[2024] UGHC 961

# 5 **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA HOLDEN AT GULU**

#### **MISCELLANEOUS CAUSE NO. 09 OF 2024**

**ADOKORACH DOREEN::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

- 10 **1. KAUNDA ROBINSON** - **2. ANEK LUCY** - **3. ACUMA** - **4. GASI**

**5. OKETTA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS**

# **BEFORE: HON. MR. JUSTICE GEORGE OKELLO**

#### **RULING**

The ruling seeks to resolve a dispute that has arisen regarding the place where a deceased person should be laid to rest. The matter resurrects the legal debate 20 in an area which has for long lacked statutory backing. The subject matter becomes emotive more especially when the principal disputants are children of the deceased. The applicant in this action is a daughter of the late Severino Kiberu Lukoya whose pending burial is at the centre of controversy. The 1st and the 2nd respondents appear to be the Applicant's siblings, while the 3rd respondent seems to be an uncle, and the 4th and 5th 25 respondents cousins to the


- 5 Applicant, respectively. The Applicant denies these relations. The deceased died intestate on 13th July, 2024 apparently from Lacor Hospital. His remains lies at the 4th Division Army Barracks in Gulu where it is being preserved pending court determination. The depositing of the body appears to have followed an order by the Deputy Registrar of court, stopping any person from taking steps to bury the - 10 deceased until the dispute as to his final resting place is resolved by court. The rather unfortunate but avoidable dispute erupted at the time this court was on its statutory vacation. The ultimate placement of the matter before court was further delayed by other factors beyond the court's control. The application was finally fixed for hearing on 1st October, 2024, and the parties and counsel 15 appeared.

Mr. Donge S. D Opar, learned Counsel for the Applicant, and Mr. Layoo Julius Paul, learned counsel for the Respondents, addressed court orally.

20 The application is anchored on a Motion founded under Order 52 rules 1, 2 and 3 of the Civil Procedure Rules. The applicant invokes the inherent powers of court under section 98 of the Civil Procedure Act, to grant reliefs. The main prayer is for court to allow for the burial of the deceased at a place named by the Applicant, and that the respondents be restrained from burying the deceased at their 25 preferred place. I shall mention the contested burial places shortly in my analysis that follow.

- 5 The gist of the Applicant's case is, therefore, that, the respondents have been running parallel burial arrangements at a different venue yet the deceased had made his wish known as to the place where he should be buried. The latter bit of the averment, however, is contested by the respondents. Relatedly, it is averred by the Applicant that, whereas the deceased had his first home in 10 Panyikworo Village, Bungatira Sub-County, Gulu District, which is the place the respondents and the clan want him interred, the deceased had long left that home as early as the year 1993, having allegedly been banished by the respondents for his faith and for suspicion of supporting rebel activities. The deceased, therefore, established a new home in Kony-Paco, Awere Cell, Gulu - 15 City. For ease of reference and to avoid mixups, I will call this the second home, and that in Bungatira, the first home. Therefore, it is claimed, while at the second home, the deceased acquired 10 acres of land at Pabit Village, Unyama Sub County, Gulu District where he established a home, a church and a temple. I will call this the third home. It is in this third home in Pabit Village, Unyama 20 Sub County, Gulu District, where the Applicant wants the deceased buried. She - says the deceased wished to be buried there and made the wish known. Again, this is contested by the respondents.

In her averment, the Applicant denies any blood relations with the respondents 25 and says her father was a Madi. These claims are as well contested by the respondents who assert that the deceased was from Acholi tribe, from the clan of Pugwinyi which is predominant in Gulu District. They also say they are related

5 by blood. The parties make other allegations which I will not delve into as they are not material for the purposes of my determination.

Responding to some of the allegations, the 1st respondent deposes that he, the 2nd respondent (Anek Lucy) and the Applicant, are siblings. He also states that the 3rd respondent is their paternal uncle while the 4th and 5th 10 respondents are their cousins. The 1st respondent also denies that they banished their father (the deceased) from the first home in Bungatira but says the father left the place with his children in 1993 for the second home in Awere Cell due to the insurgency of the time. The respondents also contend that their father never made any wish 15 as to his resting place upon death known. About the third home in Pabit Village Unyama, the respondents contend that the alleged home sits on land owned by a private company- the New Jerusalem International Tabernacle Ministries (NJITM) Ltd, and, therefore, there is no company resolution allowing for the deceased's burial there.

