[1994] UGHC 118

## THE REPUBLIC OF UCANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

CIVIL SUIT NO. 29 OF 1993

AMINA ROSE NAKAYE ::::::::::::::::::::::::: PLAINTIFF $= V E R S U S =$

HAJI JUMA ACHIKULE :::::::::::::::::::::::::::: DEFENDANT **BEFORE:** THE HONOURABLE MR. JUSTICE I. MUKANZA.

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The plaintiff in this case Amina Rose Nakaye filed this suit under S 265 of the succession Act Cap 139 following the lodging. of a caveat against the grant of letters of administration. The crucial issue to be determined in this case is whether or not the caveat should be removed and the plaintiff/granted the letters of administration.

The brief facts of this case were that the plaintiff applied for letters of administration to the estate of the lata Juma Yuma. formerly of Jinja Kawempe Mpigi District and for quiet possession and enjoyment of the matrimonial home.

The plaintiff was married to the late Juna under Kiganda customary law first and then married the same under an Islamic Ceremony narriage performed by Luam Seruma Siraji Kulumba PW3. She lived with the late Juna Yuna at Jinja Kawempe and was recognized as his wife. Then the late Juna Yuma died on 7th November 1992 at Lacor Hospital in Guly.

After the death of the deceased the defendant who is the deceased's father-living in Arua came with other relatives and stayed in the matrimonial home at Jinja Kawempe. The plaintiff who was in advanced stages of pregnancy was forbidden by the defendant from having any of her relatives around in the house to look after her. Efforts by the RCs to arbitrate between the parties failed and the plaintiff was forced to seek refuge elsewhere as the defendant was in occupation of her home.

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In his written statement of defence the defendant conceded that the lute Juma Yuma was his son and died at lacor Hospital in Gulu and that he lodged a caveat but averred that the plaintiff was not the wife and had no cause of action in the natter of the estate of the late Juma Yuma.

Though at the beginning of this judgment I stated that the only issue to determine was whether the caveat lodged should be removed or not. It was also necessary to frame the issues/ The following issues were agreed upon between the parties namely. ' (i) whether the plaintiff was entitled to letters

of administration,

(ii) whether or not there was any remedy available to the parties.

The plaintiff gave evidence as PW1 whose evidence was reflected in the pleading and called two witnesses in support of her version. PW2 was the Iman of Nansanda Mosque who is stated to have sotaonised the Islamic marriage between the plaintiff and the late Juma Yuma, whereas PW3 was a brother to the said plaintiff.

On the other hand the defendant testified as OT1 and called three witnesses in support of his story namely DW2 a driver and an employee as a shop assistant in the deceased's shop at Kikubo, DW3 was an Imam and incharge of security office in the Uganda Muslin Supreme Council Headquarters Kampala. And the last of these witnesses was PW4 a passport control officer in the immigration department who apparently issued a passport to the deceased ffXP fid.

On issue No,1, The learned counsels addressed me at length and quoted authorities in support of their submission, I have had the opportunity to peruse some of them.

The evidence on the part of the plaintiff did show that she went through both the customary and Islanic/Jlohammed ^u marriages. Sho was a Christian known as Hose but converted to Islam and hence

PW3 who stood in the feet of their her name Amina (Nakato). deceased father, father of PW3 and PW1 received the bride and bridegroom at Makindyein the home of their mother where by Juma Yuma was introduced as the one who is going to wed Rose Nakaye. Consequently Juma Yuma gave fifts to the parents of the girl i.e. the mother of PW1, PW2 and other relatives around. $PW3$ was emphatic that he attended the ceremony and witnessed the gifts given to the relatives of the girl by the deceased.

PW2 on the other hand solmonised the Mohammed/Islamic marriage between the plaintiff and the late Juna Ayuma after converting PW1 from being christian and becoming a moslem. The marriage certificate was witnessed and signed by the couple as per exhibit P1.

DW1 on the other hand was of the firm view that abo was never married to the deceased. She was a mere girlfriend. He never participated either in the customary and or Islamic marriage something that ought to have been done since he was the natural father of the deceased. He continued that the pregnancy PW1 had was not that of his son the deceased and that the signature appearing on exhibit P1 the Islamic marriage certificate was dissimilar to the signature of the deceased in the passport exhibit D1. DW2 tendered in court exhibit D2. This chit is stated to have been written by the plaintiff and handed over to DW2 with a view to pass over the same to the deceased at his death bed at Lacor Hospital. The plaintiff who was also there together with her mother was imploring the deceased to tell the RC1 Kawempe to guarantee her security.

The chit states:-

## Dated 29th October 1992

"R. C. Chairman 1 Jinja Kawempe Zone B Mpigi District Mr. Kiiza Amooti. I have given you this note to inform you that if anybody comes to disturb my home I regard him as a thief, you can do any action on him or her

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and nobody should open the big gate'1.

