THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA-MAKINDYE

(FAMILY DIVISION)

CIVIL SUIT NO. 188 OF 2015

1. HADADI MOHAMED RAJAB
2. HAMZA MOHAMED RAJAB
3. MUSA MOHAMED RAJAB .............…..........………………. PLAINTIFFS
4. HUSSEIN MOHAMED RAJAB
5. ABDU MOHAMED RAJAB
6. HASSAN MOHAMED RAJAB

VERSUS

1. MUZAMIL MOHAMED RAJAB
2. MANSUR MOHAMED RAJAB .......……………...........……. DEFENDANT
3. YUSUF MOHAMED RAJAB

JUDGMENT

BEFORE: HON. LADY JUSTICE KETRAH KITARIISIBWA KATUNGUKA

Introduction

[1] This suit is brought by Hadadi Mohamed Rajab, Hamza Mohamed Rajab, Musa Mohamed Rajab, Hussein Mohamed Rajab, Abdu Mohamed Rajab and Hassan Mohamed Rajab (hereinafter referred to as the plaintiffs) against Muzamil Mohamed Rajab, Mansur Mohamed Rajab and Yusuf Mohamed Rajab(herein called the defendants) jointly and severally for orders that; the grant of Letters of Administration for the estate of the Late Mohamed Rajab by the Chief Magistrates Court of  Mengo vide Administration Cause No. 104 of 1990 on 27^th September, 1990 be annulled; an account on the management of all the estates properties and credits; the defendants make good any loss incurred by the estate as a result of the defendants’ acts and/or mismanagement; the Letters of Administration for the estate of the Late Mohamed Rajab be granted to the plaintiffs; a permanent injunction issues restraining the defendants from undertaking any further dealing with the estate of the Late Mohamed Rajab; the defendants pay general damages and costs of this suit.

Background.

[2] It is the plaintiffs’ case that; the plaintiffs and defendants are children and beneficiaries of the estate of the Late Mohamed Rajab who died intestate around 1987 and left land at Kisugu, Kibuli and Nakatonya Village Bombo valued above Ug shs 100,000,000 (Uganda shillings one hundred million only);the plaintiffs learnt in 2014 that in the year 1990, the defendants applied for Letters of Administration for the suit estate falsely stating his fixed place of abode as Kibuli-Kampala, whereas not, and that the deceased was survived by a widow Alima Abas whereas they were separated and the surviving widow is Hindum Musa. Further that the deceased was survived by twelve children thus excluding seven other children of the deceased (totalling to 19 children) and that the value of the estate was within the pecuniary jurisdiction of the Magistrates’ court, whereas not.

[3]  On the premises they seek that the Letters of Administration of the estate of the late Mohamed Rajab be annulled for just cause because the learned magistrate  lacked jurisdiction, the defendants did not obtain the Plaintiffs’ consent as beneficiaries and that false declarations were made in the application for Letters of Administration and that therefore all acts done, transactions or dealings made by the defendants in respect of the estate as the administrators are illegal and unlawful or otherwise null and void; that the defendants to date have not distributed the estate and/or filed an inventory as required by law; that the defendants’ acts are putting to waste the entire estate to the detriment of the plaintiffs, for which they claim general damages.

[4] The defendants deny all allegations and aver that the deceased had a fixed place of abode at Kibuli in Kampala and Nakatonya in Bombo which was stated in the defendants’ application for Letters of Administration; that the application was not founded on false declarations and the Chief Magistrates Court of Mengo had jurisdiction; that there is nothing in the estate of the late Mohamed Rajab to distribute since the property was distributed by the deceased during his lifetime to wit – the property at Kisugu was given to Alima Abas and her children (the defendants inclusive), the property at Kiswa was given to Hindum Musa and her children (1^st to 3^rd plaintiffs), the property at Maganjo was given to Robinah Nakazzi and her children (4^th to 6^th plaintiffs), the property at Nakatonya was preserved as a family home and the property in Nkondo Bombo was preserved by the deceased as his shamba ;that the defendants have never wasted any part of the estate but contend that that the plaintiffs and their mothers wasted the estate and so are not entitled to any of the reliefs claimed.

Representation.

