LDC HC/LDC/45081/LA

LEGAL ALERTS

A certified copy of the entry of a name of a child in

the register of births is prima facie evidence that
the person named as the father is the father of the
child or that the person named as the mother is the
mother of the child.

Non-registration of a customary marriage doesn't

render it invalid.

What is the position of the law when a parent

makes a bequest to a child in a Will, and that child
predeceases (dies before) the parent, leaving
children of their own? Or does the bequest in the
Will to a child beneficiary who predeceases the
testator or testatrix lapse?

Are the children of the child beneficiary in a Will

(i.e., the testator’s grandchildren) entitled under
the law to receive the bequest that would have
gone to their parent if he or she had not
predeceased the parent?

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1. A certified copy of the entry of a name of a child in the
register of births is prima facie evidence that the person
named as the father is the father of the child or that the
person named as the mother is the mother of the child

“…Sections 70 & 71 (1) of the Children's Act (Cap 59)

provide that: "The burden to prove parentage shall lie on
the person alleging it…Where the name of the father or the
mother of a child is entered in the register of births in
relation to a child, a certified copy of that entry shall be
prima facie evidence that the person named as the father
is the father of the child or that the person named as the
mother is the mother of the child.” The 1st plaintiff (Jjumba
Ronald) produced a birth certificate (Exh.P1) showing that
the late Fred Kafeero Mugagga is his father. Pursuant to the
provisions of section 71 (1) of the Children's Act (Cap 59),
the birth certificate is prima facie evidence that the 1st
plaintiff is the son of the late Fred Kafeero Mugagga. The
defendants contended that the 1st plaintiff (Jjumba
Ronald) is not the son of the late Fred Kafeero Mugagga.
They have the burden to prove that the 1st plaintiff is not
the son of the late Fred Kafeero Mugagga pursuant to the
provisions of section 70 of the Children's Act. Other than the
oral evidence that the late Fred Kafeero Mugagga did not
introduce 1st plaintiff (Jjumba Ronald) as his son prior to
his death, the defendants did not produce cogent evidence
to prove that the late Fred Kafeero Mugagga is not the
father of the 1st plaintiff. Accordingly, it is my finding that
there is adequate evidence to prove that the 1st plaintiff
(Jjumba Ronald) is the son of the late Fred Kafeero
Mugagga. The defendants failed to adduce contrary
evidence to displace the prima facie position that the 1st
plaintiff is the son of the late Fred Kafeero Mugagga.

2. Non-registration of a customary marriage doesn't

render it invalid
“…Section 6 (1) of the Customary Marriage (Registration)

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Act (Cap 248) provides for mandatory registration of
customary marriages, and it states that: "The parties to a
customary marriage shall, as soon as may be, but in any
event not later than six months after the date of
completion of the ceremonies of marriage, attend at the
office of the registrar of the marriage district in which the
customary marriage took place, with at least two
witnesses to the marriage ceremonies, to register details of
the marriage. Although Section 6 (1) of the Customary
Marriage (Registration) Act (Cap 248) is couched in
mandatory terms on the requirement for registration of
customary marriages, courts have held that non-
registration does not invalidate a customary marriage. In
the case of Steven Bujara v. Twengye Bujara, Civil Appeal
No. 81 of 2002 (2001-2005) HCB Vol. 3 62-63 (Coram: Mpagi
Bahigeine, Engwau and Byamugisha, JJA), the Court of
Appeal of Uganda held that: "Failure to register a
customary marriage does not make such a marriage
invalid. [...] There has to be evidence of customary
ceremonies of the community or tribe having been
performed before one can consider himself customarily
married [...]"In the case of Negulu Milly Eva v. Dr. Sserugga
Solomon (Civil Appeal No. 103 of2013) (20141 UGHCCD 64,
Justice Godfrey Namundi held that the omission to register
a customary marriage does not necessarily invalidate it,
and went on to state that if the requirement for registration
were to be strictly enforced "[...] then most if not all
customary marriages in this country would be rendered
illegal/invalid." Accordingly, the position of the law is that
non-registration does not invalidate a customary
marriage. Although the 2nd plaintiff (Justine Muyanja
Kafeero) did not adduce evidence of a certificate of
registration of a customary marriage, I am persuaded by
her oral evidence that she was married by customary
marriage to the late Fred Kafeero Mugagga at the time of
his death. It is therefore, my finding that the 2nd plaintiff
(Justine Muyanja Kafeero) is a widow of the late Fred Kafe-
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ero Mugagga.

