[1991] UGHC 72

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA - HOLDEN AT GULU DISTRICT.' H/C ADMINISTRATION CAUSE NO. MG. <1O/199O<>

LUCY . MONICA AKULU ...................... . APPLICANT.

A N D

MWA MICHAEL Alias KILEGA ........................ DECEASED.

BEFORE; THE HONOURABLE MR. JUSTICE G. M. OKELLO. JUDGMENT :

This application for grant of Letters of Administration of the estate of the deceased was on 11-6-1990 filed in the High Court at its District Registry of C'ulu by Lucy Monica Akulu as widow of the deceased. The value of the Estate is estimated to be about 14-g- million shillings. The mother,. brother and sisters of the deceased however lodged a caveat with the court against grant of Letters of Administration of the Estate to the applicant. The application was subsequently placed before me for grant. As the application was contentious, I decided to treat it like an ordinary suit with the applicant as the Plaintiff and the caveators as Defendants. There were two issues in the case;-

- (l) Whether the Applicant is a suitable person to whom Letters of Administration of the Estate should be grantee. - (2) If no'G, to whom must the Letters of Administration of this Estate be granted.

Both parties gave evidence and the Defendants called witnesses. The Applicant/Plaintiff9s testimony shows that she was married to the deceased under Customary Law in Kitgum District where the marriage was later registered

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at a Gombolole Headquarters on 21-4-81\* The Certificate of Marriage was received in evidence and marked Exhibit P1. That at the time of his death,' the deceased' had only the applicant as his validly married wife though he had a concubine with whom he left no child^o That the deceased had other wo^en before but that all these wo^en had long left him before his death\* That those other wo^eirhowever had children: by the deceased and that the applicant has included the names of all these children m her application for the grant ;of Letters of Administration\* That she was prompted to apply for the grant by the wastage of the Estate which she had seen creeping in due to poor or lack of management of the Estate\* She gave instances of those wastages like the wanton giving away of parts of a tractor which forms part of the Estate and sale of a motor cycle a part of the Estate at a give-away price\*

The testimonies of the Defendants and their witnesses on the other hand show the grounds for their objection to grant of Letters of Administration of the deceased's Estate " being given to the applicant. These grounds may be summarised into three namelys-

(1) That since the applicant i^ still a young woman who is likely tc remarry\* she is rot a proper person to be granted Letters of Administration as she will not properly aaminisver the Estate of the deceased when she remarries\*

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- (2) That since the last funeral rite of the deceased has not yet been performed, it is contrary to Achcli Custom to distribute the properties of the deceased before his last funeral rite is performed. That on this ground the grant of Letters of Administration of the Estate of the deceased should not be granted. - . (3) That since the applicant has no love for the deceased's mother and for the other children of the deceased by other women, she is not likely to administer The Estate in the best interest of those other children.

I have given my utmost consideration to the evidence given by both sides. Having stated the gist of the case of both Parties, I think it is pertinent at this stage to point out the position of the law as regards grant of Letters of Administration where a deceased died intestated and left a widow. Undcr section 201 of the Succession Act Cap. (139) . as amended by Decree 22 of 1972, where a deceased died . —int-e stated leaving ^a widow, Letters of Administration of his . • Estate must be granted to his widow unless the court sees cause to" exclude her on ground of some of her personal disqualifications or when she has no interest to administer the Estate of her deceased husband.

.. That section is mandatory and qAii be accepted only if there is good cause on her personal disqualifications or when she has no interest in the administration of the estate of her deceased husband. In the instant case, the applicant is the widow of the deceased. There' is no evidence that

there are other widows of the deceased. The applicant is interested in administering the estate of her ciccoased husband. From the principle contained in the above section,, the only reason left for excluding this applicant from the administration of the Estate of her deceased husband w" old be her personal disqualifications. But what are these personal disqualifications which have been shown by evidence to justify her exclusion

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Her youthfulness has been advanced as the paramount ground for seeking her exclusion from the administration of the Estate of her deceased husband, I think this alone is not a good enough ground to justify her exclusion. In my view the ground is hollow, suspicious and suggests a misconception of the meaning and purpose of grant of Letters of Administration?- That once granted Letters of Administration, a young widow may remarry and takes away to her new husband the entire Estate of her deceased husband. This view is not entirely correct because a. grant of Letters of Administration merely empowers the grantee to collect all the properties of the deceased together, pays all his debts and distributes the balance to those who r: entitled to a share ⁰'r' the Estate according to the Lu-j of Succession. He is also under a duty to file with the court a return showing the manner in which ho has managed the Estate.. This in my view provides a good protection to the interests of those who are entitled to a share of the Estate against dishonest grantee of Letters of Administration.

