[2001] UGHC 132

| This is the | |-------------| | annexed a |

exhibit marked"......... "referred to in the affidavit of ...................................

$\frac{1}{2}$ day of $\frac{1}{2}$ or $\frac{1}{2}$ are $\frac{1}{2}$ and $\frac{1}{2}$ are $\frac{1}{2}$

THE REPUBLIC OF UGANDA

Commissioner for own.

## IN THE HIGH COURT OF UGANDA AT KAMPALA

### **CIVIL SUIT NO. 1078 OF 1999**

### (Arising out of H. C. Administration Cause No. 100 of 1999)

MELDA NANFUKA-LUBEGA....................................

$V$ .

# 1. ESTA NALUBEGA <table> 2. CHARLES BUKENYA....................................

## BEFORE: THE HONOURABLE LADY JUSTICE S. B. BOSSA

## **JUDGMENT**

$\overline{a}$

$\frac{246 \text{ pix}}{12 \text{ copies}}$ .

$\sim$

$\mathbf{r}$

The plaintiff, a widow of one George William Lubega sued the defendants, who were her step children for lodging a caveat on her application for letters of administration (with the will annexed), to the estate of her deceased husband (herein after called the deceased). This was in administration Cause No. 100 of 1999.

It was not contested that the deceased died on December 27 1998, and that the plaintiff was lawfully married to the deceased. It was also not contested that the defendants were natural children of the deceased. What was contested was that the deceased left a will. It was the plaintiff's case that the defendants lodged a caveat on her application without reasonable cause. It was also her case that as a widow, she was entitled to apply for letters of administration. She also averred that the defendants were adults and that she was carrying on business which she started jointly with the deceased.

The defendants' case was that the will was not genuine and authentic, and/or the last will and estament of the deceased. They further stated that the plaintiff, had unlawfully managed the leceased's estate and withheld financial support for the plaintiffs, had not fully declared the leceased's property, was not a fit and proper person to administer the estate, and her acts of

$\mathbf{1}$


$\epsilon_{\rm{max}}$

$\frac{z_1}{z_2}=\frac{z_2-z_3}{z_3}$

$\tilde{\mathbf{A}}$

$\longrightarrow \mathbf{X}$

intermeddling had caused immense financial loss and wastage to the estate of the deceased. They prayed that letters of administration should be granted to them, or be issued jointly in the names of the plaintiff and the defendants. They also claimed that the plaintiff furnish an account of the estate from the date of death of the deceased till judgment.

The $f\phi$ llowing issues were framed at the beginning of the hearing;

- (i) whether the plaintiff is entitled to apply for letters of administration - (ii) whether the will is valid

$\ddot{\phantom{0}}$

$\texttt{\#}$

- (iii) whether the plaintiff has intermeddled in the estate - (iv) what property belongs to the deceased's estate - $(v)$ remedies available to the parties.

I will start with the resolution of the issue of whether there was a valid will or not because on it hinges the resolution of most of the other issues. It was submitted by counsel for the defendants that the will was a forgery and that the witnesses to it denied its execution, and therefore that it should be excluded from the will. I must point out at the outset that fraud must be specifically pleaded and proved. (see O6 r2 CPR). It is not enough for Counsel to make submissions on fraud without first having made an attempt to plead it with specific particulars. Although Counsel for the defendant's filed a counter-claim, it is not alleged anywhere in the counter-claim that the will was a forgery. Having said that resort must now be had to the Succession Act Ss. 49 and 50, for the requirements of a valid will.

The effect of the above two sections is that the testator must sign his will in such a way that hows that he intended the document to be his last will. He must do this in the presence of at east two witnesses. The said witnesses must see him sign or receive an acknowledgement from im that what appears on the document is his signature. They also need not be present at the ame time (see Ss.49 and 50 Succession Act). The two witnesses to the alleged will cknowledged that the deceased made a will, but denied that it was the one in court.