I should observe that in this application, whereas the Applicant initially had three co-applicants, the three withdrew from the case with leave of court during the court proceedings of 1st October, 2024. It is not known why they chose that course. The real contestants, therefore, at least as court sees it, are the biological 25 children of the deceased, namely, the Applicant on the one hand, and the 1st and 2nd Respondents, on the other. The uncle and the cousins, to me, are nominal in this matter. The children are the closest in the line of decision making, at least

- 5 as far as the law regarding their father's burial place is concerned. These children have unfortunately completely failed to agree on the important matter. They have failed to look at the bigger picture of the deceased's decent and quick burial so that he is allowed to rest in peace. That being the case, they have chosen the court path, and have asked court to weigh in. - 10

The main issue for court resolution, therefore, is w*hether the late Severino Lukoya Kiberu should be buried in Pabit Village, Unyama Sub- County, Gulu District where he has a Church/ temple/ altar or be buried at the family burial ground in Owak Cell, Agonga Ward, Laroo-Pece Division, Gulu City formerly* 15 *Panyikworo Village, Bungatira Sub-county, Gulu District?*

### **Resolution of the issue**

The principles of law in this area which is derived largely from common law and the doctrines of equity, is fairly clear, at least as far as propounded by the High 20 Court. I am cognizant that in the absence of express statutory law in Uganda that determines burial ground for a person who has died intestate, a court has to assess from the evidence before it whether the deceased made a wish as to his or her burial place in any other form, be it verbal, or by other document, not necessarily a Will. See: *Anette Yossa & 4 Others Vs. Amb. Idule Amoko & AG,*

25 *Misc. Cause No. 41 of 2023 (Ketrah Katunguka, J*.); *Kyobe Julius Luseleka & 5 others Vs. Aida Namalwa, M. A No. 167 of 2021 (Lady Justice Komuhangi Khaukha, J); Namusoke Vs. Amuge & 2 Others, HC Misc. Cause No. 004 of*

5 *2023 (Celia Nagawa, J).* It is also trite that a Will is the legal expression of an individual's wishes about the disposition of his or her property after death. Thus a dead body does not form part of the Will. See: *Anette Yossa & 4 Others Vs.*

*Amb. Idule Amoko & AG, Misc. Cause No. 41 of 2023* (supra). In that precedent, the court held to the effect that where the wish of a deceased person 10 is not expressed in writing, other cogent and credible evidence may provide

- material for court to ascertain the wish of the deceased. Otherwise, the wish of a deceased person as to where he/she should be buried upon death need not be made in a Will, and need not be in writing. It should be noted that there is no property in a dead body, and a dead person cannot take part in a decision of his - 15 or her own burial. There must, however, be compelling reasons for not heeding the expressed wishes of the deceased if one exists. Case law has clarified that the wishes of the deceased as to his/ her burial is not binding but ought to be respected provided the wishes are not contrary to custom, or the general law or policy. This is because of the notion that there is no property in a dead body. - 20 See: *San Vs. G. W, Civil Appeal No. 1 of 2020 [2020] e KLR*, followed with deference by this court in its earlier decisions.

As far as the jurisdiction of this court to intervene in burial disputes is concerned, the same is not in doubt. The laws under which this court exercises 25 its powers thus need no further emphasis. In the present case, as noted, court has been moved under section 98 of the Civil Procedure Act Cap 282 (CPA). This, to me, suffices, although there are other provisions whose aid could be called to.

- 5 Section 98 of the CPA preserves the inherent powers of court to make such orders to achieve the ends of justice, and to avoid abuse of court process. In appropriate cases, the powers of this court under section 98 CPA can be invoked, and exercised as the exercise is a matter of court's discretion. See: *Obote David Vs. Yasoni Odora, HC Misc. Application No. 50 of 2022*; *Odida Vs. Omaya and* 10 *5 others, Misc. Cause No, 3 of 2023*; *Ochwa Olanya Charles Vs. Ochaya* - *Santo & another, Misc. Application No. 30 of 2022.*

Having set out the parameters for my rendition, I proceed to interrogate whether the late Severino Lukoya Kiberu made a wish during his lifetime as to where he 15 should be buried on death.

