[1996] UGSC 34

# THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA

### AT MENGO

(CORAM: ODOKI, J. S. C., ODER, J. S. C. & TSEKOOKO, J. S. C.)

## CIVIL APPEAL 18/94

PRINCE J. D. C. MPUGA RUKIDI ................. APPELLANT (JOHN DAVID CHRISTINE)

#### - $VERSUS$ -

PRINCE SOLOMON IGURU ...................................

HON. HENRY KAJURA AND ALL MEMBERS.................................... OF THE COMMITTE OF CORONATION OF PRINCE SOLOMON IGURU

> (Appeal from the judgment of High Court of Uganda at Kampala<br>(Tinyinondi, J.) dated 25th<br>April, 1994 in H. C. C. suit $804/93$ ).

#### JUDGMENT OF TSEKOOKO, J. S. C.

I have the benefit of reading in draft the judgment of Oder, J. S. C. and I agree with his conclusions. I will however, put my views in my own words.

This appeal is against the dismissal by the High Court of a suit filed against the respondents by the appellant. In the Suit the appellant Prince John David Christine Mpuga Rukidi,

Prince James Bakaja, Princess Irene Kabusuga "and all the Members of the Royal Family of the late Sir Tito Gafabusa Winyi IV and late Lady Margaret Kabaikya Winyi" claimed for, inter alia:-

> $"(a)$ a declaration that PRINCE SOLOMON IGURU is not a member of the Royal Family of late Sir TITO GAFABUSA WINYI IV and Lady **MARGARET** KABAIKYA WINYI or any other recognisable Omugo (Queen) of late Omukama of the Kingdom of Bunyoro-Kitara SIR TITO<br>GAFABUSA WINYI IV and accordingly has no right to be crowned as the Successor of the said SIR TITO GAFABUSA WINYI IV.

> $(\dot{d})$ a declaration that PRINCE JOHN DAVID CHRISTINE MPUGA RUKIDI is a member of the Royal Family of the said late SIR TITO GAFABUSA WINYI IV and the said Late Lady MARGARET KABAIKYA WINYI and has always been recognised as the rightful Crown Prince to succeed the said late SIR TITO GAFABUSA WINYI IV as the Omukama (King) of the Kingdom of Bunyoro-Kitara.

(c) $..........................................$

$(\tilde{a})$ Injunction restraining Prince Solomon Iguru to claim howsoever that he is a member<br>of the Royal Family of the said late Sir<br>Tito Gafabusa Winyi and that he is entitled to succeed Sir Tito Gafabusa Winyi IV as the Omukama (King) of the Kingdom of Bunyoro-Kitara."

After a preliminary objection Prince Kikaju and Princess Irene Kabasuga's names and all the members of the Royal Family were struck off from the plaint.

The issue framed for the decision of the Court was in the following words:-

Is the first defendant Prince Iguru entitled to succeed to the throne of Bunyoro-Kitara Kingdom?

The learned trial Judge heard evidence and declared that the first respondent is a Member of the Royal family and accordingly has a right to be crowned to succeed the Late Sir Tito Gafabusa Winyi IV as Omukama of the Kingdom of Bunyoro-Kitara. The appellant was ordered to pay the costs of the suit.

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The essential facts in this case are these. The appellant, born on 12/3/1928, is the first child and first son of the late Sir Tito Gafabusa Winyi IV and his wedded wife Lady Margaret Kabaikya Winyi known as Omugo (Queen). I shall hereinafter refer to Sir Tito as the late Omukama and his wedded wife as "Omugo". The late Omukama and Omugo had other children, sons and daughters. The late Omukama had other wives and concubines with whom he had other sons and daughters. The first respondent is accepted as one of the other sons of the late Omukama. He was The second respondent is a begotten of Gertrude Komweru. Minister in the Uganda Government and he and the other respondents were sued because they formed a committee and prepared the coronation of the first respondent as Omukama (King) of Bunyoro-Kitara.

The appellant and his witnesses adduced evidence to show that Gertrude Komweru and the late Omukama committed incest because they were related. This fact is at the core of the case for the appellant.

The appellant and his witnesses testified that it is the appellant who has the right to succeed his late father to the throne of the Kingdom because:-

- (a) He is the first son of the lawfully wedded wife of his father. - $(iq)$ Only children of the lawfully wedded wife could, according to Bunyoro Customs, Tradition and Culture, succeed to the throne: - $(c)$ On the day when he was born there was proclamation in the Kingdom that he was heir apparent and that the Successor to the throne had been born and a Public Holiday was observed. Thereafter he was treated as Crown Prince during his childhood, at school and during public functions both within and outside the Kingdom;

The first respondent is not entitled to $(id)$ become the Omukama because he was a product of an incestuous relationship between his mother and the late Omukama.

The respondents adduced evidence to prove that the first respondent is entitled to succeed his father because-

- The late Omukama lawfully nominated him on 22nd $(i)$ October, 1962 by a written document (Exh. D.4); - $(iii)$ Upon the death of the late Omukama, the first respondent was installed as heir to the late Omukama and Successor to the throne and he duly performed the requisite ceremonies and rites in accordance with Bunyoro Customs, Tradition and Culture: - $(iii)$ The first respondent has since 1971 been recognised as heir to the late Omukama and Successor to the throne by the Banyoro, Religious and other Organizations; - $(iv)$ During 1973, the Administrator General applied and was granted Letters of Administration (with the Omukama's Will, Exh. $D4$ , annexed). (presumably without being challenged).

There is also evidence by D. W.9, (Kwebiiha), the Custodian of Royal Tombs in favour of the first respondent that three months before his death, the late Omukama confided in D. W.9 that he had nominated the first respondent as his heir. The learned trial Judge held that no incest had been proved, that the first respondent was a Member of the Royal Family and in effect that it is not true that only children of Omugo are entitled to succeed the late Omukama. He concluded that therefore the first respondent qualified to succeed the late Omukama of Bunyoro-Kitara. Accordingly, the learned Judge dismissed the suit. Hence the appeal.

