[2023] UGHC 476

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT MUKONO

#### CIVIL APPEAL No. 43 OF 2022

# (ARISING FROM CIVIL SUIT No. 15 OF 2021 OF THE **MAGISTRATE GRADE 1 COURT AT NJERU)**

**1. ETOMET FESTO**

2. ELOKAIT MANDE

# 3. SALEH ZAINABU:::::::::::::::::::::::::::::::::::: **VERSUS**

#### WOTALI ROBINA ::::::::::::::::::::::::::::::::::::

### BEFORE HON. LADY JUSTICE CHRISTINE KAAHWA

#### JUDGMENT

#### **Background:**

This is an Appeal against the decision of His Worship Egessa Wilberforce Masaaka, the Magistrate Grade 1 at Njeru Magistrates' Court. The Respondent filed Civil Suit No. 15 of 2021 at Njeru Court for orders among others that the Respondent is the rightful owner of the suit land measuring approximately 100ft by 140ft, 150ft by 440ft and that the Appellants be declared trespassers on the same among others.

The facts of the suit in the lower Court by the Respondent were that the she got married to the Late Omaido Alex in 1992 and they

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lived together as husband and wife until his death in 2002. That the Late Omaido Alex had 2 pieces of land at Kirugu Wakikola village and in Amongola, Bukedi District. The Respondents are biological children of the Late Omaido Alex and step children to the Respondent.

That at the time of the Late Omaido's death, the Respondent had been staying with him at Wakikola Kirugu Village since 1992. The Respondent continued occupying the said land until 2018 when the defendants started disturbing her by spraying her crops with dangerous chemicals and threatening to kill/evict her from the house. The Appellants claim that the said land is theirs and have even gone ahead to harvest the coffee and bananas the Plaintiff planted. The Plaintiff reported the matter to various authorities but the same was never resolved hence the suit.

The Appellants filed their defense in the said suit and alleged that the measurements of suit land in the plaint are unknown to them and that they don't know how the Plaintiff acquired the same. The Appellants alleged that their father died intestate and that the estate has never been distributed since there is no Administrator yet fully authorized by Court to effect the distribution.

The Defendants/Appellants also alleged that the Respondent only stayed with their Late father as a cohabitee but not wife and that the Respondent forged a will in respect of their father's estate. They also alleged that their Late father only left one piece of land

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at Wakikola Village and that the other piece at Amongola stated in the Plaint belongs to the Defendants'/Respondents' grandfather.

At the hearing in the lower Court, the Appellants led evidence of 4 witnesses whereas the Respondent led evidence of 3 witnesses. Among others, all the witnesses save for DW4, told the lower Court that when disputes started arising on the land, the clan convened a meeting and assigned the parties portions of the land which each should occupy. No boundary marks were laid on the land. DW4, the biological mother to the 2^nd and 3^rd Appellants told Court that at the time of his death, Omaido Alex had given the $1^{\rm st}$ and $2^{\rm nd}$ Appellants their pieces of land.

The lower Court also held a locus visit and observed that the family has 3 burial sites whereby the two were behind the house of the Plaintiff. It was also found out that the Plaintiff has a permanent house and she was doing zero grazing there and that no one intends to evict her from the portion which the clan assigned/gave her.

The lower Court decided;

- a. That the Plaintiff (Respondent) is entitled to a share of the estate of the late Omaido Alex and that what the clan gave Her lawrully belongs to her. - b. That the Defendants (Appellants) are not trespassers on the suit land.

- c. That the area reserved for family burial grounds shall remain so for that purpose. - d. The Defendants are restrained from either chasing away the Plaintiff or taking over her matrimonial home or dealing in any way with her kibanja which the clan allocated to her. - e. That the Plaintiff shall remain in her house and nobody should disorganize her from there. - f. Each party to bear their own costs.

The Appellants were dissatisfied with the above orders and findings of the lower Court hence this Appeal and premised on the following grounds.

- 1. That the Learned Trial Magistrate erred in law and fact when he upheld the illegal distribution of the suit land by the clan without a duly authorized Administrator to the Estate of the late Omaido Alex hence causing miscarriage of justice to the prejudice of the Appellants. - 2. That the Learned Trial Magistrate erred in law when he held that the Respondent is entitled to a share in the estate of the Late Omaido Alex yet the Respondent was not legally married to the Deceased hence occasioning a miscarriage of Justice. - 3. That the Learned Trial Magistrate erred in law and fact when he improperly evaluated the evidence on record thereby arriving at a wrong decision.