[5] The plaintiffs are represented by Mr. Ajungule Sulaiman of M/S Ajungule & Co. Advocates while the defendants are represented by Renato Kania appearing together with Musa Nsimbe of M/S Kania & Alli Advocates and Solicitors. They proceeded by witness statements and at the end both filed written submissions.

On 24^th April 2019 when the case came up for hearing, counsel for the Defendant raised a preliminary point of law to wit; that the suit is barred by section 20 of the Limitation Act and therefore should be dismissed.

Court considered the length the case had been in the system and directed that the point of law should be framed as issue No.1. Whether the current suit is barred by section 20 of the Limitation Act. For obvious reasons when the time comes I shall address the issues as framed in that order for resolution of the first issue shall determine whether the rest of the issues need to be resolved.

Facts of the case;

[6] The facts are as detailed in the background but are briefly that the plaintiffs and defendants are children and beneficiaries of the estate of the Late Mohamed Rajab who died intestate around 1987; Letters of Administration were granted to the defendants on 27^th September, 1990 vide Administration Cause No. 104 of 1990; the plaintiffs got to know about the Letters of Administration in 2014; the deceased had properties in Kisugu, Kibuli, Kiswa, Nakatonya, Nkondo and Maganjo. The plaintiffs claim that the defendants who are holders of Letters of Administration have failed to distribute the estate, failed to file an inventory and their acts have put the estate to waste; that the Letters of Administration should be revoked and the estate distributed by court taking into account the benefits the defendants enjoyed on account of the mismanagement of the estate. The defendants denied all allegations.

      The issues adopted are;

1. Whether the current suit is barred by S.20 of the Limitation Act.
2. Whether the deceased Mohamed Rajab, distributed his property amongst his family before his death.
3. Whether there is any estate to be distributed and if so, among who.
4. What remedies are available to the parties.

Resolution of issues

Whether the current suit is barred by S.20 of the Limitation Act.

[7]  S. 20 of  the Limitation Act provides that subject to section 19(1), no action in respect of any claim to the personal estate of a deceased person or to any share or interest in such estate, whether under a will or on intestacy, shall be brought after the expiration of twelve years from the date when the right to receive the share or interest accrued, and no action to recover arrears of interest in respect of any legacy or damages in respect of those arrears shall be brought after the expiration of six years from the date on which the interest became due.

[8] The general rule is that time begins to run once the action has accrued and there is both a competent plaintiff and defendant (see the case of AL Hajj Nasser Ssebaggala v AG and Ors. Constitutional Petition No 1 of 1999). The exception to the rule however, is in the event of a disability, which exception is further curtailed by the requirement that the action may be brought at any time before the expiration of 6 years from the date when the person ceased to be under the disability as is provided under S.21(1) of the Limitation Act. The record shows that the petition for Letters of Administration was brought in 1990 and that this suit was instituted in 2015. According to the evidence of the first plaintiff, the 3^rd plaintiff is older than him by 7 years and the first plaintiff was about 7 years in 1987 when the deceased died. The 3^rd plaintiff therefore became an adult around 1991 and that is when time is deemed to have begun to run, according to submissions made for the defendants.

[9] The statute is clear that actions for claims to or shares in the estate of a deceased are barred upon expiration of 12 years from the date the action accrued. I agree with the defendants’ counsel that statutes of limitation are by their very nature strict and inflexible enactments and therefore litigation shall be subdued automatically after a fixed length of time regardless of the merits of a particular case. Without going into the merits of the case, on the face of the plaint the plaintiffs’ claim is for, among others, annulment of the grant of Letters of Administration to the defendants and distribution of the estate (paragraph 8 of the plaint).The question is whether the prayer for annulment and for an account of the management of the estate, is a claim to the personal estate. A claim is defined as ‘an assertion of a right’ (Advanced Learners’ Dictionary). A look at the plaint at paragraph 4(i) states ‘the plaintiffs and the defendants are children and beneficiaries of the estate of the late Mohamed Rajab’. By implication as beneficiaries the plaintiffs bring this claim in that capacity and therefore would be barred by the provisions of S. 20 of the Limitation Act. However the pleadings show no proof that final accounts of the estate were filed in court by the defendants pursuant to S. 278 (1) of the Succession Act and therefore administration of the estate has not been completed. For as long as there is no completion of administration of the estate, an aggrieved party may challenge the administration of such an estate by  seeking a revocation of the grant of probate or Letters of Administration of that estate. The grant dated 27/09/1990 shows that the administrators undertook to administer the estate of late Mohamed Rajab (alias NUBIAN) and to make a full and true inventory of the said property and credits to court within 6 months from the date of the grant or within such further time as court may from time to time appoint.