- i . The learned trial Judge erred to frame only one issue namely whether IGURU qualified to succeed SIR TITO GAFABUSA WINYI IV as the Omukama of Bunyoro and also erred in law in declining to make any declarations on the Status of the appellant on the ground that it was not an issue in the suit. - $\overline{2}$ . The learned trial Judge erred in law and on facts to hold that IGURU was a member of the Royal Family of SIR TITO GAFABUSA WINYI IV and qualified to succeed to the throne of Bunyoro-Kitara. - 3. The learned trial judge erred in law; (a) to admit the Will in evidence; (b) to hold that it was a valid Will and/or a valid Instrument of Appointment. - $4.$ The learned trial Judge erred in law in failing to consider the case of the appellant. - 5. The learned trial Judge erred to award costs against the appellant.

I can deal with ground one very briefly. Mr. Lubega-Matovu complains that the trial Judge should have framed at least two additional issues namely whether the appellant was entitled to declarations whether he was entitled to succeed to the throne, and secondly, as I understood Mr. Lubega-Matovu, the other issue should have been which law was applicable to the dispute?

Mr. Kanyeyimbwa for the appellant submitted and I agree that though the issue whether the appellant was entitled to declarations such as whether he was entitled to succeed to the throne was not expressly framed by the learned trial Judge, he in fact considered the matter in his judgment (pages 202-203 and 230 of proceedings). The conclusions on the issue framed and decided by the learned Judge in essence decided these other issues. In any case there was not prejudice whatsoever caused to the appellant by the omission to frame the additional issues. There is one matter connected with framing of issues. The learned Judge put forward a view (page 62 of his judgment) that

"it is prudent for a court to frame issues at the close of the submissions of counsel or the parties. Because then it has all the material in the case before it".

In the Judge's view, issues should be framed after evidence of the case is adduced.

I think, with respect that this is a misdirection on the import of Order 13 Rule 3 of the Civil Procedure rules. Perusal of Rules 1 to 4 of Order 13 clearly indicates that issues must be framed before the production of evidence in a case. That in fact is the normal practice. It is in rare cases that framing of issues is postponed till after hearing evidence of one or two witnesses as clearly is contemplated by rule 4. the present case did not require the hearing of evidence before framing the issue(s).

Be that as it may, I am satisfied that ground one must fail as no failure of justice occurred by framing only one issue.

Ground two complains that the learned Judge erred in law and on facts to hold that the first respondent was a member of the Royal Family of the late Omukama and that he qualified to succeed to the throne of Bunyoro-Kitara. The submission by Mr. Lubega-Matovu on this ground fused with the arguments by Mr. Okumu-Wengi on the third ground of appeal. I will advert to these arguments again when I consider the third ground. Meanwhile I shall briefly consider the second ground here.

Mr. Lubega-Matovu submitted that Schedule 3 to the Uganda constitution of 1962 does not define Royal Family and that as such the Court should resort to Customs, Culture and Tradition of Bunyoro.

Counsel criticised the learned trial Judge for not believing the evidence of P. W.3 (Katuramu) P. W.4 (Mijumbi) and Professor E. J. Kakonge (P. W.7). That the Judge should not have believed D. W.3 (R. Wakebara). Learned counsel submitted that by Custom and by 1933 and 1955 agreements the first respondent was not a member

of the Royal Family. Unfortunately these agreements which were superceded by 1962 constitution are not part of the record of appeal.

Mr. Kirenga for the first respondent submitted, that the judge found as fact that the first respondent was a son of the late Omukama and that being such a son, he was among the sons entitled to succeed his late father.

In my opinion the learned Judge gave adequate consideration to membership of the Royal Family. He also correctly found incest not proved.

It was agreed by both sides that the first respondent is one of the sons of the late Omukama. But in his evidence during cross-examination and re-examination the appellant asserted that the first respondent is disqualified from succession because the first respondent was born out of incestuous relationship between the late Omukama and the Mother of the first respondent. Otherwise the appellant throughout his evidence accepted the first respondent as his brother. In my opinion the only impediment to succeed to the throne by the first respondent would be if he was not a son of the late Omukama. The moment he is accepted as one of the sons of the late Omukama, as indeed he was, he automatically became eligible as one of the candidates for nomination by the Omukama by virtue of para. 2 of the Third the Schedule to the 1962 Constitution. P. W.7, Professor Kakonge certainly accepts this position. I have not seen anything in para. 2 of the Schedule categorising the background $or$ classification of the sons. Moreover it is very clear to me that although there is no definition of "Royal Family", the Royal Family for the purposes of nomination or selection of successor of Omukama is certainly referrable to the children of the late Omukama and the direct male descendants of Omukama Kabalega of whom the first respondent is one.

Paragraph 2 of the 3rd Schedule reads as follows:-

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"2(1) the Omukama shall be entitled to nominate his successor to the throne of Bunyoro from amongst the line of the Royal Family of Bunyoro.

$(2)$ In the event of the Omukama dying before he has nominated his successor, so soon as possible after his death the Rukurato shall elect a successor to the throne of Bunyoro.

In the nomination of a successor the Omukama or the Rukurato, as the case may be, shall select a person from amongst the following classes

(a) The Omukama's son;

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- $(b)$ The Omukama's sons' sons; - The Omukama's sons' sons; $(C)$ - $(d)$ The Omukama's brothers; - $(i e)$ The Omukama's brothers' sons; - (f) The Omukama's brothers' sons' sons;

$(g)$ Other direct male descendants of the Omukama Kabalega. The selection shall not be made from among persons who are not sons of the Omukama until it has been ascertained that there is no son of Omukama whose nomination would be acceptable to the Rukurato."

Mr. Katuramu, (P. W.3) former Katikiro and a person who participated in drafting the 1995 agreement and the above provisions proved by his evidence unhelpful.

The evidence of Prof. Kakonge, (P. W.7) and the general scheme of para. $2(1)$ to $2(3)$ of the Third Schedule when compared with the provisions relating to the other Kingdoms leaves no room for doubt about who shall be regarded as a member of the Royal Family of the Kingdom of Bunyoro-Kitara for the purpose of succession to the throne.

I respectfully agree with the learned Judge that the first respondent is a member of the Royal Family and that he qualified for consideration to succeed his late father. ground two must therefore fail.

$... / 9$ Mr. Okumu-Wengi, leading Counsel for the appellant, made forceful and attractive submissions on ground three which ground and the second ground are really the foundation of this appeal.