The wirresses test Pws. demied scrip etce deceased Segn-


I am mindful that the burden of proving a will lies on who propound the will who must show that the will of which probate is sought is the will of the testator, and that the testator was a person of testamentary capacity (see Sakar on Evidence 8^th Ed. P. 812 and Ss49 and 50 of the Succession Act). Let me now turn to the evidence on the authenticity or otherwise of the wills which were tendered on record. I will start with the plaintiff's evidence in support of the will. Two documents were Exhibited on record. The first one is Ex. P 7. The second one is Ex. 1. Both documents are similar in that one is the photocopy of the other. Ex. 1 is the original. Mr. Lameck Lutalo (PW2) testified that on the day that the last funeral rites were to be celebrated Mr. Nganda, (DW1), found him in the sitting room of the home of the deceased. He came with a document which he called the will of the deceased. He wanted to leave it and he (the witness) offered to take him to the people concerned. He took him to some people who were preparing food in the dinning room. A certain gentleman who was preparing food told DW1 to hand over the will to PW2. Although he later named that gentleman as Mr. Augustine Kiku (PW3), himself, who was the master of ceremony, denied talking to PW2 on that day. Be that as it may, PW2 received the said will in a large envelope which was not open. He remained with the envelope until a family meeting was called at 10.00 p.m. He handed in the envelope to the clan leader, who in turn, handed it to PW3 to read it. After he read it misunderstandings arose with some people supporting the will, while others did not.

PW3 testified that he was asked to act as master of ceremony by the clan leaders, and those in charge of the funeral rites arrangements. After the clan leaders requested for anyone who had the deceased's will to come forward, PW2 brought the will. He, (PW3), read it. It was written in Luganda. Misunderstandings arose after he read it. He also said that some people said it was the tight one while others did not. At this juncture, and after some consultations with the local eaders and the police, it was decided to call some one else who had another copy of the will. Haji Swaibu Lukwago PW6 was summoned and he came with an envelope. He handed it to the lan leader, and again PW3 was asked to read the will. It was also in Luganda and typewritten. He read it and again misunderstandings arose. He stated that the two wills were exactly the same. Both wills were in sealed envelopes with a smaller envelope sealed in a bigger envelope.

$\overline{3}$


6 testified that he befriended the deceased aftel the deceased assisted him to get electricity in house. He testified that the deceased sent lor him in November 1998. and told hirn that he a will which he wanted him to keep. After showing hirn his signature and those of the sses, he told him to keep it. It rvas a photocopy. He further infbrmed liim that the original with soure one. He leti lvith the copy rvhich rvas sealcd first in a small envelope, and then in igger one. I{e kept it until he rvas sunrmoneci by the I-C Chairnran, to appear with it, at the funeral rites of the deceased. Wherr he reached there, PW3. who was in charge introduced to the clan leaders and other people rvho l.rad gatheled. I Ie handed the will to the clan leader gave it to PW3 to read it. Mr. Kiku PW3. explained that this was the saure will as the one ch had been earlier read. Whereupon Mr. Paulo Lrvanga ( DW4), a young brother of the ased, abused PW6, and asked him rvhen he had started fiiendship witli the deceased. Mr. nga DW4, and Charles Bukelrya. the second del'endant startecl behavirrg as if they opposed ill. The will rvas thrown back to hinr. and they rvanted to lre:rt hinr. Ilc took it back and He kept the will. Afterwards, he came to know that PW l. the r.viclow had opened up a case eut to find out wl.ro her lawyers r.vere. He got to kuow that it was Mr. Kityo. Lle lelt the with MIr. Kityo. Fle identified the copy which was tendered in evidence as Ex. P7 ii las hi rvh de P h h He will Lw the left

)

Augustine Kiku, PW3, testified that he rvas requested to act as rnaster ol'cerentony by the leaders and those other people who r.vere in charge of the arrangements. FIe testified hrrther he clan leaders recluested for anyone who had the deceased's will to come lorward and PW2 forward with a will and gave it to one of the clan leaders. He went on to say that he, l)W3 quested to read it, and he did. He testified fLrrthcr that there were two wills, and both had nte content. That was the evidencc acklucecl irt sLrpport olthe plaintil'f in this issue the s Mr. clan that cam was

c defentlants, the Ilrst rvitncss rvas Jarnes Kasirve Nganda (l)Wl). I'le statecl that tlre ed,,vas his lriend with who hc Lrsecl to go to work in Kanrpala. lloth olthem also attencled me Church. LIe testified tllat to his kno"vlcdgc (he cleceased lclt a will. The deceased Irim arrd told him that he was very sick and that he r.vanted to make a r.vill so that his rs would not disturb his wife. Whalever the deceased tolcl him. he would write it down on papcr He wrote dorvn what he r.vas told on paper he tore fionr the visitors book. FIe read it back ljor t trrollr tlece the ^s ca lle