The Appellants concluded by stating that the Trial Magistrate erred in law when he found that the Respondent is entitled to a share in the estate of the late Omaido as a wife yet no evidence documentary or circumstantial was brought forward to prove any marriage.

In reply, the Respondent's Counsel submitted that in their Joint Written Statement of defense, the Appellants stated that the Respondent was not a widow to the late Omaido Alex as she had never been married to him. Counsel posited that during the hearing, the Appellant never brought any evidence to the effect that the Respondent was not a widow to the late Omaido Alex with whom she customarily married in 1992 till 2002 when he died.

Counsel argued that the fact that the Respondent was married to the Late Omaido was supported by the evidence of the 3^rd Appellant and that of PW2, Ouma Silivano who all told court that the Respondent was married to the Late Omaido. Counsel accordingly prayed that this honorable court answers this ground in the negative.

In regards to the 3^rd and 4^th Grounds, Counsel for the Appellants generally submitted that the Respondent bore the burden of proving her case on the balance of probabilities. Counsel stated that the Respondent did not attach any proof to show that she was ever married to the Late Omaido and that the Appellants in their defense had told court that she only stayed with their father as a

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concubine. Counsel then submitted that since there was no proof that the Respondent was ever married to the Late Omaido, then there was no marriage and therefore she should not benefit from the estate of the deceased as a widow. The other rest of the submissions of the Appellant are a replica of the submissions on Grounds 1 & 2.

In reply, the Respondent only responded to Ground 3 and stated that the Trial Magistrate properly evaluated all the evidence of the witnesses.

## **Analysis and determination:**

It is the duty of this Court as a first Appellate Court to re-hear the case by subjecting the evidence presented to the trial Court to a fresh and exhaustive scrutiny and re-appraisal before coming to its own conclusion (see Father Nanensio Begumisa and three Others v. Eric Tiberaga SCCA 17of 2000; [2004] KALR 236). If there is any conflicting evidence, the Appellate Court must put in mind the fact that it has not seen or heard the witnesses; it must therefore weigh the conflicting evidence and draw its own conclusions (Refer to Lovinsa Nankya v. Nsibambi [1980] **HCB 81).** The Appellate Court may interfere with a finding of fact if it is shown that the trial Court overlooked any material fact in the evidence of a witness or if the balance of probabilities as to the credibility of the witness is inclined against the opinion of the trial Court.

It therefore goes without saying that this Court is not bound necessarily to follow the trial magistrate's findings of fact if it appears either that he or she has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally. I will resolve the grounds in the order as stated in the Memorandum of Appeal.

GROUND 1: That the Learned Trial Magistrate erred in law and fact when he upheld the illegal distribution of the suit land by the clan without a duly authorized Administrator to the Estate of the late Omaido Alex hence causing miscarriage of justice to the prejudice of the Appellants.

I have reviewed the record of Appeal and exhibits PEX1, PEX2, PEX3 which are resolutions of the Meetings between the parties, their clan and LC authorities where the suit land is situate. I observe that the suit land was distributed by the said family Meeting held on $9/8/2020$ .

According to the evidence of the PW3, Remegio Orodi, the Secretary LC1, Kirugu Village, the clan distributed the land because the Plaintiff/Respondent came and made a complaint at the LC authorities that the Appellants were harassing her on her land. That the LC authorities realized they could not handle the issues since it required clan members and a Meeting of the same was convened

which showed everyone a part to occupy. This is on page 11 of the record of proceedings.

The evidence of DW1, DW2, DW3 & DW4 all shows that there is tension and conflict amongst the parties in respect to the land. For example, DW3 states in his evidence in chief on page 19 that;

"... The Plaintiff is claiming the entire burial grounds. According to the Ateso culture, the widow is supposed to take care of the burial grounds. But the Plaintiff does not want us to step on the said burial grounds. The Plaintiff was not properly married to our father. We don't know her as a widow. Our father never officially married her. The Court should allow us distribute the land and we give her daughter a share, not herself. ..."

It is my observation that the clan seemed to have intervened by showing everyone a part to occupy in order to settle the conflict within the family of the Late Omaido Alex.

The evidence of DW3, Saleh Zainabu, and DW4, Auma Desiranta at pages 20 and 22 of the record of Proceedings clearly shows that at the distribution, the clan did not plant mark stones to show the parties the boundaries of the respective shares given to each of them.