Learned Counsel vigorously criticised the learned Judge regarding admission in evidence of a document (Exh. D.4) which parties, to the suit, their witnesses, Counsel and trial Judge treated as late Omukama's Will. Counsel contended that Exh. D.4 should not have been admitted because it was not attested as required by section 66 of the Evidence Act. He submitted that if Exh. D4 was a Will, at least one witness should have attested it, otherwise the provisions of section 66 and $90(2)$ of the Evidence Act when read together would exclude it.

In the alternative Learned Counsel contended that as no letters of Administration were produced in the Court below, exh. D.4 which was a mere photocopy was not evidence of the existence of a Will. He amplified the argument and submitted that it was wrong to admit Exh. D.4 without proof that the original of Exh. D. 4 was either produced during the hearing of the Administration cause or proof that the original got lost.

submitted, and I here agree, that there was no He explanation in the Court below as to how Exh. D. 4 came into existence. He, therefore, submitted that Section 74 of the Evidence Act was not satisfied by the production of the Register of Wills by Mr. R. Buteera (D. W.4). Neither the Court file nor copy of the Letters of Administration were or could be produced in evidence. I also agree with Mr. Okumu wengi that in these circumstances the Administrator-General should have been called to testify for the respondents about the grant to him of the Letters of Administration in 1973/74 and what he (Administrator-General) knew about the original copy of Exh. D.4.

Counsel submitted (a) that the trial Judge misdirected himself in admitting photocopies of Exh. D.4 and in relying on Exh. D.4 when he should not have done so. (b) that the trial Judge erred in law in attaching any importance to Exh. D. 4 and the evidence of Kwebiiha, D. W.9, and S. Kulubya, D. W. 10,. That

this was fatal to the respondent's case. I have noted that although D. W.9 was not asked to specifically identify Exh. D.4 he (D. W.9) testified that the Late Omukana confided in him that he (the Omukama) had made a written document nominating the first respondent as his successor. He was not cross-examined on this vital piece of evidence which was believed by the trial Judge. D. W.9 was a very important official who was appointed personally by the Omukama as Mugema in virtue of para. $1(2)$ of Schedule 3 to 1962 constitution. Therefore, his unchallenged evidence was correctly relied on by the trial Judge as it carries considerable weight.

Counsel further submitted that Decree 22/72 introduced attestation of Wills by Africans (8.50(c) thereof). That the provisions of S. $2(1)(a)$ and $2(1)(b)$ of Decree 22 of 1972 rendered Omukama's Estate intestate and nullified the Will (Exh. D.4) principally because of lack of attesting. I think that it is more accurate to say that attestation of Wills by Africans was introduced by the succession (Exemption) Order 1966 (S. I 1966 No. 181).

In the alternative learned counsel contended that if Exh. D.4 is treated as a Customary Will, by virtue of S. 28 of the succession Act as amended by Decree 22 of 1972, Exh. D.4 would be acceptable if all the beneficiaries consent to it, yet there was no consent.

Counsel submitted in effect that the High Court erred in processing and granting Letters of Administration to the Administrator-General in respect of a void Will to a defunct Kingdom. Counsel submitted that the Will is invalid.

For the respondent Mr. Kirenga submitted on the whole that the situation has changed since the trial was held; that the case has been overtaken by events because the first respondent has been enthroned; that both the appellant and the first respondent are brothers; that the first respondent has been accepted as King. On ground $3(a)$ Kanyemibwa also on behalf of the respondents, submitted and here I agree that Mr. Okumu's

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submissions in part are at variance with the appellant's case about whether or not the amendment introduced by Decree 22 of 1972 nullified Exh. D.4. Clearly this was not the course adopted at the trial by the appellant where Counsel (Ayigihugu) submitted that the Will should be ignored because it lacked attestation.

Learned counsel stressed that D. W.4,, Mr. Richard Buteera, the Ag. Chief Registrar, and D. W.10, Mr. Kulubya gave evidence which was accepted by the Learned Trial Judge. That Rugemwa, D. W.2, Rwakabare, D. W.3 identified the signature.

I think that the learned Judge prematurely ruled on the admissibility of Exh. D.4 before grounds for its admissibility had been lead. The problem with Exh. D.4 is that there was no evidence adduced to prove that Exh. 4 was a true copy of the Will which D. W.10 read in 1971. Mr. Kulubya thought that Exh. D4 must be a copy of the Will he read in 1971 because he "was greatly impressed by the number of children". It does not require much thinking to dismiss this as a wrong basis for the assumption that Exh. D.4 is in fact the exact copy of the document which D. W.10 read in 1971, i.e, about 22 years ago since D. W.10 last saw the document.

First of all with respect to Mr. Okumu-wengi, I don't accept that the provisions of Sections $2(1)$ of the succession (Amendment) Decree, 1972 would have rendered Exh. D.4 inoperative as a Will if Exh. D.4 was a Will. If Exh. D.4 is Omukama's will, it would have been governed by $\bar{s}$ . $50(2)$ of the Succession Act as it was made before 1972. In effect that is what the trial Judge found. But as I have indicated earlier, para 2 of the 3rd Schedule sets out the law which the Omukama of Bunyoro-Kitara had to follow when nominating his successor to the throne. Indeed the learned Judge was alive to this when he stated in his judgment $(p.82)$ that:-

> $".\ldots.\ldots.\ldots.\ldots.$ I hold that the late Omukama duly nominated Iguru by a valid Will compliance with the provisions of the Third Schedule to the 1962 constitution."

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It appears that exh. D.4 was treated as a Will especially made for the purposes of the succession to the throne. the validity of Exh. D.4 would therefore, be judged according to the special law applicable to it and not by the Succession Act.

Mr. Okumu-wengi made reference to sections 66,99 and 78 of the Evidence Act. These Provisions save for 5.78 are not relevant to exh. D.4 for reasons I have just given.

## Section 78 of the Evidence Act reads as follows:-

"78 Whenever a document is produced before any Court, purpoting to be a Record of Memorandum of nay evidence given in a judicial proceeding or before any Officer authorised by law to take evidence required by law to be reduced to writing, and purporting to be signed by any Judge or Magistrate, or by any such Officer as aforesaid, the Court may presume that such<br>document is genuine, and that the evidence recorded was the evidence actually given, may take oral evidence of the proceedings and the evidence given; and shall not be precluded from admitting any such document merely by reason of the absence of any formality required by law:".

