i) To persuade the decased ’ s father to take care of his grandson as he is from the blood of his own son.

64 TANZANIA LAWRHF ’ HRTS 126001 TI R A (ii) To persuade the deceased ’ s father to give his grandson anything voluntarily from the deceased's property before the said property has been distributed to the rightful hiers. But the Sheikh warned that whether (i) or (ii) the deceased ’ s father B must do so voluntarily and should not be forced or ordered by anybody. Under these circumstances what the appellant can do is perhaps to sue for maintenance of the child and not as his rightful part/share of inheritance. c The appellant complained also that some of the properties listed by the respondent were not supposed to form part of the deceased ’ s estate in that they were hers and some were given to their son as gifts. She mentioned a container to be hers, and a house at Chikongola, D a video and an air-condition to be of their son. She complained that she was forced to sell the said container and was paid back her money. According to the respondent ’ s reply the appellant had purchased that container with the money she took from the shop. After the deceased ’ s E death she demanded to be paid back and she was paid 300 000 from the shop before the value of the shop had been evaluated. Now, since the appellant is complaining that she was forced to sell it, if she has got sufficient evidence, she is free to sue the one who forced her to sell it. As far as the house at Chikongola is concerned, there is ample evidence supported by the annexture Ref. Number RLDO/MT/01 840/ G 4 of 21 December 1992 (Letter of Offer) that the said house which is on Plot Number 45 Block K Chikongola is the property of the deceased Kaisi Saidi of PO Box 624 Mtwara. The appellant asserted that she managed to see a Hati ya Kiwanja with the name of their son Saidi Kaisi on it but she could not produce any on allegation that it was taken by the respondent. The respondent produced the above Hati to be the only Hati ya Kiwanja in respect of that house. In the absence of any other Hati ya Kiwanja bearing a different j name, I am satisfied that the house was the property of the one whose

AMINA TARATIBU MBONDE r SEI.EMANI AliMEDI MTA1JKA name is there is, the deceased Kaisi Saidi. It was therefore properly A included in his estate. As far as the video and air conditioner are concerned, there is no evidence showing that they belonged to their son as his gifts (gifts given inter vivos). They were therefore properly included in the deceased ’ s estate. B Lastly, the appellant complained also that the trial court had directed that part of her thumni of TZS. 2 422 816-25 should have to be realized from the debts which the deceased was owed, and that she must collect those debts herself. This was denied by the respondent c who said the appellant was simply requested to assist him in identifying the debtors because she was the one who knew them. The record is silent on this. Since the record is very clear that the appellant is to be paid her 0 thumni of TZS. 2 422 816-25, if she has not been paid some of it, she can lodge her complaint before the trial court and preferably before the very trial Magistrae if he is still there. This court cannot jump on it at this stage because the record of the trial court does E not show anywhere that the appellant was ordered to get part of her ‘ thumni ” by collecting the debts which the deceased was owed. That is the duty of the administrator (respondent). F It is upon the above reasons that 1 dismiss this appeal. Due to the nature of the case and the relationship between the appellant and the respondent I direct that each party to bear his or her own costs. 1