Rukiidi and 2 Others v Katuramu and 3 Others (H.C.C.S. NO. 598 OF 1996) [1999] UGHC 49 (13 July 1999)

Full Case Text

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

## H. C. C. S. NO. 598 OF 1996

| 1. | KEZIA RUKIIDI LADY | ) | | |----|----------------------------|-----------------|-----| | 2. | FRANCIS MUGENYI | ) | 5 | | 3. | PRINCE JIMMY MUGENYI | PLAINTIFFS ) | | | | | VERSUS | | | 1. | JOHN KATURAMU | ) | | | | JAMES) CANON RWABONI | | | | 3. | MGR. KISEMBO | ) DEFENDANTS | t 0 | | 4. | ORUKURATO | ) | |

## BEFORE: THE HONOURABLE LADY JUSTICE S. B. BOSSA (MRS)

#### JUDGMENT.

The plaintiffs sued the defendants jointly or severally for several reliefs.

The first one was for a declaration that:-

(a) The 1st, 2nd and 3rd defendants are not lawful Regents to the Tooro Kingdom under the customs and traditions of the Tooro Kingdom;

(b) The 1st, 2nd and 3rd defendants have no right/authority to perform the cultural functions performable by the Omukama (king) of Tooro;

(c) The Omukuza named by the late Omukama of Tooro Patrick Kaboyo Olimi be the .jo person to take charge of the Royal Family and tJ • Royal Household in consultation with the Confidential Council (Omubanana) until Omukama is able to do so.

relief sought by the plaintiffs was for a temporary and permanent The second injunction to restrain the 1st, 2nd and 3rd defendants whether by themselves or through their

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om performing the cultural functions performable by the Omukama of Tooro.

The 1st plaintiff sued in her capacity as tine mother of the late Omukama (King) i atiick Da\ id Mathew Kaboyo Olimi Vll of Tooro and therefore the Nyinenkuru Omukama. She died before hearing of the suit could proceed. In accordance with 0 21 r 2 CPR, I noted that the cause of action survived to the surviving plaintiffs and ordered suit to proceed at the *s* instance of the surviving plaintiffs.

and there appeared proceeded with only 2nd plaintiff, Francis Mugenyi as the sole plaintiff. The 3rd plaintiff had been ordered to be joined by this Court. He failed to file in his pleadings ie a plaint in response to the Court order. As he appeared disinterested in the suit no way of forcing him to join a suit in which he did not want to participate I ordered him to be struck out under 0 1 r 10 (2) CPR. The suit therefore

As regards the defendants, the suit was originally filed against the first 3 defendants. This Court (Mukasa-Kikonyogo J.) ordered the said 3 defendants to be struck out and to join the Orukurato as the right party. This order was appealed to the Court of Appeal which ordered for the first 3 defendants to be reinstated and for the Orukurato, to be added as the if 4th defendant.

The brief undisputed facts of this case are as follows:- The late Omukama of Tooro Patrick David Mathew Kaboyo Olimi Vll (hereinafter referred to as the late Kaboyo) died elected as regents to the late Kaboyo's successor, Oyo crowned as Omukama of Tooro (hereinafter referred to as the 1st, 2nd and 3rd defendants were Nyimba Kabamba Iguru who was Omukama Nyimba Rukudi IV ) &lt; on the 12th day of September 1995. on the ^6th of August, 1995. Under the customs and traditions of Tooro Kingdom, when a King dies he is supposed to be mourned officially for 9 days. During this period, the 5o Orukurato was summoned and sat. Burial arrangements were made for the late Kaboyo and

2nd 3rd defendants effect. as the plaintiffs contention that in conjunction with other persons, the 1st, 2nd, unlawfully summoned or caused to be summoned a meeting of the tato and prevailed upon it to appoint them as regents. The Orukurato, it was argued, Id not lawfully perform this function during the period of mourning. The plaintiff also averred that under the Tooro Customs and culture, and also under the current law, the office 5 Ci regents does not exist and the appointment of the Regents was null and void and of no

defendants had purported as "Regents" to perform the functions that are performable only i° by the Omukama of Tooro. The plaintiff further averred that unlawfully and contrary to the customs and traditions of the Tooro Kingdom and those particularly pertaining to the monarchy the 1st, 2nd 3rd