This provision is irrelevant because Exh. D.4 was not part of any Court Proceedings or evidence before it was tendered in the Court below.

There is no evidence which explains how the copies were obtained and Counsel for the appellant in the court below justifiably criticised its reception. The assumption that any relevant evidence is admissible regardless of the manner in which it was obtained is irrelevant here because the issue here was the genuiness of Exh. D.4 and not its relevancy as evidence.

There is however, evidence from the appellant himself which lends weight to the evidence of D. Ws.2, and 3 that Exh. D.4 bears the signature of the late Omukama. indeed even Katuramu (P. W.3) who was Katikiro, a very important official, who claims to have

been conversant with the late Omukama's signature could not say straight away that the signature on Exh. D.4 was false. At page 44 of the proceedings, the appellant when testifying in-chief stated:-

> "I was acquainted with my father's signature (annex A" the written statement of defence of 6th defendant shown to witness). The document has a refer. " $c/10/62$ . It is addressed to the Chief Justice of Uganda. the first page is not signed by any one. So too the 2nd page. Third page is signed. But the signature is not clear. I doubt if it is my father's signature ............".

Towards the end of cross-examination by Kirenga the appellant stated that:-

> " If the Will turned out to be valid the appointment of Iguru would be void as it contravened the law . It does not comply with the Will Act as it was not witnessed".

I respectfully agree with the trial Judge that the appellant was evasive. He did not categorically challenge the authenticity of the signature or the validity of the document. This fact coupled with the fact that he never bothered to investigate the validity of the "Will" referred to in the Letters of Administration under which he benefited leads to the irresistible inference that the signature is probably that of the late Omukama. On that basis the learned trial Judge did not err in accepting it.

Mr. Kirenga submitted that there are three ways of nomination.

These are:-

(i) in writing, (ii) verbal and (iii) under para. $2(2)$ of 3rd Schedule.

I have observed that the provisions of the Succession Act as amended by Decree No. 22 of 1972 are irrelevant and inapplicable to exh. $D.4$ I have also stated that this document

was intended for one specific purpose and was not supposed to be a Will in the strict sense. The evidence of P. W.7 certainly shows that the method adopted by the late Omukama was in keeping with the Bunyoro Agreements of 1933 and 1955, i.e Secret nomination.

On the second leg of ground 3(b), Mr. Okumu-Wengi submitted that the nomination of the appellant by the Late Omukama was invalid because Exh. D.4 was not attested and that the Trial Judge erred in holding the contrary.

Learned Counsel relied on paragraph 6(3) of 3rd Schedule to Uganda Independence Constitution of 1962. Counsel submitted that paragraph 2 is subject to para $6(3)$ . He submitted in effect that in failing to have Exh. D.4 attested by a Minister in his government, the late Omukama lost his right to nominate his successor. Counsel cited Re Jebb deceased (1965) 3 All E. R. 358 to support his contention about contrary intention. He asked Court to hold that Exh. D.4 is invalid as nomination paper or as a Will.

Alternatively, Mr. Okumu-Wengi submitted that even if it is held that nomination is valid, the nomination was extinguished in 1966/67 when the Kingdom were abolished and therefore the nomination lapsed. For this proposition, Counsel cited Uganda vs Commissioner of Prisons exparte Matoyu (1966) E. A. 514 at page 539.

It is true that in that case the High Court of Uganda, held that the 1962 Constitution was extinguished. But that does not mean that acts validly done under that constitution were wiped out. Here, in this appeal, the question is whether the repeal of that Constitution wiped out the privilege which the late Omukama had bestowed upon the first respondent as successor and heir to the throne.

Counsel criticised the Trial Judge for holding that by virtue of S. 13(2) of the Interpretation Decree 1976, Exh. D.4 was saved. counsel submitted that Article 118 of the Republic

Constitution of 1967 abolished Kingdoms together with their privileges, rights and obligations and that accordingly the nomination which was a Constitutional act could not be saved by the Interpretation Decree, 1976 because if that were so, this Decree could amend the Constitution. With respect I think that on this point the learned Trial Judge was correct, though for my part, I think that the respondent's (first) right or privilege was preserved by S. 15 of the Interpretation Act, Cap 16 of Laws of Uganda.

Counsel contended that the Constitution (Amendment) Statute, 1993 did not restore the old Constitutional Order by removing Article 118. He further submitted that the resolutions of R. C. 5 of the Hoima and Masindi districts and the resolutions of the coronation committee could not recognize a Successor who was nonexistent and that the R. Cs and the Committee were not part of the Culture, Customs and Traditions of Bunyoro envisaged by the 1993 constitution (Amendment) Statute nor the new constitution. That only Clans, Clan Councils and Rukurato are the only Organs which could elect one member of the Royal Family to succeed and take up the throne.

The general principle of law on repeal of an Act is that unless a contrary intention appears, the repeal of an Act does not revive anything not in force or existing at the time at which the repeal takes effect. This is reflected in Section 13(2) (a) of the Interpretation Decree, 1976. To this end Mr. Okumu Wengi is correct in saying that repeal of Article 118 of 1967 Constitution did not restore the old Constitutional Order. But as regards the rights and privileges of the first respondent, or indeed those of the appellant, in construing the new Article 118 introduced by the 1993 amendment, all the circumstances of this case must be born in mind. The evidence adduced by both sides must be carefully considered. The right and privileges, namely the nomination of the first respondent have to be considered bearing Section 15 of the Interpretation Act (Cap. 16) in mind.

Mr. Kirenga on behalf of the respondents contended as he did in the Court below that there was only a single issue which is:

Whether or not the first respondent was entitled to nomination. He submitted that the Resistance Councils (R. Cs.5) of Hoima and Masindi District and the Coronation Committee were proper Organs for the purposes of this issue. He submitted that since the first respondent has been enthroned this appeal has been overtaken by events. The implication here is that this Court should not entertain this appeal.

