Wakilii

Openja & Another v Aluku (Civil Suit 28 of 2021)

High Court · [2024] UGHC 642 · 2024 Judgment for Defendant AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for trespass, declaration that will is invalid, and revocation of grant of probate
Decision
Suit dismissed — plaintiffs' claims for declaration that will is invalid and that defendant trespassed rejected

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the will of the late Tingo Boniface dated 22 October 2012 was validly executed in compliance with section 50 of the Succession Act, being in writing, signed by the testator, and attested by two witnesses. The grant of probate to the defendant remained operative as the demolition of a dilapidated house was within the executrix's duty and not oppressive. The suit house formed part of the estate bequeathed to the defendant, not the property of the plaintiffs' mother whose customary marriage to the deceased was dissolved. No trespass occurred as the defendant acted within her rights as executrix.

Outcome

Suit dismissed — plaintiffs' claims for declaration that will is invalid and that defendant trespassed rejected

Facts

The plaintiffs, children of the late Tingo Boniface by his former wife Apio Jares, sued the defendant (their stepmother and executrix of the estate) alleging she trespassed by demolishing a house they claimed belonged to their late mother and seeking declarations that the deceased's will dated 22 October 2012 was invalid and the grant of probate should be revoked. The defendant claimed Apio Jares's customary marriage to the deceased was dissolved in 1990 after she conceived a child with the deceased's brother, following which a traditional cleansing ritual was performed. The defendant produced a will written in Alur, signed by the deceased and attested by two witnesses including Dr Ahimbisibwe Apollo. The will bequeathed the compound containing the suit house to the defendant while distributing land plots to the deceased's male children and gardens to the children of Apio Jares. The defendant demolished the suit house in 2021 after obtaining permission from the Physical Planning Committee on grounds it was dilapidated and dangerous.

Issues

  1. Whether the will of the late Tingo Boniface has been rendered invalid, null and void.
  2. Whether the grant to the defendant has become useless and inoperative.
  3. Who is the rightful owner of the suit house/property.
  4. Whether the defendant trespassed on the suit house/property.

Orders

  • Suit dismissed with no orders as to costs on grounds of this being a family matter.
  • The Will of the late Tingo Boniface executed on the 22nd day October 2012 is valid and enforceable.
  • The grant is operative and not useless.
  • The suit property forms part of the estate of the late Tingo Boniface and was not property of Apio Jares, the plaintiffs' mother.
  • The defendant did not trespass on the suit property.

Rules and key headnotes

Succession & Estates — Validity of Wills — Formal Requirements — Signature and Attestation under Succession Act s.50
A will is validly executed under section 50 of the Succession Act where the testator signs the will and the signature is attested by two or more witnesses who each saw the testator sign and who signed in the testator's presence, even where the will consists of multiple sheets and only the final page bears the testator's signature, provided all sheets were connected at the time of execution and the signature placement indicates an intention to give effect to the entire document as a will.
Succession & Estates — Validity of Wills — Burden of Proof — Rebutting Suspicious Circumstances
Where a will is challenged on grounds of suspicious circumstances, the propounder must prove the will's validity by showing statutory compliance and that the testator signed of his own free will while of sound mind and aware of the contents. If suspicious circumstances exist, the propounder must explain them satisfactorily. The court applies the judicial conscience test, considering the testator's awareness of content and consequences, the testator's state of mind and memory at execution, and whether the testator acted on his own free will. Mere suspicion without valid explanation does not invalidate a will.
Succession & Estates — Validity of Wills — Testamentary Capacity — Presumption of Soundness of Mind
The law presumes every person sane and capable of knowing what he is doing. The onus of proving that the testator was of unsound mind or incapable of knowing what he was doing at the time he made a will rests on the party who asserts incapacity. In the absence of evidence showing the testator was of unsound mind on the date of execution, the presumption of capacity stands.
Succession & Estates — Revocation of Grant — Section 234 Succession Act — Grant Becoming Useless and Inoperative
A grant of probate or letters of administration may be revoked or annulled for just cause under section 234(1) of the Succession Act. A grant becomes useless and inoperative within the meaning of section 234(2)(d) where it is no longer fulfilling the intended purpose and not having the usual effect. An executrix's demolition of a dilapidated and dangerous house on the estate after obtaining proper permissions does not constitute oppressive administration rendering the grant useless, but rather is an act within the executrix's duty to protect and preserve the estate.
Land & Property — Ownership — Matrimonial Property — Effect of Customary Divorce on Property Rights
Where a customary marriage is dissolved through traditional ritual under customary law and the former wife ceases to be the wife of the deceased, she has no claim to ownership or beneficial interest in property acquired by the deceased. Upon dissolution of the customary marriage, the former wife ceases to benefit from the estate of the deceased husband. However, dissolution of the mother's marriage does not deprive her children from benefiting from the deceased father's estate, subject to the terms of the will.
Tort Law — Trespass to Land — Elements of the Tort — Requirement of Unlawful Entry
Trespass to land occurs when a person makes an unauthorized entry upon land thereby interfering or portending to interfere with another person's lawful possession of that land. To succeed in a claim for trespass, the plaintiff must prove that the disputed land belonged to the plaintiff, that the defendant entered upon it, and that the entry was unlawful in that it was made without permission or the defendant had no claim, right, or interest in the disputed land. An executrix acting within her lawful authority over estate property cannot commit trespass to that property.

Legislation cited (8)

Cases cited (9)

  • Haji Sulanti Habib Jjumba and Others v Hajati Sofarani Nyinakiza Sanyu (High Court Civil Suit No. 718 of 1995)
  • Administrator General v Teddy Bukirwa and Another (1992-93) HCB 192
  • Administrator General v Norah Nakiyaga and Others (Administration Cause No. 544 of 1990)
  • Abbass Magunda and Another v Sulaiman Senoga and Others (1995) IV KALR 172
  • In the Matter of the Estate of the late Nyeko Charles Lukwayi (Miscellaneous Application No. 107 of 2020)
  • Paulo Kavuma v Moses Sekajja and Another (High Court Civil Suit No. 473 of 1995)
  • Justine E.M.N. Lutaaya v Sterling Civil Engineering Co. (Supreme Court Civil Appeal No. 11 of 2002)
  • Sheikh Muhammed Lubowa v Kitara Enterprises Ltd (Court of Appeal No. 4 of 1987)
  • Ocean Estates Ltd v Pinder [1969] 2 AC 19

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Openja & Another v Aluku (Civil Suit 28 of 2021) [2024] UGHC 642 (9 July 2024)
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.