In my view administration of an estate includes identification of the estate and the beneficiaries, determination of whether to distribute and the mode of distribution according to the wishes of the beneficiaries or according to the will if any. Identification may take long or short depending on the estate and its beneficiaries. The inventory expected in court within six months may be in form of part of the process or outcome of the full process. There is no ‘straight jacket’ timeframe on how long an estate can or should be open for distribution but there should be no inordinate delay in closing an estate especially where there is no complexity pertaining to the assets of the estate. This was also the view held in the case of Anecho v Twalib & 2 Ors (CIVIL SUIT No. 0009 OF 2008) [2018] UGHCLD 30 (9 April 2018). 

[10]The petition for Letters of Administration is for the late Rajab and not for his wife Alima (the defendants’ mother) as alleged by the defendants. The properties listed in the petition are the same properties listed by the plaintiffs as belonging to the late Rajab and not properties belonging to any of his wives. It is the view of this court that administration has never been closed.

For as long as administration of the estate is still open, the authority of the administrators is open to challenge; in which case limitation under section 20 does not apply. I am keeping in mind the fact that the plaintiffs - siblings to the defendants and beneficiaries to the estate of the late Ahmed Rajab - state in their plaint that they learnt about the Letters of Administration granted without a certificate of No Objection from the Administrator General and without family consent- in 2014; all not refuted by the defendants.

[11] In this I find the case of Isaac Kasiba Lule v Administrator General and Anor HCCS No. 639/1994 cited by plaintiffs’ counsel persuasive. The defendants do not dispute that the plaintiffs are their siblings and a look at the petition for Letters of Administration show that the estate belongs to the late Mohamed Rajab. The process of the administration which has not been concluded is still open to challenge which this suit seeks to do.

This suit therefore is not barred by the provisions of S. 20 of the Limitation Act.

Before I take leave of this issue, I shall state that in my view while limitation is seen as a shield and not a sword(see HCCS No. 102 of 2009 Henry N.K. Wabui & Anor vs Rogers Hanns Kiyonga Ddungu  where the case of John Oitamong vs Mohamed Olinga(1985) HCB 86 was cited), it should  always be applied hand in hand with Article 126 and Article 26 of the Constitution so that especially where people are related, like in this case, reconciliation and the ensuring of substantive justice should always, as much as legally possible, be promoted, because sticking to limitation while the dispute’s head roams in the family is a dangerous trend. Equity would demand the two constitutional principles to always balance.

In the result issue No. 1 is answered in the negative.

The preliminary objection thus fails and is dismissed.

Issue No.2. Whether the deceased Mohamed Rajab, distributed his property amongst his family before his death.

[12]  The plaintiffs testified that the deceased had three wives, to wit, Maama Kato, Hindum Musa and Harima; all wives were living in their own separate houses with Arima in Gogonya-Bombo, Maama Kato in Maganjo and Hindum Musa in Kiswa; that the deceased’s brother resided in Kibuli; that the property in Kiswa was given to Hindum Musa; that the property in Nkondo is used for cultivation but was taken by the owner; that the deceased did not distribute his property except the Kiswa property which was given to Hindum Musa; that the Kiswa property was intended to cater for the school fees of the children of Hindum Musa and to that end it was sold; that the Kiswa property was not a distribution of share but rather to cater for education; between 1997 and 2003 the plaintiffs verbally claimed the property at Kisugu several times and the defendants promised to give them and so they did not present a claim; the claims were made to Muzamil Mohamed Rajab who is the surviving eldest son  before the sale of Kiswa; that the 1^st plaintiff has just heard from Mansur Mohamed, the 2^nd defendant, that the deceased had land in Maganjo; that the 4^th to 6^th plaintiffs were staying with the deceased in Bombo-Nyakatonya; that they learnt of the Letters of Administration in 2014 when their lawyer asked if there was any legal document and he has never heard of any meeting of distribution; that the deceased’s estate has never been distributed in accordance with Nubian, Islamic or any other norms.