Also for the respondents, Kanyemibwa submitted on ground 3(b) in effect that the Succession Act applied to the making of Exh. D.4 and therefore Section 24 to 40 thereof applied thereto but not S. 50(b). According to Learned Counsel, the late Omukama, an African, could make an unattested Will such as Exh. $D.4.$

In my opinion three points need consideration: First how was the Successor to the late Omukama to be chosen? Secondly, was the first respondent eligible for nomination or selection and thirdly, if the first respondent was eligible for nomination or selection was he properly nominated or chosen? The second point has been answered under ground No. 2.

The questions would not have arisen without constitutional amendment of 1993 (Article 118). The new Article 118 reads:-

> "118(1) For the avoidance of doubt, the abolition of the Institution of Traditional Ruler previously effected by this Constitution is hereby cancelled.

> (2) The Institution of Traditional Ruler may, where the people of the Community for which a person is to be a Ruler so wish, exist according to the culture, customs and traditions of t h e people; . . . . . . . . . . . . . . . . . . .

$(3)$ The person to be designated as a Traditional Ruler shall be determined in accordance with the culture, customs and traditions of Community for which that person is to be Traditional Ruler.

(8) In this Article, and in Article 118A and 118B of this Constitution, unless the

context otherwise require, "Traditional Ruler" means, King or Ruler by whatever name called, of a Kingdom or territory, the institution of which was previously abolished under this Constitution."

These provisions provided for the restoration of Kingdoms.

These provisions do not purport to operate retrospectively. That explains why article 118(2) provided that the Institution may exists if the community to be affected so wish. Where the community wishes that the Institution should exist, the existence is to be determined according to culture, customs and traditions of that community. The object of the 1993 statue is to cancel the abolition of Traditional Rulers, to quarantee the freedom of a person to adhere to his culture and cultural institutions and to make possible the return to Traditional Rulers of assets and properties previously confiscated from them. This does not restore the whole status quo.

Where the Ruler has since 1967 died, as in this case, his Successor has to be determined in accordance with the culture, customs and traditions of the re-established Kingdom.

From the evidence available and particularly that of Prof. Kakonge, (P. W.7) a tradition had been established for nomination of his successor by a reigning Omukama immediately before the late Omukama was made Omukama. This was made law by the 1933 and 1955 Agreements and Schedule 3 to 1962 Constitution. As I observed earlier, Mr. Katuramu (P. W.3) who was the most important official in the Kingdom and whose evidence should have been helpful turned out to unreliable. He was apparently on poor relationship with the Omukama.

Some of Mr. Okumu's arguments are attractive in the sense that since the Kingdom of Bunyoro-Kitara was abolished in 1967 while a reigning King was alive his nomination would have gone with the abolition of his Kingdom. This is because the amendment of 1993 did not purport to have retrospective effect. The amendment did not purport to restore the Rukurato which existed during 1967 and which the 1962 Constitution gave authority to

select a successor Omukama. The new Article 118 is vague about the procedure of choosing a Traditional Ruler. In the circumstances, one is either forced to fall back to schedule 3 of the 1962 Constitution or to accept the fact that R. C.5 of the districts composing Bunyoro Kingdom have authority to choose the Omukama. The problem with the latter option is that the composition of R. C.5s were not established in accordance with the culture, customs and traditions of Banyoro. Absence of established procedure of choosing Omukama in 1993 amendment probably explains the stye adopted by D. W.8 in convening meetings for the purposes.

From the evidence available nomination of successors to Omukama replaced Succession by war. At the time of the abolition of the Institution of Omukama, the procedure of succession had been formalised by the provisions of paragraph 2 of 3rd schedule to the Constitution of 1962. The successor was to be nominated by reigning Omukama or in default by the Rukurato.

The arguments raised before us were in one way or another dealt with by the Learned Trial Judge.

Art page 82 of his judgment in dealing with nomination the Judge stated: -

> "............. Upon reading the entire schedule to the 1962 Constitution I do not find any laid down form of the instrument of nomination."

This is essentially what the respondent's Counsel maintain. The learned Judge made reference to and considered activities of the committee for the coronation of the Omukama. The committee was headed by Mr. Henry Kajura (D. W.8) a Minister in the Uganda Government. (There is confusion about numbering witnesses). D. W.5, Peregrin Itaza, testified and produced a copy of resolutions by Hoima R. C.5 meeting held on 4/11/1995 (Exh. D.1) and D. W.7 Buruhan Kigaje, a Councillor of Masindi R. C.5 tendered Exh. D2, the Minutes of Masindi R. C.5 resolution which accepted Iguru as Omukama.

Mr. Kajura's committee consisted of many categories of representatives from Bunyoro Kingdom area:- N. R. C. Member, Bishops, D. R. Cs. (R. C.5) Members, Babiito clan leaders and other notable persons of Bunyoro. Some were obviously hand picked or volunteers. His evidence shows there was some dissent even amongst members of the Babiito clan. But on 28/8/1993 Mr. Kajura's committee, amorphous though it appears to have been, met and lighted the fire of the restoration of the Kingdom and the enthronement of the first respondent. Henceforth the fire spread fast particularly in the districts of Hoima and Masindi.

The Constitution (Amendment) statute 1993 did not, as I stated earlier lay down any procedures to be followed. This explains the method adopted by Mr. Kajura's committee ; and the elected R. C.5 of Hoima and Masindi Districts.

The other district of Kibale appears to have had small representation, Except for Exh. D.4, none of the other exhibits have been made part of the record in this appeal. I don't know why. The appellant or his Counsel know the reason.

But the minute containing the resolution by Hoima R. C.5 (Exh. D.1) appears at page 85 of the judgment of the Learned Trial Judge. That portion of the minutes speaks it all. Its contents are recorded in the following words-

"MIN 2/93(a) ......................

(b) RESTORATION OF BUNYORO KINGDOM

Views having been exchanged among members, the Council unanimously resolved -

- $(i)$ That Hoima District Resistance Council approves and recognises Frince Solomon Gafabusa Iguru as the rightful Heir and Successor of the late King of Bunyoro Kitara Sir Tito Gafabusa Winyi IV as per Tito Winyi's Will. - (ii) That Crown Prince Solomon Iguru as Successor to the throne of Bunyoro-Kitara be crowned and coronated as the 27th King of Bunyoro-Kitara in the Babiito dynasty on 27th November, 1993.

