[2022] UGCA 348

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## **CIVIL APPEAL NO. 18 OF 2019**

- 1. JJUUKO ALI - 2. IIUUKO RONALD - 3. ISAIAH DANIEL JJUUKO - 4. NANYONGA FARIDAH JJUUKO - 5. HASIFA KABEJIA JIUUKO - 6. HADIJIA NANJOBE JJUUKO - 7. KYOLABA MARIAM - 8. NOORDIN JJUUKO - 9. IIUUKO WAHAB - $10.$ **HAJARA JJUUKO** - $11.$ **MUZAMIL JJUUKO** - **IIUUKO ISAAC 12.** - **13. MURSHID IJUUKO** - **FATUMA JJUUKO** $14.$ - **15.** PHOEBE MUKASA JJUUKO - **IIUUKO RAYMOND** $16.$ - 17. **IJUUKO FARIDAH....................................**

#### **VERSUS**

## FAUSIA JJUUKO KIKYONKYO.................................

(An appeal from the decision of the High Court of Uganda at Kampala (Family Division) by Hon. Mr. Justice David Matovu, dated 15^th May, 2018 from High Court Civil Suit No. 545 of 2016 arising from Administration Cause No. 496 of 2013).

#### CORAM: Hon. Mr. Justice Richard Buteera, DCJ Hon. Mr. Justice Kenneth Kakuru, JA Hon. Mr. Justice Geoffrey Kiryabwire, JA

### **JUDGMENT OF THE COURT**

This is an appeal from the decision of David Matovu, J in High Court Civil Suit No. 545 of 2016 delivered on the 15^thday of May, 2018, in which judgment was entered in favour of the respondent.

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- ⁵ The background of this appeal is as follows: The appellants herein as widows and children of the late Salim fjuuko instituted a suit against the respondent challenging the Letters of Administration granted to the respondent (also widow) on ground of fraud/forgery, misrepresentation, failure to file and inventory and account of the estate and for just cause. - The respondent who is also a widow of the late Salim |juuko single hurriedly applied and acquired Letters of Administration for part of the estate of the late Salim |juuko vide High Court Administration Cause No. 496 of 2013. She subsequently presented the said Letters of Administration to the Uganda National Roads Authority IUNRA) for compensation of the estate land UNRA had acquired. The estate property is comprised in Busiro Block 438 Plot 984 at Nkumba which was acquired for the said expansion of the Entebbe Express Highway. L0 15

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It was the appellants' contention that the estate of the late Hajji Salim fjuuko who died intestate had several properties as listed in his testamentary document, four widows and 25 children. The respondent applied for Letters of Administration and named herself as the only widow and her seven children as the only biological children of the late Hajji Salim |juuko and the property comprised in Busiro Block 438 Plot 984 at Nkumba as the only estate property. They further contended that all the four widows and 25 children were beneficiaries of the estate and as such were equally entitled to the share sum of Ug. shs. t,34L,485,383 (One Billion Three Hundred Forty-One Million Four Hundred Eighty-Five Thousand Three Hundred Three Shillings only), the compensation value of the land at Nkumba in addition to the other estate properties. 20 25

The learned trial fudge found in favour of the respondent and held among others that the Letters of Administration were valid and the respondent did not commit fraud and or misrepresentation in applying for the said Letters of Administration and that the sum of shs. L,34L,485,383 (One Billion Three Hundred Forty-One

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⁵ Million Four Hundred Eighty-Five Thousand Three Hundred Three Shillings only) was the respondent's and her seven children's sole beneficial entitlement.

The appellants being dissatisfied with the decision and orders of the learned trial fudge appealed to this Court on the following grounds; -

- 1. The learned trial Judge erred in law and fact when he held and ordered that the grant of Letters of Administration in Nakawa Administration Cause No. 496 of 2013 issued to the Respondent were valid - 2. The learned trial Judge erred in low and fact when he held that the respondent did not commit any acts of fraud and misrepresentation when petitioning for and obtaining Letters of Administration vide Nakawa H. C Administration vide Nakawa H. C Administration Cause No.496 of 2013. - 3. The learned trial Judge erred in law when he denied to cancel /revoke the respondent's Letters of Administration which were obtained through fraud, deceit and misrepresentation. - 4. The learned trial Judge erred in law and fact when he held that a sum of Ug. Shs 1,031,972,383 (shillings One Billion, Thirty-0ne Million Nine Hundred Twelve Thousand Three Hundred Eighty-Three only) held on Standard Chartered Bank on Account No: 0151315688100 was for the benefit of the respondent and her 7 biological children to the exclusion of the other beneficiaries of the estate of the late Hajji Salim Jiuuko. - 5. In the alternative, the learned trial Judge erred in law and fact when he held that the appellan\* as widows and children of the late Salim Jjuuko were not entitled to benefit from the sum of Ug. Shs 1,031,972,383 (Shillings One Billion, Thirty-One t4illion Nine Hundred Twelve Thousand Three Hundred Eighty-Three only) held on Standard Chartered Bank on Account No: 0151315688100.