This Court holds a similar view with that of Hon, Mr. Justice Mubiru in Magbwi Erikulano v. MTN (U) Limited and another, H. C.

It therefore goes without saying that this Court is not bound necessarily to follow the trial magistrate's findings of fact if it appears either that he or she has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally. I will resolve the grounds in the order as stated in the Memorandum of Appeal.

**GROUND 1: That the Learned Trial Magistrate erred in law** and fact when he upheld the illegal distribution of the suit land by the clan without a duly authorized Administrator to the Estate of the late Omaido Alex hence causing miscarriage of justice to the prejudice of the Appellants.

I have reviewed the record of Appeal and exhibits PEX1, PEX2, PEX3 which are resolutions of the Meetings between the parties, their clan and LC authorities where the suit land is situate. I observe that the suit land was distributed by the said family Meeting held on $9/8/2020$ .

According to the evidence of the PW3, Remegio Orodi, the Secretary LC1, Kirugu Village, the clan distributed the land because the Plaintiff/Respondent came and made a complaint at the LC authorities that the Appellants were harassing her on her land. That the LC authorities realized they could not handle the issues since it required clan members and a Meeting of the same was convened

which showed everyone a part to occupy. This is on page 11 of the record of proceedings.

The evidence of DW1, DW2, DW3 & DW4 all shows that there is tension and conflict amongst the parties in respect to the land. For example, DW3 states in his evidence in chief on page 19 that;

"... The Plaintiff is claiming the entire burial grounds. According to the Ateso culture, the widow is supposed to take care of the burial grounds. But the Plaintiff does not want us to step on the said burial grounds. The Plaintiff was not properly married to our father. We don't know her as a widow. Our father never officially married her. The Court should allow us distribute the land and we give her daughter a share, not herself. ..."

It is my observation that the clan seemed to have intervened by showing everyone a part to occupy in order to settle the conflict within the family of the Late Omaido Alex.

The evidence of DW3, Saleh Zainabu, and DW4, Auma Desiranta at pages 20 and 22 of the record of Proceedings clearly shows that at the distribution, the clan did not plant mark stones to show the parties the boundaries of the respective shares given to each of them.

This Court holds a similar view with that of Hon. Mr. Justice Mubiru in Magbwi Erikulano v. MTN (U) Limited and another, H. C.

Civil Appeal No. 27 of 2012, that the provisions of section 191 of The Succession Act were never meant to abolish customary inheritance of land or proscribe the enforcement of proprietary rights so accruing under that legal regime.

Although, their role has been significantly diminished, customary laws and institutions continue to play a significant role in the lives of large segments of the population in Uganda, in matters that impact greatly on their day-to-day lives, such as inheritance to land. Significantly, for large segments of the rural population, customary laws and institutions are the only available means of acquisitions of land. Therefore although section 1 of The Succession Act, Cap 162 stipulates that except as provided by the "Act, or by any other law for the time being in force," the provisions in the Act shall constitute the law of Uganda applicable to all cases of intestate or testamentary succession, and despite the fact that this Act sought to provide a uniform testate and intestate succession law that is applicable throughout Uganda, it could never have been the intention of Parliament to abolish customary law of inheritance. This view is further supported by the fact that section 2 (1) of *The Succession Act (Exemption) Order*, Statutory Instrument 139-3 made under the provisions of section 334 of *The* Succession Act, which provided that all Africans of Uganda were exempted from the operation of the Act (see also for comparison Benjawa Jembe v. Priscilla Nyondo (1912), 4 EACA 160, 161 and Miney Frances v. Samuel Bartholomew Kuri as

## **Administrator of the Estate of Samuel Nelson Bartholomew** deceased (1951), 24 KLR 1).

The phrase "or by any other law for the time being in force" should therefore be interpreted to include existing custom, which is not repugnant to natural justice, equity and good conscience and is not incompatible either directly or by necessary implication with The Succession Act (see also The Administrator General v. George Mwesigwa Sharp C. A. Civil Appeal No. 6 of 1997). This court is alive to the fact that distribution in that case was done before 1972 and was therefore under the old legal dispensation.

The fact that the Act recognises and makes provision for "customary heirs" as persons recognised by the rights and customs of the tribe or community of a deceased person as being the customary heir of that person and thus entitled to share in the property of the deceased as such, notwithstanding that in Law Advocacy for Women in Uganda v. Attorney General, Constitutional.