$(iii)$

That Hoima District Resistance Council directs the entire District leadership to support and co-operate in all preparations for this important occasion and that all levels of R. Cs to coordinate the activities at the grass roots in order to ensure a successful coronation of the King".

Hoima District is where the principal palace of the kingdom has been. So these clear resolutions carry weight. In dealing with these matters, the learned Judge had this to say - (p. 86 of his judgment)-

> " I have taken into account the types of meetings referred to by the three witnesses by the defence in particular that meeting of $28/8/93$ . I have perused exhibits D, D2 and D3, the contents of which are vital importance to the Banyoro. I am not convinced that the Banyoro who attended those deliberations were people of mean stations in life. I am not persuaded that they did not know the gravity of the subject matter and pre-requisites for and the consequences of their resolutions. It is definitely true the Will was not laid on the table at any of these meetings.......... believe the evidence of $\mathrm{D}.\mathrm{W.6}$ and $\mathrm{D}.\mathrm{W.8}$ (sic) that many of the Banyoro involved knew that way back in 1971 Prince Iguru had been nominated when Mr. Kulubya read the late Omukama's Will".

He continued later on at p. 87 that-

"In view of the aforesaid I find and hold that there is ample evidence that the Banyoro have expressed a wish to have the Institution of the Omukama restored in accordance with the provisions of the Statute (supra). I hold the form at which $\;$ the issue was deliberated to be sufficient gauges of the democratic governance which is the thrust of the provisions of the Statute".

The learned Judge concluded by holding that Iguru's nomination was valid. He further held that despite the provisions of Article 118 of the Constitution of 1967, Section 15(1) of the Interpretation Act (Cap. 16) saved the nomination of Iguru as an

acquired right. That the Statute of 1993 which repealed article 118 of the 1967 Constitution did not affect or change the position of Iguru's acquired rights. Of course there would always be the philosophical question whether Iguru could acquire the right of having been nominated as heir and successor to his father whose Kingdom was abolished in 1967 during the life time of the nominator. But I think the reality of the situation is that Iguru's rights vested in him upon the death of his father when D. W.9 and D. W.6 performed rituals that go to confirm heirship.

Mr. Kirenga has raised the rather interesting point that this appeal had been overtaken by the coronation of the first appellant as King. If this means that this Court had ceased to have jurisdiction in the matter, I would say that would possibly be the position if accession to the throne was by battle as in the days of old. But not so now, as the Uganda High Court Constitution Case No. 1 of 1979 - Andrew Lutakome Kayira and Paul Ssemogerere v. Edward Rugumayo & 2 others (unreported) clearly illustrate. That case was filed in 1979 seeking to declare that Prof. Lule who had been voted out of office of President by Members of the National Consultative Council (N. C. C.) was still President. The Constitutional Court decided in 1980 that the N. C. C. did not have the power to remove Prof. Lule although he had long been succeeded by Binaisa as President. I think that this Court has powers to decide this appeal.

In my view the late Omukama nominated the first respondent as his Successor and the nomination was further confirmed by the carrying out of certain rituals by D. W.9 in whom the Omukama had confided his choice of the Successor. Subsequent actions by R. Cs and the Coronation Committee merely endorsed the nomination by the late Omukama. I think therefore, that the learned Judge was right in his conclusions that the first respondent had been properly nominated.

For the foregoing reasons, ground three must fail.

As I said grounds two and three are the foundation of the appeal. Because of the conclusions I have reached I find it unnecessary to consider arguments on the 4th and 5th grounds in detail.

The case for the appellant was adequately considered by the trial Judge. Ground four ought to fail. The law governing the award of costs is Section 27(1) of the Civil Procedure Act. The question of costs is left to the discretion of the presiding Judge. The provisio to S. $27(1)$ states that "costs of any action," cause or other matter or issue shall follow the event unless the Court of Judge shall for good reason otherwise order."

This case is of some constitutional importance. The dispute divided the Royal Family of the late Omukama and his subjects. It is good that harmony returns to the Royal Family and Bunyoro Community. In fairness this harmony can be fostered by ordering each party to bear his own costs. Thus ground five succeeds.

I would therefore dismiss this appeal save on costs where I would order each party to bear his owns costs both here and in the court below.

Delivered at Mengo this......17th day of..... May......, 1996.

## J. W. N. TSEKOOKO, JUSTICE OF THE SUPREME COURT

I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL.

**E. K. E. TURYAMUBONA,**

DEPUTY REGISTRAR, THE SUPREME COURT

# THE REPUBLIC OF UGANDA

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$\mathcal{A}^{\prime}$

# IN THE SUPREME COURT OF UGANDA

## AT MENGO

(CORAM: ODOKI, J. S. C., ODER, J. S. C. & TSEKOOKO, J. S. C.)

### CIVIL APPEAL 18/94

PRINCE J. D. C. MPUGA RUKIDI .................. APPELLANT (JOHN DAVID CHRISTINE)

#### $-$ VERSUS $-$

PRINCE SOLOMON IGURU ...................................

HON. HENRY KAJURA AND ALL MEMBERS................. 2ND RESPONDENT OF THE COMMITTE OF CORONATION OF PRINCE SOLOMON IGURU

> (Appeal from the judgment of High Court of Uganda at Kampala (Tinyinondi, J.) dated 25th April, 1994 in H. C. C. suit $804/93$ .

### JUDGMENT OF ODOKI, J. S. C.

I have had the advantage of reading in draft the judgments of Oder, J. S. C. and Tsekooko, J. S. C. and I agree with them that this appeal must, for the reasons they have given, be dismissed except as regards costs. I shall therefore make only a few comments.

The facts of the case have been set out in detail by Oder JSC and I need not repeat them. The single issue framed by the learned Judge was whether Prince Iguru was qualified to succeed the late Sir Tito Gafabusa Winyi IV as the Omukama of Bunyoro.

The learned Judge framed the issue in his judgment, as he stated:

> "From the pleadings (Para 14, 15 and 23 of the plaint and 6 of the written statement of defence of the 1st - $5th$ and $7th$ - $11th$ Defendants) from the evidence on record and from submissions of the four counsel'.