The fourth averment was that the late Omukama Patrick Olimi Kaboyo orally named his brother Prince Jimmy Mugenyi to be the guardian (Omukama), that is, to take care of his late Omukama's family and the Royal household in the event of the Omukama's death defendants. It was claimed by the plaintiffs that these and other unlawful acts had greatly injured the plaintiff. and that he should do so. Those were the 4 major claims of the plaintiff against thei£

The first defendant in his WSD first of all challenged the locus of the plaintiff in instituting the suit. He averred that he was elected by the Orukurato, the most authoritative cultural institution, of Tooro Kingdom, when it was duly constituted and as such no breach fto of custom resulted. He also averred that in his capacity as regent he had not performed any act which breached the customs and traditions of the Tooro Kingdom. He denied that Prince orally appointed guardian of the infant king by the late Omukama was one of many guardians appointed for the Omukama Oyo Jimmy Mugenyi was Kaboyo but conceded that he

Nyimba Rukiidi IV,

5 The 2nd defendant in his WSD also questioned the locus of the plaintiff and raised the Suine matters raised by the defendant. He only added that impeaching the 2nd defendant would infringe the reign of Omukama Oyo Nyimba Rukiidi IV and abuse the powers of the Orukurato and insult the personage of Tooro Kingdom in its entirety.

that the institution of regents existed under Tooro culture and tradition and the 1962 Tooro Constitution was a codification of the said culture and traditions. **io** lhe 3rd defendant had similar grounds in his WSD. He only added that the 3rd defendant had not and could not perform the cultural functions performable by the Omukama of Tooro in so far as the customs and traditions of Tooro Kingdom dictate. He also averred

Eight issues were agreed on and framed as follows:-

- 1. Whether the Orukurato had legal capacity to appoint the 1st, 2nd, and 3rd defendants as regents of Omukama Oyo Nyimba Kabamba Iguru Rukiidi IV. - 2. defendant. Whether the 1st, 2nd, and 3rd defendants were validly appointed regents of the 4th IS - Whether the 1st, 2nd, and 3rd defendants are lawful regents. - Whether the 1st, 2nd and 3rd defendants have any right or authority to perform the 4. cultural functions performable by the Omukama of Tooro. - 5. Whether the late Omukama of Tooro named Omukuza to take charge of the Royal Household in Consultation with the Omubanana until the Omukama is able to do so. jo - 6. traditions. Whether or not the defendants 1, 2, and 3 had performed any cultural functions performable only by the Omukama of Tooro in accordance with Tooro culture and - 7. Whether or not the office of regents existed in Tooro culture and tradition and the

1962 of Uganda codified the said culture and tradition.

What reliefs if any are the plaintiff entitled to?.

seeks to establish the existence of a custom. In this case the plaintiff seeks to establish that it does not exist. Nevertheless the degree of proof remains the same the in light of the IO provisions of section 100 of the Evidence Act (cap 43). The logical order of resolving the said issue would be to start with issue No. resolution has a bearing on all the other issues. It is the determination of the question whether or not the office of regents existed in Tooro culture and tradition and whether the *5* 1962 Constitution was a codification of it. But before I resolve ihe said issue it is important and pertinent to sent out the burden of proof. This being a civil suit, it must be proved on a balance of probabilities. This is a unique case. The usual case will be where the plaintiff

In resolving whether this burden of proof has been discharged this court has to have recourse to sections 13 and 46 of the Evidence Act.

For avoidance of doubt I will set out both provisions in extenso Section 13 provides;

following facts are relevant. ''Where the question is as to the existence of any right or custom, the

(a) any transaction by which the right or custom in question was created, claimed, modified recognized, asserted or denied or which was inconsistent with its existence;

Jo (b) particular instances in which the right or custom was claimed recognized or exercised or in which its exercise was disputed asserted or departed from

Explanation. The words "right" and "custom" in this section shall be

understood to comprehend all rights and customs recognized by law". Section 46 of the same Act on its part provides and *I* quote;

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"46. persons who would be likely to know of its existence if it existed are relevant. 5 Explanation- The expression "general custom or right" includes customs or rights common to any considerable class of persons". When the court has to form an opinion as to the existence of any general custom or right, the opinion as to the existence of such custom or right, of