Because of that chit coupled with other evidence by the plaintiff . the learned counsel for the defendant submitted that PW1, PW2 and PW3 ganged together in order to grab the estate of the deceased, I an of the view that there v/as insecurity^owing to the problems at hone, like the debtors who had purchased certain vehicle together with the deceased and PW1 feared they could disturb her at Jinja Kawenpe, In fact that chit was not calculated to grab the estate of the deceased.

The other witness called by the defence DW3 was an Iman and a security officer at the Uganda Muslim Supreme Council. He appeared to be an expert© on the Islamic marriage, I say this because he laboured at length to explain how a valid Islamic marriage should look like and told court that it ought to be in form ITO. MC ⁸⁹ EXP ³ which is Uganda Muslim Supreme Council certificate of marriage. The certificate form is both in English and Swahili and is for intent and purposessimilar to exhibit P, ¹ certificate of marriage (in Duganda) issued after the Islamic ? marriage ceremony of ⁸ th. April .1569\* The question here is whether ^< PW1 became wife/widow after the two ceremonies of marriage.

With regard to the customary marriage Mr, Jogo counsel for the plaintiff submitted that with the enachnent of the customary marriage Decree, Decree ¹⁶ of 1973 Evidence of the Registration of such marriage should have been adduced but no such certificate of registration was ever produced.

With due respect S.10 of the customary marriage Registration decree gives conditions of avoid customary marriage and they are

- (a) The female party there to has •' not attained the age of sixteen years, - **(b)** The male party there to has not attained age of eighteen years or

(c) One of the parties is of unsound mind or

(d) The parties there- to are within tie prohibited

degrees of kinship specified in the schedule to this decree or the marriage is prohibited by the custom of one of the parties to the marriage or

(e) One of the parties has previously contracted amonogamous marriage which is till subsisting.

No evidence was adduced to show that PW1 was not aged sixteen years when she contracted the customary marriage nor was there evidence to show that was of unsound mind or that she was within the prohibited degree of kinship or that the marriage was prohibited by the custom of one of the parties to the marriage nor had she previously contracted a monogamous marriage which was still subsisting.

And in Uranda ys Gabudiel and Alikeri Acole 1977 HCB 22 Sekandi J as he then was held that the formalities for the registration of customary marriage stipulated in the decree do not effect the essential validility of such marriage. In the instant case though the customary marriage was not registered it was still a valid marriage. Also where there is evidence of ceremony of customary marriage having been gone through followed by cohabitation of the parties everything necessary for the validity of the marriage will be presumed in the absence of decisive evidence to the contrary, when this is done the burden of proof is on those denying the validity of the marriage See Spiva wo Spivac 1930 AER P.13. This is an English decision of a highly pursuasive nature. It is good law and I would follow it. $\quad\texttt{The}\quad$ plaintiff had done everything ta show that she went through the customary marriage and cohabited with the deceased and the essential validity of such marriage were there. The burden was therefore on the defence to challenge the validility of that marriage. They have unfortunately failed to discharge that burden.

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There were some contradictions in the plaintiff's case for instance whether the dowries in this case, the gifts were given at the parents hone or not and who was supposed to get the gifts from the vehicle as per the testimony of PW1. The learned counsel submitted that no such customary marriage ever took place. He also submitted that according to the signatune on the passport EXB1, the deceased never signed EXP1 the Islamic marriage certificate. With reference to the discripancies in the plaintiff's case these were ninor and not major one? and did not in my opinion lead to deliberate untruthfulness and as such the plaintiff¹ ^s case should not be rejected. There was credible evidence to show that such mari'iage took place'.

EXD1 and the other from EXPI. / was signed by him whereas the signature appearing in EXP1 the Islamic marriage certificate did 'not belong to the deceased. PW1 further infoxmed the court that the deceased had ttwo names. I will call them surnames. ISukli and Yuma (Juma Yuma and Juma Mukli). In the passport EXP1 he signed as Juma Jlukli whereas in the Islamic marriage certificate EXP1 he is said to have signed as Juma Yuma. PV71 only recognised the signature of the deceased in EXD1 and not that of EXP1 as belonging to his son. I seem to agree with the submissions of the learned counsel appearing for the plaintiff that the signatures appearing in EXP1' and EXP1 that is to say -the signature in the marriage certificate and the pass-port respectively could not possibly be similar because of different names. I do believe PW1, PW2 and PW3 as having told this court the truth that the Islamic marriage was celebrated between PW1 and deceased Juma Yuma\* I say so because PW1 who was a Christian converted to Islam as per EXP2. Both parties consented to the marriage which was celebrated by the Imam of the area registered as EXP PI and signed by the couple and witnesses,

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From what has transpired above my findings is that PW1 is the widow of Juma Yuma having been married under the marriage and Divorce of Moslems/Cap 213. The question that rises there who is to be entitled to the grant of letters of administration. $PW1$ applied for the grant of letters administration and DW1 lodged a caveat.

