Kyayangwa and 4 Others v Beinomugisha (HCT-05-CV-CS-0197-2007) [2012] UGHC 441 (19 July 2012)

# **THE REPUBLIC OF UGANDA** IN THE HIGH COURT OF UGANDA AT MBARARA

#### HCT-05-CV-CS-0197-2007

1. MARGARET KYAYANGWA 2. BANTURAKI FRANCIS 3. BANGIRANA CHARLES 4. BOONABAANA OLIVA

**:::::::::::: PLAINTIFFS**

#### **VERSUS**

BEINOMUGISHA AMOS $\begin{array}{ccccccccccccccccccccccccccccccccccc} & & & & & & & & & & & & & & & & & & & & & & & & & & & & &$ DEFENDANT

BEFORE: THE HON. MR. JUSTICE BASHAIJA K ANDREW

#### **JUDGMENT**

### $Background.$

The Plaintiffs and the Defendant are beneficiaries of the estate of the late Francis Rwakibirika. The deceased left a Will, which was read at his funeral but whose contents were disputed by the Plaintiffs outright. In the contested Will, the Defendant, one Amos Beinomugisha, was named heir and was bequeathed the largest part of the share of the estate of the deceased.

At the point, the 1<sup>st</sup> Plaintiff, Margaret Kyayangwa, a widow to the deceased and mother of the other three Plaintiffs, applied for Letters of Administration to the estate of the deceased in this court stating that the deceased died intestate, and that

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CERTIFIED TRUE COPY OF THE ORIGINAL

she was the surviving widow. The Defendant lodged a caveat on the application on grounds that there was a Will left behind by the deceased.

The Defendant later successfully applied for Letters of Probate and he obtained the grant issued by this court. It is this grant that the Plaintiffs seek to have revoked alleging that the Will of the late Francis Rwakibirika was forged. The Plaintiffs, therefore, seek for orders that:-

- *a) the Will ofthe late Francis Ryvakibirika (hereinafter called "the deceased") be nullified or cancelledfor being a forgery andfor a declaration that the deceased died intestate;* - *b) the grant ofprobate to the defendant be revoked.* - *c) the estate of the deceased be put in a common pool and equitably distributed.* - *d) an account/true inventory be made.* - *e) Letters ofAdministration be granted to the Plaintiffs.* - *f) a permanent injunction be issued against the Defendant from interfering with the administration ofthe estate;* - *g) the Defendantpays costs ofthe suit.*

The following issues were agreed upon at the commencement of the trial

- *1. Whether the purported Will ofthe late Francis Ryvakibirika wasforged.* - *2. Whether the Defendant obtained the grant ofprobatefraudulently.* - *3. Whether the F' Plaintiff had at the time of death of Francis Rwekibira deserted the home and was therefore not <sup>a</sup> beneficiary ofthe estate.* - *4. Remedias.*

*Resolution ofIssues.*

*Issue 1:*

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*Whether the purported Will ofthe late Ryvakibirika was forged-*

<sup>1</sup> lie definition of the term "forgery" was correctly stated by Counsel for the I laintiffs in his written submissions, that it is any act involving the making, altering oi possessing of illegitimate or false document which is intended to deceive or defraud another person. This definition is couched in similar terms as the forgery in criminal matters under *Section 342 ofthe Penal Code Act (Capl20).*

When an instrument professes to be executed at a date different from that at which it really was executed, and the false date is material to the operation of the deed, if the date is inserted knowingly and with a fraudulent intent, it is a forgery. See *R. Vs. Ritson (1869) LIU CCR 200 at 203-204 per Blackburn J.* Similarly, *Lord Denning* in the case of *William Vs. D. P. P [1960] 1 All ER 805 at 814 [1961] AC 103 at 131* stated that the very essence offorgery is an intent to defraud.

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It needs to be added that the notion of forgery does not so much consist in the counterfeiting of a man's hand and/ or seal, but in the endeavouring to give an appearance of truth by a mere deceit and falsity, and either to impose upon the world as the solemn act of another which he or she is in no way privy to, or at least to make a man's own act appear to have been done at a time when it was not done, and by force of such a falsity to give it an operation which in truth and justice it ought not to have.

