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12 IN TH HIGh COURT OF ThNkI C. (pt) CIVIL P-L LO 141 OF 1971 (From the decision of the Disiot Court of Bukob t ±uk - ba in Civil-.o1 No, 155 of 1971 befr J.L. Ivfbonkto s & ,, Eashesha P C Civil C,sc. io 90 of 1970 - . .. . vrsus H iU1 IoHtidKO JONA'THii AG, J. Th ap - the 1riinary Court for 1 OSSSbiofl of tho.Lstat Of his u0ccs unc1 0 c 1lci omrncnul which .. tne rLonent nab. tin ov.r on thc strLnth of c, will pur j ort ea ly cut. in his favour by the decasLL The Prim ry Court un nimously gave jud.mnt for the a)peilant, but on ap1 tas district oou. rcvrscd that cL(1sion •:c..:...... .- It is coiimnon th t tkc a 11ent is a ptcrn1 ncphew of t± e 1t x.iomanul ho dieL in October, 1970 lcavin 1 no o.fsp'in anit pears tht, but for the purportel will, the ap LantJolT1c have suoccddd to his cstatc s it was, nowcver, s on aft his eotn rsponent hO w .-is not . a mmLr of thecceasccs clan prQucd a will wicn p-as to hav- bLOn .x-cuted by d..GCG.'. seu i in ins favour, anLi he crLin,ly occupi'e the occ s,ed 's 1..nd which compriscs th bulk of th. c iatc Th. app.illnt filou th suit, att a ci ~ inS triL p u rteci, will as invalia , claimin that thorc was a second will mode subseuentiy which..bequaati -ici.. ..thc sstato. to.h-imi. • • r1, b.oth.the lower courts ,th3 tlo, seems :to; have. .been--.fuht on three front.. Thcs-a were vhether t1 tctator was irr.a or fruio of inant, whcther the lanc. w a s cia i pi r rty and wioer, th.. il1 was vlid The lst point clearly dipos of th apal ana I ' nt prooso to into th.. o+her wttars However, ith rg.rd to th fi_5t., I fccl construinu hote with ulsapproval a line of inquiry adopted by the district iieistrate to ascertejn if aGCGCSCd was insane at the time of <eoutin the will. iIe decided tht to do so the court should move to tIIc site (the land), and the hearing was ajournod to another dy when such a visit could be made, I cannot drstog )what useful prpose such a visit, itself quite costly 9 could be - npc't ta serve, oopecially cons iderin that the primary court Ii u ic ru viJ.nc.. on the ne ior of mental condj. iio.i ofthe c.cceaed It is notsur3ris.ng 9 therfore, that theappellant hd:3rosd against the visit to thsite whore, HL. complains, he was denieci audience and only the respondent's case was heard. The respondent's rim statmont at the hearing of this appeol seems t. 4va credincu to :is allegation when he s.ys on arrival at the site the court ceased a .lrui -a to cci beaten and villagers to assemble there, ñd t1ii ....wtnsssoa spoke affirmatively of his case while the gathering assurec. the court that he was, by adoption, deceased's brother. -i'here may some oxa 0 er.tiuii in this, but I think much of the appellant's complaints regaruing the visit is not without foundation, and it is unfortunate that th court shoulc. have loic. its .lf open, as I tnink it has done, to such criticism thereby blurring that image of impartiality and fairness that charactc-rises a judicial tribunal. To turn now to the issue of validity, he priaary courtfound, and unanimously, that t..e will was not.valid. But the district court differed, holc!in that as it had been completed (sic) by the tc.stator and ithe absence of any.other will, it should be given eff(3ct. However, 4,seems to, have ovorloo1ed the iaya Customary rules regard.in. 0 the execution of wills, In his memorandum the a)pellont has referred me to the case of wornan..a Mu1auav.B,1ian_icwoj (p.c. Civ,Ap:. 1 35 .- D-67 as reporteci in HOC.D .205/6a1 in which Saldi, J. he was then) 1iel.., citing gory end .Jartnoll on Customary Law of the Hcya Tribe, that, where a tostatorpro:iosas to aisi- nherit his family his will to that enci should be oigned by-at least 10 witneeses, including either ais close relatives -r th heaa of his clan. • - • - I resp:ctfully agree with tnat view which 9 in faot has s -totutory rece,nition TheLaw of 4ills uner G0N No. 43J63 is relevant By G,N. No, 6.O73 this. lw a..1ied to the jurfsdictionof the Buhoya District Council where the suit was instituted, hections 17-22, inclusive, cbmprise the requirements of a valia will. Among these is the provision that a writthn will ought to be witneasd by at least two persons if the testotor is literate, .s in the pres3qt o .S'O one of whore should be a kinsman, kih to this is the usual reqairrnent that the wil]a shoulh .lnex.ecuted in aria Sitt1n, that is, the tastator should sign in the presence of the attesting aitessos Those areroquisites have to be present irrespec civo of whether or not the subject matter of the will is clan proecrty. It then 'emains to sea if the will proLuced by the respondent conforms to tUese requirements. The will inatuly signed by the testator and .atteeta to by Jei reich (ie,4.6) ±mina Scefu Gerard John .(hd2), In adition thd names of Tilugelub'a (th 5) dndPatrick, appear,. but thy do not.soem to h ye signid the. ill Jeremiah ceinit t h a t he w not pr.snt when the Jccc sd sinei tui. will F rr this reason trie jfBic.. of hie sine turc th the will i s of no efiee.b vo. Of tr i,nificnce, howvr is the failure to have the will witnosce4 by a mpnbcr of the deceased's c1ar as the records show, nd as the responden -t caniidip admitted at.the hearing of this aoel For this re Cun the. will cannot poesibly bo Vçllci eVfl if • one were to say in the rpondun± 's favour that the land was n.t property • of the clan, The trial court was .tolc2 by D,2, flh3 and that the • deceased hd told each of thbfr, apparently separately, that the respondent would be his heir. I do not understand that was sup;osed to be qn oral wiI bat even if one were to go so fa as -to say it wee, it would be a patently defective will for, although subh q will required to be witncsse by at least two kinsmen of the decbdhad (section 11 refers) none of the above witnesses was of this category0 ....... The respondent cannot cloiñi he estate on the atrengt of the • witten will or on -the oral staterneri -ts fl-radd to his witnesses0 The appellant is the son of a full brother of the deceaseri and has the better claim over thb estate IS against the respondent who had no clan relationship w i t h deceased. Accordingly, tLe appeal must succeed Ind it is hereby o11owccq with costs. o 4th November, 1972 uJcaT1i1J) 0 - • •• . •t . • . •.