THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA HOLDEN AT FORT PORTAL
CIVIL SUIT NO. DR. MFP 84/89
BEATRICE NYAKAANA K0BUSINGYE::::::::::::::::::::::::::PLAINTIFF
BEFORE: THE HONOURABLE MR. JUSTICE I. MUKANZA
The plaintiff in this case brought an action against the defendant for the annulment and removal of a Caveat lodged by the defendant against the grant of probate to the plaintiff and four others. She sought also relief for general damages and costs.
The facts of this case were briefly that One Ezira Binondo Nyakaana hereinafter referred to as the testator made a Will dated 10th day of May 1985 in which he appointed the plaintiff his daughter and others to be the executrix and executors of the said will respectively. Three years later the testator died and that was on 30th December, 198 and was buried on 2nd February, 1989. He was a reputable businessman in and around Fort Portal Municipality. His children numbered between 24 and 26.
At the time of his burial at his residence at Kaihura, the Will was not available to be read to the children and the relatives of the said testator. It was brought and read to the children on appointment by one Kagaba of Kagaba and Co. Advocates Fort Portal and that was on the 26th February, 1989 almost two months after the demise of the testator. After the ill had been read it generated a lot of opposition and protests by a cross section of the public and children generally on the pretext that the testator could not have made such a Will and that the time lag from the date the testator was buried to the time when the Will as finally read was not convincingly explained to the children or for this matter the beneficiaries. That the Will was forged and changed in order with the wishes of the plaintiff and others.
The will was also opposed because it appointed two elderly women wives of the testator; it also appointed a minor and a man of unsound mind both being grandson and son of the testator respectively. An effort was made by the clan leader and others to reconcile the children but they failed to compromise and hence of course this action for grant of probate.
The issues were whether the will was valid. Secondly whether the applicants for grant were fit and proper persons for the grant of probate.
On the first issue whether the Will was valid, PW.1 an advocate from Kagaba & Co. Advocates testified that on express instructions from the testator drafted a Will and produced three copies, Exhibit P1 & P2 and a third copy. He received back exhibits P1 & P2 from the testator which he kept for custody. He signed and endorsed the date on the two exhibits. The third copy remained with the testator and the same was never brought to him for either his signature or in order to endorse the date on the same. He produced exhibited P1 and P2 and read the same to the public and children after having been contacted by PW.2.
P.W.2 a friend of the testator and of whose clan he was the clan leader happened to peruse the copy of the Will given to him by the testator. The said copy was consistent with the wishes of the testator. P.W.3 and P.W.4 were called upon by the testator to go and attest the Will. They were given the Will which they perused and after which the testators first signed and they also signed the same. They were 3 witnesses who witnessed the signing of the said Will i.e. PW.3, PW.4 and one Kalemera who never testified here because was dead but PW.3 and PW.4 were consistent that they saw Kalemera sign the copies of the will exhibit Pl, P2 and the third copy.
PW.5 (the plaintiff) testified that she had no say in drafting copies of the said Wills Ex. P1, P2 but only learnt that she was appointed an executrix together with four others after the Will had been read on 26th February, 1989 by PW.1.
DW1, DW2 and DW3 son and daughters of the testator respectively were positive that their father the testator could not have made such a Will on the day the testator vas buried PW.2 informed DW1 that the testator’s will was in Kampala and that the same would be read by Tom Rubale. Whereas DW3 used to hold conversation with the testator and they used to talk about ills and the testator informed her DW3 as he had made a Will in 1988. DW1, DW2 & DW3 were not happy when the Will took too long to be read to the children and the fact that DW1 being the eldest son was not mentioned in the Will and he should have been made the heir. DW1 concluded a Will by Tom Rubale should have been produced and rend to the children. Also DW3 claimed that there must have been a Will of 1988. That the Will read to them was net the Will made by the testator.
Mr. Mugamba appearing for the plaintiff submitted that the plaintiff has produced witnesses to prove the Will. The learned counsel then ran through the evidence of P.W.1 to P.W.5. He continued that the defendant and Mrs. Mubiru DW2 simply said that the testator could not have made such a hill because George Nyakaana the defendant and eldest son of the testator was left out and that he should have been mentioned more prominently in the Will. Mr. Mugamba further submitted that a Will is a private wish by an individual and no matter what publicity dictates what he chooses to leave as his last wish constitutes his word barring extrinsic evidence factors like insanity and extra. He submitted further that Nyakaana was alive and well when he made the Will and the court should find that his wishes ought to be allowed to be implemented and that included the persons he cared to appoint as executors of his Will. He reiterated that the law of Succession is clear executors are appointed in the Will unless they are dead or unavailable at the tine of the death of the deceased or the Will materializes or at the time the will is found. They will not also be available as executors if they opt not to act as such. The court saw the executors and executrixes in court. They were alive and allegations of senility and being young were baseless.
The learned counsel representing the defendant on the other hand submitted that the Will was a forgery and that was and clear when PW.1 the author of the Will gave his evidence. The statement of Kagaba was an embarrassment to the profession and an abuse of the professional ethics that no prudent advocate could have purported to draw a document of that nature. In cross examination PW.1 could not differentiate the papers used in typing the Will. And he could not even differentiate between the typewriter appearing on the original Will and the different typewriter appearing on the duplicate (copy) and that he could not even explain between the time lag when the deceased passed away and the time when the kill was read to the public. He even witnessed the Will after the testator had signed. He should have signed in the presence of the testator when the latter was signing the same. P.W.1 could not even explain the different colours used in the document. The ill on the part of it appeared forged. There were two conflicting dates one is dated 10th September, 1985 and another one dated 10th May, 1985.
Under Section 50 of the Succession Act Cap 139 for Wills of this nature unprivileged Wills the testator must execute his Will according to the following provision:-
(a) The testator shall sign or shall fix his mark to the Will or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator or the signature or mark of the testator or the signature of the person signing for him shall appear that it was
intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses each of whom must have seen the testator sign or affix his mark to the Will or have seen some other person sign the Will in the presence and by the direction of the testator or have received from the testator a person acknowledgment of his signature or mark or
of the signature of such other person one each of the witnesses must sign the Will in the presence of the testator
but it shall not
be necessary that
more then one witnesses be present at the acme time, and no particular form of attestation shall be necessary. See also