Uganda Legal Information Institute - Matrimonial Property Law https://old.ulii.org/tags/matrimonial-property-law en Basudde & 2 Ors VS Nsabwa (CIVIL APPEAL NO.228 OF 2016) [2018] UGCA 75 (1 November 2018); https://old.ulii.org/ug/judgment/court-appeal-uganda/2018/75 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/appeals-and-reviews" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Appeals and reviews</a></li><li class="field-item even"><a href="/tags/review-judgment" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Review of Judgment</a></li><li class="field-item odd"><a href="/tags/family-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Family Law</a></li><li class="field-item even"><a href="/tags/matrimonial-property-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Matrimonial Property Law</a></li></ul></section><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-647d86f56298e5f23e4a72c1e942492c"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/court-appeal-uganda/2018/75/court-appeal-uganda-2018-75.pdf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="600px" src="/sites/all/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fold.ulii.org%2Fsystem%2Ffiles%2Fjudgment%2Fcourt-appeal-uganda%2F2018%2F75%2Fcourt-appeal-uganda-2018-75.pdf" data-src="https://old.ulii.org/system/files/judgment/court-appeal-uganda/2018/75/court-appeal-uganda-2018-75.pdf">https://old.ulii.org/system/files/judgment/court-appeal-uganda/2018/75/court-appeal-uganda-2018-75.pdf</iframe> </div> </div> </div> </div> </div> Wed, 14 Nov 2018 08:44:57 +0000 Ben Mulingoki 29157 at https://old.ulii.org Bulasio Konde v Bulandina Nankya & Anor (CIVIL APPEAL NO. 7 OF 1980 ) [1981] UGSC 1 (14 August 1981); https://old.ulii.org/ug/judgment/supreme-court-uganda/1981/1 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/appeals-and-reviews" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Appeals and reviews</a></li><li class="field-item even"><a href="/tags/family-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Family Law</a></li><li class="field-item odd"><a href="/tags/matrimonial-property-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Matrimonial Property Law</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p class="rtecenter"><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px"><strong>IN THE COURT OF APPEAL<br /> AT KAMPALA<br /> (Coram: MUSOKE, JA, LUBOGO, JA. &amp; NYAMUCHONCHO, JA.)<br /> CIVIL APPEAL NO. 7 OF 1980<br /> BULASIO KONDE………………………......................…………………………APPELLANT</strong></span></span></p> <p class="rtecenter"><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px"><strong>AND</strong></span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">                                                                                      1.<strong> BULANDINA NANKYA</strong></span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px"><strong>                                                                                       2. NUWA BOMBOKKA………………………................................................................…….......RESPONDENT</strong></span></span></p> <p class="rtecenter"><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">           (Appeal from the Ruling and order of the High Court of Uganda at Kampala<br />                             (Khan, Ag. J.) dated 26<sup>th</sup> November, 1979.</span></span></p> <p class="rtecenter"><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px"><strong>IN         <br /> H.C. CIVIL SUIT NO.271 OF 1978 </strong></span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px"><strong><u>JUDGEMENT OF THE COURT</u></strong></span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">On June 19, 1981 when this appeal came for hearing we were informed by Mr. Kyambadde, who was holding brief for Mr. Sendege, counsel for the appellant, that the appeal had been withdrawn, that the case had been settled between the appellant and that he wished the court to enter a consent order in the terms agreed between the parties. The draft consent order which was before us was in effect reversing the ruling of the lower court.</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">We now give our reasons; but, in order to appreciate the reasons that compelled us to dismiss the appeal, it is necessary to set out in brief the history of this case, which is as follows:</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">Erina Namirembe, a wealthy woman, died in Nsambya Hospital August 21, 1977. She left behind an estate worth, according to Konde (to whom we shall hereinafter refer as “the defendant”) 1.5 million shillings, but according to Nuwa Bombokka (to whom we shall hereinafter refer as the “2<sup>nd</sup> Plaintiff”) 3.4 million shillings.</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">Erina died, intestate. She had no child and no husband. She is survived by her mother Bulandina Nankya (to whom we shall hereinafter refer as “the 1<sup>st</sup> plaintiff”) the only dependant relative of the deceased who is very old indeed. According to Section 28(1) (c) of the Succession Act (hereinafter referred to as “the Act”), as amended by the Succession (Amendment) Decree, 1972, 99% of Erina’s estate should go to her and, according to sections 201 and 202 of the Act the 1<sup>st</sup> plaintiff is entitled to the grant of letters of administration.</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">However the defendant, who described himself as the step-brother of the deceased, without the knowledge of the 1<sup>st</sup> plaintiff and without disclosing that she is the sole dependent of the deceased as is required by section 246 of the Act applied (through Mr. Sendege his advocate) applied for and was granted letters of administration on January 10, 1978.</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">This grant was contrary to the provisions of sections 201 and 202 of the Act. Section 201 provides that administration shall be granted to the person entitled to the greatest proportion of the estate in priority to all other relatives of the deceased; and section 202 provides that administration shall not be granted to any relative if there is some other relative entitled to a greater proportion of the estate until a citation has been issued and published in the manner provided, by the Act calling on such relative to accept refuse letters of administration.</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">About a month after the grant the plaintiffs instructed M/s. Kawanga and Kasule Advocates to contest the grant. On February 15, 1978 Mr. Kasule filed an application by way of Notice of Motion praying that the letters of administration granted to the defendant be revoked on the grounds, <u>inter alia, </u>that the grant was obtained fraudulently. This application was dismissed on March 1, 1978 on procedural grounds.</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">However, the judge pointed out, in his ruling, that the proper procedure was for the plaintiffs to file a suit pursuant to section 265 of the Act. The plaintiffs, accordingly, filed a suit on March 14, 1978. They alleged in paragraph 4 of the plaint that the 1<sup>st</sup> plaintiff was the sole dependent of the deceased and is entitled solely or together with others to administer the estate of the deceased; and in paragraph 7 they alleged letters that the defendant fraudulently obtained the Letters of administration and that “since the obtaining of the said letters of administration the defendant has fraudulently failed/neglected/abandoned to administer the said estate, but has instead misappropriated and wasted the property thereof”.</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">After filing the suit, the plaintiffs sought and obtained an ex-parte temporary injunction on April 5, 1978 restraining the defendant from disposing of the property or in any way dealing with the property until the disposal of the suit. The defendant was also ordered to deposit the letters of administration with the Chief Registrar.</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">However, the defendant did not restrain himself from administering the estate nor did he return the letters of administration to the Chief Registrar instead, Mr. Sendege filed an application on his behalf to have the injuction discharged. On June 27, 1978, this application was dismissed and, at the same time, the court under s. 218, of the Act, appointed the Administrator General to administer the estate-.pendente lite.</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">The defendant appealed. During the pendency of the appeal, the defendant refused to hand over the administration of the estate to the Administrator General. Between June and November, 1978 correspondence passed between the Administrator General, the Chief Registrar and the defendant and his counsel and counsel for the plaintiffs.</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">In the correspondence, the defendant was urged to abide by the order of the court and furnish with the administrator pendente lite cash, inventory etc. of the estate to enable him to administer the estate, but the defendant, no doubt encouraged by his advocate, refused to do so. Mr. Sendege, his advocate, wrote to the Administrator General, on behalf of his client, informing him that he (the Administrator General) had no legal basis to demand such things from his client as the order appointing him administrator <u>pendente lite </u>did not specifically say so. The defendant continued to administer the estate as an executor <u>de son tort. </u></span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">When the defendant refused to hand over the administration of the estate to the administrator <u>pendente lite </u>and refused to return the letters of administration to the Chief Registrar, counsel for the plaintiffs applied for a warrant of arrest of the defendant for contempt of court. The Administrator Genaa1 also filed an application on November 15, 1978 praying that the court should order the defendant to abide by the order of the court.</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">The defendant was summoned on November 29, 1978 to show cause why he should not be committed for contempt. However, Mr. Sendege succeeded to have the committal proceedings adjourned from week to week until December 13, 1978 when both applications were heard. That the defendant was in contempt cannot be doubted. He refused to obey the court order. He did not even turn up on the date when the applications were heard. His lawyer who had succeeded to have so many adjournments on flimsy pretext did not turn up either. No reason was given. As it is no cause was shown why the defendant should not be committed. The ruling in both applications was delivered on December, 18, 1978. In his ruling the learned judge said that he was satisfied that the respondent had disobeyed the order of the court but gave him 14 days within which to comply with the court order.</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">It is a matter of regret that the Administrator General failed to take over the administration of the estate because of the conduct of the defendant and his legal adviser. It is also regretted that when he turned to the court for assistance he received no such assistance from the officers of the court. The court officials did not even assist counsel to see to it that the court order was obeyed at all costs. However, the refusal by the defendant and his counsel to give the administrator <u>pende lite </u>the things and information he required was no excuse for not taking over and managing the rest of the estate as he was being urged to do by Mr. Kasule.</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">So, the defendant continued to intermeddle with the estate until on June 15, 1979 when the case took a dramatic turn. It was a dramatic turn because that day despite Mr.Kasule’s knowledge of what was going on; he reached a settlement with Mr. Sendege and allured this court to record such settlement by a consent order reversing the decision of the High Court and discharging the temporary injuction against the defendant.</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">In effect the consent order allowed the appeal. The Court was not informed of the authorities which declare such procedure to be contrary to the general law that an appeal cannot be allowed by consent without hearing it; besides, the court agreed to the compromise and stripped the administrator <u>pendente lite </u>of his powers to administer the estate when he was not a party to the compromise. On that same day, both counsel disposed of the suit by consent. The Registrar entered a consent order in the following terms:</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">“(1)<em>      </em>The administrator of the estate Mr. Bulasio Konde under the supervision and with, the consent of Counsel for the 1<sup>st</sup> plaintiff and that of Counsel for the defendant do realize, distribute and file in Court the final account of the estate within a period of 30 days of the date hereof or within such further period as the Court may direct or as the parties may initially agree upon.</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">(2)        The Administrator General will cease acting as administrator <u>pedente lite </u>and subject to the conditions set out in one above, Bulasio Konde will assume the administration of the estate as from the date of service of this settlement on the Administrator General.</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">(3)        In the distribution of the estate, Bulandina Nankya the first plaintiff shall receive 12% of the estate and the remaining 88% shall be distributed amongst the remaining beneficiaries in such manner as the defendant administrator shall deem fit.</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">(4)        The costs of the suit to be shared between the 1<sup>st</sup> plaintiff and the defendant equally and to be a charge on the estate.</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">That consent order was agreed to by Mr. Kasule without consultation with his clients as their correspondence with the Registrar and affidavit sworn to set aside the judgment later confirmed. It was unfair to the sole dependent, the 1<sup>st</sup> plaintiff. Under (3) the sole beneficiary who was entitled to 99% of the estate was given only 12% of the estate and the so called administrator of the estate was given very wide discretion to distribute 88% of the estate amongst the remaining beneficiaries as he shall deem fit. According to information available on the record, there were no such beneficiaries. It is, difficult to understand what law these learned gentleman were applying. The agreement reached by counsel was illegal because it was perpetuating a fraud which started with the grant of letters of administration, it is in contravention of statute law. M/s Kasule and Sendege knew of the existence of sec. 28(1) (c) of the Act which gives the 1<sup>st</sup> plaintiff 99% of the estate. In his letter ref Mengo/AC/763/77 of 6/2/78 the Administrator General had warned Mr. Sendege to inform his client to distribute tae estate accordingly. They ignored it all.</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">On July 17, 1979 the plaintiffs withdrew instructions from Mr. Kasule and briefed Messrs Byamugisha Rwaheru Advocates. The new advocates filed an application, to set, aside the consent order. The application was heard by Khan, Ag. J. who allowed it and set aside the consent order. The defendant appealed.