him and took it to the ofllce for typing. He typed two copies in liont and behind. I'le blought ack to hirn to sign. He read it back to him and signed. FIe signed the two typed copies. He not sign the draft. He, the witness also signed. For the second witness, he asked him to bring son who was building. He did not know the person at that time. He came and signed as ond rvitness. He ( thc witness). rvent away with onc copv. IIe leli the second copy besidc thc of the deceased. He also testitled that he came to the luneral rites with the copy which he and gave it to the clan leader who was Muslim and old. be ha to it di hi SE

next witness for the delence on this issue was DW3 Esther Nahrbega. She testified that 6 Lutalo gave in a document after the clan leader asked lor anyone wlto had a document of eceased. It rvas read. Father Konde wcrlt to the ltome ol'l)W6 antl collccted hinr with the nd document, r"vhich was also read 't'h I) the sec

. Paulo Lrvanga (DW4), testified that the deceased was his elder brother. lle testified that the funeral rites did not take place and the reason ,'vas the will. Lle stated that the will was ght by PW2, and PW6 brought the second copy. He further testified that PW6 was ^a bour at Buye where their rnother used to stay. He said that rvhen tlre rvills were brought, he he children did not agree with thern. He stated further that PW2 told hirn that the will had brought by DW l. Ile did not agree with the '"vill because his brother had no relationship PW6 . He did not read the will himself, but he looked at the signature of the deceased and it ot his. He had not given anything to his children, and did not appoint an heir in the alleged Both rvills wele read by PW3. nel and bee with was r.vill. M last bro

sumrnoned one witness who rvas stated to have the original copy oI the disputed rvill. He bed himself as one of the clan leaders, Batulumayo Iga. [-le was surnnronecl to produce the al will. I Ic initially stated tliat the person who blouglrt the copy ol the rvill which he had, ot known, and that it was just thrown at him during the last furreral rites of the deceased. er stated that he chaired the meeting on March 20, 1999, on the evc of the last funeral rites, ch the deceased's property rvas to be distribtrterl. Hc stated that the will rvas brought tcr IIe la Cou d esc () gr was lil w

I 

meeting and was read by PW3, the master of cerenrotry, and lurther that it is Mr. Nganda l, who brought it. He confirmed that there were tlvo wills which had the same content.

the above evidence, it becornes clear that trvo rvills were brought to the last ['uneral r-ites first will was brought by DWl, and lianded to PW2, who iu turn handed it to the clan leader. he witnesses agree, including DWl, that he came to the last fuueral rites witlt a will. The divergence is that PW2 said he handed it to him while DWI stated that he handed it to the leader. It also appears to be agreed by all the witnesses that the will DWI brought is the will h was given to the clarr leader. It is nrarked Court Ex. L It is also the original copy

second will was brought by PW6, and it rvas marked Ex. P7. lt is a photo copy ol Ex. l. copies were handed to PW3 to read and were sirnilar in content. I have already observed two days belore the last f'uneral rites, DWI swore under oath that he had the original rvill. t it camot be tme, as DWI stated, that PWI asked hinr lor the will and he lelt it at her rvith a child whose narnes he cannot even recall. lt bul'fles nre how a senior rctired civil nt of DWI's calibre could have entrusted a document as important as a will to a child r.vho d not even knorv.

e last funeral rites, he was seen by PW2, who received lrorn lrim a copy ol the will. l'hrs eventually ended up in the safe custody of Batulumayo Iga. Everi one of the del'ence sses namely, DW4, acknowledged that it is DW I r.vho brouglit the will ol the Ceceased to t funeral rites. So did Batuhrmayo lga. lt is also the original. This nrust be the r,vill r,vhich had in hrs possession just two days before the last firneral rites. It is also the only copy DWI brought to the last ftrneral rites. Therefore it is the only will rvhich could have been bv the deccased

rovisiorrs ol'Ss. 66 to 69 of the Evidence Act nlust also be taken into account. lt is useful roduce all the above sections tbr avoidance ofdoubt. They provide as lollows:

" 66. If a docurnent is required by larv to be attested, it shall not bc used as cvidence until one attcstil'rg witness at least has been callecl tbr thc purpose ol'proving its cxecution, il'

$\mathcal{B} = \mathcal{A} \times \mathcal{A}$ $\mathcal{L} = \mathcal{L}$ there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.