735 ? while interpreting section 13 and 51 of the Kenya Evidence Act, which are in pari materia with section 13 and 46 ofthe Evidence Act of Uganda, respectively, held that custom lo as referred to in these two sections would include African Customary Laws. Using the above as a guide I will now proceed to resolve the first issue. In this case it is common ground that the 1962 Constitution, in its 4th schedule provided for regency in Tooro Kingdom in two perform his functions. The Orukurato The second instance when regents could be put in place was when the Omukama was absent The Court of Appeal for Eastern Africa in the case of Kimani v. Gikanga [1965] E. A. was required in that instance to elect three regents. from Tooro. In this case he had to appoint the regents himself. The regents were only allowed to perform the functions of the Omukama "so far as custom allows" (See para 4 (3) (a) of Section 4 (4) Schedule 4 to the Constitution of Uganda 1962). instances. The first instance was when the Omukama was under 18 years or unable to

Omukama whose PW1 Daniel Baguma's testimony is instructive on how regency came to be40 incorporated in the said schedule. His evidence in this respect is uncontested. He testified that he was appointed Chairman of the Batooro Constitutional Committee of 1961 by the then name he did mention but whom I presume to be King Rukiidi. That C Ttee had to state how the Kingdom of Tooro had to be run and how the heir to the

throne should be appointed. been one of them. There is no evidence that it was a foreign culture which was imposed on to set it out in full. He stated and I quote; First of all there appear to have been consultation by the5 Omukama through his Constitutional Committee of the Tooro people. The consultations cent! cd on what norms the people of Tooro wanted to embrace and regency appears to have them. In this respect PW1 made a very important statement in his evidence. It is worthwhile io It had to decide the size of the Orukurato (Parliament), and the it. The Committee made a report and the report was incorporated schedule to die 1962 Constitution with the full approval of the Omukama, who signed *d.* Phis evidence establishes clearly that a number of things happened before the enactment of the Constitution 1962. people who should sit on

> "I made provision in my Constitution of 1961 (read 1962) for regents. It is out-moded. The 1961 Constitution made institutions Constitutional. It only what is relevant..." (Emphasis mine). Constitutionalized institutions which were already there. We have to retain

This is clear evidence that regency existed before the 1962 Constitution as part of the iS\* Tooro Culture.

*&* reigns. Then he continued and I quote; More sisnificantly, the Omukama and the Governor signed the recommendations before they were incorporated into the 1962 Constitution. According to all the witnesses in this case, the Omukama is the epitome of culture in Tooro. PW1 stated that the Omukama

> "He is called Rukirabasaija meaning the one who is better than all men. He has authority..."

her evidence as follows:- PW2 Elizabeth Bagaya a Princess and former Batebe generally agreed. She stated in

*I&s*

**It is** The institution of Kingdom in Tooro represents the symbol of the spiritual life of people, the moral order, unity of the people, and so the king is the intermediary between the worldly order and the spiritual order. impossible for anyone not King to became a symbol of the people because he does not have cultural legitimacy... A king is a symbol ultimate of unity..." S

Constitution, surely it becomes part of the culture of his people. And perhaps he is also the one to decide, together with his people, that it is now out moded. It is my judgment that the Batoorc as a people and Tooro as a Kingdom accepted regency as part of tlieir culture in the I o 1962 Constitution and that as an institution it thereby became codified. I therefore rind as a fact that the Omukama is the epitome and symbol of the moral and cultural order in Tooro. As such if he blesses an institution and its inclusion in the

Besides, there was abundant, evidence that this institution has existed for a long time and for time immemorial, from the people who should know. These witnesses came form only complaint is that its out moded. both the plaintiff and defence sides. The first one is PW1 as I have already indicated. His (S'

Even PW2, despite her vehement denials in court of its existence, wrote about it in admitted as Exh. "Pl". She stated in her said book on P. 71 as follows: her book entitled Elizabeth of Tooro, the Odyssey of an African Princess. This book was

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"At the tours' completion my bother had to decide whether to go to Sandhurst in England or to stay in Uganda to attend Makerere University, the foremost University in East Africa. If he were to go away to England, he would be removed from an extremely dangerous political and military arena. It was thought better to appoint a regency and let Patrick go abroad. However, the thought of Patrick's absence from Toro, at a time when the Kingdom was

movement, two tribes in the mountains of the Moon, was troublesome... divided by party loyalties and threatened with secession by the Rwenzururu

Tooro as Kingdom continued to regard regency as part of their culture. Whoever developed the idea, as she stated in her book, the fact *S* L iLiit she acknowledged it as an option which was considered after 1966 following the abolition of Kingdoms. It is clear evidence that even after 1962, the Batooro as a people and When asked about this in court, she stated that the idea was de\ eloped by those who wanted the King to be out of the Kingdom and out of the way. I do not believe that she was being truthful about this.

