[2022] UGHCFD 31

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (FAMILY DIVISION) CIVIL SUIT NO. 307 OF 2020**

# **1. MARTIN WISEMAN KISIGULA**

# **2. DAN WAMALA KIFUKO**

- **3. CHARLES KIWANUKA LUMU** - **4. SPENCER SSEBUGWAWO ………………………………….... PLAINTIFFS**

# **VERSUS**

- **1. MUKASA DAVID WILLIAMS** - **2. RITAH NANTEZA KALULE** - **3. EVA NABISUBI MAALO** - **4. MABLE ALEXANDRIA KIWALA LUGOLOBI …………. DEFENDANTS**

# **BEFORE: HON. LADY JUSTICE ALICE KOMUHANGI KHAUKHA**

# **JUDGMENT**

### **Introduction**

This judgment is in respect of a suit filed by way of plaint. The plaintiffs, Martin Wiseman Kisigula, Dan Wamala Kifuko, Charles Kiwanuka Lumu and Spencer Ssebugwawo filed the suit against the defendants, Mukasa David Williams, Ritah Nanteza Kalule, Eva Nabisubi Maalo and Mable Alexandria Kiwala Lugolobi for reliefs including: an order for the revocation of the defendants' Letters of Administration to the estate of the late Batulumayo Musoke Zimbe which were granted to them jointly on 22nd January 2015 vide High Court Administration Cause No. 894 of 2014, an order that a grant of Letters of Administration of the said estate be issued to the plaintiffs jointly, an order directing the defendants to prepare and deliver to the plaintiffs an account of all the assets and property of the estate of the late Batulumayo Musoke Zimbe which is within their knowledge and/or in respect of which they had any dealings during their tenure as Administrators of the subject estate, an order directing the defendants to surrender to the plaintiffs all certificates of title to the property belonging to the estate of the late Batulumayo Musoke Zimbe and costs of the suit.

# **Representation**

During the hearing, the plaintiffs were represented by Counsel Arthur Murangira of A. Murangira Advocates while the defendants were neither in Court nor were they represented.

# **Plaintiffs' case**

Martin Wiseman Kisigula, Dan Wamala Kifuko, Charles Kiwanuka Lumu and Spencer Ssebugwawo (**hereinafter referred to as the 1 st, 2nd, 3rd and 4th plaintiffs**) are beneficiaries of the estate of the late Batulumayo Musoke Zimbe (hereinafter referred to as **the deceased**).

Mukasa David Williams, Ritah Nanteza Kalule, Eva Nabisubi Maalo and Mable Alexandria Kiwala Lugolobi (**hereinafter referred to as the 1 st, 2nd, 3rd and 4th defendants**) are also other beneficiaries to the estate of the deceased who were unanimously selected by the family and beneficiaries of the estate of the deceased to administer the same in 2014. The defendants subsequently applied for Letters of Administration and the same were granted to them on **22nd January 2015** vide **High Court Administration Cause No.894 of 2014**.

However, the defendants failed to administer the estate of the deceased when they failed to do so jointly due to endless disagreements, constant bickering, in-fighting and squabbling amongst them over how to administer the estate. This was also coupled with the long absences of the 2nd and 4th defendants from the country which rendered the Letters of Administration to the defendants useless and inoperative. Some of the defendants acting in exclusion of the others carried out several unlawful acts in the purported exercise of the powers and duties of Administration. According to the plaintiffs, these acts laid to waste and/or threatened to lay the estate property to waste. The defendants are said to have carried out sub-divisions of the estate property without the express consent of all the joint administrators. The defendants are also said to have hood winked unsuspecting 3rd parties purporting to transfer the estate property to them without the involvement and/or express consent of all the 4 defendants as joint administrators. It is also the plaintiffs case that the defendants deliberately refused to properly account to the beneficiaries of the estate the dealings being carried on the estate property and instead played blame games against one another.

Realising that there was mismanagement, the plaintiffs and other beneficiaries of the deceased's estate held a meeting on 3rd October 2020 where they resolved to take Court action against the defendants seeking for revocation of Letters of Administration granted to them. The plaintiffs in the said meeting were unanimously selected and approved as the people to whom a fresh grant of Letters of Administration should be issued and were also given authority by other beneficiaries to bring this suit on their behalf.