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- 6. The learned trial Judge erred in law when he failed to direct his mind to the law governing succession and /or distribution of an intestate hence arriving *at the wrong decision.* - 7. The learned trial Judge erred in law and fact when he held that the respondent obtained good title to the property comprised in Busiro Block 438 Plot 984 land at Nkumba. - 8. The learned trial Judge erred in law and fact when he generally failed to properly evaluate the evidence on record hence arriving at a wrong *conclusion.*

## **Representations**

At the hearing of this appeal *Mr. Marzug Swabur* learned Counsel appeared for the 15 appellants while *Mr. Rashid Kibuuka* learned Counsel appeared for the respondent. The parties agreed to proceed by way of written submissions. It is on the basis of the written submissions that this appeal has been determined.

# **Appellants' case**

In respect of grounds 1, 2 and 3, it was the appellants' contention that, the learned $20$ trial Judge erred when he found that the Letters of Administration issued to the respondent were valid. It was argued that, there was ample evidence on record which showed that the respondent committed acts of fraud and or forgery, misrepresentation and deceit while applying for Letters of Administration to the estate of the late Hajji Salim Jjuuko and as such the said Letters of Administration 25 had to be revoked and or annulled by the trial Court.

It was contended that it was on record that the late Hajji Salim Jjuuko was survived by 25 children and 4 wives. The family had set up a committee of eleven people to jointly apply for Letters of Administration. However, the respondent and her children declined to attend a meeting at the Chief Administrator's Office (CAO) office at Wakiso District Headquarter. The respondent later applied for Letters of

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- s Administration without consulting the appellants. In her application she named herself as the widow and her 7 children as the beneficiaries. They contended that, the respondent presented a forged document purporting to be a Uganda Gazette advertisement for a notice of her application for letters of Administration to the estate of the late Hajji Salim fjuuko whereas the original and genuine Uganda - 10 Gazette the Publication does not contain the said advert. Counsel submitted that the respondent superimposed her false notice in the place of another notice with intent to deceive Court that the notice was published whereas not. This amounted to fraud, deceit, forgery and misrepresentation and as such the Letters of Administration ought to be revoked as provided under Section 234 of the Succession Act Cap L62. 1s For the above preposition Counsel relied on Francis Ddida Ndugga vs N. Nanf nkombi - (1e81) HCB 7e.

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It was submitted that, learned trial |udge erred when he found that the respondent was justified to apply for Letters of Administration in respect of only one property comprised in Busiro Block 438 Plot 984 land at Nkumba where she and her seven children supposedly had interest albeit the fact that the estate of the late Hajji Salim fjuuko had other properties and other beneficiaries. It was argued that the estate of the deceased is one and cannot be segmented as suggested by the learned trial fudge. Based on the above submission Counsel prayed Court to annul the Letters of Administration granted to the respondent.

²⁵ In respect of grounds 4, 5 and 6, it was argued that the learned trial fudge failed to apply the law on distribution of an estate of belonging to a person who died intestate. The learned trial fudge erred when he held that a sum of Ug. Shs t,03L,9L2,383 fshillings One Billion, Thirty-One Million Nine Hundred Twelve Thousand Three Hundred Eighty-Three only) was only for the benefit of the respondent and her seven children. Counsel submitted that Section 25 of the Succession Act Cap 162 stipulates that all property in an intestate estate devolves on 30

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⁵ the personal representative ofthe deceased and as such the trial fudge erred to hold otherwise.

It was contended that since the late Hajji Salim fjuuko died intestate and as such the sum of Ug. Shs t,031,9t2,383 (shillings One Billion, Thirty-One Million Nine Hundred Twelve Thousand Three Hundred Eighty-Three only) belongs to the entire estate of the late Hajji Salim fjuuko and has to be shared by all the beneficiaries of the estate, that is the four wives and 25 children as per the provisions of Section 27 (L) (a) of the Succession Act. Counsel asked Court to answer the above grounds in the affirmative.

