Matolla v Msikiti (PC Civil Appeal 2 of 1982) [1982] TZHC 764 (21 October 1982)

H. MATOLLA v.KADHI WAMSIKITI (Ruhumbika, J.) 53 account. I think the defendant would be liable if it were established that A Annexure A to the plaint were authentic and the defendants servants did not enter the amount in the plaintiff ’ s account. I gather from cross- examination by Mr. Kesaria that as the pay-in-slip is prepared and issued by the defendant, that once a customer has filled in the pay-in-slip which is stamped by the defendant ’ s stamp, that as there is no warning to warn B customers of fake stamps, then the defendant should be held liable. Yes the defendants will be held liable if the pay-in-slip contains the defendants bank rubber stamp. But in this case Annexure A does not have, as demonstrated above, the defendant ’ s rubber stamp or even a semblance of such stamp. I am not persuaded to hold the mere fact that there is no C warning about fake stamps should render the defendant liable. For these reasons, having found that plaintiff did not pay in his bank account the sum of Shs.3 1,200/= as shown in Exhibit A to the plaint, I am satisfied that the plaintiff ’ s case fails as the defendant would not have done what is alleged in issues (b) and (c) nor is the plaintiff entitled to any D interest claimed in issue (d). Consequently I dismiss the plaintiff ’ s claim with costs. Judgment for the defendant HASSAN MATOLLA v. KADHIWA MSIKITI, MWINYIMKUU STREET F [HIGH COURT OFTANZANIA AT DAR ES SALAAM (Ruhumbika, J.)] (PC) CIVIL APPEAL 2 OF 1982 G Islamic Law - Inheritance - “ Waif ” dedicating deceased ’ s house to the Mosques for religious reasons - "Waif' conditional upon failure of deceased ’ s daughter coming forward to inherit -Deceased ’ s daughter did not show up - Deceased's brother ’ s son claimed to be a rightful heir - Whether the mosque is entitled to any share in H the property of the deceased. The deceased, a father of only one child who was living outside the country, dedicated by “ Waif ’ his house to a mosque for religious reasons. The “ waif ’ was given conditional upon failure of the deceased ’ s daughter I coming forward to claim inheritance. After his death the daughter did not

54 TANZANIA LAW REPORTS [1985]T.L.R A show up. However, a son ofthe deceased ’ s brother applied in a Primary Court for and was granted letters of administration of the estate of the deceased. He also claimed the right to inherit the house of the deceased. The Primary Court decided that he was entitled to inherit the estate of the deceased as heir under Islamic Law. The Court, however, required him B to cash down 23,330/= to the mosque in terms of the “ Wakf', being 1/3 of the value of the house. The appellant appealed against the court ’ s order that the appellant should pay Shs.23,330/= to the mosque before he could inherit the house. C Held: (i) The appellant has the right to inherit the house and the dedication of the house to the mosque in the “ Wakf ’ is rendered non-effective thenceforth by the reason ofthe act of the appellant inheriting the house; (ii) the requirement to pay 1/3 ofthe value ofthe house to the mosque would arise only if the deceased had set up an unconditional D "Wakf ’ dedicating the house to the mosque permanently after his death without the clause that the house should pass to the heir when that heir was available. Appeal allowed. E No case referred to. 21 October, 1982. Ruhumbika, J.: This is a second appeal. F The appeal involves the Islamic law of inheritance for Moslems of Sunni Section. The appellant, Hassan Matolla, applied to the Primary Court of Kinondoni in Mirathi Civil Case No. 5 of 1981 to be appointed the administrator ofthe estate of the late Selemani Matolla, who died intestate. G The deceased left behind a house on Plot No. 10,Mwanamsali, Kinondoni District. The appellant also claimed before the same court to be the rightful heir of the estate ofthe said deceased person. The application was objected to by the Kadhi of Mwinyimkuu Mosque, in that the deceased had dedicted that house in a “ Wakf' deed H to the mosque. An appropriation by way of a “ Wakf" may be either by act inler vivos, or by will. But if it is made by will or death-bed gift it is subject to the same restriction as bequest in favour of an individual, namely that it cannot operate upon more than one-third of the next assets, unless I the heirs consent That is the general jurisprudential point of view regarding “ Wakf document which becomes effective at the death of the testator.