- 67. If no such attesting witness can be fbund. it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person. - 68. The admission of a party to an attested document of its execution by himself shall be sulficient proof of its execution as against him, though it be a docr.rment required to be attested. - 69. If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence."

DWI He st The the t bove provisions are clear and unambiguous and need no explanation. lt is also clear liou.r stimonies of DWI and DW5 that they are denying the'"vill which is on record. Horvever, testified as follows rvhen he was confronted with his own affrdavit Ex. D2 which he srvore. ted and I quote;

" I have seen this document before. I signed on it. That was before the last funeral rites. A copy of the will rvas attached to this document. They told me to sign because I had tl.re will so that I could take it dLrring the funeral rites and to confirm that I had it. The rvidow blought this document to rne. The lawyers had preparecl it."

o takc his ri IC bout e rvil r this cunlellt was sworn on March l 7, 1999. -fhis was a f'erv days belore the last funeral rites ld because PWl, Batulumayo Iga, and DW4 both testificd that the last liureral rites rvere place on March 20 but abortcd at the eleventh hour because of urisunderstanclings brought y the reading of the will. DWI must therelore be telling lies about the lact that he gave to sorrreone else at the horne of l)Wl, and she returned it to him with cello tape, because ocument, he admittecl that he still had the rvill in paragrlplr 6. Ile stated and I c;uotc;

'5

-

L

o

$\begin{array}{c} \begin{array}{c} \begin{array}{c} \begin{array}{c} \begin{array}{c} \begin{array}{c} \end{array} \end{array} \end{array} \\ \begin{array}{c} \begin{array}{c} \end{array} \end{array} \end{array} \end{array} \end{array} \end{array}$

That I am the one who is one keeping the oliginal Will olthe deceased 6 7

o

is contrasts sharply with his testirnony in court. fle stated that tlre rvidorv asked him lbr the ^Ibefore the last luneral rites. after the deceased had died. 'fhen he continued.

"l did not give it to her. I found it difficult to give it to her. Aftel the widow had left. ^I knew that things were tlieirs. I took the will to the home of the deceased. The rvidoiv was not there at that time. I told that person that lre should give it to that envelope to the widow. I was present at the last funeral rites-.. I had the will at that time in an envelope, She sent it back to me through some one. It had cello tape. It was a young boy whose name I do not know. It was sealed rvith cello tape. I gave the will to the head ofthe clan. He was Muslim and old. I did not see the will again."

It ca wen DW ot also be true that PWI brought him the affidavit to sign because it clearly shows that he to a magistrate's court in Mityana, and that is where he swore the affidavit lronr. Therefore was not a truthful witness.

on Ev tJnd denie Com S.69 of the Evidence Act whose provisions I Irave already set out, if the attesting witness the execution of the document, its execution may be proved by other evidenceenting on S. 7l of the Indian Evidence Act in pari nrateria with the above section, Sakar dence had this to say and I quote;

" S.7l is one of the exceptions to the stringent rule olproofofan attested docurnent in 5.68. the fate of an attested docunrent is not necessarily at the mercy of attesting witnesses[Ma&araj Lal v. Anjunrun, 18 Lc. 538. 5 O. L.,1.667). When all the attesting witnesses turn hostile, other evidence n.ray be given to prove execution and attestation. . .lt must however be remembered thatS. T l comes into play only rvhen all the attesting vitnesses have been called or cvery attempt nrade to cnlorce their attcndance ancl they eny or do not recollect execution.... When ern attesting rvitness denies all knowlcdge ol

tlte matter or does not recollect having seen tlle execution of the documents, it becomes necessary too give lurther evidence on the rnatter E.g. By calling sonre one acquainted with the handwriting of the person executirrg it or who was present at the time of execution, or by the admission ofthe party."

Inl this case, both witnesses DWI and DW5 Kakembo Steven denied the wills which were on retord. Indeed, DWI did not dispute the fact that the deceased made a will which he typed and wi[nessed. He further stated that it was written back to back, just like the wills in Court. lt was sighed by borh him and DW5. Both their signatures were tendered in evidence as Ex.2 and Ex. ^P\$ respectively. AlthoLrgh no handwriting expert was callecl to analyze the said signatures, they ap\$ear to be sinrilar to the signatures of the witnesses on both rvills. They furtl.rer strengthen the evipence against DWI and DW5 as accomplished liars. Mr. Nganda DWI swore an affidavit alr(ady referred to where he stated that the will he had on March 17, was signed by the deceased. It r{as also surprising that DW2 is now denying a will which he stated to be a true copy of the ori\$inal in the application which was filed by the plaintilT in administration cause No. 100 of 199p. In the affidavit accompanying lhat application, which I have already referred to and which \*aslt"nder"d as Ex. D2. he swore as f bllows and I quote;