There is also the evidence of PW3 Francis Mugenyi, the remaining plaintiff in this case. After denying (untruthfully in my view as I will show later) that Omukama Kaboyo io Olimi Vll did not leave a regent when he went to Cuba, he went on to say and I quote:

> "When King George Rukidi the 111 went to the London Conference he left regents then because he had administrative powers a legislature, and because he was a constitutional monarch."

It is a historic fact that this Conference took place before 1962 Constitution was ir promulgated.

defence witnesses who These reluctant admissions by the plaintiff and his witnesses are corroborated by the also relevant under sections 13 and 46 of the Evidence Act, which I have already referred. were more truthful and convincing in this regard. Their evidence is

That when the king was old and unable to perform his adopted DW1 Clovis Kyalimpa was a priest and speaker of the Orukurato. He stated that qo in the Bunyoro-Kitara Kingdom and that is where the Tooro Kingdom regents were known the institution from. functions, he would choose regents to took after the Kingdom. In Bunyoro-Kitara he staled that it happened during the reign of Kyebambe 111 when he grew too old ]n pre colo ' I

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enieriT. he reign of Kyebambe the first Omuzikya because he was an infant king. He die case of Buganda in 1897 when late Kabaka Daudi Chwa was made king while explained further about these events and the significance of the ceremony entitled "Okusimba *5* They explained that this would happen when the Omukama in Bunyoro-Kitara too. old to pursue any more wars and would plant a particular tree as a sign of peace and appoint regents to run the Kingdom. oken legems. These are historic facts some of which are written about in the .ulmmed as Exh. P2". DW3 Richard Kalyegira 63 years and DW5 Silvano Kalama

This court is entitled to take judicial notice of these historic facts and the fact that the kingdoms of Buganda and Tooro were formally part of the Kingdom of Bunyoro-Kitara. *I o* What happened in these Kingdoms was therefore not necessarily foreign to the Kingdom of Tooro. It is very persuasive indeed.

More importantly, there was concrete evidence of instances in the past, before and after 1962, which were given by defence witnesses of the actual practice of regency by die late Omukamas. These witnesses included DW1, DW3, Richard Kalyegira Bagurna Diocesan Secretary of Rwenzori Diocese, DW4 Charles Kayondo Kamurasi the Omujwera Musuga ( Head of the Babito clan) and brother to the late Omukama Mathew Patrick Olimi Kaboyo, -and DW5 Silvano Kataano, a Mubiito (prince). It is significant that two of these witnesses of them (DW4) is actually the head of the Babiito clan. are Babiito (Princes) and that one

were able to establish that as far as they could recall, 2© were named as Msgr. Nkojo, Thomas Mutazindwa and the institution of regency George Rukiidi Ilk During his reign regents were appointed on 3 occasions. The first one was in 1950 when he was going to England. He appointed three regents who ceased their work on his return. These regents Between these witnesses they was actively practised during the reign of the late Omukama Sir Rwabwoni Byamburara.

her occasion he fell sick and appointed the following regents, i.e Samson ate J°sePh ^yakairu and the late Emmenual Kaketi. On yet another occasion left for the London Conference and appointed regents to caretake the Kingdom names of Emmanuel Kaketi Chief Judge, the late Joseph Nyakairu, Treasurer and the *£* late Maiayo Kandole, Deputy Omuhikirwa.