It is upon that background that the plaintiffs sought redress from this honorable court praying for reliefs including: an order for the revocation of the defendants' Letters of Administration to the estate of the late Batulumayo Musoke Zimbe which were granted to them jointly on 22nd January 2015 vide High Court Administration Cause No. 894 of 2014, an order that a grant of Letters of Administration of the said estate be issued to the plaintiffs jointly, an order directing the defendants to prepare and deliver to the plaintiffs an account of all the assets and property of the estate of the late Batulumayo Musoke Zimbe which is within their knowledge and/or in respect of which they had any dealings during their tenure as Administrators of the subject estate, an order directing the defendants to

surrender to the plaintiffs all certificates of title to the property belonging to the estate of the late Batulumayo Musoke Zimbe and costs of the suit.

#### **1 st, 3rd and 4th Defendants' case**

The 1st, 3rd and 4th Defendants in their defence denied the allegations of the plaintiffs and averred that the estate was first administered by the direct beneficiaries namely; Alexandria Kiwala, Florence Nganda and Mildred Luwaga (hereinafter referred to as **the past administrators**) who disposed of the largest part of the estate. That they as the current administrators have largely completed and managed the issues arising from the past administrators and that as a result there was no new sale or distribution other than settling previous debts. That all actions were taken in the best interest of the estate and an inventory of their activities was filed. The said defendants averred that they had incurred expenses in the management of the estate affairs for which they sought compensation. As such, the defendants contended that the suit was frivolous and lacked merit. They prayed that the suit should be dismissed with costs.

### **2 nd Defendant's case**

The 2nd defendant denied every allegation of fact contained in the plaint. She raised a preliminary objection to the effect that the suit was frivolous, bad in law and had been filed with the primary purpose of malice and bad faith against her and is intended to put her name in disrepute.

The 2nd defendant averred that all the children/beneficiaries of the deceased and most especially her co-administrators made it impossible for her to effectively execute her duties. That on many occasions, she implored the other defendants to identify, distribute and file the inventory to court as required by law but she was frustrated by her fellow administrators and other children who happen to be the plaintiffs. The 2nd defendant further avers that the purported distribution of the estate was illegally done by the plaintiffs together with her co-administrators who not only held a meeting in her absence but also signed for her without her authorization. That she was not in the country at the time the said transfer and mutation forms were signed. As such, she contended that the suit is devoid of legal and actionable content and prayed that the same should be dismissed with costs.

Before delving into the issues raised in this matter and resolution of the same, I would like to note that the defendants did not appear in court when the matter was set down for hearing despite the fact that they were served with hearing notices and the same were received by their respective lawyers that is, Sekabanja & Co. Advocates for the 1st, 3rd and 4th defendants and Barak Legal Associated Advocates for the 2nd defendant.

On 14th February 2022 when the matter first came for hearing, the defendants and their lawyers were absent. Counsel for the plaintiffs prayed to proceed ex parte under Order 9 rule 20 (1) (a) of the Civil Procedure Rules. There was an affidavit of service on Court's record of a one Richard Munderi, a process server of A. Mulangira Advocates, Counsel for the plaintiffs. However, I found that the interest of justice demanded that the defendants be given another opportunity. I directed that service should be done again on defendants' advocates by the process server of this court. Whereas the process server has not yet filed an affidavit of service to that effect at the time of writing this judgment, he has furnished this Court with a return of service of the hearing notice bearing the stamp of Sekabanja & Co. Advocates and Barak Legal Associated Advocates, both Counsel for the defendants that was dated 18th February 2022.

I am satisfied that all the defendants' advocates were effectively served. However, they chose not to appear in court and no explanation was given for their absence. As such, I allowed the plaintiffs to proceed ex parte under Order 9 rule 20 (1) (a) of the Civil Procedure Rules. The suit therefore proceeded *ex-parte* against all the defendants. Two witnesses testified in Court to formally prove the Plaintiff's case. Counsel for the plaintiffs

also filed written submissions and also provided court with some authorities which have been considered.

