[1990] UGHC 47

## THE ^PUBLIC OF UGANDA

#### IB THE HIGH COURT OF UGANDA AT KAMPALA

#### CIVIL SUIT NO. '1081 OF 1988

1. RUTH NSUBUGA *ⁱ*

2. PERRY KABAZA ⁵ . PLAINTIFFS.

3. MISAERI KAL'MA ⁵ '

# VERSUS

| NSUBUGA<br>DJI.<br>1.<br>. PETER | 5<br>• | | |------------------------------------|--------------------------------------|-------------| | JAMES<br>NSUBUGA<br>M. S. K.<br>2. | <br>5 | DEFENDANTS. | | ANNE<br>NSUBUGA<br>M. N.<br>3. | 5 | | | NSUBUGA<br>JOHN<br>E. N.<br>4. | J<br>ft? | | | BEFORE:<br>The<br>Ilonourable<br>- | Justice<br>J. W. IL<br>Tsekooko<br>Mr. | |

### J U D G M E M T

In this suit the plaintiffs seeks declaration that they are the lawful executors and trustees of the will of the late Bishop Dunstan Kasi Nsubuga made on 25th February, 1986. I .shall hereinafter call him the Testator. On the other hand the defendants who are all children of the testator by his first marriage challenge the validity of the will and counter claim that as issues of the testator they should Qf be granted letters Administration to his estate.

The first plaintiff is the tridoQ v>f the testator by second marriage. The second plaintiff is the sister. The third plaintiff is successor to the testator as Bishop of the • Church of Uganda, Diocese of Namirembe. In the contested will the plaintiffs were all appointed as ''Abakuza¹¹ which is a Luganda word. I shall examine its

connotation or import later in view of evidence given by both sides# The seniority of the defendants as children of the testator is as they appear on the Written Statement of Defence and counter claim i.c., the first defendant, Peter Nsubuga, is the eldest child followed by James Nsubuga (the second defendant) /then Ar.no Msubuga,' the third defendant and lastly by the fourth defendant, \john Nsubuga. •

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The testator died on 1st February,- 19o8 in Mongo hospital and there is no dispute on this.

The two issues framed for determination by this Court are • 1, Whether the will is valid or is not valid ⁱ

2. If yes whotbar, the plaintiffs are entitled to grant of probate\* Initially it w&s the 1st defendant who was the only defendant probably because he was the only one who had lodged caveat. But the Written Statement of Defence filed contains all the four (children) as defendants and as there has been no issue made out if it, I see no problem with the joinder of the first defendant with the other defendants as defendants.

The plaintiffs called three witnesses who included the first and 3rd plaintiffs. The second plaintiff did not testify.

The defendants called 4 witnesses (inclusive of the 1st and 3rd defendants). The 2nd and 4th defendants did not testify.

The contention of-the.plaintiffs is that the will of the testator is valid and evidence was adduced by the plaintiff's witnesses, i.e. • PV/S ¹ (Bishop Mis^ori Kauma) PW2 Rev. Canon Coopriano Kaggwa Kibuuka and PW3 (Ruth Nsubuga) to support that contention.

The defendants maintain d that the will is not valid. DWS 1, Rev. Canon Danicri Lubwama, DW2, Lt. Ezekicri Sakaja Munvi Mbajja, and

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DVJJ,. Peter Nsubuga, in their evidence challenged the validity of the will on the main ground that the testator was too ill to have been fit to make a valid will. These three accepted that the signature on the will is that of the testator. These witnesses together with DW4 (Anne Mary Nsubuga) further in the their evidence challenge the validity of the will because the testator allegedly distributed some property which according to them he should not have done. for her part, was emphatic that the document did not bear her late father's (testators) signature and was not his will at all. Th,at he had trusted her so much during his life time that if he had made a will he could have mentioned this to her. May I hasten to observe that apart from her own assertion, nobody else testified confirming her claim that the Jrd defendant was the closest confidante of the testator *i*

The defence case attempted to show that the testator was not in control of his mental conditions when he made the will but defence did not want to say that the testator was of unsound m ind.

to show what Unifortunately no'medical evidence was adduced/about the was health of the- testator/before, during or after making the disputed will. However, it is common ground that the testator suffered from high blood -pressure for which he travelled to West Germany for treatment. That he eventually died most probably from the consequences of high blood pressure.