[13]  The defendants testified that they obtained Letters of Administration in 1990; they did not know the value of the property when they got Letters of Administration; they knew the other widows and children before they applied for Letters of Administration but did not get their consent because they were managing their property that was given to them and thus mentioned only the 12 children of Harima; they stated in the petition that their mother Harima Abas was the only surviving widow; DW 1 testified he  cannot remember if any inventory was filed and does not have any written distribution scheme; the Kisugu property is their matrimonial home and being occupied by DW 1(2^nd defendant) and his sister; part of that land was sold by the administrators to Ceasar Okello in 1990; Kibuli property is occupied by Abib Mohamed, a brother to the deceased and is registered in Abib’s name; Bombo Nakatonya is occupied by the 1^st defendant; that the Maganjo property was not included in the petition for Letters of Administration though they learnt of it in 1987 before applying; that they don’t know if it is titled land or whether it is developed and who is utilising it; that their uncle Umaru Mulumba told them about their step brothers at the wedding of Hassan Mohamed Rajab; that he told them Kiswa was given to Hindum Musa mother of the 1^st to 3^rd plaintiffs, Kisugu is a matrimonial home, Kibuli was for business, that Nakatonya is a family home for all of them, that they (the defendants) were supposed to be in Kisugu and Kibuli, that Robinah Nakazzi was to tell her children which property was theirs but she kept quiet; that the Kibuli property is owned by Mohamed Kabenge and was never registered in the names of Mohamed Rajab but that Mohamed Rajab had a kibanja and Habib Mohamed, the deceased’s brother, bought from Kabenge; that they have a title for Kisugu but no title for Kibuli and have never administered the deceased’s property in Kibuli; that Muzammil Mohamed Rajab (1^st defendant) is administering the Bombo property.

[14] The defendants state that the deceased distributed the estate according to Nubian and Islamic customs but led no evidence to this effect and as such they did not prove this distribution pursuant to S.101 of the Evidence Act Cap 6. Furthermore, subject to Art. 37 of the 1995 Constitution of Uganda and in the absence of evidence pertaining to Nubian customs of distribution, S. 1 of the Succession Act Cap 162 requires that the provisions within the Act shall constitute the law of Uganda applicable to all cases of intestate or testamentary succession, subject to any other law for the time being in force. A look at the petition shows that the property listed were property in Nakatonya Bombo, property in Kibuli, Property in Kisugu and property in Kiswa. If this property belonged to the estate of the late Rajab then all the beneficiaries should have agreed on the administration process together with choice of administrators and the mode of distribution.

[15] Matrimonial home as defined in JULIUS RWABINUMI v HOPE BAHIMBISOMWE SCCA NO. 10 OF 2009 refers to “property which the parties chose to call home and which they jointly contribute”. All the matrimonial homes as occupied by the wives of the deceased were not a distribution of the estate and as such the deceased did not distribute his property amongst his family before his death. The homes as established by the intestate before his death would come in handy to guide the mode of distribution but would not be seen as a distribution in themselves. Each of the properties as listed in the Petition and in the pleadings shall be scrutinised to determine if it was distributed before the late Mohamed Rajab died.

Kisugu Property

[16] DW 1 stated in cross examination that the Kisugu property is their matrimonial home where he resides with his sister and in re-examination, that his uncle told him that it is a matrimonial home. The uncle was not called to testify. PW2 Hindum Musa told court that Harima, (the defendants’ mother) died in Bombo where her children had built a house for her.

 I fail to understand how the defendants all above 18 years of age can call their father’s estate (Kisugu property listed in the petition for Letters of Administration) their matrimonial home. All they were entitled to was occupation and even then it had to be qualified. The first plaintiff testified that the plaintiffs had requested the defendants for their share in the Kisugu property which the defendants promised to avail but this was in vain. There was evidence to show that the parties tried to mediate over administration of the estate with elders and even with lawyers via letters dated 2/02/2015, 19/02/2015, 2/03/2015 and 11/03/2015. This goes to show that the defendants were alive to an entitlement of the other beneficiaries to the Kisugu property. The law on inconsistencies is such that such evidence cannot be relied on. I therefore find that in absence of evidence that the property was given to the defendants’ mother or was her ‘matrimonial home’ or the residential holding of the deceased, the Kisugu property is still part of the estate.