In addition DW1, DW2 Msgr. Thomas Kisembo, DW4 and DW5 further established that the late Omukama Mathew Patrick Kaboyo Olimi appointed Mr. John Katuramu regent when kingdoms were revived in 1994, and when the late Omukama had to leave the country as ambassador to Cuba. They stated that in that capacity Mr. Katuramu did a commendable io job.

who should know by virtue of their respective ages, experiences positions, and responsibilities in the Tooro Kingdom. Additionally they impressed me as more truthful witnesses and I believe their testimonies. It is my judgment therefore that the institution of if to Tooro culture. regency has been practised and accepted as part of the Tooro culture before and since the promulgation and abolition of the 1962 Constitution of Uganda. As such it was not foreign This evidence was not seriously challenged by the plaintiff. These were witnesses

I will now proceed to tackle the 1st, 2nd and 3rd issues. It is convenient to resolve them together as they answer the same questions i.e whether the Orukurato had legal capacity to elect regents, whether the regents were validly appointed and are therefore lawful. To answer these questions there is need to understand and appreciate the role and ftinctions, and composition of the Orukurato. It also necessary to analyze the circumstances under which it sat to elect the regents.

are limited to performing 5 rituals, nesses for both the plaintiff and defendants agreed that at the apex of the o m is the Omukama, Rukirabasaija who is the epitome and custodian of custom n Tooro. He reigns with a Musuga and a Batebe who are cultural functionaries, through the Omuhikirwa, Chief Minister, the Orukurato, and other cultural functionaries. The role and duties of the cultural functionaries particularly at the burial and coronation of the king.

it now has about 80 elected clan representatives, 20 sectional/historical leaders, Omukama's nominees and cultural functionaries who make up the rest. The total number is 120 but at the moment the Orukurato is less them one person, PW3 the remaining plaintiff having been expelled from the Orukurato when he sued it in court. Its current role is that the Omukama i? rules through it, taking and giving it advice, on cultural and development issues. It can no It is now the cultural assembly of Tooro as PW3 the remaining plaintiff an Omukama. describes it. longer wage war, or exercise those functions which are by law the preserve of the Central and Local Governments (See Article 246 (3) (f) of the 1995 Constitution). It is still however i oday, it remains elective but it has no legislative powers. Its composition has also changed, to According to PW3 Francis Mugenyi, DW5 Silvano Katama and DW6 Canon James Rwaboni, the one to sanctions decisions reached by clans on the burial, succession and coronation of The Omkurato s role and composition has been changing through the times. It started w ith Chieis and ritual functionaries appointed by the Omukama in pre-colonial times. During colonial times and before 1966, it became elective and functioned as Parliament of Tooro.

summoned on 2nd September 1995 to approve the burial That is why it was arrangements of the late Omukama Kaboyo, to receive news of his successor, and to plan for the installation of the new Omukama (See Exh, -P3" and the evidence of both the plaintiff

PW3 and the defendants.

is beina the case, it is my considered opinion that it can validly elect regents for the Omukama where he is unable io appoint them. In this case, the King was an infant King, could not appoint his own regents and in this period of incapacity, the Orukurato was and is the right cultural organ to do this. *5*

the minutes is that there the period in which it sat to elect them. PW2 and PW3 contended that this was during theio period of the 9 days of mourning and before the burial of the late Omukama Mathew Patrick Kaboyo Olimi 11, and before the coronation of his heir, Omukama Oyo Nyimba Kabamba Iguru Rukiidi IV. According to PW2, it was an abomination to do so as everything had to came to a stand still, and even couples would not have sexual intercourse. PW1 said that even bulls would not be allowed to mate during this period and the bulls would be tied. For (S' the defence it was conceded that the 9 days of mourning had to observed culmrally but that activities which were inevitable like meeting to prepare for the burial and coronation of the new king had to continue. were a few guests from Buganda in attendance who did not participate in the Orukurato's deliberations but were mere observers. What is contested is Now, when the Orukurato sat on 2nd September 1995 did it validly elect the regents?. ' Lu appears to be consesus that the Orukurato was properly constituted. What is noted in

I would only like to add that times have changed and culture is not static. It must change with the times. It would be difficult to imagine 9 days in present day Uganda where nothing would be done at all. In any case PW2 and PW3 were not entirely truthful while testifying on this aspect.