In the light of the above general over view of the suit, on the first issue Mr. Bwanika, learned counsel for the first

plaintiff and Mr, Kaguinire learned counsel for 2nd and 3rd plaintiffs submitted that the'will is valid whilst Mr. Winyi, learned counsel for the defendants was constrained to admit that the will -complied with, the requirements of the law but. he surprised me by submitting bravely, I must say, that I should make history by ignoring the legal recpiiremcnts and consider the African Situation and customs and, therefore, declare the will invalid. His basis f or this brave subi jission is that the will contained inconsistancies which point to sickness of testator which incapacitated him from baking a valid will. For instance where testator's first marriage was on 19th May, 1953 the\* will refers to 19th May, 1939\* And whereas birth days of the defendants are 27th May, 19^0 for the 1st defendant, the will shows 27th May, 1939,. and 16th July, 19M for 2nd defendant the will shows 16th July, 19^0 while the 3rd defendant was born on 16th Apiil, 19^3 the will shows she was born on 16th April, 19^2.

This submission by defence to me appears not serious. First the matter of birth of 2nd defendant is not on my record of evidence. Then as.-can be seen it is the years which are mistaken and are consistently recurrent but dates and months are all correctly recorded in the will.• The years are mistaken by only one year's deference beginning from the date of marriage. Otherwise other details are meticulously exact. Besides the testator is the person who must. have witnessed each of these events personally whereas the defendants must be talking about what they learnt from some other sources, e.g. thje testator himself or some other sources. I therefore hold that

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such discrepancies do not affect the capacity of the testator to make a will. Again although the defendants and their witnesses and indeed their learned counsel for some reason did nCt want to say that the testator was insane my general of view is that in effect they believed ho was of unsound mind.

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Mr. Xaguriire learned counsel for the 2nd and 3rd plaintiff referred me during submissions to the case? of Bank of Goodfellow /1861 - 737 All. E. R. (Reprint) page 4? in which the Queens . Bench as an Appeal Court consisting of four Judges inclusive of Cockburn, C. J., considered the validity of a will made by the testator (John Bank) who had been insane and confined in a lunatic asylum. After discharge from the asylum he continued to suffer from certain fixed delusions. According to Cockburn C. J., the evidence adduced inclusive medical evidence would if believed establish a case of general insanity. During the trial the jury upheld the validity of the will and so did the Court of Queens Bench. The judgment in that case appears to be quite relevant to this case before me. I therefore, quote at length portions of its judgment as I agree with the reasoning and the point of law considered therein.

After reviewing opinions of eminent jurists on the subject, Cockburn, C. J., continued at page 5^ of the report as follows, quoting from Legrand's hook.:-

'Hallucinations are not a sufficient obstacle to the power of making a will if they have exercised no influence on the conduct of the testator, have not altered his natural affection, oi' prevented the fulfilment of his social and domestic duties; ....... /6

while, on the ocher hard, the will of a person affected by insane delusions ⁵ought' not to be admitted if he has dis inherit ted his family without caucc, or looked on his relations as enemies, has accused them of seeking to poiso?i him, or the like; in all such cases whore the delusion exercises a fatal influence on the acts of person affected, the condition of the testamentary power fails, the will of the party is no longer •under 'the guidance\* of the reason, it becomes the creature of the insane delusion1.