In respect to ground 7, it was argued that the learned trial |udge erred when he held that the respondent obtained good title to the property comprised in Busiro Block 438 Plot 984 land at Nkumba. It was contended that the Letters of Administration granted to the respondent were acquired through fraud and or forgery, misrepresentation and deceit and as such her registration as Administrator of the Certificate of Title was null and void and the respondent did not obtain good proprietorship. 15 20

In respect of ground B, it was the appellants' contention that the learned trial fudge failed to properly evaluate the evidence on record and as such, he reached at ^a wrong conclusion. Counsel prayed Court to allow the appeal with costs and set aside the judgment and decree passed by the trial Court.

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In reply to grounds t, 2, 3 and 8, it was the respondent's submission that the appellants failed to lead evidence to prove the allegations of fraud attributable to the respondent beyond a balance of probabilities and to the satisfaction of Court. The standard of proof is that fraud must be proved strictly. The burden being

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⁵ heavier on a balance of probabilities in civil matters. Counsel cited Kampala Bottlers Ltd vs Damanico Ltd, Supreme Court Civil Appeal No. 22 of 1992 It was argued that, the learned trial fudge rightly found that the respondent had ^a

right to apply for Letters of Administration in respect of her matrimonial property and her children and as such it could not be said that she intended to lie, defraud or

misrepresent any facts while applying for letters of administration. It was further contended that the respondent did not mention other properties, she intentionally left them out for her personal benefit. 10

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It was submitted that the respondent proved that she lived in her matrimonial home for over 25 years and contributed to the development and establishments of the same. Further that she had exclusively occupied the same with the late husband Hajji Salim |juuko and her children for over 25 years. Counsel argued that the respondent's application for Letters of Administration was intended to help her restore the home she had lost to the construction of the Entebbe express high way.

Counsel submitted that the learned trial fudge was right when he held that to prove forgery of the gazette, witnesses from Uganda Publishing and Publication Corporation (UPPC) had to be brought to Court which was not done by the appellants. The learned trial fudge was justified to find that forgery had not be proved to the standards established by law. 20

It was submitted that no material fact was pleaded in the plaint in respect of forgery of a gazette or failure to gazette the application for the special Certificate of Title in accordance with Order 6 rule 3 of the Civil Procedure Rules which requires that particulars of fraud must be specifically pleaded. Counsel argued that since the respondent had the Letters of Administration, she had authority to apply for ^a special certificate of title to enable her receive compensation from UNRA. The funds were to enable her purchase land and replace her matrimonial home. Accordingly, 25 30

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⁵ the submission that the transfer of the property into the respondent's name was obtained fraudulently was misconceived.

It is on record that the respondent inquired from the appellants about the whereabouts of the original duplicate certificate of title before her application for the special certificate. The appellants feigned knowledge of its whereabouts and 10 decided to reveal it at the trial. That could not impute and or amount to fraud on part of the respondent.

Counsel submitted that the learned trial Judge was correct in holding that the respondent was justified and truthful in her application for grant of Letters of Administration to state that she was the widow of the late Hajji salim fjuuko given that she could not state any other widows whose marriage she had no proof of. It was only fair that she did the right thing to truthfully speak of her marriage and property in her occupation leaving out other alleged widows, children and other property.

- 20 Counsel asked Court to find that the respondent who is a widow in exclusive possession and occupation of her matrimonial home was the sole beneficial owner and was entitled to apply for Letters of Administration in respect of the said matrimonial home. Counsel submitted that the appellants had not locus standi to apply for revocation of the grant in respect of the said matrimonial property. - 25

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In respect of grounds 4, 5 and 6, it was submitted that the respondent was compelled to apply for Letters of Administration after UNRA expressed interest to construct the Entebbe Expressway through her matrimonial home with she exclusively occupied with her 7 children. The purpose for the Letters were to enable her acquire a title over the land in order to enable her obtain compensation from UNRA to replace her matrimonial home elsewhere.