H. MATOLLA v.KADHI WAMSIKITI (Ruhumbika, J.) 55 In considering the application of the appellant, the Primary Court A had to have a full hearing of the objection. The objector called several witnesses to testify. The Khadhi himself (Jaffar Abubakari) testified before the Primaiy Court. He told the Court how the deceased established the “ Wakf ’ dedicating his house to the mosque for religious reasons, as he had no child of his own living in this country. The deceased set up the B “ Wakf' before some kind of a conciliation committee of the CCM Branch of Mzimuni, Kinondoni District. This was on 26th December, 1979. The execution of the “ Wakf ’ was attested by three members of that committee, the chairman of the committee, the secretary and a committee member. The document had to be executed in the presence of those C witnesses as he could not write. In addition to that, three members from the mosque authority signed the “ Waif' to signify that they had agreed to the terms set out in that “ Waif ” . The deceased was illiterate and for that reason he could not sign the “ Waif'. The evidence of all those who testified before the Primaiy Court D for the objector proved that it was the intention of the deceased to dedicate the house in that “ Waif ’ to the mosque in question, as he had no child of his own living in Tanzania. However, it was a condition set out in that “ Wakf' that should the deceased person ’ s sole child, a daughter, come from Zambia, then the house should devolve to her as the heir. This E daughter, Mariam Matolla, bom in 1928 at Dar es Salaam lived all the time in Limber Zambia. In order that this daughter could identify as such she had to produce a photograph taken together with a cow whose milk was used to feed her during her infancy as her mother died when she was an infant. F The turn of events is that after the death of Selemani Matolla, the daughter did not turn up. This then gave the opportunity to the appellant to go to the Primary Court to seek an appointment as an administrator of the estate of the deceased and also to claim the right of inheritance as an heir, as he is the son ofthe brother of the deceased. The appellant claimed G to have nursed the deceased until his death on the I st of January, 1981, and to have handled all the Islamic funeral rites. The Primary Court accepted the evidence adduced for the appellant as the son of the deceased ’ s brother, and therefore entitled to inherit the estate of the deceased as heir under Islamic law. H Under the law as stated in A Handbook ofMohamedan Law of Inheritance - by Sheik Ali Bin Hemedi EI-Buhuri - a brother ’ s son has a right to inheritance, and is included in the list of ten male heirs. The Primary Court therefore found that the appellant had the right to inherit the deceased person ’ s house, but that he will have to pay off the unpaid I balance of the loan of that house to the National Housing Corporation.

56 TANZANIA LAW REPORTS [1985JT.L.R A Further to that, the same court directed that the said house should be valued and that the appellant should in that respect pay one-third of that value to the mosque in relation to the “ Wakf ’ set up by the deceased. Eventually, the house was valued at Shs.70,000/= by a Court Broker, and one-third the value of that stands at about shs. 23,330/=. B The appellanthas been trying to have the said house registered in his name, but could not succeed in doing that as the Primary Court required him to cash down Shs.23,330/= to the mosque as per said “ Wakf ’ . The appellant being dissatisfied with this finding of the Primary C Court appealed to the District Court (of Hala as the record shows). He was unsuccessful, as the District Court upheld the decision of the Primary Court and dismissed the appeal. As a result of that, the appellant has appealed to the High Court. Although the appellant tried to show in his memorandum of appeal (grounds nos. 2 and 4) that the objection was D lodged after the expiration of the 90 days of the publication of the application so that any one with a claim of interest in the estate could lodge an objection with the courts this is not true. According to the record of the Primary Court which is very clear, the application proceedings were commenced on the 1 7th day of January, 1981, while the objection E was lodged on the 30th of January, 1981 by theKadhioftheMwinyimkuu Mosque one JAFFAR ABUBAKAR. The crux of this appeal is: What was the intention of the deceased as reflected in the “ Wakf ’ ? The “ Wakf ’ established by the deceased was clearly a conditional “ Wakf'. One of the conditions was that the F dedication (or endocument) of the house to the mosque should take effect after the death of the testator. Another condition was that the house should be inherited by the rightful heir. The house should only pass to the mosque permanently in the event of the heir failing to turn up. This means that the rights created by the “ Waif ’ as to the mosque could not override G or take precedence over those of the heir, when that heir turned up. It is then clear that the intention of the testator (deceased) was for the mosque to hold the house ad interim until the heir came forward. It is obvious that the proposed heir was the daughter of the deceased (the term “ heir ” in legal literature is both masculine and feminine, although H the term “ heiress ” is used in general English usage). This heir, MARIAM MATOLLA, did not appear. No one knows whether she is still alive in Zambia or not. Nothing has been heard about her all this time. This has created an opportunity for the appellant to come forth as the righful heir to the “ estate of the deceased", and the Primary Court accepted him I after due consideration of the application. The Primary Court decision in this respect was unanimous. Strictly speaking, the Primary Court could