</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">Before the hearing of the appeal Mr. Sendege wrote to the Registrar on January 28, 1981 informing him that both parties had agreed that the appeal be withdrawn and that no order should be made as to costs. He sent him a draft consent order accompanying this letter. The letter and the Consent draft order were thumb printed by the 1<sup>st</sup> plaintiff. The 2<sup>nd</sup> plaintiff was left out, and in fact he was not aware of these maneuvers. Counsel for the plaintiffs was not a party to this compromise. It is undoubtedly a wrong practice for counsel who seeks to compromise a case to bargain with litigants of the opposing side without the knowledge of counsel representing them. It is important and necessary that any settlement should be agreed to by both counsel in consultation with their clients. Only in that way should the settlement be binding on the parties.</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">When we told Mr. Kyambadde that we would not enter the consent order and asked him to argue the appeal, Mr. Kyambadde declined and informed us that his instructions from Mr. Sendege were to enter a consent order and no more. The draft consent order which he sought to record is couched in the following terms:</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">“By the consent of the parties the consent judgment which was entered herein on 15<sup>th</sup> June, 1979 and was subsequently set aside by Ag. Justice Khan on 26<sup>th</sup> November, 1979, be and is hereby reinstated as the judgment of Court.”</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">We asked Mr. Kyambadde for an authority for entering a consent judgment which reverses the judgment of the court below by agreement of the parties but he had none. The general rule is, as we know that an appeal could not be allowed by consent without hearing it. This rule was stated in <strong>Lees v Motor Insurers’ Bureau (1953) W.L.R<em>. </em>620</strong> by the English Court of Appeal then hearing an appeal from a decision of Lord Goddard, CJ. The plaintiff’s claim had failed before Lord Goddard, C.J. but on appeal his counsel stated that the defendant, the Motor Insurers’ Bureau, had voluntarily agreed to pay the whole of the claim; and he sought an order that the appeal be dismissed. At this Denning, L.J. said:</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">“an appeal could not be allowed by consent, for that would be reversing the judgment of Lord Goddard, C.J. without hearing the appeal.”</span></span><br />  </p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">A similar point arose in <strong>Lloyd v. Rossleigh Ltd. (1961) R.V.R.448</strong>. We do not have the report of this case, but it is referred to in <strong>Slaney V. Kean (1970) Ch. 243,</strong> a case we will shortly refer to. The following facts are taken from the report of <strong>Slaney’s case at p.247</strong>. It was a rating appeal from the Lands Tribunal, and the successful ratepayers had agreed with the valuation officer that the appeal should be allowed. When the Court of Appeal was told this by Sir Derek Walker Smith .C. who appeared for the valuation officer, Sellers, L.J. said:</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">“They cannot do that. They can agree different figures, but they cannot allow the appeal. We alone can do that. You will either have to withdraw or dismiss it. I am sorry, but we never allow an appeal unless we have heard it. It has the same effect; but I do not think it is fair to the Lands Tribunal or anybody else to allow an appeal by consent. It has never been done in the Court of Appeal, so far as I am aware Sir Derek.”</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">In the following discussion, Sellers, L.J. said:<br /> “We cannot state the law by an agreement between the parties;”<br /> and Devlin L.J. said:</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">“...... you are asking us to straighten the law without satisfying us that it had gone crooked, merely because you say two members of the Bar have agreed that it has gone crooked. Plainly we cannot do that.”</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">The last case on the point is <strong>Slaney v. Kean (supra).</strong> That was an income tax case. The taxpayer had appealed against an assessment in respect of his emoluments to the general commissioners who allow his appeal. The Crown appealed and when the appeal came on for hearing a document was put before the judge recording an agreement between the Crown and the taxpayer that the appeal should be allowed. Megarry, J. (as he then was) refused to record the consent and dismissed the application. He held that the general rule was that an appellate court could not reverse a decision by consent, and there being no authority which supported exception thereto. In discussing the issue whether an appeal could be allowed by consent the learned judge said at page 246:</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">“An appeal may, of course, be dismissed by consent; for the appellant thereby merely gives up his right of appea1, and the decision of the court or tribunal below is left standing. But certainly under the law, an appellate court will not allow an appeal by consent. If it were to do so, it would be making an order holding that the decision below was wrong; and it would be doing this merely on the agreement of the parties, and without hearing the case. Indeed the appellate court might be reversing a decision based upon proportions of law which, if argued, would be held to be entirely correct. The law is a matter for decision by the court after considering the case, and not for agreement between John Doe and Richard Roe, with the court blindly giving its authority to whatever they have agreed.”</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">We have quoted extensively from these cases in order to clarify and emphasize the legal position that an appeal cannot be allowed by consent. The law as enunciated in these cases shows that:</span></span></p> <ol> <li><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">The parties cannot by consent reverse a judgment of the court,</span></span></li> <li><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">Only an appellate court can reverse a decision of the court below after hearing the appeal</span></span></li> <li><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">Issues of law cannot be the subject of consent orders.</span></span></li> </ol> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">In the light of these decisions it is evident that this Court was misled in recording the consent order on 15<sup>th</sup> June, 1979 reversing the judgments Of the Court below without hearing the appeal.</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">The appeal before us raises issues of law which are decided in the court below. A reading of the grounds of appeal clearly shows that the appeal is on points of law. The decision of the trial judge which gave rise to this appeal was based on the law as stated in <strong>Halsburys Laws of England 3<sup>rd</sup> Ed. Para 74 at p.15</strong> and on the construction of the provisions of section. 28(1) (c) of the Act. Under section 28(1) (c.) the plaintiff is entitled to 99% of the estate but the proposed consent order gives her only 12% of the estate and it authorizes the distribution of 87% of the estate, the root of her entitlement, amongst imaginary beneficiaries (we say imaginary beneficiaries since by virtue of section 28(1) (c) there are none) in such manner as the defendant administrator shall deem fit.</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">The consent order thus authorizes a new kind of distribution among a new class of beneficiaries not envisaged by section 28 of the Act. If we had recorded the proposed consent order, we would be altering the statute law.</span></span></p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">Dr. Byamugisha submitted, and we agree with him that this estate is not being administered according to law. The letters were granted to someone who had no right to get them. The letters were granted contrary to the provisions of sections 201 and 202 of the Act. The plaintiffs have tried in vain to get them revoked but their efforts have been thwarted by delaying tactics of counsel. The defendant has been unco-operative to the extent of disobeying the court’s orders. Then the case is compromised in a most suspicious manner and contrary to law. Obviously we could not accept such compromise; and as the appeal could not be argued we were left with no alternative except to dismiss it with costs.</span></span></p> <p> <span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">DATED at Kampala this 14<sup>th</sup> day of August 1981.</span></span><br />  </p> <p><span style="font-family:Times New Roman,Times,serif"><span style="font-size:12px">(SGD) MUSOKE, JA<br />  (SGD) LUBOGO, JA<br /> (SGD)  NYAMUCHONCHO, JA</span></span></p> <p> </p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-0a354b81737509191ce6396007259d34"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/supreme-court-uganda/1981/1/supreme-court-uganda-1981-1.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 03 Sep 2018 08:16:43 +0000 Ben Mulingoki 29028 at https://old.ulii.org Mayambala v Mayambala (Divorce cause No.3 of 1998) [1998] UGHC 16 (3 November 1998); https://old.ulii.org/ug/judgment/high-court-uganda/1998/16 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/family-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Family Law</a></li><li class="field-item odd"><a href="/tags/matrimonial-property-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Matrimonial Property Law</a></li></ul></section><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-a31c667f1493ace9396eb3ead0039460"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/high-court/1998/16/high-court-1998-16.pdf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="600px" src="/sites/all/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fold.ulii.org%2Fsystem%2Ffiles%2Fjudgment%2Fhigh-court%2F1998%2F16%2Fhigh-court-1998-16.pdf" data-src="https://old.ulii.org/system/files/judgment/high-court/1998/16/high-court-1998-16.pdf">https://old.ulii.org/system/files/judgment/high-court/1998/16/high-court-1998-16.pdf</iframe> </div> </div> </div> </div> </div> Mon, 27 Jul 2015 14:16:28 +0000 Anonymous 19338 at https://old.ulii.org Babumba & 2 ors v Nakasi (CIVIL SUIT NO. 173 OF 1987 ) [1992] UGHC 19 (13 April 1992); https://old.ulii.org/ug/judgment/high-court/1992/19 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/family-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Family Law</a></li><li class="field-item odd"><a href="/tags/matrimonial-property-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Matrimonial Property Law</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><div> <p><u>THE REPUBLIC OF UG.'NDA</u></p> <p><img alt="Text Box: /" src="file:///C:%5CUsers%5Cjmugala%5CAppData%5CLocal%5CTemp%5Cmsohtmlclip1%5C01%5Cclip_image001.gif" style="float:left; height:21px; width:21px" /><u>IN THE HIGH COURT OF UGANDA AT KAMPALA.</u></p> <p><u>CIVIL SUIT NO. 173 OF 1987</u></p> </div> <p>&nbsp;</p> <div> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> </div> <p>&nbsp;</p> <p>&nbsp;</p> <div> <p><img alt="Text Box: PLAINTIFFS" src="file:///C:%5CUsers%5Cjmugala%5CAppData%5CLocal%5CTemp%5Cmsohtmlclip1%5C01%5Cclip_image002.gif" style="float:left; height:28px; width:109px" />BLINESTI BABUMBA &amp; TWO OTHERS</p> </div> <p>&nbsp;</p> <p>&nbsp;</p> <div> <p>&nbsp;</p> </div> <p>&nbsp;</p> <p>&nbsp;</p> <div> <p>VERSUS</p> </div> <p>&nbsp;</p> <p>&nbsp;</p> <div> <p>&nbsp;</p> </div> <p>&nbsp;</p> <p>&nbsp;</p> <div> <p><img alt="Text Box: DEFENDANT" src="file:///C:%5CUsers%5Cjmugala%5CAppData%5CLocal%5CTemp%5Cmsohtmlclip1%5C01%5Cclip_image003.gif" style="float:left; height:38px; width:116px" />ESTER NAKASI KIZITO</p> <p>BEFORE: <u>THE HON. MR. JUSTICE G.M. OKELLO</u> JUDGMENT:</p> <p>This suit arose from a contentious application for grant of Letters of administration of the Estate of the late Erifasi Kizito. It was brought in accordance with section 265 of the succession Act. The three Plaintiffs were the Petitioners for grant of Letters of Administration in administration cause No. 202/86. They petitioned for the grant as brother^ nephew and niece of the deceased respectively. The caveator who claimed to be the widow of the deceased is the defendant in the suit.</p> <p>In the suit, the Plaintiffs sought for:-</p> <ol> <li>An order to remove the defendant's caveat.</li> <li>An order granting to the plaintiffs letters of Administration and</li> <li>cost of the suit.</li> </ol> <p>When the case came up for hearing before me on 8/4/92, the plaintiffs and their counsel appeared but neither the defendant nor her counsel appeared. No explanation was given for their absence yet there was evidence of due service of Hearing Notice on the defendant personally. A similar application for grant</p> </div> <p>&nbsp;</p> <p>&nbsp;</p> <p>of Letters of administration of the Estate of the same deceased was filed by the defendant in the Chief Magistrate’s court of Mengo under administration cause No. 79/86. The present Plaintiffs lodged a caveat against the grant of Letters of administration of the Estate of the deceased in that application as a similar application was pending in the High Court. The application in the Chief Magistrate's court of Mengo was eventually dismissed for want of prosecution under 0.15 r. 6 of the CPR.</p> <p>&nbsp;</p> <p>In the instant case, after satisfying myself that there was satisfactory evidence of service of the Hearing Notice on the defendant, I allowed the application by counsel for the Plaintiffs that the hearing of this suit should proceed exparte under 0.9 r.17 (1) (a) of the CPR.</p> <p>At the hearing, I was informed that the first plaintiff- Erinesti Babumba had died in 1987 leaving only two plaintiffs. Hearing therefore proceeded with only two plaintiffs, Edward- Bamu.ije, 2nd plaintiff, gave evidence as PW1. In his evidence Bamujje told court that at a meeting which was held after the dea­th of the deceased, by elders and the children of the deceased, &nbsp;Erinesti Babumba, Keti Namyalo and himself were selected to apply for Letters of Administration to administer the Estate of the deceased Erifasi Kizoto according to law. That an earlier such meeting had appointed him a customary heir of the deceased. That following the authorisation by that meeting they approached the office of the administrator-General which gave them a Letter of No objection dated 19/6/86. That armed with that letter of No objection, they petitioned for grant of Letters of Administra­tion to enable them administer the Estate of the late Erifasi- Kizito according to law.</p> <p>That the deceased was not married to any woman customarily or otherwise but that he was survived by nine children whom he got from six different women friends. That the defendant was one of those six women friends of the deceased and had mothered two children Kitengeza and Nabibubu Florence. That the defendant never stayed together with the deceased. That she stays at Bugerere. Bamujjo further testified that a lady called Dorothy Nabazziwa also mothered three children for the deceased but that he never lived together with her. Keti Namyalo PW2 corroborated the evidence of Bamujje (PW1) in all material particulars.</p> <p>From the above evidence Mr. Balikuddembe counsel for the Plaintiffs prayed that the defendant's caveat be removed and the Letters of Administration granted to the two surviving plaintiffs to administer the Estate of the deceased Erifasi Kizito. That there should be no order as to cost.</p> <p>Under section 6 of the Administrator General Act, no grant of Letters of Administration shall be made to any person except an executor appointed by will or to a widower or a widow until the applicant has produced to the court proof that the administ­rator General or its agent has declined to administer the Estate or proof that Notice of at least 14 clear days has been given to the administrator General of intention to apply for such grant.</p> <p>In the instant case, there is sufficient evidence that the Administrator General has declined to administer the Estate of this deceased, The Letter of No objection issued to the Plaintiffs from that office on 19/6/86 is evidence of that decline. It is on the court record.