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⁵ It was submitted in evidence by the respondent that she contributed to the purchase and construction of the matrimonial home which was not challenged. It was also submitted that the respondent and her children exclusively resided in the matrimonial property during the lifetime of her husband the late Hajji Salim |juuko and as well as after his death and as such she and her children as entirely entitled to the compensation funds from UNRA. 10

It was submitted that the learned trial fudge was justified when he held that the appellants were not entitled to benefit from the compensation money payable by UNRA but rather the respondent and her 7 children were entitled to the benefit by way of using the said funds to replace or construct elsewhere the matrimonial home.

It was argued that the appellants are only driven by greed having heard about the compensation intended to be paid by UNRA to the respondent. They rushed to Court to revoke the Letters of Administration to partake in sharing the money so that the respondent would lose her matrimonial home and be left homeless. 15

Counsel prayed Court to dismiss the appeal, uphold the |udgment of the lower Court and costs be awarded to the respondent. 20

# Resolution

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We have carefully read the record of appeal and written arguments of the parties. We have also read the authorities cited and relied upon by Counsel. This is a first appeal and as such this Court is required to re-evaluate the evidence and come up with its own inferences on issues of lawand fact. See: Rule 30(1) of the Rules of this Court, Fr. Narsensio Begumisa and 3 others vs Eric Tibebaga, Supreme Court Civil No. 17 of 2002 and Ephraim Ongom Odongo vs Francis Binega Donge Supreme Court Civil Appeal No. 10 of2008 (unreported).

We shall keep the above principles in mind while resolving this appeal.

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s GroundsL,2,3 and 8, itwas the appellants'contention that, the Iearned trial fudge erred when he found that the Letters of Administration issued to the respondent were valid. It was argued that, the respondent committed acts of fraud and or forgery, misrepresentation and deceit while applying for Letters of Administration to the estate of the late Hajji Salim Ijuuko and as such the said Letters of 10 Administration had to be revoked and or annulled by the trial Court.

Section 190 of the Succession. Act provides that Letters of administration shall not be granted to any person who is a minor or is of unsound mind. The facts before us are that Letters of Administration were granted to the Fausia Kikyonkyo the respondent who is an adult of sound mind therefore, we find that she was in position to apply and be granted Letters of Administration.

On the aspect of fraud, fraud must be strictly proved, in Kampala Bottlers Ltd vs Damanico (Il) Ltd, SCCA No.22 of 1992, it was held thafi

"fraud must be strictly proved, the burden being heavier thon one on balance of probabilities generally applied in civil matters, it was further held that;

20 'The party must prove that the fraud was attributed to the transferee. It must be attributable either directly or by necessary implication, that is; the transferee must be guilty of some fraudulent act or must have known of such act by somebody else and taken advantage of such act"

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By that standard it would be necessary to place before court material which, to the required standard, compels the conclusion that there was a deliberate design and a motive for the making of an untrue allegation of fact which is essential in point of law, directed at misleading the Court in making the grant. See also: Ratilal Gordhandhai Patel vs Laljimakanji [1957] EA 314 at 317and Fam International Ltd and another vs Mohamed Hamird El- Fatih, Supreme Court Civil Appeal No.16 of 30 1993).

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u- ⁵ The Court in Fredrick Zaabwe vs 1rient Bank& )thers Supreme Court Civil Appeal No, 4 of 2006, defined fraud to mean the intentional perversion of the truth by a person for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or her or to surrender a legal right. It is a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations or concealment of that which deceives and it is intended to deceive another so that he or she shall act upon it to his or her legal injury. 10

Section 234 of the Succession Act provides that Letters of Administration will be revoked for just cause where; they were obtained fraudulently by making a false suggestion or 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 willfully and without reasonable cause omitted to exhibit an inventory or account in accordance with Part XXXIV of this Act, or has exhibited under that Part an inventory or account which is untrue in a material respect. 15 20

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It was the appellants' contention that, the respondent concealed important/material facts, committed fraud, misrepresentation and even lied whilst applying for Letters of Administration as she omitted other members of the family and the burden to prove so lies on the appellants. According to the facts before me, the respondent applied for Letters of Administration in respect of her residential/matrimonial home only and included only her children leaving out the residential/matrimonial homes belonging to the other widows and their children. She did not apply for Letters in respect of the whole estate, reason being all the widows of the late Hajji Salim fjuuko lived separately in different residential/matrimonial homes with their respective children. The respondent in her testimony stated that, she applied for letters of Administration in respect of her home only because it was to be 30

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compulsorily acquired by UNRA for the construction of the Entebbe Express $\mathsf{S}$ Highway, she stated as follows: -

> "I applied for letters of administration to administer only my home because that is where the road was going to pass... I applied for Kawufu only which is my home..."

