Rose Andwedisia Tilya Vs Emmanuel Christopher Tilya (Civil Case 8 of 2021) 2022 TZHC 11132 (14 February 2022)
Rose Andwedisia Tilya Vs Emmanuel Christopher Tilya (Civil Case 8 of 2021) 2022 TZHC 11132 (14 February 2022)
VERSUS
JUDGMENT
MUTUNGI .J.
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52(b) and 54(3) of the Probate and Administration of Estate
Act, Gap 352 R.E. 2019.
More so by the time the purported Will was read out it had
not been signed nor sealed by Advocate Elizabeth Maro
Minde (PW2). The said Will was intending to distribute
properties already distributed by the deceased to his sons
and blood relatives before his death except for the house
situate at Shah Tours .It was the defendant’s further concern
that, the plaintiff intends to administer the estate contrary to
the express wishes of the deceased in his Will dated 27th July,
2015. Despite all of the above, during the deceased’s life
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time the plaintiff had meddled with his landed properties
already allocated to his sons and grandsons. He therefore
filed a caveat subject of this judgment praying the 2017 Will
introduced by the plaintiff be declared invalid and
alternatively this Court appoints him to execute the 2015 Will
and administer his grandfather’s estate.
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2. Livestock, one cow to be given to Sylvester and
Emmanuel Christopher. The goats be given to
Emmanuel Christopher.
3. The premises at Shah Tours be given to Rose .A. Tilya (the
plaintiff/petitioner).
4. The farm at Natsini be given to the children of the late
Hedson Tilya and the children of the late Robert Tilya (3
acres).
5. Sisal farm be given to Elfuraha Malisa and Emmanuel
Christopher.
6. The paddy farm at Munono be given to Estemani .A.
Tilya (1 acre), Emrod Anase Tilya be given % and % to
Emmanuel Christopher.
7. The area at Kifunyi be given to the children of the late
Herson .A. Tilya.
8. The area at Babati, Manyara be given to Mathayo Justin
Maro.
PW2 explained further that, at the time of writing the Will, the
deceased was of sound mind with a good memory and he
knew how to read and write but due to his old age he signed
by putting a thumb print. She then sealed and kept the said
Will in her office until when she heard of the deceased’s
death. She clarified further, she went to the clan meeting with
the said Will, read it out and left them to deliberate on the
estate. She denied having known of the existence of another
Will written way back in the year 2015. She vehemently stated
before the court that, the Will was sealed before she read the
same in clan meeting.
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When cross examined, PW2 stated it is not a legal
requirement for a maker of a legal document to sign on each
and every page. She specified among the two witnesses,
Daudi Isaria Maro was the deceased’s long-time tenant and
close confidant whereas Hoise Gerald Mandara was the
deceased first cousin. She also stated, those witnesses never
read the Will, thus they did not know what was written therein
as their duty was merely to sign the Will.
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declined. Since they refused to listen to PW2, she returned the
Will in the envelope and left. During cross examination he
stated, he is still a tenant in the deceased property paying
rent to PWT (the deceased daughter). He also clarified, when
PW2 appeared to read the Will to the clan members, the
envelope was not sealed. More so, he wrote his name and
signed with a pen and wondered how it happened that the
same was appearing in. a computer generated format.
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the same was admitted as Exhibit “D l”. The clan meeting
minutes were also admitted as Exhibit “D2”.
DW2 further told the Court that, the deceased and PW1 had
not been in good terms for a while, forcing him to give her
the Shah Tours house since 2009 but the deceased
adamantly refused to do so. In 2016/2017 after she realized
her father had lost memory, she summoned a Lutheran Priest
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who tried to force him to give her the said house otherwise
the church would not attend him spiritually. Still the deceased
refused to heed to the said demand. He prayed in view of
the evidence from his side, the objection raised be sustained
and he be appointed to execute the 2015 Will fairly to all the
beneficiaries.
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burial is when he produced and read the same to the clan
and family members. This was after PW2 reading out the 2017
Will which she had kept in an envelope not sealed and the
same initiated chaos. PW2 had then requested to go and
dully attest the said Will and complete the process. He
testified further (PW1) the deceased’s daughter had
differences with her late father on the Shah Tours house since
she claimed the house was hers whilst the deceased claimed
it was his lawful property.
After the court hearing the testimonies from both parties, the
learned advocates filed their final submissions. Starting with
plaintiff’s advocate, Mr. Kilasara, on the onset submitted, the
deceased died testate leaving behind two Wills. He asserted
that, Rule 23 to the third schedule of the Local Customary law
(Declaration) No. 4 Order, GN No. 219 of 1967 permits a Will
to be amended. In that regard, of the two Wills that of 27th
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July, 2015 and 27th March, 2017, the latter is the last valid Will
of the deceased.
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decisions. Further, after the said Will was written, was not
signed by the advocate who witnessed the same, and none
of the witnesses was related to the deceased. In that regard,
the Will contravened the Local (Customary Law Declaration)
Order No. 4 of 1963, GN. No. 436 of 1963 (Local Customary
Declaration Order).
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2017 was valid. Section 2 of the Probate and Administration of
Estates Act CAP 352 R.E. 2019 defines a Will as follows: -
From the 2nd page through the 3rd page is where the
deceased allegedly started to distribute his properties.
However, there is no singie line or clause which specifically
mentioned the plaintiff therein as the executor of the
deceased Will. Now the question is, where did the Author of
the Will get information that the plaintiff had been appointed
the Executrix so as to be acknowledged on the front cover
page. Section 24(1) of the Probate and Administration of
Estate Act (supra) reads;
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“24. Grant of probate
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witnesses come into play to testify on what they heard and
witnessed.
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adulterated or alterations made therein, hence renders the
Will invalid.
Fifth; the Will read out by Advocate Minde was not sealed
before she read it to the deceased family. Although she
testified that the envelope was properly sealed and stored
safely in her office, the evidence provided in this court
including that of PW3 proved otherwise. Rule 114 of the
Probate Rules, G.N No. 369 of 1963 (made under section 9 of
the Probate and Administration of the Estate Act) provides
for the Wills presented in the Court to be sealed in an
envelope. Although the law is silent on how should the Will be
kept in private offices, say Advocates office as in this matter,
in banks, religious leaders etc, I am of the considered view
that, the logic behind Rule 114 applies to all other places as
was calculatedly designed; to avoid fraud or such Wilis to be
tempered with. The fact that the Will in question was read out
from a loose unsealed envelope places its authenticity to
question.
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the caveator and his witnesses argue to the contrary that,
she .left with it intending to sign and attest the same. The
plaintiff’s witness (PW3) had the same story. As though not
enough, at the same time, the learned counsel left them with
a copy of a sketch map which she purportedly stated was
produced by the deceased in preparation of the Will, (t is
therefore doubtful, that family members agreed to receive
the sketch map but refused to receive the Will for no good
reason.
(!) N/A
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(ii) Where a Will is surrounded by fraud, if is void.
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On the last issue as to the rights entitled to the parties, this
Court is of the view any entitled party or parties to apply to
be executor(s)/or administrator(s) upon nomination and
proper probate procedures. In the circumstances, the
caveat filed by the defendant has merit and the same is
accordingly sustained. This being a probate matter involving
parties dully and closely related, I grant no order to costs.
B. R. MUTUNGI
JUDGE
1/04/2022
B. R. MUTUNGI
JUDGE
1/04/2022
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