It was Counsel for the plaintiffs' submission that even where a suit is undefended as is in this case, the plaintiffs must still adduce sufficient evidence in proof of their case in order to be entitled to the reliefs claimed. The following issues were proposed for determination:

- 1. Whether the defendants have willfully and without reasonable cause failed and/or neglected to exhibit an inventory and/or account of the estate of the late Batulumayo Musoke Zimbe vide High Court Administration Cause No. 894 of 2014 in accordance with the law; - 2. Whether the grant of Letters of Administration of the estate of the late Batulumayo Musoke Zimbe issued to the defendants jointly vide High Court Administration Cause No. 894 of 2014 has become useless and inoperative through circumstances; and - 3. Remedies.

# **Resolution of Issues**

**Issue 1:** *Whether the defendants have willfully and without reasonable cause failed and/or neglected to exhibit an inventory and/or account of the estate of the late Batulumayo Musoke Zimbe vide High Court Administration Cause No. 894 of 2014 in accordance with the law***.**

It was counsel's submission that the 4 defendants were granted Letters of Administration to the estate of the deceased on 22nd January 2015 vide High Court Administration Cause No. 894 of 2014. That the defendants failed to comply with section 278 (1) of the Succession Act, Cap. 162 that imposes a duty on a person or persons granted Letters of Administration to make and file an inventory containing a full and true estimate of all the property and credits of the estate in respect of which the Letters of Administration were granted within 6 months from the date of the grant and to further file an account of distribution of the estate within a year from the date of the grant. All the defendants ever did was file a purported inventory report on 18th September 2020, nearly 5 years from the date they were granted Letters of Administration which report fell short of the required standard of the law in many aspects. For example, the said report was made by the 1st and 3 rd defendants only instead of all the 4 defendants, it was filed out of time, as such it was a mere afterthought on the part of the defendants. Further more, it only concerns one of the properties of the estate that is, Kyaggwe Block 56 Plot 1510 land at Nakawate, Mukono and is silent on other known properties of the estate in particular Kyaggwe Block 56 Plot 141 and Kyaggwe Block 56 Plot 124. The report too was not accompanied with a corresponding account as per law required.

It was also Counsel's submission that the defendants have been shown to have willfully and without reasonable cause failed and/or neglected to exhibit an inventory and/or account of the estate of the deceased.

Having considered all the documents filed on Court's record and the submissions of the plaintiffs, I find that indeed the defendants failed to comply with section 278 (1) of the Succession Act. The defendants did not furnish Court with sufficient reason as to why they filed an inventory out of the time stipulated by the law. From the pleadings on record, I find that the defendants were not cooperative in carrying out their duties as joint administrators of the deceased's estate. I would have expected that if any of the defendants were having difficulty in administering the said estate, they should have reported back to Court for a solution rather than absconding their duties without Court's permission and/or leaving the deceased's estate to lie in waste. I therefore, do not find the 2nd Defendants averments as per her Written Statement of Defence (WSD) convincing as to why she did not execute her duties jointly with her other co-administrators.

The 1 st, 3rd and 4th Defendants in their WSD contended that the largest part of the estate was disposed of under the past administrators who sold part of the estate and that they made no sale nor distribution other than settling previous debts and obligations. These defendants did not bring any evidence to support their claims. On the contrary, the plaintiffs brought proof of the illegal transactions that were made by the defendants selling and transferring part of the estate's property. I had the opportunity of looking at the mutation forms, transfer forms and sale agreement that disposed part of the deceased estate to wit land comprised in Kyaggwe Block 56 Plot 141, 124 and 1510 and all the defendants seem to have signed on all the said aforesaid documents.

There was no evidence on record that the estate of the deceased had ever had other administrators save for the defendants whose names are registered on the grant of Letters of Administration issued to them on 22nd January 2015 vide High Court Administration Cause 894 of 2014 which I had an opportunity of looking at. I am therefore not convinced by the 1st, 3rd and 4th defendants' averment that the largest part of the said estate was disposed of by the past administrators. The said mutation forms and transfer forms were signed off by the defendants and not the past administrators. I also note that the 2nd defendant in her WSD claims that she was signed for on the said transfer and mutation forms without her authorisation but she did not adduce any further evidence to that effect. As such, her claim lacks credibility.