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> "After Hajji had died when everyone had settled at their respective homes we did not have any issues but there came UNRA, they found me at home and they started questioning me and what I did was to look for the title but failed to find it because they were there in the house before Hajji died and I decided to keep quiet but when UNRA insisted on asking for the land title I decided to ask family members whether they have it but they told me that they do not have title and for me what I did was to go to Nakawa where I found a gentle man called Okwen who directed me to Counsel Malere and he helped me until when I got letters of administration."

The respondent stated that, she applied for letters of Administration following the 20 right procedure and process, the respondent's application was advertised in the gazette giving notice to all beneficiaries and that she was granted the Letters of Administration by Court on 23^rd October 2013. The facts also show that, there was absolutely no good relation amongst the widows plus their children and this was the reason why the respondent only applied for Letters of Administration in respect of 25 her residential/matrimonial home. While resolving this issue, the learned trial Judge found as follows:

> "Having carefully listened to the evidence of both parties in Court, I found that the family of the late Hajji Salim Jjuuko is deeply divided. The children are aligned towards their respective mothers and it is apparent from this

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⁵ Administration ceuse that the defendant was only interested in what belonged to her and her biological children. The defendant did not intend to be associated with the rest of the family property. I therefore cannot state that the defendant intended to lie, defraud or misrepresent any facts while applying for Letters of Administration in Administration Cause No. 496 of 2013... the Court has not found sufficient evidence to condemn the process of granting Letters of Administration in Nakawa High Court Administration Cause No. 496 of 2013. I therefore ftnd that the grant of Letters of Administration to the estate of the late Hajji Salim Jjuuko in Nakawa High Court Administration Cause No. 496 of 2013 is valid as far as it relates to only the defendant and her seven (7) Children names in the petition and specifically to the property at Busiro Block 438 Plot 984land at Nkumba only."

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With all due respect, we do not agree with the findings of the learned trial fudge, it was wrong and unlawful for the respondent to exclude other family members and conceal information while applying for Letters of Administration. Concealing information amounted to fraud, misrepresentation, forgery and deceit. The respondent did not also obtain the consent of the other beneficiaries when applying for the Letters. They testified that, she knew about the other beneficiaries before she filed the application for Letters of Administration, however she chose to omit their names or to even seek their consent. The same was admitted by the respondent that, she did not mention the other widows and children of the deceased. This renders the process illegal. It is an established position of the law a court of law cannot sanction an illegality once brought to its attention. See: Makula International Ltd vs His Eminence Cardinal Nsubuga & Another, Supreme Court Civil Appeal No, 4 of 1981. 20 25

The Letters of Administration were therefore granted based on untruths. Section 234 of the Succession Act (Supra) provides that:- 30

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⁵ (l) The grant of probate or letters of administration may be revoked or annulledfor just cause.

(2) In this section, "just cause" vnsqns-

(b) that the grant was obtained fraudulently by making a false suggestion, or by concealingfrom the court something material to the case.

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We find that the Letters of Administration granted and obtained by the respondent are invalid and are hereby revoked premised on the above finding. Letters of Administration can only be issued in respect of the whole estate of the deceased person. Grounds 1,2,3 and 8 accordingly succeed.

In respect of grounds 4, 5 and 6, it was argued that, the learned trial fudge failed to apply the law on distribution of an estate of belonging to a person who died intestate. It was the appellants' contention that they were entitled to the sum of Ug. Shs 1,031,9L2,383 (shillings One Billion, Thirty-One Million Nine Hundred Twelve Thousand Three Hundred Eighty-Three onlyJ the money paid by UNRA to the respondent as compensation for her matrimonial home. 15 20

Distribution of an estate belonging to a person who died intestate is provided for under Sections 26,27,28 and 29 of the Succession Act, Section 26 provides as follows-

" Devolution of residential holding s.

ft) fhe residential holding normally occupied by a person dying intestate prior to his or her death as hrs 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.

(2) 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

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this Act, shall be dealt with in accordance with the remaining provisions of this Part.

(3) Any dispute arising as to the exact area of any portion of land subject to this section or as to what person has the right to occupy the land or any part of it shall be settled by the personal representative.

(4) Any person who is aggrieved by any decision of the personal representative *under subsection (3) may appeal from the decision to a magistrate."*

Section 27 provides as follows: -

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"Distribution on the death of a male intestate.