</p> <p>It is the law that when considering grant of Letters of Administration, the widower or widow of the deceased takes precedence over all other relatives of the deceased. This is covered under section 6 of the Administrator General' Act.</p> <p>In the instant case, there is contention for grant of Letters of Administration between the plaintiffs and the defendant who claims to be the widow of the deceased. Under the provision of the above section of the Administrator General's Act, the defendant should take precedence over the plaintiffs in consider­ation for this grant if only it can be shown that she is infact a widow of the deceased. Unfortunately no evidence was adduced to show that she was married to the deceased either customarily or at all or that she was cohabitating with the deceased at the time of his death. Having a child or children by the deceased is not enough to Confer on the women widowhood. In the absence of the above type of evidence, the defendant' s issue of widowhood is not proved. In the circumstances her claim must fail. Consequently the caveat which she had lodged against the plaintiffs’ application must be removed and the Letters of Administration granted to the two surviving Plaintiffs, Judgment is therefore given to the Plaintiffs in those terms. No order is made as to cost of this suit.</p> <table cellpadding="0" cellspacing="0" style="height:34px"> <tbody> <tr> <td> <p>&nbsp;</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>G.M. OKELLO JUDGE.</p> <p>13/4/92</p> <p>Judgment read in chamber in the presence of Mr. Balikuddembe Counsel for the Plaintiff, And Mr. Ocheng Court Clerk</p> <table cellpadding="0" cellspacing="0" style="height:35px"> <tbody> <tr> <td> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>G.M. OKELLO</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> <p>&nbsp;</p> <p>.</p> <p>&nbsp;</p> <p>JUDGE</p> <p>13/4/92</p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-c73f96bd56de5bb0efcfc09d15c7bf78"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/high-court/1992/19/high-court-1992-19.docx" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 14:09:07 +0000 Anonymous 18942 at https://old.ulii.org Administrator General v Bandiho & Anor (CIVIL SUIT NO. 627 OF 1993) [1993] UGHC 19 (7 October 1993); https://old.ulii.org/ug/judgment/high-court/1993/19 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-remedies" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Remedies</a></li><li class="field-item odd"><a href="/tags/injunctions-and-interdicts" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Injunctions and interdicts</a></li><li class="field-item even"><a href="/tags/family-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Family Law</a></li><li class="field-item odd"><a href="/tags/matrimonial-property-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Matrimonial Property Law</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><div> <table cellpadding="0" cellspacing="0" style="height:12px; width:431px"> <tbody> <tr> <td> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <u>THE REPUBLIC OF </u><u>UGANDA</u></p> <p><u>IN THE HIGH COURT OF</u><u> UGANDA AT </u><u>&nbsp;KAMPALA</u></p> <p>&nbsp;</p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <table cellpadding="0" cellspacing="0" style="height:14px; width:256px"> <tbody> <tr> <td> <p><strong><u>CIVIL SUIT NO. 627 OF 1993</u></strong></p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <p>&nbsp;</p> <p>&nbsp;</p> </div> <p>&nbsp;</p> <div> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> </div> <p>&nbsp;</p> <p>&nbsp;</p> <div> <p><img alt="Text Box: PLAINTIFF" src="file:///C:%5CUsers%5Cjmugala%5CAppData%5CLocal%5CTemp%5Cmsohtmlclip1%5C01%5Cclip_image001.gif" style="float:left; height:19px; width:107px" />ADMINISTRATOR GENERAL</p> <p>&nbsp;</p> <p>JOVIA KORUGIENBO BANDIHO</p> <p>DEFENDANTS</p> <table cellpadding="0" cellspacing="0" style="height:14px"> <tbody> <tr> <td> <p>WILSON KABIKIRA</p> <p>&nbsp;</p> <p><u>BEFORE:THE HON. MR. JUSTICE G.M. OKELLO</u></p> </td> </tr> </tbody> </table> <div>&nbsp;</div> &nbsp; <p>&nbsp;</p> <p>&nbsp;</p> <p>RULING:</p> </div> <p>&nbsp;</p> <p>&nbsp;</p> <div> <p>&nbsp;</p> </div> <p>&nbsp;</p> <p>&nbsp;</p> <div> <p>This application was brought by chamber summons under 0.37</p> </div> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <div> <p>rr.l. (a) 3 and 9 of the OPR of the CPR for an order for a temporary</p> <p>injunction to restrain the Plaintiff/Respondent from disposing of in any way any property that</p> <p>&nbsp;</p> <p>&nbsp;forms part of the Estate of the late Emmanuel Bandiho until the disposal of the head suit.</p> <p>&nbsp;</p> <p>The application was based on three grounds namely:-</p> <ol> <li>that the Respondent has already advertised some property part of the said estate for sale when his right to administer the estate is the subject of the main dispute</li> </ol> <p>in the main suit.</p> <ol> <li>that the Respondent has prepared a distribution scheme which contravenes the provisions of the will of the deceased Emmanuel Bandiho,</li> <li>that the Respondent's intended distribution of the property of the estate world render the whole suit a nugatory if it was effected.</li> </ol> <p>The application was supported by an affidavit of the 1st defendant/applicant- Jovia Korugyendo Bandiho, widow of the deceased. The affidavit is dated 30/9/93.</p> <p>When the application was called for hearing before me, time was 11:00 a.m. The Respondent or his representative was not present though there was evidence of due service of the chamber summons. The affidavit of service dated 1/10/93 by Fiat Richard Kangwamu shows that the chamber summons was served on one Ziigira, an assistant Administrator-General on the 30/9/93. He accepted service and made an endorsement. I am satisfied with the service as revealed by the affidavit of service. The service was proper and effective.</p> <p>But there was no explanation for the absence of the Respon­dent or of his representative when the application was called for hearing. By 11:00 a.m, the Respondent or his representative cou­ld have been able to reach the High Court premises even if he walked from his office at Parliamentary Building. Alternat­ively he could have even rung the Registrar of this court to explain his difficulties if any, regarding his coming to court for this case. None of these steps was taken. Perhaps the Respondent did not see that as necessary. That kind of attitude is not at all helpful to my body.</p> <p>In these circumstances I found no justification for adjourning the case. So I allowed application by counsel for the applicant to proceed exparte. The application was therefore heard exparte.</p> <p>The back ground of the application is as follows:- The administrator-General had applied for grant of Letters of administration of the Estate of the late Emmanuel Bandiho who,</p> </div> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <div> <p>according to the administrator-General died intestate. However, the widow of the deceased lodged a caveat objecting to the grant of the letters of Administration of the Estate of her late husband to the administrator-General on the alleged ground that her decea­sed husband did not die intestate. That he left a will in which he appointed her the executers and directed how his properties should be distributed.</p> <p>Following the dispute, the Administrator-General filed the head suit naming the caveators as the defendants. They are the applicants in this application.</p> <p>While the above suit is still sending, the administrator- General advertised in the New Vision newspaper of 14-/9/93 for sale properties which form part of the estate of the late Emmanuel Bandiho. (Annexure 'A' to the supporting affidavit). He also drew a scheme for distributing the estate to the beneficiaries. (Annexure "DD").</p> <p>The applicants opposed the sale. They are of the view that the proposed sale is a threat the status quo of the estate and that the distribution scheme was contrary to the will which the deceased left. That if executed would amount to waste of the estate. They accordingly filed this application for a temporary injunction to restrain the Respondent from disposing of the estate in any way until the main was heard and determined,</p> <p>037 r.l. (a) of the civil Procedure Rules empowers this court to grant a temporary injunction to preserve the status quo of property which is in dispute in a suit and is in danger of being wasted, damaged or alienated by any party to the suit.</p> </div> <p>&nbsp;</p> <p>&nbsp;</p> <p>The following are the established principles applicable in determining application for a temporary injunction:-</p> <p>&nbsp;</p> <ol> <li>the applicant must show a prima facie case with a likelihood of his success in the head suit.</li> <li>that the applicant will suffer irreparable damage if the injunction was not granted.</li> </ol> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That is, that he is likely to suffer damages which cannot be adequately compensated by &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;payment of damages if the temporary injunction was refused.</p> <ol> <li>where the court is in doubt as to whether the applicant was likely to suffer irreparable damages, it is to decide the application on the balance of convenience of the parties. That is whether the applicant would suffer more inconvenience if the temporary injunction was refused than the Respondent would if the temporary injunction</li> </ol> <p>was granted.</p> <p>(See Giela <sub>V</sub>s. Casmana Brown &amp; Co. Ltd, (1973) 3A 358).</p> <p>•</p> <p>In the instant case, the supporting affidavit established that there is a serious issue between the parties in the head suit to be heard and determined. That there is a likelihood of the applicant’s success in that head suit. As a widow of the deceased, the 1st Applicant has the right to the claim of the administration of the estate of her late husband. Secondly there is evidence of an existence of a will in which the deceased appointed the 1st defendant/Applicant the executrix and directed how’ his Properties should be distributed. These issues are pending in the head suit. The publication by the Respondent in the Newspaper for sale, properties which form part of the estate while the issue of his right to administer the estate was still pend­ing before the court is unfair and poses s threat to the safety of the properties. Further the issuance by the Respondent of a distribution scheme of the estate when his right to administer the estate was still pending and when there is an allegation of an existence of a will does not argue well. What is the hurry for?</p> <p>I think the underlining principle governing the determina­tion of an application for a temporary injunction must ultima­tely be on the basis of fairness, justice and common sense in relation to tie whole issue of facts and law which are relevant. In this case, the allegation of the existence of a will in which the deceased allegedly appointed the first applicant the executrix and directed how his properties should be distributed cannot be ignored. It must be investigated.</p> <p>And this investigation can be done at the hearing of the main suit. In the meantime the properties that form part of the estate must be intact.</p> <p>There appears to be no compelling reason for the administrator-General to hurry in attempting to dispose of some of the properties which form part of the estate when the issue of his right to administer the estate was still pending in the main suit. The sale of the properties and the execution of the projected distribution scheme would render the pending head suit unnecessary. Would there be any fairness let done justice?</p> <p>In those circumstances the applicants are likely to suffer more inconvenience if the temporary injunction was refused.</p> <p>In my view this is a proper case in which to grant a temporary injunction to preserve the status quo until the main suit is heard and determined. For the reasons given above the applica­tion is allowed and the temporary injunction is granted as prayed.</p> <p>G.M. OKELLO JUDGE.</p> <p>7/10/93</p> <p>Ruling delivered in the presence of&nbsp; Mr. Kangwamu for the Applicant</p> <p>Mr. Ddungu - Court Clerk.</p> <p>&nbsp;</p> <p>G.M. OKELLO</p> <p>JUDGE.</p> <p>7/10/93</p> <p>&nbsp;2:30- p.m.</p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-67e9fcd03a500b91ed5f69fe9f72a198"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/high-court/1993/19/high-court-1993-19.pdf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="600px" src="/sites/all/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fold.ulii.org%2Fsystem%2Ffiles%2Fjudgment%2Fhigh-court%2F1993%2F19%2Fhigh-court-1993-19.pdf" data-src="https://old.ulii.org/system/files/judgment/high-court/1993/19/high-court-1993-19.pdf">https://old.ulii.org/system/files/judgment/high-court/1993/19/high-court-1993-19.pdf</iframe> </div> </div> </div> </div> </div> Mon, 27 Jul 2015 14:09:07 +0000 Anonymous 18941 at https://old.ulii.org Joseph Baguma v Sefuroza Matende (Civil Suit No.MFP 12 Of 1985) ((Civil Suit No.MFP 12 Of 1985)) [1991] UGHC 23 (4 November 1991); https://old.ulii.org/ug/judgment/high-court/1991/23 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/family-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Family Law</a></li><li class="field-item odd"><a href="/tags/marriage-community-property" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Marriage In Community of Property</a></li><li class="field-item even"><a href="/tags/matrimonial-property-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Matrimonial Property Law</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p>&nbsp;</p> <p><strong><u>THE REPUBLIC OF UGANDA</u></strong><br /> <strong>IN THE HIGH COURT OF UGANDA HOLDEN AT FORT PORTAL<br /> CIVIL SUIT NO. MFP 12/1985</strong></p> <p><strong>JOSEPH BAGUMA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF</strong></p> <p><strong>VERSUS</strong></p> <p><strong>SEFUROZA MATENDE::::::::::::::::::::::::::::::::::::::::::::::::::::::::::DEFENDANT<br /> BEFORE: </strong><strong><u>THE HONOURABLE MR. JUSTICE I. MUKANZA&nbsp;</u></strong></p> <p><strong><u>JUDGMENT</u></strong></p> <div>The plaintiff in this case is known as Joseph Baguma. He is the eldest son of Eridade Matende the intestate. He is suing the defendant Sefuroza Matende as the grantee of letters of<strong> </strong>Administration under Administration Case No. Dr. MFP 2 of 1985<em>. </em>He is seeking for orders that the letters of administration granted to the defendant be revoked and that the same be granted to the plaintiff his brothers or brothers in the order of the ages or to Mrs. Molly Matende. He also prayed for an order to restrain the defendant from dealing or meddling in the estate of the intestate and finally sought for an order that the defendant makes an account of or returns any property forming the estate of the late Matende to the Plaintiff. He also requested for an order for the costs of this suit.<br /> The facts of this case are simply that the late Eridadi Matende died at Mulago Hospital on the 16<sup>th</sup> December, 1984. He had his residence at Kijura, Hakibale, Burahya County in Kabarole District. He was lawfully married in church to Molly Matende mother of the plaintiff at Rukungiri on 23<sup>rd</sup> March, 1957. The late Matende had Land and a house at the material time at Rukungiri where Molly Matende lived.<br /> The said Flavia Molly Matende produced with the late Elidadi Matende four children namely:</div> <div>1. The plaintiff aged 27 years.<br /> 2. Edison Magezi 25 years.<br /> 3<em>. </em>Betty Kasingwire 23 years.</div> <div>4. Milton Mworozi 21 years.</div> <div>Subsequently Elidadi Matende emigrated<em> </em>from Rukungiri and came to Kijura in Kabarole District in the late 60’s. He took on the defendant as a wife and cohabited with her from 1966 to 1984 till his death. They were blessed with the following issues namely:-</div> <div>1. Israel Nahabwa aged 23 years.</div> <div>2. Margret Tusiime aged 20 years.