Godwin Ngobile

DIVERGENCE OF THE LAWS GOVERNING SUCCESSION IN

TANZANIA( WHEN AND WHERE TO APPLY EACH LAW).
Divergence of the laws is caused by cultural, religious, and
historical infuences.
Litigants and courts must carefully determine which law
governs a given case based on factors such as the deceased’s
religion, community, personal choice during their lifetime, and
the nature of the estate. Below is a discussion of this
divergence and how applicability is determined under
Tanzanian jurisdiction.
1. Statutory law
*Probate and Administration of states Act
Governs estate of a person died testate or intestate, provide for
appointment of executors or administrators
*The Indian Succession Act 1865
Governs estates of christians and uropens and others not
subject to customary or islamic
WHEN TO APPLY STATUTORY LAWS
a) When deceased was a Christian.
b) when deceased lef a will opting to use statutory law
 Godwin Ngobile

c) when court identiies that deceased lived a lifestyle involving

mixture of islamic,customary and Christianity but his dominant
part was modern and Christianity based
WHERE TO APPLY STATUTORY LAWS
applicable at District Court, and District Delegate
COURT AND LITIGANTS WILL KNOW APPLICABILITY THROUGH
deceased religion, lifestyle or wishes of deceased from the will.

2. Customary Laws
*the Local Customary Law Declaration rder
WHEN TO APPLY CUSTOMARY LAW
a) when a decesed belonged to a tribe with established
customary practices
b) deceased lived customary lifestyle(dominant part)
c) when deceased was not a christian or islamic or customary
then will be presumed that was a customary person.
WHERE TO APPLY CUSTOMARY LAWS
Applicable in Primary Court
3.Islamic Law
 Godwin Ngobile

For muslims succession is governed by Islamic principles from

Quran as codiied in The Islamic Law (Restatement) Act Cap 375
WHEN TO APPLY ISLAMIC LAW
a) a deceased was a muslim
b) deceased lef a will opting the use of islamic law
c) deceased lifestyle based on islamic (dominant part)
WHERE TO APPLY ISLAMIC LAW
Is applicable in primary court

CRITERIA TO KNOW APPLICABLE LAW IN CASE OF CONFLICT

1. Intenton oo the deceased or desire oo deceased
#Julius Petro Vs Cosmas Raphael 1983
2. Mode oo lioe or Lioestyle mode
#Re states of Reginald Abraham Mengi 2019
# Re states of Salum mari Meremi 1973
#Re Innocent Mbilinyi 1969
3.Dominant part docrine
When a deceased lived a Hybrid mode of life
#Re states of Innocent Mbilinyi 1969
 Godwin Ngobile

#Re states of Reginald Mengi 2019.

SOME LANDMARK CASES

1.George Mmari vs Anande A. mmari (1995) TLR 146
BRIEF FACTS
The appellants challenged the validity of a will drawn by their
deceased father while hospitalized bequeathing a house to
their stepmother. The will was atested by the said stepmother,
i.e. wife of testator, and the doctor who was atending the
deceased.
Held:
(i) For a will drawn up by a literate person to be valid it must be
atested, besides the wife (wives), by at least two persons of
whom one must be a relative of the deceased;
(ii) The deceased's will was not atested by a relative of the
deceased, and it was defective for want of proper atestation.
FACTS OF THE CASE
It was while the deceased was sick and admited at Hindu
Mandal Hospital within the City of Dar Salaam that on 25
January 1995 he is said to have drawn up his will by which he
purported bequeath his various properties to his two children
 Godwin Ngobile

and the house in dispute to the respondent. Such will was

atested by the respondent who is the deceased's wife and one
Dr Gloria, only.It is this doctor Gloria who was then atending
the deceased while hospitalized at Hindu Mandal hospital. As it
will have been noted, besides the respondent, the deceased's
wife, the will was actually atested by one witness only, the
doctor, one Gloria. Yet in law, according to Rules (5) and (19) of
the Local Customary Law (Declaration) (No 4) rder 1963, GN
436/63, Third Schedule, a will drawn up by a literate person, for
it to be valid it must be atested besides the wife (wives), by at
least two persons of whom one must be a relative of the
deceased. That was clearly not complied with in the will the
subject of this appeal. Apparently the validity of such will was
challenged by the two appellants before the trial court, but the
trial court honored such will. The will was challenged for want
of a clan member to witness it and that the same had been
writen under undue infuence of the respondent while the
deceased was seriously sick.
DECISION OF THE COURT
As pointed out earlier the deceased's will is clearly defective,
for want of proper atestation. It lacked one more witness who
ought to have been a relative of the deceased. As such it cannot
be efected. It is null and void. In the circumstances, the
deceased is to be taken to have died intestate and therefore
 Godwin Ngobile