The Kisugu property was therefore not distributed by the deceased.

The Kibuli property.

[17] PW2 Hindum Musa testified that Harima, Rajab and the children stayed in Kibuli then they left and went to Bombo; that Rajab built in Bombo; Kibuli was for rentals. The 2^nd defendant in his witness statement states that the land in Kibulu was gifted to his mother Harima by late Badru Kakungulu but on cross examination stated that the property at Kibuli is part of the estate to wit ‘we have Kisugu, Kiswa, Kibuli, Nkondo and Maganjo’’ yet he later testifies that the father had a kibanja, then further still states he knows nothing about the Kibuli property. There is a copy of the title deed presumably in respect to land at Kibuli which is now in the names of Habib Mohamed Rajab one of the beneficiaries, who is stated to have bought from a one Kabenge. The 2^nd defendant contradicts himself as far as this land is concerned, therefore I shall agree with the plaintiffs that it forms part of the estate; the copy of the title deed goes hand in hand with the contradiction and it is disbelieved.

Since this property was listed in the petition it is deemed to be part of the estate.

Kiswa property

[18] The Kiswa property was sold and the PW2 admitted that she sold it without the consent of the rest of the beneficiaries except her children the 1^st to the 3^rd Plaintiffs. Since it was listed in the petition it is part of the estate in absence of proof that it was given to the PW2 Hindum Musa by the deceased.

The properties at Nakatonya Bombo, Maganjo and Nkondo belong to the estate there being no contention although the last two properties were not listed in the petition.

          In summary the deceased did not distribute his property before he died. Issue 2 therefore is answered in the negative

The Letters of Administration.

[19] The plaintiffs claim that the Letters of Administration are null and void and illegal. The defendants testified that they did not file an inventory and also did not obtain the consent of the other beneficiaries when applying for the Letters. They testified that they knew about the other beneficiaries before they filed the application for Letters of Administration. They chose to omit their names or to even seek their consent. A copy of the Petition for Letters of Administration on court record shows that the defendants did not mention the other widows and children of the deceased and stated that the value of the estate was within the court’s jurisdiction. The Letters of Administration were therefore granted based on untruths. (This would have also been a ground for postponement of the limitation period under section 25 of the Succession Act  had court at the stage it was determining issue No.1, been allowed to take a sneak peek at the evidence)

S. 234 of the Succession Act provides that Letters of Administration will be revoked for just cause where; they were obtained fraudulently . . . by concealing from the court something material to the case; that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though the allegation was made in ignorance or inadvertently and that the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with Part XXXIV of the Act.

[20] The valuation report attached to the plaintiffs’ pleadings and not disputed by the defendants show the total value of the property as of 1990 when the petition was filed to be UGX 22,000,000 /= (twenty two million shillings); the pecuniary jurisdiction of the court at the time as per the Magistrates Courts Act (S. 207) and as amended in S. 11 of the Magistrates Courts (Amendment) Act 2007 was UGX 5,000,000 /= (Five million shillings).   The property listed within the petition and as per the valuations on the court record which were not disputed by the defendants, are outside the pecuniary jurisdiction of the Chief Magistrates Court of Mengo which granted the Letters. As was held in Makula International Ltd Vs His Eminence Cardinal Nsubuga & Anor (CIVIL APPEAL NO. 4 OF 1981) [1982] UGSC 2, “a decision made without jurisdiction is a nullity and must be set aside . . . A court of law cannot sanction that which is illegal . . . an illegality once brought to the attention of the court, overrides all questions of pleadings.” Therefore the argument that the defendants did not know the value of the property cannot stand.

The defendants made statements in the petition concerning beneficiaries knowing them to be false. They are subject to a punishment.

Section 249 of the succession Act provides;

‘If any petition or declaration which is required to be verified contains any averment which the person making the verification knows or believes to be false, that person shall be subject to punishment according to the provisions of the law for the time being in force for the punishment of the offence of giving or fabricating false evidence.’