At page 57 the learned C. J. continued.

nAs to the- testator's capacity, he must, in the language of the law, have a sound and disposing mind and memory. In other words, he ought to be capable of making his will with an understanding of the nature of the business in which he is engaged,\*a recollection of property he means to dispose of, of the persons who are the object of ills bounty, and the manner in which it is to be distributed between them. It is not necessary that he should view his will with the eye of a lawyer and comprehend its provisions in, their" "legal form. It is sufficient if he has such a mind ••and memory as will enable him to understand the elements of •which it is composed, and the disposition of his property in its •simple forms. In deciding upon the-capacity of the testator to make his will, it is the soundness of the mind, and not the particular state of the bodily hr alth, that is to be attended to; the latter may be in a state of extreme imbecility, and yet he rnay possess sufficient undorst '.nding to direct how his property shall be disposed of; his capacity nay be perfect to dispose of his

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property by will, and yet very inadequate to the management of other business, as, for instance, to make contracts for the purchase of sale of property. For most men at different periods of their. lives have meditated upon the subject of the disposition of their property by will, and when called upon to have their intentions committed to writing, they find much less difficulty in declaring their intentions than they would in comprehending business in some measure new".

"In a subsequent case of Den Vs. Vandeve (2 Southand, 600) the law was thus stated:

By the terms (a sound mind and memory), it has not been understood that a testator must possess these qualities of the mind in the highest degree, otherwise very few would make testaments at all; neither has it been understood that he must possess them in as great a degree as he may have formerly done, for even this would disable most men in the decline of life. The mind may have been in some degree debelitated, the memory may have become in some degree enfeebled, and yet there may be enough left clearly to decern and descretly to judge of all those things, and all those circumstances which enter into the nature of a rational, fair and just testament. But if they have so far failed as that these cannot be decerned and judged of, then he cannot be said to be of sound and disposing wind and memory'...........

"The testator must, in the language of the law, be possessed of sound and disposing mind and memory. He must have memory. man in whom this faculty is totally extinguished cannot be said to possess understanding to any degree whatever, or for any purpose, But his memory may be very imperfect, it may be greatly impaired by age or disease; he may not be able at all times to recollect the names, the persons, or the faculties of those with whom he had been intimately acquainted, may at times ask idle questions, and repeat those which had before been asked and answered, and yet his

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understanding --ay bo sufficiently sound fox' many of the ordinary tran-\* •••actions of life. He may not Lave sufficient rtronp;th of n-amoi'y and vigour of intellect to make and to digest all the parts of a contract, and yet be competent to direct the distribution of his property by will. This is a subject which he may have possibly have often thought of, and there is probably no person who has arranged such a disposition in his mind before he committed it to writing. The question, is not so much what was the degree of memory possessed by the tastator as tliis. Had he a disposing'memory? Was he capable of recollecting the property he was about to bequeath, the manner of distributing it, and the objects of his bounty? To sum up the whole in the most simple and intelligible form, were his mind and memory sufficiently sound to enable him to know and to understand the business in which he *> vr>.n* engaged at the time he- executed his will?"

. This decision refers to the English law. It does not bind me. But the forceful, and- persuasive reasoning is so sound in logic that I feel I should take it into account in considering this matter. Beside these comments are in away reflected in our Succession Act. See .for example Sections '+6 (1) and (JO and (5), 61, 6j, 77 of the Succession Act.

Let me refer to the evidence adduced by both sides.

PV/1, a witness to the will, , had known the testator very well having been Assistant Bishop to the testator fox? 10 years of the latter's working life. He testified how on the day the will was signed (25/2/1986) the testator called PW1, the late Dr. Kityo and PW2, all close friends of the deceased to accompany him to his house

......... /9 where he (Testator) signed his will in the presence of the three witnesses who also attested it there end then. This witness stated that the testator was completely in his right mind. The witness was .given a copy of the will to keep as a cofidant of the testator. He identified the testator's signature on the will (Exh. P.1) The rest of the evidence of the witness is not challenged such as reading the will " death after testa cor\* s^w. to family and raejnbers of the testator;\* s clan and installation of the first defendant as heir as stipulated by the will. During cross examination by Mr. V/inyi, learned counsel for the defendant iPV/1 agreed that the testator suffered from ill health during the last 2 to 3 years of his life and could sometimes be unable to express himself for a time. But after a bed rest would become composed and do work. He had to go to West Germany for treatment. He could write without any problem. The testator was physically strong. The testator loved all his children and frequently requested the •witness to pray for each of those children. He denied that any witness participated in making the will. The attesting witness found the will ready and merely witnessed the tes.tatur; sign it. They did not read <through.it> as it was. not necessary. In further answer to defence counsel's question, the witness replied that a few days before he witnessed the will the testator had informed him that he wanted PW1 to witness an importanttmatter. He further.said 6 months prior to ,his death the testator was norms'1.