The Applicant relies on three sets of documents to support the averment that the deceased expressed a wish. The first is annexure "N" to the supporting affidavit. It is a document written in Acholi. It, however, bears English translation. The 20 document is dated 19th March, 2024. The writing is in a note book. It was conceded, the author is the granddaughter of the deceased, a one Auma Diana. Ms. Auma is the daughter of the Applicant. This revelation came out in the replying affidavit of the 1st Respondent (Kaunda Robinson), and has not been rebutted. The relevant part of the writing reads *"in case there will be no life in me*

25 *then you should take dead body in Unyama where I built altar on it."*

- 5 The grammatical issues aside, the writing is addressed to Moses and Diana Adunumon. It is not clear whether Adunumon is the same as Diana the author. By the impugned document, the deceased is alleged to have signed the prepared text. The signature is written in the form of a name. This is not the problem as the law allows it. However, the document has been contested by the respondents. - 10 But during the oral address, learned counsel for the respondent did concede that the signature looks similar when compared with that appearing on a memorandum and articles of association of the company mentioned before. In the company document, the deceased signed as a subscriber in 2018. I agree that the signature appears similar. That said, the document ought to have been - 15 witnessed, and by some independent person. There is no witness at all. Second, the fact that the author is the daughter of the Applicant casts serious doubt on the authenticity of the signature since her mother now seeks to rely on it as against the respondents. No hand-writing expert has examined the document. The author is conflicted on account of her mother's position in the whole matter. - 20 Third, Ms. Auma is not shown to have shared the information/document with the larger family of her grandfather, especially the other children of the deceased, immediately she wrote it, except perhaps her mother (the Applicant). Fourth, the document was prepared on the day the deceased was to be taken to Hospital, I think for surgery. It is claimed by the respondents that he was very sick and unable to write. And according to the 1st 25 respondent, the deceased was operated on 21 March, 2024 at Lacor Hospital. Although it is not explicit from the Applicant as to when the deceased was taken to Hospital, going by the impugned

- 5 document, it appears he was taken ill on 19 March, 2024. Although the claim that the deceased was unable to write has not been positively proved, it has not also been shown that given his condition he was capable of writing. The view of court may appear extreme but to my mind, somebody ought to have given more information on the matter but none was forthcoming from both sides. All in all, 10 for the earlier reasons, I am of the considered opinion that the document of 19 - March, 2024 has a doubtful character. I should thus consider other matters relied on by the Applicant in support of her claim.

The second instance of the alleged expression of a wish by the deceased is 15 contained in annexure "L" to the affidavit in support. It is a letter of introduction written by the LC1 Chairman of Awere Cell, Queens Parish, Laroo-Pece Division (the area where the second home is). The Chairman writes on 24 July, 2024 that the deceased had lived in the area since 1992 and died on 13 July, 2024. This bit is not contested given the respondents' explanation that the family moved to 20 the second home in 1993 due to insurgency. The Chairman, however, claims the deceased called him and other community members for a meeting at the deceased's home, and gave out his word that he bought another land in Unyama where his altar is, and should he die, he would wish to be buried in Unyama (the third home).

This court notes that the Chairman is Odongo Francis. He addresses his letter to no one. The letter was filed in this court a day after it was written. It thus - 5 seems the letter was written for the purpose of this proceeding. Second, the good Chairman does not mention the date the deceased communicated his wish to himself and the community. There is also no corroboration of the Chairman's claim. No family member from the respondent's side for instance is said to have been present in the meeting, at least to confirm the claim. - 10

The third and last instance of the alleged expression of a wish by the deceased is contained in a rejoinder affidavit of a one Akula Kenneth. For starters, Mr. Akula is not a party and never swore any affidavit in support. He purported to rejoin to the affidavit of the 1st respondent. The first respondent questions the 15 alleged expression of the deceased's wish as claimed in the note book. So in his rejoinder, Mr. Akula who apparently is the LC1 Chairman of Oding Village, Oding Parish, Unyama Sub- County, deposes that he witnessed land purchase transaction by the deceased within Unyama as the LC1 Chairman of Oding Village in 2008. He says he soon developed friendship with the deceased and the 20 two regularly interacted thereafter. Mr. Akula claims the deceased one day asked him to write for him a wish in respect of where he wanted to be buried. Mr. Akula attaches a document marked "A". He states that he and the deceased were alone in a house when the deceased asked him to write the document. And that after writing the document, and after the deceased signing it, Mr. Akula was entrusted 25 with the document for safe custody. The deceased allegedly promised to confide only in his trusted friends about the said document since his family is divided.

5 This Court notes that the questioned document is dated 20 June, 2015. It is written in Acholi and the English translation is annexed. Restricting myself to the relevant bit for the purposes of this proceedings, the document states:

*"I am now left with only one child who listens to me and respects me since the rest*

10 *of the children do not want to unite with me. My advice to the church members is that they should stand strong together and unite because I am now old. When my life shall depart from my body I request my daughter Adokorach Doreen together with my church members to bury me on the land I bought in Unyama in the year 2008 where my altar is located."*

Mr. Akula states in paragraph 8 of his rejoinder affidavit that when he heard about the death of the deceased in July, 2024, he started looking for the document which he had misplaced among his many other documents in his house. And that he only got the document on 16 September, 2024, and took to 20 the lawyers of the deceased.