The defendants shall personally pay to this court a fine of UGX 2,000,000 within two weeks of this ruling.

[21] The Letters of Administration are thus revoked premised on the finding that the Letters were granted by a court without jurisdiction and the applicants concealed material information and did not file an inventory as required by law. 

Issue No.3. Whether there is any estate to be distributed and if so, among who.

[22] I have already found that all the properties as listed were never distributed by the deceased intestate.

The wives who were occupying the ‘residential holdings’ belonging to the deceased shall continue to occupy them and cultivate the adjoining land. This shall be a basis for which of the children equitably shares which portion and subject to what has already been disposed of by the beneficiaries. 

Issue No. 4. What remedies are available to the parties.

[23] Having found that the defendants concealed material information, failed to file an inventory and most importantly obtained the grant of the Letters of Administration from a court not vested with jurisdiction to so grant the Letters, the Letters of Administration are accordingly revoked pursuant to S. 234 of the Succession Act.

The defendants also stated that the first defendant has been occupying the property at Nakatonya Bombo in his capacity as an administrator. The first defendant is aware that it is the family home. The second defendant has also been enjoying the Kisugu property with his sister and the defendants also sold off some of this property to a one Caesar Okello. I find that the first and second defendants being in a position of trust for all the beneficiaries failed in their duties first to account and secondly to manage for their benefit. Letters of Administration are not meant to be held in perpetuity but for as long as the estate of an intestate is distributed or managed in the best interests of the beneficiaries. In the case of Boardman & Another V Phipps (1966) WLR 1009 it was held that ‘A person occupying a position of trust must not make a profit which he can acquire only by use of his fiduciary position or if he does he must account for the profit so made . . . An administrator stands in fiduciary position to the trust property and beneficiaries’ The Nakatonya and Kisugu property have all been enjoyed by the defendants for their own gain and not to the benefit of all the beneficiaries.

[24] This neglect and breach of duty as administrators amounts to mismanagement of the estate of the deceased (see the case of Babumba and 13 Ors Vs Ssali Babumba (CIVIL SUIT NO.78 OF 2012) [2015] UGHCFD 31 (1 September 2015).

The estate properties shall thus be distributed amongst all the beneficiaries equally since they are family property.

The defendants have never filed an inventory to show the properties that came to their hands. The defendants are thus hereby ordered to make a full and final account of all the properties that have come into their hands and to have this account filed in court within two months from the date of judgment.

[25] The plaintiffs prayed for general damages and an order for the defendants to make good any loss incurred by the estate as a result of their mismanagement. Having found that the defendants mismanaged the estate by failing to distribute and or ensure that all the interests of the beneficiaries were met and by selling some of the Kisugu property; noting that the plaintiffs did not show which part of the estate they have been occupying it is presumed that they benefitted from the matrimonial properties- residential holdings which were occupied by their mothers; and finally considering that this is a family matter I shall instead award general damages of UGX 10,000,000 to the plaintiffs, interest at 8% p.a. from the date of judgment till payment in full and costs of this suit.

In the result it is hereby ordered as follows;

1. Judgment is entered in favour of the plaintiffs;
2. The grant of Letters of Administration for the estate of the late Mohammed Rajab vide AC 104 of 1990 is hereby revoked.
3. The defendants, for intentionally lying to court while under oath, shall personally pay to this court a fine of UGX 2,000,000 within two weeks of this ruling.
4. All the children of the late Mohammed Rajab are entitled to an equitable share to the estate of their father;
5. The estate properties for distribution to all beneficiaries and subject to what has already been enjoyed/disposed of are;
6. Land at Nakatonya Bombo
7. Land at Kibuli
8. Land at Maganjo
9. Block 244 Plot 412, Land at Kisugu.
10. The defendants shall make a full and final account of all the properties that have come into their hands and to have this account filed in court within two months from the date of judgment
11. General damages of UGX 10,000,000 to the plaintiffs with interest at 8% p.a. from the date of judgment till payment in full;
12. A permanent injunction hereby issues restraining the defendants from further dealings with the estate of the late Mohammed Rajab.
13. Costs of this suit shall be borne by the estate.

Dated at Kampala this 26th August 2019

Ketrah Kitariisibwa Katunguka.

Judge.