The appellant has complained to this court that the learned Judge erred in framing only one issue and also in not making any declaration with respect to the appellant. I think this complaint has no merit. At the commencement of the hearing of the suit, Counsel for both parties agreed that the main issue was whether Prince Iguru was qualified to succeed the late Sir Tito Gafabusa Winyi Iv as the Omukama of Bunyoro. The other issues suggested by Counsel for the appellant at the commencement of the hearing, namely, whether it was the appellant who was qualified to succeed the late Omukama or whether, in his absence, Prince James Bikaju was entitled to be crowned successor to the late Omukama were not agreed upon by both parties. They were also not fundamental to the case but merely consequential to the main issue. Even if these issues were crucial, the failure to include them in the judgment is of no effect in view of the finding of the learned judge that Prince Iguru was qualified to succeed the late Omukama of Bunyoro.

However, on the question of framing issues, the learned Judge said:

> "It is my considered view that the framing of issues is a prerogative of the court. It is also my considered view that it is prudent for a Court to frame issues at the close of the submissions of Counsel or the parties. Because then it has all the material in the case before it. The habit of Counsel stating issues is not only to usurp

$\overline{2}$ the Court powers but it borders dangerously on putting the plough before the ox."

I agree with the learned Judge that the framing of the issue is a function of the court, but I think that it is a misdirection to state that issues should always be framed at the close of submissions of parties or their Counsel. In my view, issues should always be framed at the commencement of the hearing of the suit unless for special reasons it is not possible to do so. This appears to be the purpose of Rule $1(5)$ of Order 13 which provides:

> "At the hearing of the suit the Court shall, after reading the pleadings, if any, and after such examination of the parties or their advocates as may appear necessary, ascertain upon what material propositions of law or fact the parties are at variance, and shall there upon proceed to frame and record the issues on which the right decision of the case appears to depend.'

The framing of issues is an important step in the determination of a case as it defines the areas of controversy and narrows down the scope of inquiry. It makes the hearing of the case more focus-oriented and saves the time of the Court. There is nothing wrong with the parties or their Counsel agreeing on the issues or otherwise participating in their framing.

The fact that issues are framed at the commencement of the hearing does not mean that they cannot be amended by addition or deletion. Indeed rule 5 of Order 13 allows the Court, any time before passing judgment, to amend the issues or frame additional issues which appear necessary for determining the matters in controversy between the parties, or to strike out any issues that appear to have been wrongly framed.

A trial Judge therefore always has a discretion to amend the issues framed any time before passing judgment. The point, however, to be emphasised is the need to frame issues at the commencement of the hearing of any suit to guide the parties and the Court in addressing the basic issues in controversy.

See Fam International Ltd V. Mohamed Hamid El Faith, Civil Appeal No 16/93 (SC) (Unreported).

On the main issue as framed by the learned Judge, he was correct in holding that Iguru was a member of the Royal Family of Sir Tito Gafabusa Winyi IV and that he qualified to succeed to the throne of Bunyoro - Kitara. The appellant failed to prove that Iguru was not so qualified or that he was himself so qualified. The evidence the appellant adduced was insufficient to establish that he was the rightful heir to the throne of Bunyoro-Kitara. He only succeeded in showing that at one time he was held out as the Crown Prince and this was not surprising since he was the first born son of the late Omukama.

On the other hand the respondents adduced ample evidence to establish that the first Respondent, Prince Iguru, was a member of the Royal Family and had been duly nominated by the late Omukama as his successor to the throne of Bunyoro. It was, in my view, common ground that Prince Iguru was a son of the late Omukama. It was argued however, that he could not succeed because he was a product of an incestuous Union. The provisions relating to the succession to the throne of Bunyoro, however, did not discriminate among the sons of the Omukama, and any of his sons could be nominated to succeed the Omukama, these provisions are contained in paragraph 2 of Schedule 3 of the 1962 Constitution of Uganda, under which the nomination was made, and they read as follows:-

| $(2)$<br>.<br>(3)<br>In the nomination of a Successor<br>the Omukama or Rukurato, as the<br>case may be shall select a person<br>from amongst the following<br>classes:-<br>(a)<br>The Omukama's sons;<br>(i _d )<br>.<br>(c)<br>.<br>(id)<br>.<br>(e)<br>.<br>$\overline{f}$<br>$.\,.\,.\,.\,.\,.\,.\,.\,.\,.\,.\,.\,.\,.\,.\,.\,.\,.\,.\,$<br>(q)<br>. | $-2(L)$ | The Omukama shall be entitled to<br>nominate his successor to the<br>throne of Bunyoro from amongst<br>the line of the Royal Family. | |--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|---------|--------------------------------------------------------------------------------------------------------------------------------------| | | | | | | | | | | | | | | | |

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$\overline{4}$

The selection shall not be made from among persons who are not sons of the Omukama until it has been ascertained that there is no son of the Omukama whose nomination would be acceptable to the Rukurato"

The phrase "Royal Family" was not defined in the Constitution or any other law but I agree with the learned Judge that the catalogue of the people mentioned in paragraph $2(3)$ of the Third Schedule to the Constitution was a description of the Royal Family. All the persons listed thereunder qualified to be referred to as "Members of the Royal Family" or the "Line of the Royal Family". Had the intention of the legislature been to restrict the succession to only sons of the official or wedded wife, it would have said so, as it did in case of Toro Kingdom where under paragraph 2 (1) of Schedule 4 of the 1962 Constitution, the first category from which the Omukama had to nominate his successor to the throne of Toro was "from among the sons of Omugowekitebe". In the case of Ankole, the Omukama's nomination had to be "from amongst his sons lawfully begotten" as the first category.

It is, therefore, abundantly clear that the intention was to broaden the scope of the Royal Family in the case of Bunyoro to include all sons of the Omukama whether legitimate or not. It was immaterial, therefore whether Prince Iguru was not a son of the official or wedded wife, it being sufficient that he was a son begotten of the late Omukama and therefore a member of the Royal Family.