</div> <div>3. Yerokamu Mutanda aged, Flaviour Molly Matende remained in Rukungiri but her children joined their father at Kijura where they continued with their studies.</div> <div>In his plaint the plaintiff claimed that the late Elidadi Masende left an estate comprising of the properties whose particulars appear on the distribution list marked “B” and the short list “C”.<em> </em>That the defendant should not have obtained letters of administration as there are the adult children of the deceased who include the plaintiff. That the defendant wrongly presented herself as a wife of the late Elidadi Matende when the legal wife Flaviour Molly Matende the proper person to apply and obtain letters of administration was alive. The defendant concealed the material and correct information about the estate having regard to facts contained in the attached lists “B” &amp; “C”.<br /> That the proceedings to obtain letters of administration were defective and the grant was obtained fraudulently by making a false representation or by concealing from the court something material to the case.<br /> That the grant was obtained by means of an untrue allegation of fact essential in point of law to justify the grant though such allegation was made in ignorance or inadvertently.</div> <div>That the person to whom the grant was made has willfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Part XXXIV of the Act or has exhibited under that Act an inventory or account which is untrue in a material respect. The plaint continued to show that the defendant is estopped from denying the distribution of the estate as per list “B” which she signed as evidence of her privity and consent to the transaction and distribution of the estate.<br /> In her written statement of defence the defendant contended that the said Flaviour Molly Matende was not a wife of the deceased for the purpose of the administration of the estate of the late Eldadi Matende and lawfully and faithfully administered part of the said estate situate in Kabarole District but did not administer the part of the estate that was left in Kabale and or Rukungiri District. She further contended that distribution referred to by the plaintiff in the plaint did not in any manner revoke or prejudices her powers and duties as administrator of the estate of the deceased.</div> <div>At the commencement of the trial of thin case the following issues were framed:</div> <div>1. The first issue was whether the defendant was the wife of the deceased as solemnly declared.<br /> 2. The second issue was whether Molly Matende was married to the deceased at the time of his death.<br /> 3.<em> </em>The third issue was whether the defendant was proper person to apply for letters of<em> </em>administration.<br /> 4. The fourth issue was whether the defendant administered the estate properly.<br /> 5.<em> </em>The fifth issue was whether the letters of administration granted to the defendants should not be revoked and the<br /> 6.<em> </em>Sixth issue and last issue was whether Mally Matende was entitled to any<em> </em>part of the estate or at all.</div> <div>With regard to the first issue whether the defendant was the wife of the late Elidadi Matende evidence on record from P.W.4, P.W.3 P.W.2 and even the defendant as DW1 show that the latter ad been staying together with the late Matende as husband and wife from at least 1966 up to 1984 when the intestate Elidadi Matende passed away. There was evidence from DW1 that the late Matende gave dowries of 2 goats and 5,000/= shillings to the parents of D.W.1 the defendant. Whereas PW.4<em> </em>&amp; PW.3, who testified that they were close friends of the deceased and relatives of the defendant contended that no such dowries were ever paid. This is how a question of credibility. Whom do I believe the defendant or both PW.3 &amp; PW4. The learned counsel representing the plaintiff submitted that under the laws of Uganda marriage could be contracted under the marriage Act and under various statutes like Moslem marriage Act.<br /> There is also provision for contracting customary marriage but even then there is the legal requirement that such customary marriage ought to be registered. There is no known marriage between the deceased and the defendant so all that the defendant told the Honourable court was that her dead parents were aware that certain customary rites were contracted in order to give the relationship the semblance of a customary marriage but that was disputed by even her relatives. He finally submitted that the defendant was not a woman who could be referred to as a wife of the deceased but was a mere girl friend.<br /> Mr. Musana the learned counsel appearing for the defendant submitted that there was a customary marriage between the defendant and the plaintiff. He referred me to section 11 of the Customary marriage Registration decree (Decree 16/73) which states:—<br /> <em>“Not withstanding the provisions of section </em><em>37 </em><em>of the marriage</em><em> Act where a person was married under the marriage Act or under any other law relating to marriage and </em><em>subsequently</em><em> contracted a customary marriage during the subsistence of the previous monogamous marriage but before the coming int</em><em>o force of this decree such subsequent customary</em><em> marriage shall be </em><em>deemed to be a valid marriage”.</em><em> Decree 16/7</em><em>3 came into force on 1/10/1973.See statut</em><em>ory instrument 1973 No. </em><em>110 (The customa</em><em>ry m</em><em>a</em><em>rriage Registration order </em><em>1973</em><em>)</em><em>.</em><em>”</em><br /> He contended that there existed a customary marriage between the defendant and the late Elidadi Matende the latter having paid the bride price to the parents of the defendant<em>. </em><br /> It is pertinent at this stage and for the sake<em> </em>of clarity to reproduce the provision of section 37<em> </em>of the marriage Act Cap 211 referred<em> </em>to in the above law, It says:—<br /> <em>“Any person wh</em><em>o is m</em><em>arried under this Act or whose </em><em>marriages is declared b</em><em>y this act to be valid shall be incapable during the continuance</em><em> of such </em><em>marriage </em><em>of contracting a valid marriage </em><em>under customary law</em><em> but save as aforesaid </em><em>nothing in this </em><em>Act </em><em>contained</em><em> s</em><em>hall affect the validity of an </em><em>marriage contracted under or in </em><em>accordance</em><em> with an</em><em>y customary or in way manner ap</em><em>pl</em><em>ied to marriages so contracted.”</em><em> </em><br /> In the instant case there was unchallenged evidence from PW.2 to show that the latter got married to Elidadi on 23<sup>rd</sup><em> </em>March, 1957 and that the same was celebrated at St. Peter’s Church Nyakatare, Kinkizi in Rukungiri in conformity with section 21 of the marriage Act Cap 211. That was a monogamous marriage and at the time of the death of the Elidadi Matende there appear to be no dispute about<em> </em>the subsistence of that marriage. Matende took on Sefuroza Matende as a wife. I believe the defendant when she testified that Matende gave the bride price to her parents in the form of 2 goats and 5,000/=. I reject the stories of PW.3 and PW.4 that no such dowries were paid simply because the two witnesses were merely relatives of the defendant and friends to Matende. They were not close enough to know what took place of what transpired between the defendant and the late Matende all the time. The defendant impressed me as a truthful witness. Therefore on payment of the dowries to the parents of the defendant who are now dead there existed a subsisting customary marriage between the late Matende and the defendant at the time of the formers death despite the fact that a monogamous marriage did exist between the said intestate and Molly Matende it being immaterial that the marriage had never been registered under decree 16/73.<em> </em>That was not necessary. I do not therefore agree with the submissions of the learned counsel representing the plaintiff that the defendant Sefuroza was a mere girl friend of the late Elidadi Matende. I do disagree with him that such marriage should have been registered by then. The first issue therefore is answered to affirmatively that the defendant was a wife of the intestate at the latter’s death having married her under the customary law See <u>Rex v Ouma s/o Ahad (1910 </u><u>–</u><u> 20</u><u>)</u><u> 2 ULR 152 quoted with approval. Uganda </u><u>.V.</u><u> Kato &amp; </u><u>3</u><em><u> </u></em><u>others </u><u>(</u><u>1976</u><u>) HCB 261,</u><u> See also S. 119 </u><u>(1</u><u>) </u>of the evidence Act as amended by Decree No. 25 of 1971. And as what amounts to .civil customary law <u>See S. 242 of the Magistrates Court Act 1970. </u><br /> As to the second issue, whether Molly Matende was married to the deceased at the time of his death. This issue was covered when considering the first issue and there appears to be no evidence to challenge the marriage between Molly Matende and the intestate. It is a fact that this marriage was celebrated at Rukungiri and the same was still subsisting at the time Eldadi Matende passed away. What is in dispute however was whether Molly Matende was wife of the intestate for the purposes of the administration of the estate of the late Matende.<br /> In her evidence the defendant testified that P.W.2 Molly Matende had separated with the deceased when she gave birth to other children not belonging to the said Eldadi Matende. The five other children were mentioned as <u>Allan Kesumye,</u><u> Godfrey Mwesigwa, Peace Ampaire, Nora Kamuhangi </u><u>and </u><u>Rodgers Alinaitwe. </u>In her testimony Molly Matende categorically refuted any suggestion that she got other children with other men other than Molly Matende but there was a material contradiction in her testimony when the plaintiff her son gave his evidence. The plaintiff made it clear that the late Matende produced only 4 children with his mother. That was himself, Magesi, Murozi and Moses who is dead. He denied any knowledge of the rest of his mothers children. This contradiction confirms the defendant’s story that Molly Matende separated with the deceased because of the five children she got from other men. This fact of separation is further supported by PW.2 who testified that she (PW.2) had never been to Kijura from 1973 till the death of her husband in 1984. PW.4 also testified to the same thing. He further testified that when he PW.4 went to Kabale the deceased was refusing to accept Kesimye as his child and Mweigwa. These were the children born after the first four and a meeting was convened to resolve the issue. PW.4 made it clear that he did not know the paternity of the rest of children of Molly Matende.<br /> I seem to accept the submission of the learned counsel appearing for the defence that the late Eldadi Matende immigrated from Rukuigiri to Hakibale Kijura Kabarole District to start a new life.<br /> I don’t agree with the plaintiff’s counsel that the deceased used to visit Molly at Rukungiri vice verses<br /> However under section 31 of the Succession Act as amended by Decree 22 of 1972 which states:—<br /> <em>“No wife or husband of an </em><em>intestate </em><em>shall tak</em><em>e any interest in the estate of </em><em>intestate if, at the death of the intestate he or she was separated from the intestates as </em><em>a member of the same household. </em><em>Provided that this section shall not apply where such wife or husband has been absent on an approved course of study i</em><em>n an educational institution.”</em></div> <div>Since Molly Matende was at the time of the death of the intestate separated from the latter living at Rukungiri and not staying together with the intestate at Kijura in the same household under the Succession Act Molly Matende does not qualify to take any interest in the estate of the late Matende.<br /> &nbsp;</div> <div>As regards the third issue, whether the defendant was the proper person to be granted letters of administration. The intestate died living a house at Kitumba/Kijura and three plots of land at different places near Kitumba. The facts concerning the estate were contained in annextures “B” accompanying the plaint. There was evidence from PW<em>.</em>4<em> </em>and PW.3 to show that immediately after the death of Eldadi Matende the friends of the deceased at a clans meeting made a document whereby they distributed the estate of the deceased. That the defendant and Molly Matende were signatories to this document exhibit P1, PW.4, PW.1 and PW.3<em> </em>were not happy when the defendant went around and obtained letters of administration. Their evidence further showed that during their stay i.e. the defendant and the intestate a house was constructed at Kitumba in which the intestate and the defendant used to cohabit. It was the plaintiff’s case that the defendant never contributed any money towards the construction of that house. PW.3 &amp; PW.4 were adamant that it was PW.3 who advanced a loan to the intestate and the latter bought 25 Iron sheets for roofing the house. PW.3 even went further and testified that the house at Kitumba was built jointly by the intestate and his son the plaintiff. The latter was silent about this matter. The defence case on the other hand was that the deceased came as a causal labour but she together with the defendant first lived in a rented house. Later on acquired land of their own and afterwards built a house. By the time the deceased passed away they had acquired three plots of land at Kyakudupa, Kabenda and Kitemba. The deceased and the defendant used to engage in different trades. The defendant used to sell waragi and had a retail shop whereas the deceased was a tailor and did some fishing and out of these proceeds they built the estate now in dispute. There was evidence that the deceased had another estate at Rukungiri and after his death the estate was sold by PW.1 and PW.2 and out of the proceeds of the sale PW.1 has now built himself a permanent house at Hakibale just a few miles away from Kitumba Kijura where PW.1 is staying with his mother PW.2 together with his brothers and sisters.</div> <div>The learned counsel representing the plaintiff submitted that the defendant was not the proper person to apply for letters of administration. In her application she mentioned herself as a wife and she exclude Molly Matende and then mentioned the four children of Molly but never mentioned their mothers. She was liable to be punished under Section 249 of the Succession Act. She should have stated that Matende was survived by a lady called Molly Matende. He continued that the District Registrar who signed her letters of administration referred to himself as a Chief Magistrate instead of District Registrar/Delegate. Therefore the defendant never got letters of administration. That the estate of the late Matende remained improperly administered. The children of Molly Matende were living from hand to mouth and this suit was brought to show that the defendant hijacked the estate of the intestate leaving other defendants of the Estate un provided for. That molly Matende should be included in any future grant.<br /> The learned Counsel representing the defendant submitted that the defendant was the proper person to be granted letters of Administration and referred me to a number authorities.</div> <div><u>In </u><u>Farzia Rwobuganda .V. Donato Banemuk</u><u>a </u><u>(1978)</u><u> </u><u>HCB P.</u><u>2</u><u>44</u><u> </u>The plaintiff as a widow of the deceased applied for letters of administration of the deceased’s Estate. The defendant who lived in Kampala and had a personal house at Najjanakumbi opposed the grant of letters of administration to plaintiff. The position was that the deceased in 1964 married in church one Frediana but they separated in 1965<em> </em>but never legally divorced. Fredina never returned to the home of the deceased until his death, subsequent to the separation the deceased took on the plaintiff in 1967 and dowry was paid in 1970. She contended that she was lawfully married under the customary law.