H. MATOLLA v.KADHI WAMSIKITI (Ruhumbika, J.) 57 have easily rejected the appellant as the heir, insisting that the only heir A expected was the daughter of the deceased. But in general, the Primary Court was also right in accepting the appellant as the heir, because he is the son of the deceased person ’ s brother for which fact there was conclusive evidence. It appears that the decision of the Primary Court to accept the appellant has turned into a blessing to the appel lant. MARIAM B MATOLLA, the daughter of the deceased, has not turned up, and the appellant is the only person available to benefit from the deceased ’ s estate. This court did not wish to fault the decision of the Primary Court in accepting the appellant as the rightfill heir according to Islamic Law, and the authority for that has already been cited. C Going back to the “ Wakf' is that the heir should inherit the house from the mosque, when such an heir came forth, despite whatever rights have been created by the “ Wakf' as to the mosque. The appellant has now taken the place of MARIAM MATOLLA. He has therefore the right to inherit the house, and the dedication of the house to the mosque in the D “ Wakf' is rendered non-effective thenceforth by the reason of the act of the appellant inheriting the house. It is true that under the Mohamedan Law of Inheritance (book cited earlier), a testator cannot make a bequest in which he passes more than one-third of the assets of the estate. Likewise a “ Wakf ” like the one set E up by the deceased in this appeal could not give more than one-third of the value of the deceased person ’ s estate, i.e., the house which is the only asset in the estate. That is why this theory of one-third was in the minds of the lower courts, when those courts obi iged the appel lant to cash down Shs. 23,330/= to the mosque in order to inherit the house. This kind of F interpretation of the “ Wakf' in this appeal is a fallacy. Such an interpretation could only apply if the deceased has set up an unconditional “ Wakf\ dedicating the house to the mosque permanently after his death, without the clause that the house should pass to the heir when that heir was available. In such a case, ifthen there came forward someone claiming G as an heir under the usual Islamic Law of intestacy, the jurisprudence of the Islamic Law of intestacy would require that the dedication in the "Wakf' gave to the mosque rights in that particular house to one-third the value. In such a case, that type of heir could inherit the estate but less one-third the value of that estate dedicated to the mosque in a which the H mosque should have. Butina conditional “ Wakf' like the one set up by the deceased here, we clearly find that the mosque could not be entitled to one-third the value of the house left by the deceased, after the heir had come forth. This is so because the intention of the testator was to pass on the house I to the heir free of any conditions.

58 TANZANIA LAW REPORTS [1985IT.L.R A This court therefore finds that it would not be justifiable for the mosque to claim to be indemnified to the tune of Shs.23,330/= by the appellant in order to inherit the house of the deceased. As long as the appellant was accepted by the Primary Court as the rightfill heir, he should be able to inherit that house free of any encumbrances created by the B conditional "Wakf'. Having found that, what follows now is to consider when the appellant will be able to inherit the house. Obviously, the appellant was essentially appointed the administrator of the estate of the deceased. Therefore, he has to discharge the liabilities against the estate first before C considering the distribution of the estate to the heirs (incidentally, there is only one heir in this matter, and that is the appellant himself). Therefore, this does not mean that the appellant has to inherit the house straight away. The appellant is the rightful heir alright, and there are no more qualms about that now. But the court notes from the record D of the Primary Court that the house of the deceased was still entangled in a loan element with the National Housing Corporation, and as remarked earlier the appellant has to pay off the unpaid balance against that house in order to redeem it from the mortgage with the Corporation. In this respect, the appellant cannot transfer the title to the house in his own E name as he thinks. He has to settle the account with the National Housing Corporation before anything could be done. This court therefore directs the appellant in his capacity as the administrator of the deceased ’ s estate to procure an up-to-date statement of account from the National Housing Corporation in respect of the house, F and file that statement in the Primary Court of Magomeni, which court should monitor and ensure to it that the appellant pays to the National Housing Corporation the required monthly loan repayments until the redemption amount is paid up. It is only after the redemption amount is paid fully that the house G could be free from the mortgage regulations to enable the appellant to process and give effect to his inheritance rights, if there could be no other encumbrances in respect of that house. In the end result, this appeal succeeds only to the extent as indicated. The court makes no order as to costs. Appeal allowed.