PV/2 had been a family friend of the testators for a long time. He was one of the at testing witnesses, He supported the evidence of PV/1 generally. He too, denied participating in making the will. He--.nd FW1 agree that the first defendant who ....... ....... /10

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was named hair in the. will. was confirmed heir in conformity with the will.

PV/J is the widow of the testator by second marriage. She knew that testator left a will because he gave it to her when it was dealed in an envelop and instructed her to deliver it to Kayondo for safe custody. She never know its contents until they were read after trie testator's death. She confirmed the signature of the ' testator. She denied that testator was mad at any time before he died. The will appointed her, ?VJ1 and P\/4 as executors (abakuza). She testified that the testator used to officiate at many church functions long after ho had retired. She admitted that sometimes when the testator got attack (pressure) ho would stammer otherwise ho was alright. The testator never discussed the making of the will with her before h? gave her a sealed copy to deliver to Kayondo. She explained the meaning and duties and functions of nomukuzan a word which was also explained by defence witnesses (Dv/1) on my asking. As I shall show later the word namukuzan and the word ''omuhika" (the latter meaning heir) both appear to mean or can be equated to ''executor¹¹ • I had to .ascertain this from both sides and this is supported by the judgment of Kiwanuka, C. J., as he then was, in the case of He Sukmani Serwanga Salongo /19727 I ULR 122 at page 125- The learned Chief Justice appears to have relied or?, his personal, knowledge as a Muganda to interpret the two words. Ar, his interpretation is supported by evidence fr^m both sides in this case and as I have no doubt that tKe learned Chi f Justice was a knowledgeable personalty on kiganda customs and utlur Ba.ganda social norms, I accept that the word

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omukuza (whoso plural is abakuza)»means, inter alia, Executor (plural executors)# On\*the same basis and authority I accept that HOnusika" (a derivative of "Yalinsikira" )which is employed in the will means in this cuso heir. Otherwise the plaintiffs.could not merely bo appointed "guardians" which is another meaning of ''Abakuza" to defendants who are grownups. I hold the same view even if the grand children of the testator are taken into account. From the words of the will the'first defendant wafc Hot included among the Executors, perhaps deliberately, by the testator so that he remains strictly heir and the plaintiffs remain "Abakuza" or Executors,

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DW1, 8') years old retired priest testified that he had known the testator since the later was aged J. They Subsequently- were workmates 'in the Ordained Ministry. He stated, inter alia, that the testator was not mad. He and testator visited each other very often. That once in a while after testator had retired as Bishop, the testator would be incoherent or confused while talking. That once he was taken by PWJ into the testator's bedroom when the testator was sick. He could not properly understand what the testator was saying because the testator vas incoherent. This witness in re-examination testified that the testator uttered irrellevant words (being incoherent) when he was about to die. As it is shown, the will was. made on 25th February, 1986. Yet tho deceased died almost 2 years latter ,1st February, 1988. . So the evidence of this witness about- the effect of health on testaors capacity to make will is not at all helpful. Besides in crossexamination he stated that "Bishop Nsubuga (testator) loved

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Bishop Kuwuma (?'.71) very much. I have known Bishop Kawuma for a long time. He always speaks the truth". The effect of this is obvious. lie implies in my view that P'J1 is a truthful witness. And PW1 has•testified that the testator was in his right senses when he signed the will. And I think that appears to be the truth.