<br /> At the hearing a will dated l0th August 1966 in which the deceased appointed the defendant his executor was produced and was not challenged. It was held that the plaintiff was married under customary law marriage. The marriage would have been invalid if after the customary marriages Registration Decree (Decree 16/73).<em> </em><br /> That at the time of the deceased’s death there was a valid customary marriage between the deceased and the plaintiff.<br /> In terms of section 56<em> </em>(1) of the Succession Act every will is revoked by the marriage of the maker. The wi1l therefore stood revoked when the deceased married plaintiff in 1970. Deceased would be regarded as having died intestate.<br /> In terms of section 31 (1) of the Succession Act as amended by decree 22 of 1972<em> </em>no spouse of an intestate shall take an interest in the estate of an intestate if at the death of the spouse was separated from the intestate as a member of the same household. Deceased’s first wife had separated since 1965 up to the time of the deceased death she would therefore take no interest in the estate of the deceased.</div> <div>The court further held that the plaintiff was an industrious woman fit and proper person to be granted letters of administration. There was no objection from the Administrator General and letters of administration were granted. It is the considered opinion of this court that the authority in Rwabaganda’s case is applicable to the instant case as already found the defendant was the wife of the deceased at the time of his death having got married to he deceased under the customary law. The marriage would have been invalid if it was celebrated after customary marriage registration Decree (Decree 16/73)<em>. </em>Molly Matende PW.2 and first wife of the deceased though had not been divorced at the time of the death of Eldadi Matende for the purpose of section 31 of the Succession Act as amended by decree 22<em> </em>of 1972 was separated from the deceased as a member of the same household and as such could not take interest in the estate. And for all intent and purposes the defendant was a very hardworking woman. She was very industrious. She jointly worked with the deceased to make up the estate under dispute. That is the house at Kitumba Kijura, Plots of land at Kyakudupa, Kabende and Kitumba. It would be very unfair if she was not accorded the opportunity to administer the estate she had so tirelessly established jointly with the deceased.<br /> PW.l and PW.2 had land and house at Rukungiri. According to PW.1 the late Matende had a grass thatched house at Rukungiri and the lands there did not belong to Matende. Whereas his mother Molly Matende testified that they had an Iron roofed house but the portions of land where the said house was built did not belong to them. According to the defendant the deceased had corrugated Iron roofed house and pieces of land at Murohonde and another one at Kyabakazi. There was evidence to the effect that immediately the deceased passed away the corrugated Iron roofed house at Rukungiri was pulled down pieces of land were sold off as per the testimony of the defendant whom I believed told this court the truth. Thereafter PW.1 &amp; PW.2 bought another land in Kijura Kabarole District and at the same time wanted to administer the estate of the deceased at Kijura. That would be unfair to the defendant. <u>In Rimme</u><u>r vs Rimmer </u><u>[</u><u>1952</u><u>]</u><strong><em><u> </u></em></strong><u>2 AER P.</u><u>863</u><em><u> </u></em>the husband and wife bought a house together and the house registered in the names of the husband and later they separated and the husband sold off the house. The wife sought the shares of the proceeds of the sale. It was held that the shares would be divided equally. In the instant case though the house at Kitumba had never been sold and the defendant was not after the proceeds of the sale as was in Rimmers case but the latter case was an authority to the effect that it<em> </em>would be unjust to appoint another person as an administrator for the estate contributed to jointly by the defendant and the deceased more so especially where the defendant was very enterprising.</div> <div>The document exhibit P1 drawn by friends of the deceased distributing the estate of the deceased to various people of which the defendant PW.2 plus PW.4<em> </em>and PW.3 were signatories. I am of the view that it was lawfully repudiated by the defendant since it was intermeddling with the estate of the deceased as per section 268<em> </em>of the Succession Act. <u>This is so because the document was not </u><u>drawn fo</u><u>r </u><u>the purpose</u><u> of preserving the estate of </u>preserving the estate of <u>the deceased or providing for his funeral or for the immediate necessities of the </u><u>deceased’s own fam</u><u>ily and </u><u>extr</u><u>a and the document was not </u><u>authorizing</u><u> any one to </u><u>apply</u><u> for letters of administration. </u><br /> I further find that there was no miscarriage of Justice occasioned to Molly Matende when, the defendant did not include her in the list of beneficiaries because Molly Matende had separated from the deceased the accused for the purposes of section 31 of the Succession Act, as amended by Decree 22 of 1972 and because of this separation the matrimonial relationship, between the deceased and Molly Matende had ceased to exist. She was therefore disentitled for the grant of letters of Administration. <u>See Nye</u><u>ndohwa Lucy v. Nyendohwa Robert </u>and <u>Anor </u><u>CS</u><u> No. 1068/83 repo</u><u>rted,</u><u> </u><u>1989 KALR P.</u><u>1</u>08 Besides the estate at Kijura the deceased bad another estate at Rukungiri where Molly Matende was staying and she had been properly provided for.<br /> As to the submission by the learned counsel representing the plaintiff that the Chief Magistrate signed the letters of administration as Chief Magistrate instead of signing as a District Delegate and that there were no letters of administration granted to the defendant. I am of the view<strong><em> </em></strong>that that was an irregularity which did not in anyway nullify the grant. The duties and powers of a Registrar are laid down in order 44 and 46 of the Civil Procedure Rules. Also See S.235 &amp; 234 Succession Act Cap 139 as amended by Decree 22 of 1972. I do not need to reproduce those provisions of the law here. All along it was common knowledge that the defendant had applied for letters of Administration and the Chief Magistrate as district delegate proceeded to grant the same I am of the opinion that the letters of administration were properly granted to the defendant.<br /> In the plaint the plaintiff wanted the letters of administration to be granted to him, his brothers or to Mrs. Molly Matende. I have already found that Mrs. Molly Matende was disentitled to the grant of letters of administration because of the reasons given above.<br /> Under section 201 of the Succession Act Cap 139 as amended by the Succession Amendment Decree (Decree 22 of 1972) the defendant as opposed to the plaintiff was entitled to the grant of letters of administration because she was entitled to a big share in the distribution of the assets of the intestate than then the plaintiff who was a mare customary heir. In the end Issue No.3 is answer to the affirmative</div> <div>The fourth issue is whether the defendant administered the estate properly. The plaintiff’s case was that the defendant omitted to exhibit an inventory or account in accordance with the laid down provision of the law or had exhibited an account which was untrue in material particular.<br /> The defendant on the other hand contended that after obtaining the letters of administration she lawfully and faithfully administered the part of the deceased’s estate which was in Kabarole District but did not administer the estate that was in Rukungiri in Kabarole District. S. 280 of the Succession Act Cap 139 states:-<br /> <em>“As executor or </em><em>administrator shall within </em><em>six</em><em> </em><em>months from the grant of probate or letters of administration or within such further time as the court which granted the probate or letters of administration may from time to time appoint, exhibit in that court an inventory containing a full and true estimate of’ all the prop</em><em>erty in possession and all the credits and </em><em>also all the debts owing by any person which the executor or administrator is </em><em>entitled </em><em>in the </em><em>character and shall in like manner withi</em><em>n one year from the grant or within such</em><em> </em><em>further time as the said court may from time to</em><em> time</em><em> appoint</em><em> </em><em>exhibit an account the estate showing the asse</em><em>ts which have come to his hands</em><em> and the manner in which they hav</em><em>e been applied or dispose of.”</em><br /> The defendant was granted letters of administration on 24/4/1985 as already found by the District Delegate. By virtue of exhibit D2 dated 21/2/1987 the defendant made out an inventory showing how she deposed of the estate of the intestate. There is no copy of exhibit D2 in the file MFP 21/85 granting letters of administration to the defendant.<br /> The learned counsel appearing for the plaintiff challenged the existence of such a document. I believed the defendant that such inventory was made on 21/2/1987 several months after the statutory period of six months. It appears to be mandatory that the inventory must be made within six months after the grant of letters of administration. However the instant case was filed against the defendant on 20/5/1985 just less than one month after the grant of letters of administration.</div> <div>Nonetheless in the said inventory exhibit D2 the first inventory showed that the land at Kyakudupa was given to the plaintiff whereas the second inventory read that the land at Kibedi went to Betty Kasingwire. Another piece of land was given to Magezi and other properties were given to her own issues and herself.<br /> From the inventory it is shown that Baguma the plaintiff, Betty Kaswingwire &amp;<strong><em> </em></strong>Magezi Edison are all children of Molly Matende. I am of the view that they were provided for. So it is not true when the learned counsel appearing for the plaintiff submitted that, the defendant did not administer the estate properly I seem to agree with the submission of the learned counsel for the defendant that if there was any part of the estate which was not well looked after it was because o the Civil suit that was instituted against the defendant.<br /> The fifth issue is whether the letters of administration granted to the defendant should not be revoked. Section 233<strong><em> </em></strong>1 (e) of the Succession Act confers on a court the discretion to revoke a grant of probate or letters of administration if the grantee thereof has willfully and without reasonable cause not exhibited an inventory or account of the estate as required under section 280 of the Succession Act, the provision of which section are mandatory and that is that the inventory must be exhibited within six<strong> </strong>months and the account within such period as the court may from time to time appoint.<br /> For the plaintiff to succeed he had to show that the failure to exhibit an inventory and account was willful and without reasonable cause and the Word “Willfully” as used in section 233 6f the Succession Act means deliberate or intentional. <u>See Francis Ddi</u><u>ba Nduga vs Rita Nansikombi an</u><u>d</u><u> </u><u>others </u><u>(</u><u>1980</u><u>) </u><u>HCB 1980. </u><br /> I have already found that the defendant made an inventory of the estate of the deceased several months after the date of the grant. In case I am wrong in so finding there was no evidence to show that the defendant’s failure to exhibit an inventory and account was deliberate or intentional. I therefore see no good cause for revoking the letters of administration granted to the defendant.</div> <div>The sixth and last issue was whether Molly Matende was entitled to any part of the estate or at all. This issue was a bit touched when considering whether Molly Matende was married to the deceased. It was found that Molly Matende was the first wife of the deceased but at the time of the latter’s death they had separated and was not a wife for the purpose of section 31 of the Succession Act as amended by Decree 22 of 1972. She was not a member of the same household with the intestate at the time of the latter’s death and could not take interest in the estate of Eldadi Matende.<br /> I believed the defendant that Molly Matende had land and house at Rukungiri which she together with the plaintiff hurriedly disposed of and came to Kijura/Kabarole where they proceeded to purchase land and construct a house in which the plaintiff together with PW.2, brothers and sisters are staying. The plaintiff was now pressing for the revocation of the letters of administration granted to the defendant so that he administers the estate of the intestate here at Kijura in Kabarole District. Because of what has been stated above he could not do that.<br /> I am of the view that I was not sufficiently addressed to the above issues by the learned counsels appearing for the parties and as such did not find it necessary to reproduce their submissions but suffice to say that the defendant legally and lawfully obtained letters of administration to the estate of the late Eldadi Matende. She also lawfully and successfully administered the estate. I further found that the distribution of the estate carried out by her was fairly done. All the issues of Molly Matende who used to reside at Kijura with the defendant and the intestate at the time of the latter’s death as hitherto found by the court were well provided for. Each child got some shares of the estate after the distribution. It is the considered opinion of this court that the defendant should continue to administer the estate of the late Molly Matende. The sixth issue is therefore answered to negatively.<br /> From what has transpired above this court is of the view that the plaintiff has failed to prove his claim on a balance of probabilities and in the end result the suit is dismissed with costs.</div> <p><strong>I. MUKANZA</strong><br /> <strong><u>JUDGE </u></strong><br /> <strong>4/11/1991</strong><br /> <br /> <!-- invalid font number 31506 --></p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-2c78a9f09becc2813f37bf1630a4a08e"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/high-court/1991/23/high-court-1991-23.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:53:59 +0000 Anonymous 16617 at https://old.ulii.org Florence Kemitungo v Yolamu Katuramu (Civil Suit No. DR. MFP 6 of 1991) ((Civil Suit No. DR. MFP 6 of 1991)) [1991] UGHC 15 (30 July 1991); https://old.ulii.org/ug/judgment/high-court/1991/15 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-remedies" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Remedies</a></li><li class="field-item odd"><a href="/tags/injunctions-and-interdicts" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Injunctions and interdicts</a></li><li class="field-item even"><a href="/tags/injunction" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Injunction</a></li><li class="field-item odd"><a href="/tags/family-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Family Law</a></li><li class="field-item even"><a href="/tags/matrimonial-property-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Matrimonial Property Law</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p>&nbsp;</p> <p><strong><u>THE REPUBLIC OF UGANDA</u></strong><br /> <strong>IN THE HIGH </strong><strong>COURT OF UGANDA AT FORT PORTAL</strong><br /> <strong>CIVIL SUIT NO. DR. MFP </strong><strong><em>6 </em></strong><strong>OF 1991</strong><br /> <strong>(From Probate and Administrati</strong><strong>on cause No. MF 11/91)</strong></p> <p><strong>FLORENCE KEMITUNGO</strong><strong>:::::::::::::::::::::::::::</strong><strong>:::::::::::::</strong><strong>:</strong><strong>:::::::::::</strong><strong>::PLAINTIFF </strong></p> <p><strong>- VERSUS </strong><strong>–</strong></p> <p><strong>YOLAMU KATURAMU::::::::::::::::::::::</strong><strong>::::::::::::::::::::::::::::::::;:::DEFENDANT<br /> &nbsp;</strong><strong>BEFOR </strong><strong><u>THE </u></strong><strong><u>HONO</u></strong><strong><u>URABLE</u></strong><strong><u> MR. JUSTICE I. MUKANZA</u></strong></p> <p><strong><u>RULIN</u></strong><strong><u>G</u></strong></p> <div>This is an application by notice of motion brought by the applicant/plaintiff under order 37<em> </em>rule 1 and order 48 rules I and 2 of the Civil Procedure Rules seeking for<em> </em>an<em> </em>order from this court for a temporary injunction to restrain the respondent/defendant from taking or in any way disposing of the stock which is in this shop which used to belong to the late David Kiiza, collecting and receiving rents from the tenants at Rwengoma, cutting bunches of Matooke from the plantation at Rwengoma, cutting eucalyptus<em> </em>trees from<strong><em> </em></strong>the tree plantation at Rwengoma, using money accruing from the estate of the late David Kiiza, and finally that the respondent/defendant be retrained in any way from interfering with the estate of the late David Kiiza until further orders of this court.