This court notes that the name of the deceased is written on the document. However, there is no independent witness apart from the writer, to vouch for it. It is also not clear how the Chairman knew about the lawyers of the deceased. It 25 is also strange that no other so-called trusted friends of the deceased spoke about the document. The timing of the production of the document by the Chairman raises more questions than answers. The Chairman claims in his

- 5 affidavit that he witnessed the land purchase by the deceased in Oding Village in 2008, and that, that is where the deceased wished to be buried. I note a sharp contradiction here. The Applicant on the other hand deposes that the deceased purchased land in Pabit Village where he wished to be buried. To me, Oding and Pabit are distinct Villages. To compound matters, no sale agreement has been 10 adduced in evidence by either the Applicant or the Chairman, at least for clarity's sake. I have noted the 1st respondent's response that the land alleged to have been bought in Pabit Village is the property of New Jerusalem International Tabernacle Ministries (NJITM) Ltd. The 1st respondent adds that the company has not made a resolution allowing for the burial of the deceased on its land. 15 This deposition surprisingly has not been rebutted. I thus find logic in the contention because under company law, the property of the company is separate from that of its subscribers or shareholders. See: *Farrar Vs. Farrars Ltd (1888) 40 ChD 395*; *Salomon Vs. Salomon & Co. Ltd (1897) AC 22.* I should also add that the death of a subscriber or shareholder of a company does not mean - 20 the company ceases to exist. In *Re Noel Tedman Holdings Pty Ltd, 1967 Qdr 561***,** it was held that a company survives the death of its members. See also **Mayson, French & Ryan, Company Law (29th Ed. OUP 2012).**

25 affidavit of the 1st Respondent, and the rejoinder affidavit of the Applicant. What comes out of the documents, is that, the Applicant is one of the subscribers of the company, and a director. The deceased, as noted, was one of the subscribers,

I have also perused the company documents attached to both the replying

5 too. There are five other members of the company. One of the key objects of the company is gospel and evangelism through spreading the word of God. It is undisputed that the land in Pabit Village, Unyama, has an altar. And whereas the altar is alleged by the Applicant to be a private altar of the deceased, I think the existence of the altar is more consistent with the company object of 10 evangelism and spreading the word of God. I do not, in the circumstances believe that the altar is a private one but it is more plausible from the material before court, that it is the company property. In such a case, therefore, even if the alleged wish were true, which I have found doubtful, there ought to have been some express agreement by the members of the company by way of company 15 resolution, or a common position communicated in any other manner to court, clarifying that the land on which the altar stands, does not belong to the company. All in all, the lack of documentation proving ownership of the land in

Pabit Village, Unyama Sub County, compounds matters for the Applicant.

20 Turning to the law, whereas courts have stated that the wishes of the deceased must be given effect so far as it has been ascertained unless the wishes are illegal, unreasonable or repugnant, I am afraid the alleged wishes of the late Severino Lukoya Kiberu have not been proved on the balance of probability by the Applicant. In any case, the land in Pabit Village, Unyama Sub County which 25 is the Applicant's choice, have not been proved to be the deceased's property. It would thus be unreasonable of the court to accept the Applicant's choice in the absence of a compelling reason.

$$\overline{13}$$

- 5 Whereas Courts have held that a place of burial of a person is closely linked to a person's wishes, and the duty imposed on those closely related to the deceased during his lifetime to bury him, as well as whether the deceased had established a home*,* in this case, I find that none of the factors favour the Applicant's choice. Regarding the home, there is uncontroverted evidence that when the deceased - 10 left the first home in Panyikworo Village, Bungatira Sub-County, in 1993, he did not abandon it completely. He for instance renovated it in 2015. Moreover, other departed members of the deceased have been buried there during the deceased's life time. They are; the late Alice Auma Lakwena (2007), the late Patrick Lumumba (2003), the late Omona James (1994), the late Ociti Wilson (1986), the - 15 late Atoo Grace (1989), the late Opwonya Walter (2006), and the wife of the deceased- Ebirina Ayaa (2020). It has thus not been demonstrated that the deceased did not approve of these burials during his lifetime. I accordingly find that the picture painted by the Applicant that the deceased had cut ties with the first home in Panyikworo Village, Bungatira Sub County, is not accurate and is 20 quite misleading.