After carefully perusing the record, and applying the above principles of the law, I have failed to get evidence of the alleged forgery. Counsel for the Plaintiffs in his submissions on this issue, argued that it would be safer to believe that the signatures on the contested Will purporting to belong to the deceased are not believable. It would appear that he reached this conclusion after he considered only the evidence of the Defence witnesses; DW1, DW3 and Dw4 in isolation of the Plaintiffs' witnesses.

i lespectfully disagree. I have looked at both versions and the Plaintiffs' evidence does not, in the least, point out any forgery as alleged in their pleadings. For instance, PW1, Bona Baana Olivia, only claims that the Will could not be her father's (deceased) because it was made on 23/6/2001 when the deceased was ill.

PW3, Banturaki Francis, contests the Will because of what he perceived to be changed dates from "26,h to "23rd June 2001, and because some of the deceased's property was omitted from the Will. He further testified that the contested Will was subjected to forensic examination, which found out that it was a forgery. The socalled handwriting expert's report from Ministry ofInternal Affairs by the Plaintiffs was, however, never put in evidence to prove their claims. What is on record is (Exhibit "P4") a report by DW3 Apollo Mutashwera Ntarirwa, a Government Analyst. It shows contrary findings that, in fact, the contested signatures on the contested Will belong to the deceased. As for PW4, Charles Bangirana, he stated that he was in court because he was of the view that his father (deceased) died intestate. PW6 Francis Kataaha said nothing ofthe alleged forgery.

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PWl's claim that the deceased could not sign the Will because he was ill is well answered in the testimony of the medical doctor PW6, Dr. Placid Mihayo, to the effect that the fact that the deceased was sick with HIV/AIDS would not *per se,* prevent him doing his normal duties. PW6 the doctor through whom the deceased's Death Certificate (Exhibit "P3") was tendered testified that it was not on the record that the deceased suffered any mental incapacity or any impairment at the time of his death, and thus could actually execute his Will and die on the same day.

The material issue that forms the Plaintiffs' case is an allegation that the signatures on the will were forged. However, as applicable to the facts of the present case, the allegation is disproved by the evidence of PW7 Mr. Apollo M. Ntarirwa, a Principal Government Analyst, who examined the impugned signatures and made the following findings in a Report (Exhibit "P4"):-

*It is observed that the specimens' writer had a fairly large range of variations ofwriting his signature. These variations include the use ofmany block capital letters... The questioned signatures on the will fall within the range of variations of the specimens' writer (excepting the signature in the margin on page 9). In my opinion, the writer ofthe specimens probably wrote the questioned signatures attributed to him on the will. The signature on page <sup>9</sup> ofthe will has differences that could have been caused by the margin being narrow and the writer having to write on an irregular surface."*

To my mind the Government Analyst's evidence puts to rest the issue of whether the deceased's signatures on the Will were forged or not.

Mr. Mwene-Kahima, Counsel for the Plaintiffs, laboured to explain the law on the duty of a hand writing expert and the extent and limitations of such duty. He relied the case of *Wakeford Vs. Lincoln (Bishop) (1921) 90 L. J. P. C 174.* which was cited with approval in the case of *Hassan Salnm Vs. Republic [1964] E. A 126;* where Lord Birkenhead observed that:

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*"The expert called for the prosecution gave his evidence with great candour. It is not possible he says, 'to definitely say that any body wrote a particular thing. All you can do is to point out the similarities and draw conclusions from them. This is the manner in which expert evidence on matters ofthis kind ought to be presented to the court, who have to make up their minds, with such assistance as can be furnished to them by those who have made a study ofsuch matters, whether a particular writing is to be assigned to a particular person. '*

*Let me say a word about handwriting experts. Let every one be treated with proper respect, but the evidence ofhandwriting experts is sometimes rather*

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*misunderstood. A handwriting expert is not a person who tells you, this is the hand-writing ofsuch and a man. He is a person who, habituated to the examination of handwriting, practiced in the task of making minute examination of handwriting, directs the attention of others to things which he suggests are similarities. That, and no more that, is his legitimate province. "*

I agree with the above decision as the correct statement of the law. My understanding of the same is that if a handwriting expert said that he had no doubt that the writing was of such and such a person he would have gone beyond the proper limits. The job, therefore, remains on the court to look at all the surrounding circumstances and form an opinion.