<br /> In her affidavit in support of the application the applicant/plaintiff deponed as follows:-<br /> <em>“That she is the widow of </em><em>the late David Kiiza </em><em>who died int</em><em>estate on 22nd February, 1991. On 10</em><em><sup>th</sup></em><em> </em><em>April 1991</em><em> she applied to the High Court </em><em>at Fort Portal for letters of administratio</em><em>n to be granted to her. On 17</em><em><sup>th</sup></em><em> </em><em>April 1991 the defendant purportedly laid a caveat against the said application by her. In consequence the estate of the deceased remain</em><em>s</em><em> without a le</em><em>gally appointed administrator.</em><br /> <em>That one Richard Sabiiti and Moses Kandole both brothers of the deceased were interfering with the estate. The said Sabiiti had since the de</em><em>ath of the deceased run the shop</em><em> and s</em><em>old off most of the stock</em><em> and that was likely to continue. The defendant was not only </em><em>supporting the acts of Sabiiti and Kandole</em><em> but also benefits from them.</em><br /> <em>That the Caveat en</em><em>tered by the defendant/responden</em><em>t was intended to maintain the status quo. As a result of the status quo the stock in the shop has </em><em>been greatly reduced from Shs. 1</em><em>,940,000/= as it was originally at the time of Kiiza’s death to about Shs. 200,000/= or less presently. That since the death of the deceased about ten eucalyptus trees have been cut down from the plantation at Rwengoma and that now more are likely to be cut by her sister in law with full backing of the respondent/defendant. Since the death of the deceased</em><em> </em><em>she has not been provided wi</em><em>th any money to look after the </em><em>children of the deceased.” </em><br /> In his submissions to this court the learned counsel representing the applicant read the affidavits in support of the applications. I do not therefore have to reproduce his submission.<br /> The learned counsel appearing for the respondent/defendant submitted that the main issue there is the mutual relationship between the applicant and the respondent. By issuing a temporary applicant the honourable court would be determining the issue of the relationship between the applicant and the respondent because that would be indicating that the applicant has beneficiary interest or otherwise in the estate of the late Kiiza and the court would be deciding the main issue and thus disposing of the same. A temporary injunction cannot be granted where the effect could be to dispose of the main issue. He referred me to the case of <u>Muslim Supreme Court .V.</u><u> Mulumba and others 1980 HCB P. 11 </u>A temporary injunction is also issued where there is a likelihood of irreparable injury caused to the applicant if the grant of such injunction were not made. He referred me to the case of <u>Rwenzori Tea Co. Ltd </u><u>vs.</u><u> Kelsale ULR Vol. </u><u>8</u><u> Page 204.</u><br /> He continued it was the contention of the defendant/respondent that the applicant had no beneficiary interest or otherwise in the estate of the deceased. Therefore she could not benefit from an order made by this court in this suit of the estate of the late Kiiza. She has nothing to suffer, if the deceased’s estate was put to waste as she alleges. The purpose of the provisions of order <em>37 </em>of the Civil Procedure rules were not meant to benefit persons without any interest in the property allegedly being protected. The mere fact that the applicant had children with the deceased was not enough. That did not entitle her to a share in the estate of the deceased, I was referred to the case of <strong><u>Christine Male</u></strong><strong><u> &amp; Another </u></strong><strong><u> .V. S.M Namanda &amp; another 1982 HCB Page 140</u></strong><strong><u>.</u></strong><u> </u><br /> The learned counsel further submitted that following the death of the late Kiiza the family members appointed a committee to care take the Estate of the deceased. What the applicant is alleging in the application is meant to maintain the estate and look after the whole family of the deceased’s children. In this Case what<em> </em>the respondent and other committee members were trying to do was to preserve the estate of the deceased until a proper person could apply to administer the estate. That the deceased was survived by 10 children. Therefore the said committee is using the estate left by the deceased to maintain the welfare of the deceased’s children. The family could not wait until the person has been appointed to administer the estate so as to look after the welfare of the children. In other words the learned counsel commended that the family committee has taken effective control and administer the estate of the late Kiiza as deponed by the applicant in her affidavit.<br /> In reply the learned counsel representing the applicant/plaintiff submitted that his learned friend should have concentrated on the law and not on evidence because he should have submitted an affidavit in reply. He prayed that the Honourable court does not attach any weight to part of his reply to the applicant’s affidavit.<br /> About the marital status of the, applicant the learned counsel submitted that both in the application for letters of administration and in the present application the applicant leaves no doubt that she was married to the deceased the owner of the estate. The same fact features in the plaint it was up to the respondent to swear an affidavit showing that the applicant/plaintiff was not married to the deceased.<br /> I have had the occasion to peruse the affidavit in support of the application and also listened to the lengthy submission of the learned counsels representing the parties. The conditions for the grant of interlocutory injunctions was laid down by Spray v P in the case of <strong><u>Giella vs Casman Brown an</u></strong><strong><u>d Co. Ltd </u></strong><strong><u>[197</u></strong><strong><u>3</u></strong><strong><u>] </u></strong><strong><u>EA</u></strong><strong><u> P.358 as follows:-</u></strong><br /> “<em>To begin with the applicant must show a prima </em><em>f</em><em>acie case </em><em>with</em><strong><em> </em></strong><em>the </em><em>probability of success.</em><br /> <em>Secondly an </em><em>interlocutory injunction will not normally</em><em> be granted </em><em>unless the </em><em>applicant</em><em> might otherwise suffer irreparable injury which would not adequately be compe</em><em>nsated by an award of damages.</em><br /> <em>And finally if the courts is in doubt it will decide the application on the balance of convenience </em><em><u>See also </u></em><strong><em><u>E.A. Industries vs Truffods </u></em></strong><strong><em><u>[</u></em></strong><strong><em><u>1972</u></em></strong><strong><em><u>]</u></em></strong><strong><em><u> </u></em></strong><strong><em><u>EA 420,</u></em></strong><strong><em><u> Nsubuga v Anor vs Mutawe </u></em></strong><strong><em><u>[197</u></em></strong><strong><em><u>4</u></em></strong><strong><em><u>] </u></em></strong><strong><em><u>EA 487.</u></em></strong><strong><em><u>”</u></em></strong><br /> In the instant case the applicant swore an affidavit to the effect that she is the widow of the late Kiiza David and had some children as a result of that union. The learned counsel representing the respondent submitted that the applicant is not a beneficiary to the estate of the deceased and that the mere fact that she had children with the deceased that alone, did not entitle her to administer the estate of the deceased. What was contained in the affidavit was evidence. The respondent never swore an affidavit in reply to controvert the applicant’s affidavit. The learned counsel submitted that there was a family committee appointed to care take the estate of the deceased. It is not known who the members of the committee are and their relationship with the deceased. The learned counsel submitted that the committee looks after the 10 children of the deceased. It is not clear whether the ten children include the issues of the applicant or they are children from other women. The respondent should have resolved the matter by filing an affidavit in reply. As far as this court is concerned there is evidence that the applicant was the widow/wife of the deceased and this in my considered opinion presupposes a valid marriage between the applicant and the late David Kiiza. Therefore under S. 201 of the Succession Act Cap 139 as amended by section 1 (p) of the Succession Amendment Decree 22 of 1972 she is entitled to grant of letters of administration. In the end the applicant had shown a prima facie case with the probability of success.<br /> Be that as it may the estate of the late David Kiiza appears to have substantial assets. There are houses from which the respondent and his agents are collecting a lot of rent. There is a shop whose stock was worth over a million at the time the deceased passed away. The stock has now depleted to bare Sh.200,000,/=. Matooke in banana plantations are being cut down at random and even eucalyptus trees are being cut from the shamba of trees. If at all the temporary injunction is not granted the applicant might suffer irreparable damage which would not adequately be compensated by an award of damages. It would be very difficult to measure damages that would be granted to the applicant in case the temporary injunction was not granted.<br /> I am of the opinion that the applicant had put a strong case for the grant of a temporary injunction. I do not therefore think it is necessary to consider the last ingredient upon which the court has to consider when granting the interlocutory injunction. That is when in doubt the court would decide the application on balance of convenience.<br /> I think it is appropriate at this stage to comment upon some of authorities cited by the learned counsel representing the respondent in support of his submission. In the case of <strong>Christine Male &amp; Anor .V. S.M</strong><strong> </strong><strong>Na</strong><strong>manda &amp; Anor Supra</strong> There the court considered about the grant of letters of Administration where the deceased left a legal wife, concubine and young children with different mothers. The court held that the only person entitled to grant of letters of administration was the legal wife. The facts of that Case is distinguishable from the instant case. In that in the instant case only a wife is involved whereas in Christine case there were more than one. Also in the instant case there is no evidence to show that the applicant was not the legal wife of the late David Kiiza. With regard to the other 2 authorities referred to me i.e. Rwenzori the Estate &amp; Muslims Supreme council. I have not been able to find a copy of HCB 1980 and the ULR Volume 7 and even the counsel failed to provide me with the authorities. Nonetheless I am satisfied that the applicant made up a strong case which entitles her to grant of a temporary injunction.<br /> In the premises the applicant is granted a temporary injunction to restrain the respondent/defendant his servants and or agents from selling taking in any way disposing of the stock which is in the shop which used to belong to the late David Kiiza, collecting and or receiving rents from the tenants at Rwengoma, cutting bunches of matooke from the plantation at Rwengoma, cutting eucalyptus trees from the tree plantation at Rwengoma, using money accruing from the estate of the late David Kiiza, Also the respondent his servants and or agents are restrained in any way from interfering with the estate of the late David Kiiza until further order by this court. Costs of this application are provided for.</div> <p>&nbsp;</p> <p><strong>I. MUKANZA</strong><br /> <strong><u>J U D GE </u></strong><br /> <strong>30/7/91</strong><br /> &nbsp;</p> <p>&nbsp;</p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-7354d3507270efc74e6deb4cf7f1a2c0"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/high-court/1991/15/high-court-1991-15.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:53:59 +0000 Anonymous 16602 at https://old.ulii.org Juliet Kalema v William Kalema & Anor ((CIVIL APPEAL NO. 95 OF 2003)) [2004] UGCA 15 (16 August 2004); https://old.ulii.org/ug/judgment/court-appeal/2004/15 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/family-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Family Law</a></li><li class="field-item odd"><a href="/tags/matrimonial-property-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Matrimonial Property Law</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p><strong>THE REPUBLIC OF UGANDA<br /> IN THE COURT OF APPEAL OF UGANDA<br /> AT KAMPALA</strong></p> <p><br /> <strong><em><u>CORAM:</u></em></strong><strong><em> HON. LADY JUSTICE A.E.N.MPAGI-BAHIGEINE,JA<br /> HON.LADY JUSTICE C.N.B.KITUMBA,JA<br /> HON.LADY JUSTICE C.K.BYAMUGISHA,JA</em></strong></p> <p>&nbsp;</p> <p><br /> <strong><u>CIVIL APPEAL NO. 95 OF 2003</u></strong><br /> <br /> <strong>BETWEEN</strong></p> <p>JULIET KALEMA :::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT</p> <p>&nbsp;</p> <p><strong>AND</strong><br /> <br /> 1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p>WILLIAM KALEMA<br /> 2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; RHODA KALEMA ::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS<br /> <br /> <strong><em>[Appeal from the Ruling and Orders of the High Court of Uganda sitting at Kampala (</em></strong><strong>Atima-Okello J) </strong><strong><em>in Miscellaneous Application No.442/03 arising out of HCCS No.1474/2000].</em></strong><br /> <br /> <br /> <strong><u>JUDGEMENT OF BYAMUGISHA</u></strong><strong><u>, JA</u></strong><br /> <br /> This is an appeal from the ruling of the High Court of Uganda dated 12<sup>th</sup> November 2002 wherein the respondents' application for judgement on admissions was partly allowed.<br /> <br /> The background to the matter in dispute as can be gathered from the pleadings filed herein can be summarised as follows: The appellant is the widow of the late Martin Kalema who died intestate on the 7<sup>th</sup> August 1993. The appellant and the two children, Rhoda Nabadda (daughter) and Martin Ntale (son) survived him. The respondents are brother-in-law and mother-in-law of the appellant respectively. The parties to the dispute are also administrators of the estate of the deceased. Letters of administration (exhibit D.7) were granted to the trio by the High Court on 8<sup>th</sup> November 1993 vide Administration Cause No.523/93. Sometime in October 2000, the appellant filed High Court civil suit No.1474/2000 against the respondents. She was seeking a declaration that property known as Plot 22B Nakasero Road, Kampala and comprised in Leasehold Register Volume 2805,Folio 7(hereinafter called the suit property) is her matrimonial home and that the respondents have no right to alienate it from her late husband's estate by evicting her and letting it out to other people. She was also seeking a permanent injunction, general damages and costs of the suit. Prior to his death, the second respondent had donated the suit property to the deceased to construct a house thereon for purposes of generating income for his family. The property is registered in her names. The deceased constructed two double- storeys, semi-detached houses on the plot.