On the other hand, Article 37 of *The Constitution of the Republic of* Uganda, 1995, guarantees to every citizen, the right as applicable, to belong to, enjoy, practice, profess, maintain and promote any culture, cultural institution, language, tradition, creed or religion in community with others. Moreover, Article 247 of *The Constitution* of the Republic of Uganda, 1995 requires courts to construe existing law with such modifications, adaptations, qualifications

and exceptions as may be necessary to bring it into conformity with the Constitution bearing in mind as well that Article 126 (1) thereof too requires such Application to be in conformity with law and with the values, norms and aspirations of the people. Customary laws and protocols are central to the very identity of many local Communities. These laws and protocols concern many aspects of their life. They can define rights and responsibilities on important aspects of their life, culture, use of and access to natural resources, rights and obligations relating to land, inheritance and property, conduct of spiritual life, maintenance of cultural heritage, and many other matters.

Customary practices of inheritance impact directly on the right to culture (of course excluding rules which treat people unequally or which limit other rights in a way which is unreasonable and goes against the spirit of the rest of the fundamental rights). In many traditional communities in a rural setting, majority of the people identify with customary laws of inheritance and conduct their lives in conformity with them. When the determination of rights in land, which in the lifetime of the deceased were governed by local customary rules generally regulating transactions in such land, individual, household, communal and traditional institutional ownership, use, management and occupation thereof, which rules are limited in their operation to a specific area of land and a specific description or class of persons, but are generally accepted as binding and authoritative by that class of persons or upon any

persons acquiring any part of that specific land, and suddenly upon death, the rights of successors to the land are instead considered in accordance with the strict application of provisions in legislative enactments, such strict application of the legislative regime creates deficiencies in inheritance rights resulting from the non-recognition of those customary inheritance practices. The crucial consequence of such strict application is that it creates tensions between the legal and customary transmission of rights in land, in respect of land governed by customary law. See Civil Appeal No. 0017 of 2016 Dima Dominic Poro versus Inyani Godfrey and Apiku Martin.

Section 191 of *The Succession Act* provides that no right to any part of the property of a person who has died intestate shall be established in any Court of justice, unless Letters of Administration have first been granted by a court of competent jurisdiction. These formal conscripts of ownership and inheritance stand in stark contrast to the patterns of descent-based succession and family property arrangements in the countryside characterized by local normative conventions. It may be appropriate for the Court to adopt a narrow, restrictive interpretation that limits the application of this provision to disputes involving distribution of an estate of a deceased person among persons claiming entitlement thereto, where the dispute is over who the beneficiaries are and their shares, rather than in resolving disputes involving third parties to the estate of the deceased where a less restrictive definition is more appropriate if the idea of justice administered in conformity with law and with the values, norms and aspirations of the people is to be realised. See **Dima Dominic Poro supra.**

Section 14 (2) (b) (ii) of *The Judicature Act*, the jurisdiction of the High Court is to be exercised subject to any written law and in so far as the written law does not extend or apply, in conformity with any established and current custom or usage.

Section 15 (1) of that Act confers on the High Court the right to observe or enforce the observance of, and not to deprive any person of the benefit of, any existing custom, which is not repugnant to natural justice, equity and good conscience and is not incompatible either directly or by necessary implication with any written law. Similar provisions are found in section 10 of The Magistrates Courts Act.

In the instant case this Court shall adopt a not so narrow and restrictive interpretation by stating that the clan in dividing the estate in the way they did meant the expectations of the norms and values of the people and in particular this particular family.

The 1^st & 2^nd Appellants seem to have disposed of their share of their inheritance like the prodigal son and now attack their step mother to disinherit her of possession of the suit property. It is very clear that even the other co wife acknowledged that the suit

land belonged to the Respondent; a noble and rare occurrence even in accepted polygamous marriages.

It is my view point therefore that the resolution of their dispute by the clan be left as was properly done. This ground therefore fails.

GROUND 2: That the Learned Trial Magistrate erred in law when he held that the Respondent is entitled to a share in the estate of the Late Omaido Alex yet the Respondent was not legally married to the Deceased hence occasioning a miscarriage of Justice.

The Respondent in her plaint stated that she was married to the Late Omaido Alex in 1992 until his demise in 2002. While giving her evidence as PW1, she told court that she was married to the said Omaido Alex. This evidence was corroborated by the evidence of the PW2, PW3 and DW4. For example, DWA4 in her evidence in chief on page 22 of the record of proceedings stated;

"... I know the Plaintiff as my co-wife, wife to the Late Omaido Alex. He died in a year I can't recall ..."