Ill the instant case, the handwriting expert's conclusion verbatim is that:-

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## *"Iii my opinion, the writer ofthe specimens probably wrote the questioned signatures attributed to him on the will.*

This falls squarely within the ambit propounded by Lord Birkenhead in the above case. I am satisfied that the contested signatures on the Will were not forged. The expert provided satisfactory possible reasons for the variations in the signature (on page 9 of the Will), and that other than that the other signatures appeared genuine. I ' therefore, answer the first Issue in the negative, that the Will is not a forgery.

It is called for to determine the validity of the contested Will, since the same could be genuine but actually invalid for various other legal reasons. Counsel for the Plaintiffs introduced this as an extra issue under Issue No.l even though it was never originally raised. Mr. Magooba, Counsel for the Defendant also responded to it in his submissions as *"Issue II".*

A Will, as defined by *Roger Kerridge* in *Parry and Clark: The Law ofSuccession 10 Edition at p. 1* is stated to be the expression by a person of wishes which he intends to take effect only at his death. For a will to be valid, the testator must have a testamentary intention, that is: he or she must intend the wishes to which he or she gives deliberate expression to take effect only at his death.

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In his submissions, Counsel for the Plaintiff argued that the Will in issue is not valid in law because the deceased was mentally incapacitated /impaired at the time of making it. Counsel relied on the case of *Banks Vs. Goodfellow [1870] L. R. 5 Q. B. 549* as a leading case on the test of mental competence in making Wills. In that case, it was held that the test is whether the testator had a sound and disposing mind and memory when he made the Will. The testator is required to have:

*"an understanding of the nature of the business in which he is engaged, a recollection ofthe property he means to dispose of, ofthe persons who are the objects of his bounty, and the manner in which it is to be distributed between them. "*

Counsel added that he is mindful of the fact that the testator need only have a general recollection of his property, but that he must at least be aware ofthe persons who may have a 'moral claim' of his estate even if he decides not to benefit them. I would also add that the testator needs not to know or intend to make a Will or be aware that he is making it. See *Milnes Vs. Foden (1890) 15 P. D. 105.*

Counsel for the Plaintiff further submitted that the time of making the will also matters. He cited a paper delivered by *Melissa Malden,* where the learned author gives the following warning signs as factors raising suspicious circumstances: "Is the testator in the hospital or near death? Does the testator suffer from mental itripairmeixi, if so, what has been the rate of deterioration? Is the testator on medication? Does the testator suffer from physical impairment due to age or disease, if so, what has been the rale of deterioration? Does the will favour one peison most influential in having the testator make the will (over other people in the same class?

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Counsel further submitted that DW2 in his testimony agreed that PW1 was a beneficiary to the deceased's estate but that she was not mentioned anywhere; and that this is a sign that the deceased could not recollect the persons who were objects of his bounty.

Mr. Magooba, Counsel for the Defendant, maintained that the Will is valid. That it was signed by the deceased and had at least two witnesses who witnessed the deceased sign. Further, that DW4, DW3, and DW1 testified that the deceased was ofsound mind at the time ofmaking the will and signing it, and that DW4 wrote the Will at the request of the deceased.

On evaluation of the evidence, it is clear that the impugned Will meets the legal requirements for a valid will as stipulated under *SectionSO ofthe Succession Act.* Regarding the issue of whether or not the deceased had proper recollection at the time of making the Will, I have already partly resolved that point above. Further, in the Will the deceased mentions in the introductory paragraph, that he was bequeathing his property to the mentioned persons in the Will depending on the personal conduct and how that person related with the deceased.