<br /> <br /> On completion in 1991, the property was let out to the American Peace Corps and the rent was shared between the late Martin and the appellant. After his death, she continued to rent out the premises keeping all the rent to herself until September 1999 when she decided to occupy the suit property. At the time of his death, the deceased was occupying rented premises on Plot No.2457A Block 244 Mbogo Road, Kisugu, belonging to the second respondent. The appellant continued to occupy this house as a tenant at a monthly rent of <em>shs</em> 350,000/= payable one year in advance.<br /> <br /> In their application for letters of administration (exhibit P.7) dated 11<sup>th</sup> October 1993, the applicants in paragraph 5 thereof stated the following properties as belonging to the deceased:<br /> 1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Block 255 Plot 280 land at Munyonyo.<br /> 2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Bock 273 Plot 1333 land at Konge Buziga.<br /> 3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Plot 22B Nakasero Road.<br /> In the plaint, the appellant contended that her late husband constructed the suit property and the respondents have no right to dispossess her of the same.<br /> <br /> The respondents filed a joint written statement of defence and counter-claim. In it they denied that the deceased constructed the suit property as a matrimonial home. They averred that the second respondent has at all material times been and still is the registered proprietor of the suit property and that she allowed the deceased to carry on real estate business on the said land by constructing thereon two semi-detached up-market houses for letting out. It was further averred that the deceased furnished no consideration for the offer, and that the entire transaction was intended and understood by both parties to give the deceased a source of income rather than to bestow on him real property.<br /> It was contended that the deceased never had or claimed any legal interest in the suit property and it was never his matrimonial home. On the appellant's decision to occupy the suit property, they contended that it was wasteful of the estate assets, unjustified, and unreasonable and it amounts to intermeddling in the estate. There were other allegations against the appellant such as fraud, trespass and her failure generally to co-operate with co-administrators in the management of the estate.<br /> As a result of the acts complained of, it was averred that the respondents as representatives of the estate have suffered general and special damages for which the appellant was liable. The particulars of special damages contained in the counter-claim include mesne profits and US $3,500 per month or its equivalent in Uganda shillings from September 1993 till the appellant surrenders the property to the administrators of the estate.<br /> <br /> In reply to the written statement of defence and counter-claim, the appellant averred that the respondents are estopped from denying the late Martin Kalema's ownership of the property. She also denied the allegation of fraud and intermeddling with the suit property. She reiterated her right to occupy the suit property as her full time matrimonial home.<br /> <br /> At the trial, the following issues were framed for court's determination: -<br /> <strong>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>Whether the plaintiff is entitled to occupy the suit property as her matrimonial home.</strong><br /> <strong>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>Who is the owner of the suit property?</strong><br /> <strong>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>Whether the plaintiff has intermeddled and continues to intermeddle in the estate of the late Martin Kalema.</strong><br /> <strong>4.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>Whether the plaintiff has trespassed onto the suit property.</strong><br /> <strong>5.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>What remedies are available to the parties.</strong><br /> <br /> The appellant gave evidence as the first witness and after she had been cross-examined by counsel for the respondents, the hearing was adjourned to the 12<sup>th</sup> and 13<sup>th</sup> November '02 for further hearing. Before that date, the respondents filed Miscellaneous Application No.442/02 under the provisions of <strong>Orders 11(6), 13(2), 48(1)(2) </strong>of the <strong>Civil Procedure Rules </strong>and <strong>section 98 </strong>of the <strong>Civil Procedure Act </strong>seeking the following orders: -<br /> (a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That the plaintiff's claim in HCCS No. 1474 of 2000 be dismissed with costs and judgement be entered for the defendants for the prayers set out in the counter-claim or such other orders as the court may deem fit, on the basis of admissions made by the plaintiff in her pleadings and evidence when she testified during the hearing of the suit on the 27<sup>th</sup> day May 2002.<br /> (b)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; In the alternative but without prejudice to the foregoing, the plaintiff's claim in the suit be disposed of by determining the point of law of whether the plaintiff can claim the suit property as her matrimonial home when she 2<sup>nd</sup> applicant, and not her deceased husband, was the registered proprietor thereof.<br /> (c)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That the honourable court does proceed to hear the defendants' counter- claim only.<br /> (d)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That the costs of the application be provided for.<br /> <br /> The application was premised on the following grounds: -<br /> 1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That both in her reply to the defendants' counter-claim and her testimony in court on the 27<sup>th</sup> May,2002, the respondent admitted:<br /> (i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; that the certificate of title, occupation permit and architeral plans for the property comprised in Plot 22B Nakasero Road (the suit property) have at all material times been and still are in the 2<sup>nd</sup> applicant's names.<br /> (ii)&nbsp;&nbsp;&nbsp;&nbsp; That accordingly, the deceased Martin Kalema was never the registered proprietor and /or legal owner of the suit property.<br /> (iii)&nbsp;&nbsp;&nbsp; That the respondent moved into the suit property on 6<sup>th</sup> September 1999, she did so without informing the applicants whom, together with her, are administrators of the estate of Martin Kalema.<br /> (iv)&nbsp;&nbsp;&nbsp;&nbsp; That she hitherto never accounted to the applicants, her co-administrators of Martin Kalema's estate, for the rental income received from the suit property from 1993 to 1999.<br /> 2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; By reason of the admissions aforesaid, it is not within this honourable court's power to grant the prayers set out in the respondent's plaint and that to dispose of the case, it is no longer necessary to determine all the issues initially framed.<br /> 3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That it is in the interest of justice to determine the suit or, in any event, the respondents' claim, by determining the question of law of whether the respondent can claim as her matrimonial home, property of which a person other than her deceased husband was the registered proprietor.<br /> The above grounds were supported by the affidavit of the second respondent dated 28<sup>th</sup> June 2002. The appellant opposed the application by deponing an affidavit dated 28<sup>th</sup> August 2002. In the said affidavit, the appellant stated that during the hearing of the suit she was shown an application for letters of administration signed and filed by the applicants and herself in which it was stated that the suit property belonged to her late husband. She also averred that after the death of her husband, she continued dealing with the property for six years including the signing of tenancy agreements without objection from the respondents<br /> <br /> The learned trial Judge in her ruling the subject matter of this appeal found that there was overwhelming evidence to show that there was no underlying understanding between the 2<sup>nd</sup> respondent and the deceased, that he should construct his matrimonial home on the suit land. She further held that there no understanding that the legal estate in the premises would be conveyed to the deceased or his successors in title. She gave the following reasons for her findings: -<br /> 1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The evidence before her showed that the deceased owned undeveloped plots of his own in Buziga and Munyonyo. That if he had he wanted to develop a matrimonial home for his family; he would have picked one of his own plots for development.<br /> 2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The deceased instead developed the second applicant's plot in Nakasero (the suit land) with the apparent intention conceived together with the second applicant to tap economic benefits that would arise from the premises so located.<br /> 3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The size of the property-said to be semi-detached, which can be converted into two residences, tend to suggest that it was not intended to be used as the deceased matrimonial home. Evidence so far adduced in the main suit show that the deceased has small family-2 children and a wife. He did not therefore need a matrimonial home of the size of the suit premises.<br /> 4.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Immediately on completion on construction, the premises were occupied not as a matrimonial home but as an income-generating asset.<br /> 5.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The certificate of title, architectural plans and occupation permits are all in the names of the second applicant. It is apparent that the deceased and his mother had discussions before the documents were issued in the form in which they were issued.<br /> As to whether the appellant could occupy the premises under <strong>section 26(2) </strong>of the <strong>Succession Act,</strong> the learned judge answered the question in the negative stating that it was not constructed for that purpose. It is against the above findings that the instant appeal has been preferred under the following grounds set out in the memorandum of appeal.<br /> <strong>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>The learned trial Judge erred in law in holding that the suit property is not the appellant's matrimonial home because her late husband owned undeveloped plots in Buziga and Munyonyo which could have been developed into a matrimonial home if he has so wished.</strong><br /> <strong>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>The learned trial judge erred in law and fact in holding that the suit property was not the appellant's matrimonial home because her late husband developed the suit property with the apparent intention conceived together with the second respondent to tap economic benefits that would arise from the premises.</strong><br /> <strong>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>The learned trial judge erred in law in basing her decision that the suit property was not the appellant's matrimonial home on the size of the suit property and the number of children that the appellant and her late husband had.</strong><br /> <strong>4.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>The learned trial Judge erred in law in holding that the suit property was not the appellant's matrimonial home because immediately on its completion it was not occupied as a matrimonial home but as an income-generating asset.</strong><br /> <strong>5.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>The learned trial judge erred in law in holding that the suit property was not the appellant's matrimonial home merely because the certificate of title, architectural plans and occupation permit were in the names of the second respondent.</strong><br /> <strong>6.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>The learned trial judge erred in law in deciding the issue of whether the suit property was the appellant's matrimonial home before the respondents gave their evidence and were subjected to cross-examination.</strong><br /> The appellant sought the following orders:<br /> (a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The learned trial judge's ruling and orders be set aside and the appeal allowed.<br /> (b)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The entire suit be heard and determined on merits.<br /> (c)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The respondents pay the costs of this appeal and the court below in miscellaneous application No.442/02 to the appellant.<br /> <br /> I shall deal with the 6<sup>th</sup> ground of appeal first. Although it was badly framed, I think it should have stated that the learned trial judge erred in entering judgement on alleged admissions and declaring that the suit property was not the appellant's matrimonial home before all the evidence had been heard. In submitting on this ground, Mr Walubiri, learned counsel for the appellant, stated that there was need to record evidence from the second respondent to prove the avernments in the written statement of defence and counter-claim. He stated that the respondents claim to have suffered damage not as owners of the property but as administrators of the estate. He claimed that this was a recognition by the respondents that the property does not belong to them but to the estate. Learned counsel submitted that under <strong>order 11 rule 6 </strong>and <strong>order 13 rule 2(</strong>supra) judgement cannot be based on the judge's inferences of fact but must be based on facts unequivocally admitted by a party or a witness.<br /> <br /> While responding to the above above submissions, Mr Tusasirwe, learned counsel for the respondents, supported the orders made by the trial judge. He stated that the admissions made by the appellant when considered together with the facts in the case as a whole, were sufficient to enable the trial judge to reach the conclusions she reached. He claimed that it was obvious that the property was not a matrimonial property.<br /> <br /> The provisions of the <strong>rule</strong> <strong>6</strong> of <strong>order 11 </strong>under which the learned trial judge entered the judgement provide as follows: -<br /> <strong><em>"Any party may at any stage of the suit, where admissions of facts has been made, either on the pleadings or otherwise, apply to the court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties; and the court may upon such application make such order, or give judgement, as the court may think just".</em></strong><br /> <br /> The object of this rule as I understand it, is to enable a party to obtain judgement speedily at least to the extent of the admissions. Such admissions can be made on the pleadings or verbally because of the use of the word "otherwise" in the rule. The rule is for the benefit of both parties. However, before the court can act under the rule to enter judgement, the admissions of the claim must be clear and unambiguous. In a case involving complicated questions, which cannot be disposed of conveniently, the court should decline to exercise its discretion against the party who is seeking judgement on admissions. The power given to court to enter judgement on admissions is a discretionary one that must be exercised judiciously and circumspectly.