3. What is the position of the law when a parent

makes a bequest to a child in a Will, and that child
predeceases (dies before) the parent, leaving children
of their own? Or does the bequest in the Will to a child
beneficiary who predeceases the testator or testatrix
lapse?
… The general rule is that when a bequest is made to a
beneficiary in a Will, and that beneficiary dies before the
testator, that bequest will usually fail to take effect or
lapse. A bequest which lapses where there is no alternative
clause in the Will as to how such a bequest is to be dealt
with will go into the residue of the estate. Such a bequest
will then be distributed under the residuary provision in the
Will. If there is no such provision in the Will, then such a
bequest shall be distributed as intestate property (see
Halsbury's Laws of England, 4th Edition, Vol 50, paras 347,
365). This general rule is contained in Section 92(1) of the
Succession Act (Cap 162) which provides that: "If the
legatee does not survive the testator, the legacy cannot
take effect, but shall lapse and form part of the residue of
the testator's property [...]" However, there are exceptions
to the general rule. One of the most important exceptions
to the general rule involves bequests to the testator's
children. Under the law, if a parent makes a bequest to a
child in a Will, and that child dies before the parent, leaving
children of their own, the bequest in the Will does not lapse.
The beneficiary's children (i.e., the testator's
grandchildren) shall receive the bequest that would
otherwise have gone to their parent had they not
predeceased the testator or testatrix. The provisions of the
law that prevent lapse of a bequest from occurring in the
situation described above are known as anti-lapse laws.In
Uganda, the anti-lapse law can be found in section 96 of
the Succession Act (Cap 162) which provides that: Where a
bequest has been made to any child or other lineal desce-
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ndant of the testator, and the legatee dies in the lifetime of
the testator, but any lineal descendant of his or hers
survives the testator, the bequest shall not lapse, but shall
take effect as if the death of the legatee had happened
immediately after the death of the testator, unless a
contrary intention appears by the will. The effect of the
anti-lapse law is to prevent the bequest in a Will to a child
from lapsing provided such a predeceased child leaves
behind a lineal descendant. If a child beneficiary dies
during the life time of the testator, and the testator
subsequently dies, and is survived by a lineal descendant
of the beneficiary, then the bequest shall not lapse (see
section 96 of the Succession Act (Cap 162). According to
the section 1 (ma) of the Succession (Amendment) Act,
2022, a "lineal descendant" means a person who is
descended in a direct line from the deceased, and includes
a child, a grandchild of the deceased and any person
related to the deceased in a direct descending line up to
six degrees downwards. Other exceptions from lapse of a
bequest in a Will where the beneficiary predeceases the
testator include, bequests in a Will in pursuance of moral
obligations; or where the Will makes it clear that in the
event of death of a beneficiary, the bequest will go to a
different person (see Halsbury’s Laws of England (supra)
paras 350, 351). The object of anti-lapse laws is to prevent
a lapse of the testator's bequest from happening, and to
put the property into the estate of the deceased
beneficiary to be dealt with as part of his estate, either
according to his or her Will or as part of his or her intestate
property (see the case of Toronto General Trusts
Corporation v. The Minister of National Revenue, 1958
CanLII 54 (SCC). (19581 SCR 499) (Supreme Court of
Canada)... In the case of Re Hurd, Stott v. Stott (194111 All ER
238, the brief facts of the case were that, the testatrix, Anna
Hurd, by her Will gave to her daughter, Sarah certain lands.
Sarah had a child, but predeceased the testatrix and died
intestate in 1923.
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The testatrix died on 18 April 1939 (16 years after the death
of her daughter). The bequest to the daughter was saved
from lapse by section 33 of Wills Act 1837 (United Kingdom)
(which is the equivalent to section 96 of Uganda's
Succession Act). Farwell J held that: "The effect of the
section is to prevent lapsing in this particular case, the
result being that, instead of the gift lapsing, it becomes
part of the estate of the deceased person [. . .}" I have
carefully considered the arguments of both parties, the
evidence adduced by the parties and the law. Jjumba
Ronald (the 1st plaintiff), being a son of the late Fred
Kafeero Mugagga, is a lineal descendant as defined in
section 1 (ma) of the Succession (Amendment) Act, 2022. It
is my finding that by operation of the law (section 96 of the
Succession Act (Cap 162), the bequest to the late Fred
Kafeero Mugagga did not lapse. With this in mind, it is my
finding that the suit property forms part of the estate of the
late Fred Kafeero Mugagga.