The defendants also did not furnish Court with any explanation as to why they did not file an inventory and accounts on the said estate in the time stipulated by the law. The 1st, 3rd and 4th defendants simply averred in their WSD that they filed an inventory of their activities. The copy of the said inventory was never attached to their WSD. I therefore have no evidence on record showing that the defendants ever filed an inventory of the deceased's estate in their capacity as administrators of the same. However, there is an inventory in the plaintiffs' trial bundle which was received by this honourable court on 18th September 2020. It is titled, **"***The Inventory Report on the estate of the late Batulumayo Musoke Zimbe on Block 56, Plot 1510 by Mr. Mukasa David Williams and Nabisubi Eva Maalo***"** who are the 1st and 3rd defendants. During the hearing, the said document was admitted and marked PEX2.

In the premises, I am inclined to agree with Counsel for the plaintiffs that the defendants have willfully and without reasonable cause failed and/or neglected to exhibit an inventory and/or account of the estate of the late Batulumayo Musoke Zimbe contrary to section 278 (1) of the Succession Act for reasons stated above. Issue 1 is hereby resolved in the affirmative.

## **Issue 2:** *Whether the grant of Letters of Administration of the estate of the late Batulumayo Musoke Zimbe issued to the defendants jointly vide High Court Administration Cause No. 894 of 2014 has become useless and inoperative through circumstances.*

Counsel for the plaintiffs submitted that the grant of Letters of Administration that were issued to the defendants has become inoperative because the defendants are constantly in disagreement over how to manage the estate. He contended that they lack the necessary cooperation needed to effectively carry out the duties entrusted to them as joint administrators of the said estate. They have deliberately refused to account to the other beneficiaries of the said estate about the activities of the same instead they play blame games against one another. That they often times exclude one or two administrators when dealing with the estate which is improper and unlawful. Counsel relied on the case of *Silver Byaruhanga versus Fr. Emmanuel Ruvugwaho & Another SCCA No. 009 of 2014* to support his submission.

I have considered the submission of Counsel for the plaintiffs and the authority relied upon by him and find that the grant of Letters of Administration that was issued to the defendants has become inoperative and useless.

Section 234 (1) of the Succession Act, Cap.162 provides instances for revocation of Letters of Administration. One of the reasons it stipulates is just cause. Just cause is defined under section 234 (2) of the Succession Act to mean;

(a) that the proceedings to obtain the grant were defective;

- (b) that the grant was obtained fraudulently by making a false suggestion or by concealing from the court something material to the case; - (c) that the grant was obtained by means of untrue allegation of a fact essential in point of law to justify the grant, though the allegation was made in ignorance or inadvertently; - **(d) that the grant has become useless and inoperative through circumstances or** - **(e) that the person has willfully and without reasonable cause omitted to exhibit an inventory or accounts in accordance with the law.** [Emphasis Mine]

As already resolved in issue 1 above, the defendants willfully and without reasonable cause omitted to exhibit an inventory and/or accounts within the time stipulated by law. This alone is just cause to revoke the said grant of Letters of Administration. However, from the reading of the pleadings on Court's record, I find it true that the defendants have not been cooperative in carrying out their duties as the administrators of the said estate. The 2nd defendant even files a separate WSD from the rest of the defendants and therein accuses her co-administrators for denying her the chance to administer the said estate. She also goes ahead to accuse them of forging her signature for the transactions that the other defendants carried out on the said estate giving reasons that she was never in the country at the time the transactions took place.

From the above, it is clear that there is hostility, disagreements, in-fighting and lack of coordination among the said defendants and/or administrators of the said estate. As such, it is impossible for them to administer the estate as it ought to be. The defendants were appointed to administer the estate jointly but it is evident that they have not done so as some administrators have been excluded from the same most of the time while others like the 2nd and 4th defendants have been away from the country for very long periods making it had for them to co-ordinate and administer the estate jointly. This gravely disadvantages the plaintiffs and other beneficiaries.