It is also understood from the evidence that PWT, Olivia Bonabana, that the widow Margaret Kyayangwa, was given a share, of land together with her daughter (PW1) vide *Exhibit D.2,* which was signed on the 24/2/1999. According to this document, PW1 and PW4 were also given a piece of land by the late Francis Rwakibirika during his life time. A total of seven people witnessed the event. This is the same piece of land mentioned in the Will, and that the deceased was not willing to give

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hu any moie shares, <sup>I</sup> he foregone logically implies that the deceased had a clear | recollection of the persons who were to benefit from his estate.

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| Regarding the property that was not mentioned in the Will, Counsel for the Plaintiff submitted that it should void the Will on the grounds that the testator did not have a recollection of the property he meant to dispose of. I respectfully disagree for the following reasons.

Intestacy can either be total or partial. Total intestacy is where the deceased does not effectively dispose of any beneficial interest in any of his property by will. See *Re Skeats [1936] Ch 683,* where a will appointed an executrix but made no disposition of property and court held that intestacy rules would apply.

Intestacy is the condition of the estate of a person who dies owning property greater than the sum of their enforceable debts and funeral expenses without having made a valid Will or other binding declaration, or alternatively, where such a Will or declaration has been made but only applies to part of the estate, the remaining estate forms the intestate estate.

A partial intestacy arises in a situation where the deceased effectively disposes of some, but not all, of the beneficial interest in his property by Will. A partial intestacy differs from a total intestacy in that the intestacy rules take effect subject to the provisions contained in the Will. Thus, a will prevails over, the intestacy rules. See *Parry and Clark; The Law ofSuccession.(supra).* ,

Clearly, the property that was not included in the contested Will does not mandate voiding the Will at law, but only implies or technically means that such property is to be dealt with subject to the piovisions contained in the Will. Such property should be treated as ifthe deceased never left a Will but died intestate.


It follows that the questioned Will passes the test as a valid will, and cannot be impeached or voided merely because of the exclusion ofsome of the property of the deceased. In addition, *Section 74* of the *Succession Act (Cap. 162)* is to the effect that the intention of the testator is not to be set aside because it cannot take effect to the full extent, but effect is to be given to it as far as possible. This part of Issue No.l is answered in the affirmative that the Will is valid.

#### *Issue 2:*

### *Whether the Defendant obtained the grant ofprobate fraudulently.*

"Fraud", in my opinion, is a term that should be reserved for something dishonest and morally wrong, and much mischief is, I think, done as well as much unnecessary pain inflicted by its use where "illegality" and "illegal" are the really appropriate expressions.

Fraud is proved when it is shown that a false representation has been made knowingly or without belief in its truth or recklessly, or carelessly, whether it be true or false. In the case of*Jonesco vs. Beard* [1930] *AC 298 atpp. 301-302* it was held that fraud is conduct which vitiates every transaction known to the law. It even vitiates a judgment of the court. It is an insidious disease, and if clearly proved spreads to and infects the whole transaction. A person who charges another with fraud must himself prove the fraud, and he is not relieved from this obligation because the defendant has himself told an untrue story.

*Volume 14th Ed)Madhwa &Co. Law Publishers 1993 at Sarkar on Evidence (2'"' page 1372)* states that;

*"It is a general rule that fraud cannot be presumed from mere circumstances or suspicion and the burden of proving the charge of*


*fraud... lies upon the person who seeks to impeach the validity of any transaction or these grounds."*

Similarly in the case of Kampala *Bottlers Ltd. Vs. Damanico (U) Ltd. SCCA No. 22 of1992, Wambiizi C. J (as he was then)* stated that:-

*"Fraud must be strictly proved and the burden is heavier than that of <sup>a</sup> balance ofprobabilities generally applied in civil matters. "*

It is important to note that the onus of proving that fraud is on the party who alleges it.