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In re Kibic/0 1972 EA 179 quoted with approval in Florence Komitungo vs. Yolamu Katuramu (1992) IV KAL page 12 Madan J as was he then/had this to say:-.

> "A widow whatever race living in the country is entitled for grant of letters of administration nore so when the children in the instant case are minors. A widow is the most suitable person to obtain a representation to her deceased's husband estate. In the normal case of events she is the person who would rightfully properly and honestly safeguard the assets of the estate forself and children".

In the instant case the plaintiff had a child with the deceased which child was conceived during the subsistence of the narriage and as such is said to be fathered by the deceased. I dismiss the defendant's clain that the child did not belong to the late Juna Yuna and that he got that information from the deceased himself. The latter is not around to confirm to the allegation by DWI. In my opinion that was hearsay evidence and was part of the calculated manouvers on the part of the defendant and his lieutenants to grab the estate of the late Juna Yuna.

PW1 on the other hand used to look after the child Oloma born by another woman of the deceased without any problem during the life time of her husband. She is in my opinion the right person to continue looking after the child Olama and the estate of the deceased of the deceased nore so since she had a minor her child and one Olene to cater for. The defendant claimed that the deceased had four other children with other woman, three of whom he gave their names and the fourth he could not recall his names. These children were staying with their nothers and in fact they

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were illegitimate children but they are also catered for in the Succession Act. One disturbing fact is that none of these mothers were called as witnesses. There is a possibility that they were not there.

Be that as it nay the defendant had shov/n that he could not properly administer the estate of the deceased. In the RCs meeting held at Kawenpe EXP4 he recogniseethe plaintiff as liis daughter in lav/ and promised to look afterAjut when he cane to court he denied that the plaintiff was not the wife of his son but a mere girlfriend, DV/1 is unreliable and infact unpredictable. Immediately he came to Kawenpe he made the life of PW1 intolerable. He stopped her from receiving any of her relatives as visitors who were coning outside except her only worker, He secured a car himself on the pretext that it was given to him by his son the deceased. He was meddling in the estate of the deceased. Given the letters of administration he would most likely administer the estate to the detriment of the widow / • . the minor and one Olena, In fact before the death of Juma Yuma the plaintiff was looking after the extra marital child and I do not see any reason why she should not continue looking after the said Olena. And afterall she .was entitled to the greater share of the estate as per the Succession Anendnen decree. Decree 22 of 1972 ^S 2C. She takes precedence of all persons applying for letters of administration. See Erinesti JE&bunba and ² ^others vsNaJcasf Ki zito Rep KA^D (19\$2\_1 II P, 75- In fact the first issue is/affirmative.

About the remedies available to the parties which is the second issue. PW1 has proved on a balance of probabilities that is the right person to be granted letters of administration to the estate of the late Juma Yuma alias Mikli, Therefore she succeeds in this suit. Consequently it is hereby ordered that the caveat lodged against the plaintiff¹ s application by the defendant be removed. It is further ordered that the plaintiff

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It is further ordered that the plaintiff is entitled to quiet and undisturbed possession of the matrimonial hone of the said Juma Yun. She is also awarded costs of this suit.

However there was one disturbing natter about this case. All along the court proceeded on the pretext that the plaintiff went through both the customary and Islamic marriages but upon perusal of the pleadings and this was after judgment had already been-written. It was realised that in her pleadings the plaintiff is stated to have married, under the Islamic law only. The evidence therefore given about the customary marriage was a new natter raised which was not pleaded in the pleadings. It was therefore inconsistent with the pleadings and is disallowed See, Captain ^Harry . Gaudy vs., Caspair ^Air Charies Ltd. His majesty'^s court of appeal for Eastern Africa 1956 Vol XXIII P, 139. Opika Opoka vs TJuniio ^Hewpapers \_aiid .another 1988-199OHCB page\_5J^ It is ny opnion however that even if the evidence of customary marriage was expunged from the record there was cogent evidence to show that the deceased wed the plaintiff under Islami^c law. My findings and orders as explained above are sill valid orders and are not effected by the exclusion of the customary marriage from the record.

I. MUWTZAZ \_J ifp GE 25,5,1994.

2.5. 5\_. J⁹⁹⁴:

All parties before court.

. Mr. Musisi for the plaintiff - Present. Mr. logo for the defendant - present

Court: Judgment is read in chambers and signed.

Il^A explained. '- •< I, MUKA1M JUDGE 25.5,1994,

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