It is on record in her book (PW2) Exh. P.l that when the father of PW2 died, several meetings were held before the burial. (See pages 65 and 71 of PW2's book exhibited as Exh.

had to inform the Central Government. The Orukurato was accordingly summoned. In the meeting regency was discussed and accepted. There were reasons for doing so. no dispute about who would be heir. The Musuga DW4, then directed the Speaker DW1 Clovis Kyalimpa to summon the Orukurato and inform it about this development and to plan and approve the burial arrangements. The Orukurato in turn io I see the same scenario played out in 1995 except for one discussed after coronation and abandoned in the mid 1960s. Witnesses 5 from both sides agreed that in 1995, during the 9 days and before the burial of the late Omukama Mathew Patrick Olimi Kaboyo IV the Babiito had to meet first to decided on the heir. Luckily, there was P.l). The meetings were to This was all done in arrange for burial and to prepare for succession to the throne, the 9 days of mourning. Because those days were turbulent, even cussed, albeit after coronation and the 1966 crisis. DW5 confirmed in court what PW2 wrote in her said book. thing. Regency was

**/^5**

The heir, now the Omukama Oyo Nyimba Kabamba Iguru Rukidi IV was only 3 years old at this time. He was away in England. His sister was ill. It was not known when he would return. The Omukama who would have appointed the regents was dead. His heir on the death of Omukama Sir George Rukidi 11L In my judgment, the regents were not only was done according to culture, almost exactly the same way it was done in the mid 1960s was young and away. There was nothing abominable culturally or legally about this, as it elected by a properly constituted Orukurato, they were indeed validly elected and they are lawful regents. They were elected for a period of 5 years which is about to expire. Their 2o can be reviewed by the Orukurato at the expiration of the said period: performance

the Orukurato. Article 246 (1) of the Constitution of Uganda 1995, this Court is enjoined to give it due election which was held by the cultural assembly of Tooro, Additionally, this is an It was in accordance with the wish of the majority of the Tooro. Under

*5* ----- with the case of Marko Kajubi v. Kulanima Kabali (1944) native custom may have been recognized in a modified form without character of custom but custom into modified one. recognition. Also in accordance "i 11 EACA 34 an original losing its essential the court cannot itself transform an original The Batooro people thought it fit to modify the custom of regency the circumstances of their plight in 1995. It is not upon this court to modify it.

*I* **/4-k**

**I**

In light of the above I proceed to resolve issues Nos. 1,2 and 3 in the affirmative.

representing the Kingdom at the National Level. Ritualistic functions were explained in detail and they occur on coronation, coronation anniversary, burial of a dead Omukama and other rituals. The regents categorically denied performing ritualistic functions performable by the Omukama. None were pointed out to court as having been performed by the regents. However, those which the King cannot do and are not ritualistic, the regents have performed them as pointed out above. I believe that is why they were elected, ie to run the Kingdom and mobilize it for cultural, social and economic development, so far as culture allows them. **Ao** It is my judgment therefore that the regents have authority to perform non-ritualistic functions performable by the Omukama and they have done so and continue doing. I '.ill tackle issues Nos. 4 and 6 together because they are inter-related. They are whether the regents have authority to perform cultural functions performable by the Omukama only and whether they have performed such acts. As I understand such functions they entail ritualistic and non-ritualistic functions. Non-ritualistic functions are mobilizing /o the people for development, settling disputes between them (informal justice), and

The next issue is whether the late Omukama of Tooro Mathew Patrick Olimi Kaboyo take charge of the Royal household in consultation with the named "Omukuza" to Omubanaana until the Omukama is able to do so. The word 'Omukuza- in Rutooro has been translated to mean guardian and this appears to be acceptable to both sides. This word is