Subject to sections 29 and 30, the estate of a person dying intestate, $(1)$ excepting his principal residential holding, shall be divided among the following classes in the following manner—

(a) where the intestate is survived by a customary heir, a wife, a lineal descendant and a dependent relative—

(*i*) *the customary heir shall receive 1 percent;*

the wives shall receive 15 percent; $(ii)$

*the dependent relative shall receive 9 percent;* (iii)

the lineal descendants shall receive 75 percent of the whole of the $(iv)$ *property of the intestate, but where the intestate leaves no person surviving him* capable of taking a proportion of his property under paragraph (a)(ii) or (iii) of this paragraph, that proportion shall go to the lineal descendants;

(b) where the intestate is survived by a customary heir, a wife and a dependent relative but no lineal descendant—

*(i) the customary heir shall receive 1 percent;*

the wife shall receive 50 percent; and $(ii)$

(iii) the dependent relative shall receive 49 percent, of the whole of the *property of the intestate;*

(c) where the intestate is survived by a customary heir, a wife or a dependent relative but no lineal descendant—

(*i*) *the customary heir shall receive 1 percent; and*

(ii) the wife or the dependent relative, as the case may be, shall receive 99 *percent, of the whole of the property of the intestate;*

where the intestate leaves no person surviving him, other than a $(d)$ customary heir, capable of taking a proportion of his property under paragraph (a), (b) or (c) of this subsection, the estate shall be divided equally between *those relatives in the nearest degree of kinship to the intestate;*

if no person takes any proportion of the property of the intestate under $(e)$ paragraph (a), (b), (c) or (d) of this subsection, the whole of the property shall *belong to the customary heir;*

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where there is no customary heir of an intestate, the customary heir's $(f)$ *share shall belong to the legal heir.*

Nothing in this section shall prevent the customary heir from taking a $(2)$ further share in the capacity of a lineal descendant if entitled to it in that *capacity.*

$(3)$ *Nothing in this or any other section of this Act shall prevent the* dependent relatives from making any other arrangement relating to the distribution or preservation of the property of the intestate provided that the arrangement is sanctioned by the court.

Schedule 2 paragraph 1 stipulates as follows: -15

"*Rules relating to the occupation of residential holdings.*"

*1. Persons entitled to occupation.*

(1) In the case of a residential holding occupied by the intestate prior to his or her death as his or her 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."

The facts on the record indicate that the late Hajji Salim Jjuuko had four wives and all the four wives lived separately in their respective residential/ matrimonial 25 homes. Each of the four wives lived with their children. The respondent's residential/Matrimonial home was compulsorily acquired by UNRA for the construction of the Entebbe Express Highway. Upon the acquisition, UNRA compensated the respondent so that she could acquire land elsewhere and re-build a house for herself and the children. While resolving this issue, the learned trial 30 Judge held as follows: -

> "After carefully analyzing the evidence of both parties in this case, Court finds that the Late Hajji Salim Jjuuko left four (4) widows and each was staying in separate home together with her children. The property in which UNRA has an interest is Busiro Block 438 Plot 984 and this property occupied by the defendant and her seven (7) children. It is therefore my finding that the defendant and her seven (7) Children have an exclusive interest in the property

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⁵ at Busiro Block 438 Plot 984 land at Nkumba and should share in equal proportions the monies on Account No. 0151315688100 in Standard Chartered Bank deposited by UNRA."

With all due respect, we do not agree with the findings of the learned trial f udge, it is on record that all the four wives lived separately in their respective homes, however the learned trial |udge ought to have considered the provisions of the Succession Act on the law of distribution of an estate who died intestate as laid out above. All the dependants of the late fjuuko are entitled to an equitable share to the estate of the late Haiji Salim fjuuko. Each widow is to remain in their respective homes in line with the provisions of Section 26(L) and Schedule 2 para 1 of the Succession Act (Supra)

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Having found that the respondent obtained the Letters of Administration illegally, we hereby cancel them. Letters of Administration having now been cancelled, we now vest the administration of the estate into the Administrator General to distribute the estate within 180 days from the date of this |udgement. The monies paid to the respondent to be held on the same account until the estate is distributed.

Should the estate still, be undistributed, the matter be returned this Court for further orders and directions. Grounds 4, 5 and 6 accordingly succeed.

In respect to ground 7, it was argued that, the learned trial fudge erred when he held that the respondent obtained good title to the property comprised in Busiro Block 438 Plot 9B4land at Nkumba.