I also find the claim that the deceased was chased by the respondents in 1993 because of his faith in the Registered Trustees of New Jerusalem Tabernacle Religion, not supported. The respondents have shown that as in the year 1993 25 they were still minors, and were thus not capable of doing what is alleged of them. They also explained that the deceased relocated with all his children to Awere Cell, Kony Paco, Queens' Ward, Pece-Laroo Division (the second home)

5 during the height of the insurgency. I note that this deposition was not controverted. It is also consistent with the sad history of the time which this court takes judicial notice of. Moreover, there is evidence that the respondents especially the siblings of the Applicant continued to show concern for their father even in sickness. I am, therefore, of the opinion that the Applicant wanted to 10 suppress some truths about many matters especially when she travels full length to deny that the 1st and 2nd respondents are her siblings hence portraying them as strangers. She also denies her father's clan. I find it surreal that strangers in a family can be armed with vital family information as demonstrated by the 1st respondent. Moreover, the minutes of the family meeting (Annex F), which the 15 Applicant does not deny, mentions all the children of the deceased as being the Applicant, the 1st and 2nd Respondents, and two others who are not parties to this action. The attempts to paint on court's mental canvass, some sort of bad blood between the deceased and his other children, with respect, has not been

well crafted.

In closing, I find that whereas the deceased established the second home in Awere Cell, Kony Paco, Queens' Ward, Pece-Laroo Division in Gulu City and was more close to it, he never abandoned the first home in Panyikworo Village, Bungatira Sub county, Gulu District, during his life time. The second home in 25 Awere Cell has not been proposed or shown to be suitable for burial but the first home in Panyikworo Village, Bungatira Sub County is shown to be the most suitable for the final interment of the deceased. The altar site in Pabit Village,

5 Unyama, to court, is a no-go zone, because, its ownership is shrouded in mystery but also because the alleged wish of the deceased is not proved. Pabit land has not been shown, on the evidence, to be having a home in the true sense of the word, especially where the rest of the larger family save perhaps the Applicant, could congregate for burial. I have seen the photographs of the altar erected in 10 open spaces on some land presumably Pabit, but no single building or semblance of a home is visible in the photographs. I would, therefore, agree with the respondents that they and the clan members would be deprived of the opportunity to attend the burial of the deceased if held in Unyama at the contested altar place. They would also be denied the opportunity to conduct 15 other connected functions at that address. I have noted from the medical discharge form adduced in the application that was disposed of by the Deputy Registrar of court, that the deceased on admission to Hospital, indicated his address not as being Pabit Village, but Awere Cell, which I have noted, is the second home. But as I have observed, the second home has not been proposed 20 by either party as suitable for burial. This takes us back to the first home which I find, on the evidence, to be the most suitable burial place.

Given my analysis, and conclusions, the Application ought to fail and is accordingly dismissed, with an order that each party bears its own costs given 25 the relationship. Consequently, and in the exercise of court powers under section 98 of the Civil Procedure Act Cap 282, and section 37 of the Judicature Act Cap 16, I make the following orders;

- 5 1. The body of the late Severino Lukoya Kiberu shall be buried at the family burial ground in Owak Cell, Agonga Ward, Laroo-Pece Division, Gulu City formerly Panyikworo Village, Bungatira Sub-county, Gulu District. - 2. The body of the late Severino Lukoya Kiberu shall be released by the 4th 10 Division UPDF Military Barracks, Gulu, to the 1st Respondent- Kaunda Robinson, the son of the deceased, for burial. - 3. The 1st Respondent Kaunda Robinson shall, in consultation with the larger family, ensure the late Severino Lukoya Kiberu is buried not later than 10 15 days from the date hereof, to forestall disturbing the peace of the deceased. - 4. A permanent injunction hereby issues restraining the Applicant, her agents or those acting under her instructions, and any other person, from interfering in any manner with the burial arrangements, and the burial of 20 the late Severino Lukoya Kiberu. - 5. The Applicant, her family members, members of the New Jerusalem Tabernacle, and all other persons wishing to attend the burial of the deceased, are free to attend, provided law and order is maintained. - 25 It is so ordered.

Delivered, dated and signed in court this 04th October, 2024.


5 Ruling read in open Court

## **10:08am**

## **04th October, 2024**

## 10 **Attendance**

Mr. Dongo S. D Opar, Counsel for the Applicant.

Ms. Nancy Akello Onono, Counsel for the Respondent (together with Mr. Layoo Julius Paul who is absent).

1st, 2nd, 4th and 5th Respondents in Court.

15 3rd Respondent absent due to sickness.

Mr. Ochan Stephen, Court Clerk

20 **George Okello**

**JUDGE**