Wakilii

Mpuqa Rukidi v Iguru and Others (Civil Appeal 18 OF 94)

Supreme Court · [1996] UGSC 36 · 1996 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court judgment dismissing a suit contesting succession to the throne of Bunyoro-Kitara Kingdom
Decision
Appeal dismissed except as to costs; the High Court's finding that the 1st respondent was validly nominated successor to the throne of Bunyoro-Kitara upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Supreme Court dismissed an appeal contesting the nomination of Prince Solomon Iguru as Omukama of Bunyoro-Kitara. It held that a photocopy of the late Omukama Sir Tito Winyi IV's will was properly admitted as secondary evidence under the Evidence Act, the original being lost; that the will, made by an African, required no attestation under Succession Act s.50(2); and that it validly nominated Iguru, the 'Top Secret' marking expressing the contrary intention dispensing with a Minister's witnessing under Schedule 3 to the 1962 Constitution. Under paragraph 2(3) of that Schedule, any son of the Omukama was eligible to succeed regardless of his mother, so allegations of incest were irrelevant. The nomination survived the abolition of kingdoms as an acquired right. Appeal dismissed; each party to bear its own costs.

Outcome

Appeal dismissed except as to costs; the High Court's finding that the 1st respondent was validly nominated successor to the throne of Bunyoro-Kitara upheld

Facts

Sir Tito Gafabusa Winyi IV, Omukama (King) of Bunyoro-Kitara of the Babiito dynasty, married Lady Margaret Kabaikya (the Omugo) in a Christian marriage in 1927 and also took customary wives. He fathered many children. The appellant, born in 1928, was his first son with the Omugo and was held out during childhood as Crown Prince. The 1st respondent, Prince Solomon Iguru, was a son of the Omukama by Gertrude Komweru, alleged to be a relative. The kingdoms of Uganda were abolished in 1967, and Sir Tito died in 1971. He had earlier made a will dated 22 October 1962, marked 'Top Secret', nominating Iguru as his successor; the will was kept at the High Court and read at the funeral. After the Constitution (Amendment) Statute 1993 restored traditional rulers, district councils and a coronation committee resolved that Iguru be crowned Omukama. The appellant sued to challenge the imminent coronation, contending only children of the wedded wife could succeed. The High Court dismissed his suit.

Issues

  1. Whether the photocopy of the late Omukama's will was properly admitted in evidence as secondary evidence.
  2. Whether the will was valid notwithstanding that it was unattested.
  3. Whether the will constituted a valid nomination of the 1st respondent as successor to the throne of Bunyoro-Kitara.
  4. Whether the 1st respondent, as a son of the Omukama born of a woman other than the official wife, was a member of the Royal Family eligible to succeed under Schedule 3 to the 1962 Constitution.
  5. Whether any right of succession nominated under the 1962 Constitution lapsed on the abolition of kingdoms and was revived by the Constitution (Amendment) Statute 1993.
  6. Whether the trial judge erred in framing only one issue and in declining to declare the status of the appellant.
  7. Whether the trial judge properly exercised his discretion in awarding costs against the appellant.

Orders

  • Appeal dismissed save as it relates to the order for costs.
  • The order of the lower court granting the respondents costs of the suit set aside.
  • Each party to bear its own costs in the suit and in the appeal.
  • The other orders of the trial judge are upheld.

Rules and key headnotes

Evidence — Secondary Evidence — Admissibility of Photocopy of a Lost Document
A photocopy of a document is secondary evidence admissible to prove the contents of the original where the original is shown to have been lost after diligent search, provided there is certainty that the copy is a genuine reproduction and not a forgery; evidence from the person who made the copy is prudent but not mandatory in every case.
Succession — Wills by Africans — Exemption from Attestation
A will made by an African under customary law before 1972 is exempt from the requirement of attestation by virtue of section 50(2) of the Succession Act, and is not rendered invalid by the absence of an attesting witness.
Constitutional Law — Royal Succession — Nomination of Successor — 'Contrary Intention'
Where a function such as nomination of a successor is exercisable by the Omukama by a written instrument signed in the presence of a Minister 'unless a contrary intention appears' under paragraph 6(3) of Schedule 3 to the 1962 Constitution, marking the instrument 'Top Secret' expresses a contrary intention dispensing with the requirement of a Minister's witnessing.
Constitutional Law — Royal Succession — Members of the Royal Family of Bunyoro
Under paragraph 2(3) of Schedule 3 to the 1962 Constitution, any son of the Omukama of Bunyoro was eligible to be nominated successor to the throne irrespective of who his mother was; unlike the Ankole and Toro schedules, the Bunyoro provision was not restricted to sons of a lawfully wedded wife, so allegations as to the mother were irrelevant to eligibility.
Statutory Interpretation — Abolition and Restoration of Kingdoms — Saving of Acquired Rights
A nomination validly made under the 1962 Constitution constituted an acquired right or privilege which did not lapse with the abolition of kingdoms by the 1967 Constitution, and was saved and effective on the restoration of the institution of traditional rulers by the Constitution (Amendment) Statute 1993 read with the saving provisions of the Interpretation legislation.
Civil Procedure — Framing of Issues — Discretion of the Court
The framing of issues is a function of the court and a matter of its discretion under Order 13 of the Civil Procedure Rules; while issues ought ordinarily to be framed at the commencement of the hearing, failure to do so does not vitiate the trial where no prejudice or failure of justice results.
Civil Procedure — Costs — Discretion to Depart from the General Rule
Although costs follow the event under section 27 of the Civil Procedure Act, the court has a judicial discretion to order otherwise for good reason; the public importance of a dispute and the need for reconciliation within a family and community can constitute good reason to order each party to bear its own costs.

Legislation cited (26)

Cases cited (7)

  • Uganda v Commissioner of Prisons, ex parte Matovu [1966] EA 514
  • Re Jebb (Deceased) [1965] 3 All ER 358
  • Sheikh Jama v Abdullah (1959) EA 792
  • Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd (1957) EA 287
  • Wambugu v Public Service Commission (1972) EA 296
  • Fam International Ltd v Mohamed Hamid El Fatih (Civil Appeal No. 16 of 1993)
  • Andrew Lutakome Kayiira v Edward Rugumayo (Constitutional Case No. 1 of 1979)

Full judgment

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Mpuqa Rukidi v Iguru and Others (Civil Appeal 18 OF 94) [1996] UGSC 36 (17 May 1996)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.