)

- 5. That the other witness to the will was Steven Kaker.nbo of Mityana, - 6. That I am the one who is keeping the oliginal Will of the deceasecl - 7. That Lhe attached copy is a true copy of the original".

bove apart, PW6 proved the signature of the deceased on the photocopy, Ex,P7. He stated e knew the signature of the deceased because they used to transact business together, and metimes, the deceased would pay hirl by cheque. Additionally, the cleceased slrowed him nature on Ex. P7, together with the signaturcs ofthe said witnesses. This evidence was not nged by the defence. Ht e evidence ol DW4 that the signature on the r.vill was not the nre ol the deceased fades into a lie in light of tlris cvidence. It is rny jrrclgment tlrat the re o1'the deceased was proved by PW6. It is also nry judgment that thc "vill which DWI

he wl t\_) tes Ii ve to PW2, is the original will which was handed to Batulumayo Yiga. The chain of how that I came to be in into the hands of Batulur.nayo Iga was completely established by this very ness and the evidence of PW2 and DW4, as I have already outlined it above. This is the will I witnessed and kepl. This evidence, which is circumstantial, is corroborated by the mony of DWI himself when he stated that he rvent to the last funeral rites with the rvill. He when he said that he gave it to the clan leader because both PW2, PW3, and DW4 stated that anded it to PW2.

Th he the cor)t wltn a .t10 o!ve if his what the w he wi slgne reasons DWI gave for rejecting the will as being diff'erent liorn the one he urade were that sputed the heading of the will, and that the words " n.rukyala wange bwoya" rvere not used in ill lre wrote. He also said that the deceased did not rnention any debts. DW5 gave adictory reasons. FIe stated tlrat in the will which the deceased made and he signed and ssed, the deceased stated that he owed his brother Sessanga Fred Muggagga money, nting to Shs. 750,000/=, and that the deceased showed hiur that part r.vhere his brother was money, and that that is where he signed. FIe went on to say that he would not have signed brother money. Clearly, the two witnesses were telling lies. They could not even agree on contained in the will. It is also obvious that DW5 is lying about horv he came to sign ll, because DWI did not mention any reluctance on his apart to sign the will. [n any case, nessed a will, and did not acknowledge a debt, so he cannot convince anyone that he against that part of the will where it stated tlrat his brother was owed money.

hea ntru ve disrepancies were not minor, and lvere not reconciled. They pointed to deliberate fulness, on the part of both wituesses

d he othin vali llrg ^s her cease sons for rejecting the will by some ol the deceased's relatives and beneficiaries, have to do with how the will was niade, and lurtlrer strengthen the plaintiff's case that the will DW3 Esther Nalubega stated that in the will, the cleceased was suggestirlg tliat they meone lrom another village and a Muslinr to be the heir, and that this was unacceptable latives because her father had a son. According to her, the will also state(l that the left everything to his wife until she died after which, she herself could take over'. She

o

personally did not appear to have any views on the will. She was more worried about PW1 taking charge of the estate.

As for DW4, his reasons for rejecting the will were that it is sacred, and that it should not be handled by various people. He said he did not agree with the second will because the deceased had no relationship with PW6, as he once tried to sell their mother's land, and further that the signature on the will was not his brothers. Surprisingly, no hand writing expert was called by the defence. He also did not like the fact that the deceased had left all the property to the widown an d did not give anything to the children. Lastly, he objected because the will did not appoint an heir.

The clan leader Mr. Batulumayo Iga expressed similar sentiments on the property being left to the widow. To use his exact words, he said that "what we know in Buganda is that property is for the children", and that further that they were told by one of the witnesses to the will who he did not name that the will had been written on pink paper. Well that cannot be true because Dw1 stated that the will was typed.

None of the above reasons forms a legal ground for rejecting a will which was properly made. The fact that some people might be unhappy about the provisions of a will does not make it invalid. As long as a will satisfies the requirements of Ss. 49 and 50 of the Succession Act, it is valid, and I so hold.