In the case of *Silver Byaruhanga versus Fr. Emmanuel Ruvugwaho & Another SCCA No. 009 of 2014* cited by Counsel for the plaintiffs, it was held that,

*"...in the case of executors who have jointly applied for Probate or Letters of Administration and obtained the grant simultaneously or all together, they must act jointly at all times because section 272 of the Succession Act does not allow them to act singly. Otherwise, it would defeat the purpose for appointing joint executors or administrators."* [Emphasis Mine]

Thus, it is evident from the pleadings of the defendants and submissions of Counsel for the plaintiffs that the defendants and/or administrators of the deceased's estate applied and were granted Letters of Administrators as joint administrators but have failed to act jointly in the administration of the said estate at various times. I find this too as sufficient/just reason to render the said grant useless and/or inoperative. Issue 2 is hereby resolved in the affirmative too.

## **Issue 3:** *Remedies.*

The plaintiffs prayed for reliefs to wit: an order for the revocation of the defendants' Letters of Administration to the estate of the late Batulumayo Musoke Zimbe which were granted to them jointly on 22nd January 2015 vide High Court Administration Cause No. 894 of 2014, an order that a grant of the Letters of Administration of the said estate be issued to the plaintiffs jointly, an order directing the defendants to prepare and deliver to the plaintiffs an account of all the assets and property of the estate of the late Batulumayo Musoke Zimbe which is within their knowledge and/or in respect of which they had any dealings during their tenure as Administrators of the subject estate, an order directing the defendants to surrender to the plaintiffs all certificates of title to the property belonging to the estate of the late Batulumayo Musoke Zimbe and costs of the suit.

Counsel submitted that a family meeting was held on 3rd October 2020 where the plaintiffs were unanimously selected by the family members of the deceased as persons to whom Letters of Administration should be granted and the same were attached to the plaint. He prayed that all the remedies stated in the plaint that have been restated above too be granted to the plaintiffs.

I have looked at the minutes of the said meetings and the members present. I find that all the people who attended the said meeting are either grand children or great grandchildren of the deceased. I also note that among the remedies sought for, the plaintiffs seek that the Letters of Administration be granted to them as the new Administrators of the said estate.

However, I am hesitant to grant the aforesaid prayer on ground that I am not aware of how that meeting came to take place. I am not sure if all the beneficiaries to the estate of the deceased were informed of the said meeting and whether the grant of such a prayer shall be in the interest of justice to all the beneficiaries of the deceased's estate. I am aware that the defendants are also beneficiaries to this estate but I have no evidence to the fact that they were also called to the said meeting which was meant to remove them from their position as administrators. I noticed that there was no neutral party called to attend this meeting. I would have expected someone like a friend to the family to be in attendance of such a meeting or an area chairperson of where this estate is located that is impartial in the affairs of this estate. I am not satisfied that the people who attended the meeting are representative enough of all the beneficiaries of the estate.

In light of the above, issue 3 is resolved as follows:

- 1. The Letters of Administration jointly granted to the Defendants vide High Court Administration Cause No. 894 of 2014 is hereby revoked for: - a) failure to file an inventory and/or accounts for the estate of the late Batulumayo Musoke Zimbe within the time stipulated by the law; and - b) the said grant having become inoperative and useless since the defendants/ administrators have not acted as joint administrators in the administration of the same. - 2. The estate of the late Batulumayo Musoke Zimbe shall be administered afresh by the new administrators as shall agreed upon by the beneficiaries;

- 3. In furtherance of the above, the Administrator General is hereby directed to call for a meeting of all the beneficiaries to the estate of the late Batulumayo Musoke Zimbe and/or their representatives for the selection of who should be granted a Certificate of No Objection to enable the selected persons apply for fresh letters of Administration within **thirty (30) days** from the date of delivery of the judgment, in any case not later than **14th day of July 2022**; - 4. The defendants are hereby ordered to prepare and deliver to the office of the Administrator General an account of all the assets and property of the estate of the late Batulumayo Musoke Zimbe that are within their knowledge and/or in respect of which they had any dealings during their tenure as administrators of the said estate. This account should be delivered to the said office and a copy filed in court within **thirty (30) days** from the date of delivery of this judgment, in any case not later than **14th day of July 2022**; - 5. The defendants shall surrender all the Duplicate Certificates of Title of the property belonging to the estate of the late Batulumayo Musoke Zimbe to the new administrators immediately upon their appointment; and - 6. - 7. The costs of this suit shall be borne by the defendants.

I so order.

**Dated at Kampala this 15th day of June 2022.**

………………………………..

Alice Komuhangi Khaukha

## **JUDGE**

15/06/2022