4. Are the children of the child beneficiary in a Will

(i.e., the testator’s grandchildren) entitled under the
law to receive the bequest that would have gone to
their parent if he or she had not predeceased the
parent?
… The position of the law is that if the intended beneficiary
dies before the testator, leaving a child, the bequest goes
to the child who is living at testator's death. According to
Halsbury's Laws of England, 4th Edition, Vol 50, paras 356: "
[. . .] in the absence of a contrary intention in the will a
devise or bequest to a child or remoter descendant of the
testator does not lapse if the intended beneficiary dies
before the testator, leaving issue, but takes effect as a
devise or bequest to the issue living at the testator's death.
[...] lssue are to take under these provisions through all
degrees, according to their stock, in equal shares if more
than one, any gift or share which their parent would have
taken, but no issue may take whose parent is living at the
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testator's death and so capable of taking." I have already
decided that the bequest in the Will to the late Fred Kafeero
Mugagga did not lapse by operation of the law (section 96
of the Succession Act (Cap 162). I have also already
decided that the 2nd plaintiff cannot take control of the
suit property and the compensation deposited by UNRA in
court because she did not prove that she is the
administrator of the estate of the late Fred Kafeero
Mugagga. As regards the 1st plaintiff (Jjumba Ronald), his
position under the law is different. On the basis of Section
96 of the Succession Act (Cap 162) and Halsbury's Laws of
England, 4th Edition, Vol 50. para 356, I am of the opinion
that the 1st plaintiff (Jjumba Ronald) has legal capacity to
take control of the suit property bequeathed to the late
Fred Kafeero Mugagga, including compensation deposited
by UNRA in court for a portion of the land (Shs 139,361,394).
My conclusion on Issue No.2 is that upon the late Fred
Kafeero Mugagga predeceasing the late Ssezi Musoke
Ssalongo, the bequest in the Will in favour of the late Fred
Kafeero Mugagga was saved from lapse by operation of
the law (section 96 of the Succession Act (Cap 162). The
suit property, including shs. 139,361,394/= being
compensation for part of the land deposited by UNRA in
court, form part of the estate of the late Fred Kafeero
Mugagga. There is no proof before this court that the 2nd
plaintiff (Justine Muyanja Kafeero) is the legal
representative of the late Fred Kafeero Mugagga (i.e., she
did not prove that she was granted letters of
administration of his estate by a court of competent
jurisdiction). However, the 1st plaintiff (Jjumba Ronald) in
his capacity as a son of late Fred Kafeero Mugagga, and on
the basis of Section 96 of the Succession Act (Cap 162) and
Halsbury's Laws of England, 4th Edition. Vol 50, paras 356, is
legally empowered to take control of the suit property,
including shs. 139,361,394/= being compensation for part
of the land deposited by UNRA in court…”

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 JJUMBA RONALD AND ANOR VERSUS TEOPHIL SEMUYINDE
AND ANOR

HCCS NO. 0849 OF 2018

JUDGMENT BY BERNARD NAMANYA, J ON JUNE 16, 2023

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