On the above ground I think the fear is not good enough to justify exclusion of the applicant from the Administration of the Estate of her deceased husband when she is interested in its administration.

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The second ground is that since the last funeral rite of the deceased has not yet been performed, Letters of Administration of his Estate should not be granted as it is contrary to '\choli Custom to distribute properties of a deceased before performance of his last funeral rite.

Clearly grant of Letters of Administration of an Estate does not necessarily mean immediate distribution of the Estate. Actual distribution of the Estate is likely to take some times since the grantee will first of all has to collect the properties of the deceased together, find out all his debts to other people and paying these debts before distribution can be made, In my view, it is more so the better for Letters of Administration of an estate of a deceased to be granted before his last funeral rite is performed to enable the grantee to collect all the properties of the deceased together by the time of the last . Cimeral rite in readiness for distribution in compliance -ith the custom immediately after the last funeral vit'u ?or this reason, I am. not persuaded by the ground that non-pcrformance of the last funeral rite of the deceased is a good cause to justify exclusion of the applicant from the administration of the Estate of her deceased husband when she is interested in its administration,'

The third ground which was advanced by the Defendants and their witnesses for excluding the applicant from the Administration of the Estate of her deceased husband was that since the applicant has no love for the deceased's mother and for the other children of the deceased by other wo'^en, she is not likely to administer the Estate in the interest of those other children and that she should not therefore be granted Letters of Administration of this Estate.

Apart from those assertions9there was no proof of ill-treatment of the mother of the deceased and/or of those other children by the applicant. On the contrary there is evidence that some of those other children who are in various schools in Kampala come during their holidays to live with the Applicant. This evidence has not been disputed by the Defendants. In my view this evidence is incompatible with lack of love. From this I must say that ^I am not persuaded by this blanket assertion that the applicant has no love for the deceased's mother and also for the deceased's other children by other women without evidence to substantiate the claim. Such a blanket empty assertion is not good enough to justify exclusion of the applicant frop; uhe administration of the Estate oj.' her deceased husbano. when rhe is interested to administer it. ¹ therefore reject all these grounds and I find that the applicant is a proper per sou to be granted letters of Administration of the Estate of her deceased husband.

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A suggestion was made from the defence that the deceased left a son who is aged nineteen years and that this son should not be excluded from the administration of the Estate of his deceased father.

I have considered the above suggestion quite carefully. Under section 202 of the Succession Act as amended by Decree 22/72 this court is empowered to associate any person with the widow in the administration of the Estate of her deceased husband if the court thinks that it is proper to do so\* But such a person has to be one who would the be solely entitled tc/grant if there were no widow. In the order of their entitlement, the son would rank next to the grant if the , widow.\* was, not there. This would entitled him to be associated with the widow in the administration of the Estate of his deceased father if the court thinks that'it is proper to. do so. I think it is proper to associate someone with the widow in the administration of this Estate for the good of all concern. But such a person will not be the suggested son because he is a minor. The lav; (section 183 of the Succession Act as amended by xcoree 22/72) prohibits grants of Letters of Administration of an Estate to who is minor minors. The son/is Therefore disqualified.

The next one would be the brother of the deceased. He is called Gabriel Nyeko (DWj). ^I ar.; Told that he is the one who is currently paying school foes of the children of his deceased brother from the proceeds of the business Pa/s Mwa and Sons General Motors Ltd., of which he and his late brother

where the only shareholders at 50 per cent each. It is in my view proper that he be associated with the widow in the administration of the Estate of the deceased for the good of all those who are entitled in the Estate u.ndcr the law.

In the circumstances grant of Letters of Administration of the Estate of the late Mwa Michael alias Kilcga is granted jointly to Lucy Monica Akulu widow of the deceased and Gabriel Nyeko as brother of the deceased.

^yvm. J) Okollo.

**s** Judge.

12.6.1991.

Judgment read in open court in the presence of Borh Parties.

G" Okollo

Judge.

12.6,199'1