PW2 was a resident of Kirugu-Wakikoola Village aged 64 years at the time, PW3 was the Secretary LC1 of Kirugu Village aged 70 years whereas DW4 was the first widow of the Late Omaido Alex. These witnesses are believable given their age, status in the community and proximity to the deceased.

In their Written Statement of Defence and evidence, the Appellants who are the children of the Late Omaido Alex told Court that the Respondent was cohabiting with their father at the time of his death.

Section 29 (2) of the Succession Act provides that;

## principal residential holding Reservation of a from distribution

No person entitled to any interest in a residential holding under section 26 $(1)$ shall be required to bring that interest into account in assessing any share in the property of the intestate to which the person may be entitled under section 27.

In this case no evidence was led to show that there was a customary heir and therefore the two sons cannot claim a share in the suit property.

In the premises I find that the Trial Magistrate did not err in law and fact when he found that she is entitled to the said share.

This ground also fails.

Grounds 3: That the Learned Trial Magistrate erred in law and fact when he improperly evaluated the evidence on record thereby arriving at a wrong decision.

I have reviewed the record of the lower Court and the observations made at locus. It is my perception that the decision of the lower Court was arrived at having appraised and evaluated the evidence of all the witnesses. For example, at page 5 of his Judgment, the Trial Magistrate stated;

"Elokait Sperito (DW2) 's evidence echoes that of the 1^st Defendant and that their father did not tell them that the Plaintiff was not his wife. He also told Court that he had no intention of chasing the Plaintiff from the land.

Saleh Zainabu appeared as DW3 told Court that the husband of the Plaintiff was her father and that at the time of his death he had started building for the Plaintiff a house on the land. That they have no problem with the Plaintiff.

In cross examination, the witness told Court that at the time she got married, her mother had separated with her father but only came back later.

Desiranta Auma DW4 told Court that at the time her husband died he had not distributed the land but that each of them had where they were staying and cultivating..."

While concluding, the trial Magistrate stated, "On the issue whether the Plaintiff is entitled to a portion of the estate of the Late Omaido Alex, all Defendants have told Court that they have no problem with the Plaintiff taking a portion of the estate..."

I do not see any material fact that the lower Court over looked which would necessitate interference with the decision of the trial Magistrate by this court. The lower Court justly reached its conclusion.

I therefore find no merit in this ground. The same here by fails.

## **GROUND 4: That the decision of the Learned Trial Magistrate** is tainted with fundamental misdirection and non-directions in law and fact thereby occasioning miscarriage of Justice.

In regards to this ground, Counsel for the Appellants seems to submit that the actions of the clan amounted to intermeddling with the estate of the deceased and as such the Trial Magistrate should have nullified their actions of distributing the property.

Intermeddling is provided for under Section 268 of the Succession Act which provides;

"A person who intermeddles with the estate of the deceased or does any other act which belongs to the office of Executor, while there is no rightful Executor or Administrator in existence, thereby makes himself or herself an Executor of his or her own wrong; except that—

(a) Intermeddling with the goods of the deceased for the purpose of preserving them, or providing for his or her funeral, or for the immediate necessities of his or her own family or property; or

## (b) dealing in the ordinary course of business with goods of the deceased received from another, does not make an Executor of his or her own wrong".

As per the above section, I note that even if the actions of the clan amounted to intermeddling (which is not the case), the same fell under the exception in (a) and (b) since the clan members were providing for the immediate necessities of the deceased's own family.

This Court understands intermeddling to be where a person handles the deceased's assets and or holds out as an Executor of the estate. In the instant case the Respondent did not intermeddle. All she did was continue residing in the same home that the deceased had allotted to her. The clan members are not party to this suit and can therefore not be held culpable in their absence in light of the principle of fair hearing. The Court recalls that in issue one above its finding that clan members are allowed by customary custom to distribute or ensure that the estate is not wasted.

Given the foregoing, I do not perceive any fundamental misdirection of law and fact in the decision of the lower Court. This ground therefore also fails.

In the final verdict, this Appeal is dismissed with costs to be borne by the Appellants in this Court and the Court below.

Dated at Mukono this 30^th day of October 2023.

**CHRISTINE KAAHWA JUDGE**

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