On the question of the validity of the nomination of Prince Iguru as the successor to the late Omukama, there was sufficient oral, documentary and circumstantial evidence to establish that he was validly nominated in accordance with the law and custom. The oral evidence was not seriously challenged but the admission of the key documentary evidence consisting of the late Omukama's Will, dated 22nd October, 1962 (Exh. D.4), was challenged as inadmissible. The learned Judge held that it was admissible and

relied on it in holding that it constituted a valid nomination of Prince Iguru as Successor. It has been complained on appeal that the learned Judge erred in admitting it in evidence and in holding that it was a valid Will.

As regards its admission in evidence, I am satisfied that the learned Judge was correct in admitting the Will in evidence since the essential requirements for admission of secondary evidence under Section 63 of the Evidence Act were complied with. There was evidence which was accepted by the learned Judge that the original Will could not be found and was therefore lost. Īt was also proved that the copy produced was a photocopy of the original which ensured the accuracy of the copy. There was evidence which was accepted that the signature on the photocopy was or was similar to that of the late Omukama. The genuineness of the document was not seriously challenged especially as regards its contents.

It is immaterial, in my view, that the person who made the photocopy was not called to testify. In these circumstances, it cannot be said that the learned judge erred in law in admitting the Will in evidence.

It was argued that the document did not fulfil the requirements relating to the making of Wills and therefore it could not be admitted as such. I agree with learned Judge that the document fulfilled the requirements relating to the making of Wills by Africans and that therefore there was no need for witnessing the document before it could become a valid Will.

Even if it was not a valid Will, it was properly admitted in evidence as a nomination of a successor by the Omukama under Paragraph 2 Schedule 3 to the 1962 Constitution. No specific form was prescribed for the nomination of a successor, and therefore, it could be done orally or in writing. It did not require being witnessed or made in a special manner. The form adopted by the late Omukama clearly satisfied the requirements of the law.

$\kappa$

$\cdot \cdot \cdot / 7$

It was submitted that the nomination was not valid because it was not witnessed by a Minister as required by Paragraph 6 $(3)$ of Schedule 3 which provides:

> "Where any function under this schedule is exercisable by the Omukama, that function shall unless the contrary intention appears, be exercised by him by means of written<br>instrument signed by him in the presence of a Minister who shall sign the same as a witness"

In my opinion, this provision did not apply to the nomination because it related to "the Conduct of Omukama's Government" as the marginal note states. But even if it applied, it was complied with because the Omukama showed a contrary intention by marking the Will "TOP SECRET" which could not therefore be witnessed by a Minister unless the Omukama thought it proper, and in this case he did not think it proper.

On the whole, therefore, the document headed "My Will According to the Law who will be successor and Heir to the Throne of Bunyoro - Kitara Kingdom after my Death" was properly admitted in evidence, and constituted a valid nomination by the late Omukama of his successor. That successor was Prince Solomon Iguru.

It was submitted that Prince Iguru's right to succeed the late Omukama had lapsed with the abolition of Traditional Rulers by the 1967 Constitution. I agree with the learned Judge that Iguru' right to succeed to the throne of Bunyoro was an acquired right which subsisted despite the abolition of the Institution of Traditional Rulers. Even if the right to succeed had been abolished, it was clearly restored by section 3 of the Constitution (Amendment) Statute 1993.

There was ample evidence that Prince Iguru's nomination as successor had been recognised at the funeral of the late Omukama and that he had been subsequently accepted by the people of Bunyoro-Kitara as the lawful successor to the throne of Bunyoro-Kitara. It was common ground that the people of Bunyoro-Kitala

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$\overline{7}$

had popularly expressed a wish to have the institution of the Omukama as the Traditional Ruler of Bunyoro Kitara restored. īn those circumstances it is clear that Prince Iguru was entitled to be crowned successor to the late Sir Tito Gafabusa Winyi IV as the Omukama of Bunyoro-Kitara.

Mr. Kirenga submitted that the appeal had been overtaken by events because Prince Iguru had already been crowned as Omukama. I am unable to agree with that submission. Any party is free to pursue his rights irrespective of whatever intervening events have taken place. The Court is entitled to pronounce on the rights of the parties.

However, the granting of a declaration is a discretionary remedy and the Court will be slow to grant one where it would serve no useful purpose, or affect the relationship of confidence between the parties, or seriously prejudice the security of the State. See Opolot vs Attorney General (1969) EA 631 and Andrew Lutakome Kayira and Another vs Edward Rugumayo & 2 others Constitutional Case No. 1/79 (unreported). Had the appellant succeeded, the Court would have had to consider whether to grant the declarations sought, but since the appeal has failed, the issue does not arise.

The final point relates to the award of costs against the appellant by the learned Judge. The general rule is that costs follow the event so that a successful party is entitled to costs unless, for good reasons, the Judge orders otherwise. See Sheikh Jama vs Dubat Farah (1959) EA 792 and Hussein Janmohamed & Sons vs Twentsche Overseas Trading Co. Ltd. (1967) EA 287.

It is trite law that a successful party will not be deprived of costs unless it is guilty of misconduct. But it is also well settled that there can be other good reasons than misconduct justifying a departure from the general rule, depending on the circumstances of each case. See Wambugu vs Public Service Commission (1972) RA 296.

In this case the learned Judge applied the general rule in exercising his discretion in favour of the successful party, the respondents. He did not consider the special nature of the case and the relationship between the parties before he came to his decision on costs. This was an important case which settled the question of succession to the throne of Bunyore-Kitara and therefore paved the way to the restoration of the institution of Traditional Ruler in Bunyoro-Kitara Kingdom. It was a matter of great public importance. The fact that the question has been settled also means that there is a need for reconciliation among the contestants for the well being of the Kingdom. In those circumstances I agree that each party should bear its own costs here and in the Court below.

In the result, I would dismiss the appeal except as it relates the order for costs.

As Oder, J. S. C. and Tsekooko, J. S. C. agree, this appeal is dismissed save as it relates to the order for costs. Accordingly, the order of the lower Court granting the respondents costs of the suit is set aside and instead an order that each party bears its own costs is substituted. The other orders of the trial judge are upheld. It is ordered that each party bears its own costs in this appeal.

Dated at Mengo this .....17th......day of.... May,....., 1996.

## B. J. ODOKI, JUSTICE OF THE SUPREME COURT.

I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL. E. K. E. TURYAMUBONA.

DEPUTY REGISTRAR, THE SUPREME COURT.