The next issue is whether the plaintiff is entitled to apply for letters of administration. No translation of the will was tendered by the parties but from the translation I was able to secure from the court clerk, the plaintiff is the immediate beneficiary of all the deceased's property, and on her demise, this property is supposed to be passed onto his daughter DW3. While the plaintiff is an immediate beneficiary, DW3 is a later beneficiary. DW3 is a beneficiary in that all the property of the deceased is supposed to pass to her after the death of the deceased.

The Succession Act provides as follows;


" S.201. Subject to the provisions of section 5 of the Administrator General's Act, administration shall be granted to lhe person enlilled to the greatest propot tion of the estate under section 28 of this AcL "

Thus the greatest beneficiary of the estate will be entitled to apply for letters of administration

From the reading of the will, the second defendant is not a beneficiary of the estate, ar.rd he is therefore not entitled to be considered. Unfortunately, they do not see eye to eye, and while the plaintiff continues to take charge of most of the deceased's estate, DW2 has not secured any fees therefrom. It is also obvious that they do not get on. Giving them a joint grant would lead to ^a stalemate in the administration of the estate. Halsbury's Laws of England Vol.l6 3'd Ed. at para 955 points to one object which must always be had in mind in administration, that is the expeditious and economical administration ofthe estate ofthe deceased. In the circumstances of this case, it rvould meet the ends ofjustice to grant letters of adrninistration to the plaintill, and Administrator General. I believe the olfice of the Administrator General is best placed to ook after the interests ol DW3

n whether the plaintiffhas intermeddled in the property ofthe deceased, [,would answer this in negative. The Succession Act allows an applicant to take all necessary steps to preserve the tate. There is no evidence on record that she has done anything untoward. She has merely ^C ntinued to manage the business,'vhich slie and her husband used to manage together

what property belonged to the deceased, titles of several properties which were stated to ^b Iong to the deceased were tendered in evidence and in realty actually belong to the det-endant I] der s. 56 of the I{egistration of titles Act, a certificate of title is conclusive evidence ol o nership. It can only be impeached for haud. There[ore, the properties in respect of ,,vhich the pl intiff tendered certificates of title in her names are lrer properties and do not form part of the de eased's estate. These are the properties comprised in the following titles; Mubende Block

ir li

lr

{

o

0 Plot No. 20 land at Katondakyakuwade, measuring 4.86 hectares, and land comprised in PIot Mityana Municipality, measuring 0.045 hectare

o

^I{ould now like to turn to the property which clearly belongs to the deceased. Two ce(ificates of ltitle were tendered in evidence. They were; Singo Block 135 Plot 43, measuring 2..16 hedtares, land at Kitinkokola, and Singo Block 136 PIot 47, measuring 1.88 hectares, land at Nafnawugulu. Both these titles were in the names ofthe deceased. They therefore belong to the t" dedeased's estate.

Ac ording to the plaintiff, there was property which was jointly owned by the deceased and the her ll These were two plots on Kampala Road. According to her, the plot at Busimbi, on whi h Diplornatic Pub stands was boughtjointly frorn one Eriabu Lwanga. She tendered a copy of t e agreement which was marked as Ex P5. This agreement was witnessed by one Miti rvho gav evidence for the defence DW2. tle confirmed that the kibanja rvas jointly bought by the plai tiff and the deceased. Eriabu Lwanga (PW4),also confirmed the sale to both. The other one was still emply. The will confirrred that this was the joint property of the deceased and the plai tift

untru Iga harles PWl, testified that he received payment in respect of the plot next to the Diplomatic Pub. The sale agreement was tendered in evidence as Ex. P6. His testirnony on the day he recel ed payment and the date on the agreement did not tally, and counsel lor the defendants sub tted that this was a sign of ... In my considered opinion, this was not a sign of deliberate truth I in what he was saying, Even the deceasecl in his will statecl that this was the joint prop y of hirnself and the plaintiff . DW4 and D"v5 went to great length to explain hoe the n)one which put up Diplomatrc Pub belonged to the deceased. 'l'hat may have been so, but it does ot alter the tenure which reurains joint. Any developments thereon nrust necessarily lollow the te ure of the land or kibanja. I t is my judgment tlrerefore that the two above bibanjas, with hed velopments thereon are the joint property of the deceased and the plaintifi This was hes by the evidence of the plaintiff. as corroborated by PW. and Ex. P5. &tt bei+g,. I!le l.rfulness but rather of forgetlulness due to Iapse of time. The witness was otherwise stab I