*ttp-*

is that there is no religious, and general upbringing and welfare. These guardians are limited in their role to the powers conferred upon them by the Succession Act and custom. They cannot run the affairs of the Kingdom of Tooro. The Omukama's personal life must be separated from his cultural and official role which has attendant duties and responsibilities. The running of the the plaintiff would like this court to believe. He alone cannot change the way the Kingdom through the Omukama, the Orukurato, the regents, and the ritual Kingdom cannot be the preserve of the Princes and Princesses and a few chosen people as Kuianina Kabali (supra)). is managed i.e. functionaries. All these have their respective roles to play and cannot be legally excluded from running the affairs of the Kingdom. Change of this custom would require the assent Qd of the native community of the Batooro. It cannot be made by an individual or individuals, least of all by a court of law. (see Sir John Gray C. J. in the Case of Marko Kajubi v. k s Law Dictionary 6th Edn. at P. 706 to mean a person lawfully invested P r, and charged with the duty, of taking care of the person managing the p.operty and rights of another person who for defect of age, understanding or self-control is considered incapable of administering his own affairs. PW2 and PW3 testified that the te Omukama would say to them when he was alive, that when he died, Prince Jimmy 5 Mtgenyi was there to look after them and the young King. My understanding of the law such thing as an "oral will". Such a guardian can only legally be appointed by a valid testamentary disposition or in accordance with s. 47 A of the Succession Act (cap 139) as amended by the Succession (Amendment) Decree No. 22 of 1972. In any case, there is evidence on record by defence witnesses, and in Exh. "P.2", that the young |D Omukama has guardians who were duly approved by the Orukurato to look after his spiritual

I would therefore proceed to answer this issue in the negative.

to an axe to grind with the Orukurato. cultural avenue to address abominations, but I do not believe him as in the same breath he stated and other witnesses agreed that the Orukurato is the cultural assembly of the Batooro. It is familiar with the native custom. It is the right forum to address the question of cultural 'S' abominations and whether they occurred. In any case it is the one which elected the regents. When culture is neglected, or when an individual ignores its rules, a court of law may not spirit of reconciliation, Kingdom and in running its affairs. On the alleged omissions cultural abominations, i PW3 alleged that th He had been dismissed as a soldier of the King from the Palace by the Assistant Omuhikirwa, Mugasa. His evidence can only be taken with a grain of salt. I am not convinced that the alleged abominations occurred. But even if they IO did. this court would not be the right forum to pronounce upon the abominations unless they always by the best forum. The role of formal justice is to decide what is right and what is right may not always be what will assume cohesion in the cultural setting, (see William Burret Harvey's Introduction at P. 372 quoting a book by David and Brierley (1968) Pages 46^-464). What would, achieve social cohesion of the Batooro in respect of this particular issue is for the Orukurato, the cultural Assembly of Tooro to address the matter. In the it should work with the Princes and Princesses to nurture the and commissions of the regents and whether they amount *.* i.e allegations of mismanaging the affairs of the Kingdom etc., ie legents mismanaged the Tooro Development Trust Fund. It turned out nee that this fund has nothing to do with the regents. On the alleged sitting on the throne by Canon Rwabwoni, DW6 evidence was given by PW3 , the remaining plaintiff and *S* PW4 Seueant Solomon Nganzi. PW3 who was not an impressive witness failed to mention w hich throne 6 sat on. He did not even know what it was made of. PW4 clearly had amounted to criminal offences. PW3 would like this court to believe that there was no

*IM*

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**f** i **1**

In the result, I find that the plaintiff has failed to prove his case against the defendants suit with costs to al! the defendants. on a balance of probabilities. I also find that he is not entitled to any reliefs. I dismiss his

S. B. Bossa

5 Judge

## 13th July, 1999

13th July, 1999

Matter before Court for judgment.

Dr. Byamugisha for plaintiff.

Mr. Mugamba for the defendants.

Plaintiff absent.

Defendants absent.

Nalongo Nandawula-C/clcrk.

Judgment read, dated and signed in the presence of the above.

**!** S. B. Bossa

Judge

13th July, 1999

**io**

# THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

# <H. C. C. S. NO>. 598 OF 1996

1. LADY KEZIA RUKIIDI}

**I** I **I**

*/ r*

> 2. FRANCIS MUGENYI}

#### PLAINTIFFS

#### VERSUS

1. KATURAMU JOHN}

#### 2. CANON RWABONI JAMES}

DEFENDANTS

- 3. MGR. KISEMBO} - 4. ORUKURATO}

### DECREE

This suit coming this day before Hon. Lady Justice S. B Bossa (Mrs) for final disposal and in the presence ofDr. Byamugisha, councel for the plaintiff\*and Mr. Mugamba counsel for the defendants.

It is hereby ordered and decreed that this suit be dismissed with costs to all the defendants.

| seal ofthe Given under court my hand and the this | £3?day | | of 1999 | |---------------------------------------------------------------------------|--------|--|------------| |---------------------------------------------------------------------------|--------|--|------------|

REGISTRAR

**)5O**