administration of his estate is to be done in accordance with

the applicable law, as if he had died intestate.
Accordingly when this appeal came up for hearing on 2
February 1995, | allowed the appeal, set aside the order of the
lower court, declaring the will null and void, with an order that
the estate of the deceased should be administered afresh as if
he had died intestate, and that the case should be remited
back to the lower trial court to make necessary orders for the
administration of the deceased's estate, reserving my reasons
which I hereby give.
2. Hamson D. Ghikas vs Ludwina G. Ghikas (1992) TLR 288
BRIEF FACTS
The respondent petitioned for, and was granted, probate by
the High Court in respect of the estate of her late father. The
appellant, also the child of the same deceased father applied
for a revocation of the grant of the probate to the respondent
but the High Court refused the application. The appellant
appealed to the Court of Appeal. In the course of hearing and
upon perusal of the High Court proceedings, the Court noted a
number of irregularities whose details are found in the order of
the Court.
Held:
 Godwin Ngobile

The petition for probate by the respondent was misconceived

as the deceased died intestate and the purported grant of the
same was null and void.
FACTS OF THE CASE
The record in the mater before us shows that the respondent
has petitioned for, and was duly granted, probate by the High
Court (Chua, J.) in respect of the estate of her father, the late
Adolf D. G Ghikas. Subsequently the appellant who is also the
child of the deceased, applied for a revocation of the grant to
the respondent, but the High Court (Mroso, J.) refused the
application.
It is from that refusal that this appeal is preferred. Before us
the appellant is represented by Mr. C.M. Ngalo, learned
advocate, while Mr. C.J. Maruma, learned advocate is H for the
respondent. When the appeal was called on for hearing counsel
for both sides informed us that they were applying for a
consent order to provide for, inter alia, a variation of the Grant
of Leters of Administration issued to the respondent so as to
include the appellant as a joint grantee of Leters of
Administration in respect of the estate in question. It was at
once apparent that there was a serious problem in the mater.
While the learned counsel are asking us to vary the Grant of
Leters of Administration issued to the respondent, the record
makes it quite plain that what was issued to the respondent B
 Godwin Ngobile

was not a Grant of Leters of Administration; it was a Grant of

Probate duly issued in pursuance of the respondent's
application for the same. It is therefore impossible to make the
consent order as proposed by counsel for the simple reason
that we cannot vary a Grant of Leters of Administration which
was never issued in the irst instance. But the mater does not
end there. There is the further question of the validity of the
said Grant of Probate issued to the respondent.
Section 24(1) of Probate and Administration rdinance
(Cap.445) provides that: 24-(1) Probate may be granted only to
an executor appointed by the will. And rule 33 of the Probate
Rules require alia, that:
(a) the last will of the deceased and all codicils thereto shall
accompany the petition for grant of probate.
The reading of both provisions makes it abundantly clear that
the petition for, and grant of, probate presuppose the existence
of a will. In the instant case, however, the purported position
for probe by respondent was not accompanied by any will, and
going through the entire record there is no mention
whatsoever of any will lef by the deceased. Indeed the very
fact that counsel are asking for consent order, to vary the grant
of Leters of Administrations make the appellant a joint grantee
of Leters of Administration clearly suggests that no the grant of
Leters of Administration so as to make the appellant a joint
 Godwin Ngobile

grantee of Leters of Administration clearly suggests that no will

of the deceased exists or has been traced.
In the circumstances, therefore, it seems plain to us that the
petition for probate by the respondent was grossly
misconceived and the purported grant of the same was simply
null and void. When those maters were pointed out to the
learned counsel for the parties, they readily conceded.
In the result we set aside the purported grant of probate as
being null and void, and as this is entirely a family mater we
make no order for costs.
I rder accordingly.

DISCLAIM R.
This is the additional material, nothing contained herein shall
afect the formal arrangements.