I]


the kibanja at Buye the ptaintiff testified that she bought if from a man called Opio, who was oliceman at the Gombolola. She tendered an agreement which was marked as Ex. P8. She tified further that her mother in law was staying there. When she died she was chased from re. The people who chased her therefrom included the second defendant and DW4. They alled there Peter Kasumba, who together with the second defendant continued to disturb her r that kibanja until the RDC called them and they stopped. On the other hand, DW4 denied sing the plaintiff from that kibanja and testified that they (he and the deceased), bought this a together lor their mother, and that when she died, they as a lamily sat and decided that umba James should keep the land. Lle stated that he did not recall the seller because he was ampala. He stated further that they repaired a small house which they lound there, and later e deceased built there a bigger house for their mother. [n the same breath he said that it was rand children of their mother who decided that since it was their grandmother's, one ofthem d Kasumba should occupy it. FIe still went ftrtlrer on cross-examination to admit that the a rvas Lubega's, and that he bought it with his money

o

eceased in his will stated that this kibanja belonged to the plaintiffalone. This is supported e plaintifls evidence and the agreement which she tendered in court. Her evidence was orated by PW6. Even DW4 conceded that he had no share in this kibanja. I believe this se he does not even know from who the land was bought. lt is my judgment that from the ce on record, this kibanja at Buye belongs to the plaintiff, and other occupants thereon are sers

vehicle, the plaintiff testified that she bought it jointly with her husband although no agreement was made. Paul Lwanga,DW4, testified that the velricle did not belong to the but to the deceased, and that she knew nothing about it until it was delivered in Mityana. idence of DW6, James Lubega, testified that the deceased was his uncle and that he the said vehicle in 1995, and it rvas given to hinr to drive. Most ofthe time he reported to ow, and it is to her he handed the money made by the vehicle. In the absence of

entary evidence to prove ownershipr it is my judgment that the motor vehicle belonged to deceased, and that it forms part of his estate

o

was mention of some bank accounts which were jointly owned by the plaintiff, and the eased, and otl.rers which were owned by the deceased alone. ]'he law of banking governs joint unts. As I understand it, when one ofthejoint owners dies, the account remains the property .e survivor. (see Paget's Law of Banking, ... Ed. P...). this being the law, it is my judgment the joint accounts now remain the property of the plaintiff while the single accounts form of the deceased's estate, and I so declare.

he remedies available, the plaintiffhas largely succeeded and I would enterjudgment tbr her. will of her deceased husband George William Lubega is valid. I would also declare that she titled to letters of administration (with the will annexed) jointly with the Administrator ral, since the will did not appoint an executor. I declare that the property comprised in the hold Register Vol. 1558 Folio 10, Plot M9 Mityana, and in Mubende Block 150 Plot 20, rs operty of the plaintiff.

banja on which stands Diplomatic Pub, and the adjacent kibanja wl-rich was purchased Charles Iga is the joint property of the plaintiff and the deceased

roperties comprised in Singo BIock ll5 plot 43 land at Kitinkokola , and in Singo Block Iot 47, Iand at Namau.ugulu is tl)e property of tl.re deceased and belongs to his estate- The ciaries of the deceased's will are the plaintiff and DW3, the first Defendant. If there is any y in respect of which the deceased died intestate it to be governed by S. 28 of the sion Act

l5

I I On costs, the guiding principles are to be found in the case of *Spiers v. English [1907] P. 122*, quoted with approval by Berko J. in the case of *Bossa and Co. Advocates v. Vero Nassanga* HCCS No. 315 of 1992.

They were stated in that case as follows:

" *The two main principles which should guide the court in determining that costs* in a probate suit are not to follow the event are, firstly, where the testator or those interested in the residue have been the cause of the litigation, and secondly, if the circumstances lead reasonably to an investigation in regard to the propounded document. In this latter case the costs may be left to be borne by those who incurred them; in the former, the costs of unsuccessfully opposing probate may be ordered to be paid out of the estate. Neither of those principles, which, however, are not exhaustive, justifies a plea of undue influence unless there were reasonable grounds for putting it forward."

In this case, those interested in the residue have been the cause of litigation in opposing the applicant's application for letters of administration. This is a situation where each party should bear its own costs, and I so order.

S. B. Bossa JUDGE 20^th August 2001

2018101.<br>9.000m

42 Khor so me Mainley.<br>Basane was me Comme defer<br>Mainles- Meseur.<br>Jou des- meneur! rend on

t