DW2 aged ?8, and uncle of deceased, in his testimony stated that Pv/1 showed the- will I- him as one of the elders of the testator clan. P-71 .vc-ud it to the witness. This witness appears to have objected to ths contents of the will because it purported to distribute land at Kituna which testator's father had allegedly allocated to 2nd defendant and land at Mubanda which testator's father had allegedly ,.;iven to the *b* defendants. In fact the will gives the two tc the 1st and 2nd defendants respectively. That testator had not provided for his sisters\*in the will which is untrue because they are provided for. This witness failed to appreciate that the 2nd plaintiff is; the sister of the testator who supports the will. Re agreed that although the- testator us-\*d to be confused, he was never mad. The tenor or the evidence of this witness shows that this witness wanted customary usages to be followed rather them the will and he stated so. In crossexamination he stated that the witness himself suffers from high blood pressure and, like the testator, he also gests confused at times. He agreed he did net get confused when he- was testifying and that he couldn't recall certain names and dates of some events associated with this dispute. One wonders what difference there is between his health, and of the testator. He confirmed the

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signature on the will was of the testator. That the will in court w.as the sane as .shown by PV/1 .

I noted that this witness was quite evasive when giving his testimony and appeared to be speaking-the interest of the clan rather that assist court establish truth. He was not straight forward. ^I can't place much reliance on his evidence.

he The first defendant testified as DWJ. Like DW1 and DW2/was not satisfied with the contents of the will. He however expected the testator to make the will, but because of the contents he does not believe the testator made the disputed will. The witness appeared not to be sure of some of the matters he raised as basis of objection to the will. For instance, whereas ho claimed that there were 7 sisters of deceased yet the\* testator referred to only in the will, in answer to question put by the court he stated that in fact by the tamo of testators death only 4 sisters *were p.live.* He stated that the signature on the -./ill resembled that of his fathc (the ^t estator ' s) -s ignature.

. I observed that this defendant witness was evasive in his answers and tended to take long to answer simple questions as if not certain of what to say. Tie did not disclaim benefits under the will. , ' :

Dtfrt-, the .third defendant, is the' only daughter of testator. She generally supported DWS 1,2 and J. Like the others she did not believ.e her father made the -will because she was not happy with sone of its contents.

As stated earlier, she is the only one to contradict other witnesses saying that her father's signature was not the one on

the will. She w *\z* assertive in her testify. She expected her father to use a. lawyer to draw the will. The inescapable view ^I got of tills defendant w-.s thrt she was not happy with the will because hor to father whom she claims trusted her so much did not mentionyhor that he had made a-will. Otherwise her evidence does not show that testator had-no capacity in lav/ to make the will,

• As learned defence counsel quite right?y conceded, there is no evidence c-n consideration of all the evidence adduced by. bo th sides and available tlv.t show that the will v<as <rw.de> contrary t>, the laws of succession. Indeed DV/J was made heir in manner stipulated by the will, All defendants are beneficiaries in the will as are some othei? beneficiaries. The defendants are not happy about certain contents in the will but I am hot convinced by defence evidence or any evidence that the will was not made according to law. The property distributed by testator appears to have all been under his charge by the time he made the will. The only apparently real anomaly is the giving by the testator of his Bishopric gown to P'jl who is one of the attesting witnesses,. That is an understandble slip in view of the love which the testator had for P';f1 • Anyway the\* solution of. this is that PV/1 does not take the gown as bis gift under the will: Sec S. 128 of the Succession Act. In r.y view the omissions to mention certain plots numbers do not vitiate the will. ,

I can understand the feelings of the defendants. Being natural children of the tc-staor, they might have expected him to consult them or sop • of them before making the will. But the

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had asked me to order the defendant to adjust his building so that it is 5 feet away from the common boun\* dary. I shall not make such order. Other authorities can persue the matter. My eviction order requires the defendant to vacate any portion of plot 710 where the building has encroached.

- (ii) The'defendant shall pay to the plaintiff the sum of Shs® 250,000/- as general damages for trespass. - (iii) A permanent injunction is hereby granted restricting the defendant from trespassing onto plaintiff's land. - (iv) The defendant shall pay the costs of this suit.

As no interest was asked for I make no order as to interest.

I accordingly enter judgment as aforesaid

J. W. N. TSEK00K0

AG. J U D G E

9/5/1990.

10/5/1990 at 2.50 p.m.

Mr. Zaabv/e for plaintiff.

Plaintiff present.

Defendant present.

Omwero interpreter.

Judgment delivered in the presence of the above.

Defendant may appeal if he v/ishes.

J. W. N. TSEK00K0 ft AG, J U D G E

10/5/1990