<br /> <br /> In the instant appeal, the alleged admissions made by the appellant that were used by the respondents to apply for judgement under the rule I cited, were that the certificate of title, the architectural plans, the occupation permit of the suit property were in the names of the second respondent. The other admissions were that the late Martin Kalema was not the registered proprietor or the legal owner of the property; that the appellant moved into the suit property without informing the respondents as her co-administrators; and that she had never accounted for the rental income she collected from the suit property from 1993 to 1999 to the respondents.<br /> <br /> The above facts should have been recorded by the learned trial Judge when she conducted a scheduling conference before the trial. Moreover the appellant's claim as a widow was not based on her late husband's registered interest. The way I understand her claim, is that the suit property belonged to her late husband by virtue of the fact that he constructed it using his own resources; he collected rent which he shared with her; the property was declared by the administrators of the estate as one of the properties of the deceased and after his death, she continued to collect rent for a period of six years without any interference or complaint from the co- administrators. It was, therefore, her case that as a widow, she is entitled to occupy the suit property being the only residential holding he left behind. I think the use of the words "matrimonial property" in the pleadings was a misnomer. It is misleading and partly explains perhaps why the trial judge found that the suit property was not constructed to be a matrimonial home. The law is not concerned with matrimonial property but with residential holdings.<br /> <br /> On the other hand, the case for the respondents was that the suit property was never intended to be occupied either by the deceased or the widow because it was constructed as a money-generating asset for the deceased and his family.<br /> <br /> Therefore, at the heart of the conflict between the parties to this case is whether the suit property should remain a money generating asset for the family of the deceased or it should be occupied by the widow under the provisions of the Succession Act. My understanding of this case is that the second respondent is not challenging the appellant's occupation as the registered proprietor but as one of the administrators of her son's estate and the one who had donated the land in question. In other words her complaint is that the house was constructed for the purpose of generating income for the deceased's family and therefore the appellant has no right to change that arrangement. The alleged admissions by the appellant were not as clear cut and unambiguous to entitle the respondents to judgment. She did not admit that she was intermeddling in the affairs of the estate. She did not admit that she had committed fraud or that she was trespassing on the suit property. She did not admit that her occupation of the house is wasteful of the estate, unjustified, unlawful and unreasonable. The learned judge, with respect failed, to exercise her discretionary powers judiciously in this matter when she entered judgement in favour of the respondents. Accordingly ground six would succeed.<br /> <br /> I shall deal with the rest of the grounds together since they are interrelated.<br /> There is no dispute that the deceased died intestate, I shall try to examine the relevant provisions of the Act and determine whether they apply to the suit property. <strong><u>Section 24 </u></strong>governs the property of a person who dies intestate to mean property, which has not been disposed of by a valid testamentary disposition. Such property, according to the provisions of <strong><u>section 25</u></strong> devolves upon the personal representative of the deceased upon trust for the people entitled to the property under the Act. According to the application for letters of administration, a widow and two children survived the deceased. The property left behind by the deceased including the suit property had to be administered for the benefit the three people. Under <strong><u>section 27 </u></strong>a residential holding is not part of the property that can be distributed among the beneficiaries.<br /> <strong><u>Section 26 </u></strong>governs the devolution of a residential holding. For purposes of clarity I shall reproduce them in full.<br /> <strong><em>(1)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </em></strong><strong><em>The residential holding normally occupied by a person dying intestate prior to his or her death as his or her principal residence or owned by him or her as a principal residential holding, including the house chattels therein, shall be held by his or her personal representative upon trust for his or her legal heir subject to the rights of occupation and terms and conditions set out in the Second Schedule to this Act.</em></strong><br /> <br /> <strong><em>(2)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </em></strong><strong><em>Any other residential holding possessed by the intestate at his or her death shall be held by his or her personal representative upon trust and, subject to the rights of occupation and terms and conditions set out in the Second Schedule to this Act, shall be dealt with in accordance with the remaining provisions of this Act".</em></strong><br /> <br /> My understanding of this section is that it envisages three types of residential holdings. The first is a residential holding normally occupied by an intestate prior to his or her death as his principal residential holding. The second is one that is owned by him or her as a principal residential holding. The third is any other residential holding <u>possessed </u>by the intestate at his or her death.<br /> <br /> The Second Schedule to the Act lays down rules of how residential holdings may be occupied and by who can occupy them. The rules are titled "Persons entitled to occupation". They state as follows:<br /> <strong><em>(1)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </em></strong><strong><em>In the case of a residential holding occupied by the intestate prior to his or her death as his principal residence, any wife or husband, as the case may be, and any children, under eighteen years of age if male, or under twenty-one years of age and unmarried if female, who were normally resident in the residential holding shall be entitled to occupy it.</em></strong><br /> <strong><em>(2)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </em></strong><strong><em>In the case of a residential holding owned by the intestate as a principal holding but not occupied by him or her because he or she was living in premises owned by another person, any wife or husband, as the case maybe, and any children, under eighteen years of age if male, or under twenty-one years of age and unmarried if female, who were normally resident with the intestate prior to his death, shall be entitled to occupy it.</em></strong><br /> <strong><em>(3)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </em></strong><strong><em>In the case of any other residential holding owned by the intestate, any wife, or children under eighteen years of age if male, under twenty-one years of age and unmarried if female, who were normally resident in the residential holding shall be entitled to occupy it."</em></strong><br /> <br /> The provisions of this rule are clear in themselves and are couched in mandatory terms.<br /> <br /> In the matter now before us, there is no doubt in my mind that the deceased had only one principal residential holding at the time of his death-the suit property. Although the title deed, the architeral plans and occupation permit are in the names of the second respondent, the suit property was rented out by the deceased and he shared the rent with the appellant. After his death, the administrators declared the suit property as the property of the deceased. The rule has long been established that a party is bound by declarations and recitals in a document which are certain, precise and unambiguous. The third indicator is that the appellant, as the widow entered into and renewed tenancy agreements and collected rent from tenants for a period of six years with the tacit approval from the respondents. The fourth indicator is a letter dated 17<sup>th</sup> March 1993(Exhibit D.3) addressed to the Town Clerk Kampala City Council. It states in part as follows:-<br /> "<strong><em> Re: </em></strong><strong><em><u>Plot 22A Nakasero Road- Kampala.</u></em></strong><br /> <br /> <strong><em>I refer to the above property whose initial lease extension will expire on 31</em></strong><strong><em><sup>st</sup></em></strong><strong><em> October 1994<br /> However, this property was completed towards the end of last year and I have been requesting for an Occupation Permit.<br /> The inspection has been done and I understand they are nearly completed. I would request that the Occupation Permit be issued in the names of </em></strong><strong><em><u>Martin Peter Kalema</u></em></strong><strong><em> also of P.O.Box 4483 Kampala.<br /> <br /> Yours faithfully,<br /> <br /> Sgd.</em></strong><br /> <br /> <strong><em><u>RHODA N. KALEMA (MRS)"</u></em></strong><br /> <br /> The author is none other than the second respondent. In the letter she was requesting the Town Clerk to issue the occupational permit for the suit property in the names of her late son. Apparently this was not done. Be that as it may, the suit property in my humble opinion was <em>possessed </em>and <em>owned</em> by the deceased and therefore the appellant would be entitled to occupy the same under the provisions of the law I have cited. He had an equitable interest in the suit property capable of being registered as a charge on the suit property. Moreover <strong><u>rule 7</u></strong> of the Second Schedule makes the occupation of a residential holding an interest in land capable of registration. It provides as follows:<br /> <strong><em>"(1) Occupancy of a residential holding hereunder shall be deemed to be an interest in land capable of protection by a caveat under the Registration of Titles Act, and the interest of any other person in the residential holding shall be subject to that interest and shall be incapable of alteration subject to that interest, but the occupancy shall not be a tenancy.<br /> <br /> (2) The occupancy referred to in subparagraph (1) shall not prevail against a mortgagee under a mortgage created before the death of the intestate."</em></strong><br /> <br /> The rules have provision for termination of occupancy on the happening of certain events and the observance of covenants, conditions and encumbrances to which the residential holding or any part of it was subject at the death of the intestate.<br /> <br /> Mr Tusasirwe submitted that the appellant knew her husband's intention of the promise he apparently made to the second respondent to keep the house as a money-generating project. He cited the case of <strong><u>Jones v Jones [1977] W.L.R 438. </u></strong>The brief facts of the case were that a father bought a house for his son who moved in with his family. The son gave his father sum money amounting to one quarter of the purchase price of the house. The son understood from his father that the house was his. When his father died, the house vested in his widow who demanded rent from the stepson who refused to pay the same. The widow commenced proceedings for possession of the house. At the trial, the judge held that the son had a one-quarter equitable interest in the house and declined to make a possession order. The widow took out further proceedings claiming that the house be sold or in the alternative, for payment of rent. The judge ordered the son to pay three-quarters of a fair rent for the house to the widow or if he failed to do so, the house should be sold. On appeal, the court held that the widow was estopped from turning the son out of the house by his father's conduct which had led him to believe that the house would be his for the rest of his life. The gist of this decision is that the intention of the donor had to be respected. I do not find the facts and the holding in this case helpful to the respondents' case. The reason for my saying so is that the widow in the case was trying to assert he share in the property of her late. In this appeal, the respondents or at least the second respondent is not asserting he rights to share in the property. As stated elsewhere in this judgement, the intention of the deceased as to how the suit property should be utilised after his death is unknown. He left no valid testamentary disposition.<br /> <br /> The dispute in this appeal is between administrators of an estate and how it should be administered and not between the beneficiaries. The exception being the appellant who are a beneficiary and an administrator. The other administrators are supposed to assist her in carrying out her duties. I have noticed from the record of the proceedings that at the time of the grant, no directions were made as to how the powers of the administrators were to be exercised. The administrators themselves appear not to have taken any steps after the grant to agree on how they should administer the estate and generally to operationarise the grant. The first meeting of the administrators was held on the 11<sup>th</sup> August 2000 in the absence of the appellant. The minutes of the meeting appear on page 10 of the record of appeal. Among the items for discussion at the meeting was an inventory of the deceased's estate. The suit property was mentioned and the complaint raised by the two administrators was that the occupation of the house by the appellant had greatly affected the income of the estate. The absence of any direction as to how the administrators were to exercise their powers gave the appellant a leeway to act the way she did in occupying the house. Under <strong><u>section 272</u></strong> of the Act where there are several administrators the powers of all of them can be exercised by one of them. The section states as follow:<br /> <strong><em>"Where there are several executors or administrators, in the absence of any direction to the contrary, the powers of all of them may be exercised by anyone of them who has proved the will or taken out administration."</em></strong><br /> <br /> There is no doubt in my mind that this section gives the appellant as the widow to make decisions concerning her late husbands estate for her own benefit and those of her children. The deceased having left no valid testamentary disposition as to how the suit property should be administered, I think it would be wrong to fault the appellant's decision to occupy the house. Her occupation of the house does not take away the second respondent's proprietary interest.<br /> <br /> Regarding the reasons given by the learned trial judge in entering judgement, I think with respect, they were irrelevant. They have no scientific basis. The size of the house, the architectural plans etc had nothing to do with the intention of the deceased since he made no will to make those intentions known. The rest of the grounds would succeed.<br /> <br /> In the result, I would allow the appeal. The orders of the trial court would be set aside. I would remit the file back to the trial Judge to do the needful. The costs of the appeal would abide the outcome of the suit in the court below.<br /> <br /> <strong>Dated at Kampala this……</strong><strong>16</strong><strong><sup>th</sup></strong><strong> </strong><strong>…..day of……</strong><strong>August</strong><strong>…..2004.</strong></p> <p>&nbsp;</p> <p><strong>C.K.Byamugisha</strong><br /> <strong><u>Justice of Appeal</u></strong></p> <p><br /> &nbsp;</p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-0b4db69dfbf57d0330a270943da4f30b"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/court-appeal/2004/15/court-appeal-2004-15.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:41:54 +0000 Anonymous 16053 at https://old.ulii.org