Applying the same principles to the instant case, the Plaintiffs allege that the grant to the Defendant was obtained by fraud on the grounds that the Defendant knew that the Plaintiffs were beneficiaries to the estate of the deceased. Further, that the Plaintiffs had opposed the will when it was read to them during the funeral. Furthermore, that the <sup>1</sup>st Plaintiff as widow had applied for letters of Administration but that the Defendant lodged a caveat on the application. Also that the Defendant applied for Letters of Administration without calling a family meeting; and that the letter of introduction to court was obtained by the Defendant from Mbarara Municipality instead of Kanyamigoye which was the main address ofthe deceased.

When the evidence is critically analysed, the basis for alleging fraud is untenable. For instance, the fact that the Plaintiffs are beneficiaries ofthe deceased's estate and opposed the Will on the day it was read does not indicate fraud *per se,* nor does it bar any party entitled to the grant from successfrilly applying for the same. The Plaintiffs needed to point out specific acts which constituted the fraud more than merely mentioning what they just thought to be fraudulent.

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Secondly, *Section 243* of the *Succession Act (Cap 162)* is to the effect that an application for probate or letters of administration, if made and verified in the manner provided, is conclusive for the purpose of authorizing the grant of probate oi administration and that no such grant shall be impeached by other reason, unless by a proceeding to revoke the grant if obtained by a fraud upon the court.

Merely particularizing of the contents or circumstances does not in any way prove fraud, even close to a balance of probability, notwithstanding the fact that proof of fraud is way heavier than the standard in ordinary civil matters. There is an acute dearth of evidence proving the allegation of fraud. Issue No.2 is also answered in the negative.

### *Issue 3:*

# *Whether the <sup>1</sup>st Plaintiff had at the time ofdeath ofthe deceased deserted and so was not a beneficiary.*

The Counsel for the Plaintiff submitted that the 1st Plaintiff, Margaret Kyayangwa (also PW2), was a beneficiary of the deceased's estate, while the Defendant alleges that the <sup>1</sup>st Plaintiff ceased to be a wife to the deceased on the grounds of desertion.

Desertion is a ground for divorce under the *Divorce Act (Cap 249)* only available to a spouse, and not a third party. It is important to note, that the plea of desertion for two years or more is only a ground for divorce, but if the marriage is not dissolved thereafter, the parly charged with desertion still remains a wife or husband for all intents and purposes.

The <sup>1</sup>st Plaintiff is accused of desertion of her husband the deceased, by the Defendant, but the marriage to the deceased was never dissolved. The 1st Plaintiff was actually allowed later to return to the compound of the deceased, which shows that she was still a wife to the deceased, and thus a beneficiary. She benefited from the estate, as per evidence on *Exhibit D.2 (supra),* where PW2 together with her daughter PW1 Olivia Bonabaana were given a piece of land by the deceased, during

his life time. The same land is mentioned in the Will (vernacular version at page 4). This issue is answered wholly in the affirmative.

*Issue 4:*

### *Remedies.*

From the foregone, the property not included in the Will shall be treated in accordance with intestacy rules as if the deceased, Francis Rwakibirika, never left a will, only in as far as the specific property is concerned.

Secondly, the Defendant is directed to make an account or true inventory of such property, and to have it distributed to all the beneficiaries in accordance with Intestacy Rules provided for in *Part IV*of the *Succession Act (Cap 162).*

The net effect is that the suit is dismissed. Each party will bears- it own cost for the reasons that the suit has only succeeded in part, and involves members of the same family, where the family ties need not be strained any more than they already have, by penalising one party against the others in costs.

**BASHAIJA K. ANDREW** *,,:a^*

## **JUDGE, Date 19/07/2012**

$-14-$ 19/7/2012 chambers in the ivered Judgment de $\nu$ Przsence $\frac{1}{6}$ $\big\langle \cdot,$ Magooba for the def aut both Parties in count $2.$ 3. Junni Kinze clerk. Comt reai $19/7/2012$ $AR$ CERTIFIED TRUE COPY OF THE ORIGINAL $6|9|2012$ DATE SE REGISTRAR