The respondent applied for a special Certificate of title in respect to the property at Busiro Block 438 Plot 984 land at Nkumba, in order to present them to UNRA for the purpose of securing compensation over the land. She stated that the reason why she applied for a special certificate was because she failed to find the original and when

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she asked the family members for it, they told her that, they did not have it. She $\mathsf{S}$ testified as follows: -

> "...there came UNRA, they found me at home and they started questioning me and what I did was to look for the title but failed to find it because they were there in the house before Hajji died and I decided to keep quiet but when UNRA insisted on asking for the land title I decided to ask family members whether they have it but they told me that they do not have title... Ruth Maweije told me that she does not have it because I had explained to her that UNRA wanted the *original title..."*

Section 70 of the Registration of Titles Act Cap 230 provides that: -

"If the duplicate certificate of title is lost or destroyed or becomes so obliterated 15 as to be useless, the persons having knowledge of the circumstances may make a statutory declaration stating the facts and the particulars of all incumbrances affecting the land or the title to the land to the best of the deponents' *knowledge, information and belief; and the registrar if satisfied as to the truth* of the statutory declaration and the bona fides of the transaction may issue to $20$ the proprietor a special certificate of title to the land, which special certificate shall contain an exact copy of the certificate of title in the Register Book and of every memorandum and endorsement on it, and shall state why the special certificate is issued; and the registrar shall at the same time enter in the Register Book notice of the issuing of the special certificate and the date of its $25$ issuance and why it was issued; and the special certificate shall be available for all purposes and uses for which the duplicate certificate of title so lost or destroyed or obliterated would have been available, and shall be equally valid with the duplicate certificate of title to all intents; but the registrar before issuing a special certificate always shall give at the applicant's expense at least 30 one month's notice in the Gazette of his or her intention to do so."

The respondent applied for the special certificate of title, yet she had knowledge that, the original was in custody of the late Hajji Salim Jjuuko's sister Ruth Mawejje. The appellants in their testimonies stated that, the respondent used to call Ruth Mawejje demanding for the original certificate of title but she did not succeed to get it, that is why she opted to apply for a special certificate of title. The respondent had no legal authority to do so as she was not the registered proprietor or the successor in title.

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- ⁵ The Duplicate certificate of title originally issued was and is still in existence and in possession Ruth Mawejje, the late Hajji Salim |juuko's sister, this would therefore necessitate recalling of the special certificate of title for appropriate action. The original owners copy is to be deposited with the Administrator General, pending distribution of the estate property. Ground 7 accordingly succeeds. - This appeal succeeds and is hereby by allowed. Being a family matter we make no order as to costs. The decision, findings and orders of the Iearned trial are hereby set aside and substituted with orders here below. 1,0

We make the following orders and declarations

(1)The Letters of Administration issued to the respondent are null and void and are hereby revoked.

- (2) Letters of Administration are cancelled and vested in the Administrator General to distribute the estate within 180 days from the date of this fudgement. - (3) Each widow and her family are to remain in their respective homes and properties in line with the provisions of Section 26(L) and Schedule 2 para ¹ of the Succession Act until they are legally vested in them by the Administrator General. - (a)The estate properties shall thus be distributed amongst all the beneficiaries in accordance with status quo prevailing in respect of each widow and her family. - (5)The monies paid to the respondent to be held on the same account until the estate is distributed. And the same shall be paid to the widow/respondent whose land was acquired compulsorily. - (6)Should the estate still be undistributed, after 180 days hereof the matter be returned to this Court for further orders and directions.

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5 (7)The special Certificate of title in respect the property comprised in Busiro Block 438 Plot 984 land at Nkumba be canceled and vested in the Administrator General who shall transfer it to the widow in occupation of this property,

(B) Each of the widows, children and others beneficiaries to remain in occupation of the properties they occupy and the status quo be maintained until the distribution of the estate by the Administrator General.

The Registrar of this Court is hereby directed to serve a copy of this Court record and this fudgment upon the Administrator General.

Each party shall bear their own costs.

15 It is so ordered.

Dated at Kampala this ,.. day of 2022. e\$

Hon. Richard Buteera DEPUTY CHIEF IUSTICE

a aara laalt aat raa aaa aat ala aat taa laa alr ala ala

Hon. IUSTICE

Hon. Ge Kiryabwire JUSTICE OF APPEAL

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