[2010] UGHCFD 5

## **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT KAMPALA**

## **FAMILY DIVISION**

## **HCCS NO 88 OF 2006**

- **1. JESSICA MUGANGA** - *2.* **RONALD KIGULA** - **3. KYEYUNE GODWIN** - **4. SARAH BAKALUBA NABUNYA** - **5. MUSAZI PAUL:::::::::::::::::::::::::::::::: ::::: PLAINTIFFS**

# **HERBERT KIBIRIGE BAKALUBA: ::::::::::: ::::::::::::: DEFENDANT BEFORE: HON. LADY JUSTICE C. A. OKELLO**

### **JUDGMENT**

The plaintiffs filed this suit for remedies including the following:-

- (1) An order for the revocation of letters of administration to the estates of the late Keziya Nankwangu and Yefusa Kikonyogo that were issued to the defendant. - (2) An order for the distribution of the estates of Keziya Nankwangu and Yefusa Kikonyogo. - (3) A permanent injunction restraining the defendant from further administering the two estates. - (4) Order granting letters of administration of the two estates to Ronald Kigula and Jessica Muganga.

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## (5) Costs of the suit.

The case for the plaintiffs is simple. In their plaint, they pleaded that the parties are siblings being children of the late Keziya Nankwangu; they are also grand-children of the late Yefusa Kikonyogo who was their mother's father but also now deceased. Upon the death of the two, the defendant with the consent of the plaintiffs applied for and obtained letters of administration to the two estates but on obtaining the grants, the defendant misappropriated and mismanaged the estates to the detriment of the plaintiffs' beneficial interests. The plaintiffs now want an order for the revocation of the grants (among other prayers).

The defendant filed a document that he called his defence Which was however, not served on Counsel for the plaintiffs within the time provided for service in the Civil Procedure Rules. In the said defence, the defendant stated that the late Keziya Nankwangu gave him authority over all her land inter vivos and the plaintiffs who were still children did not know the ambit of that authority. He claimed further that apart from the plaintiffs, Yefusa Kikonyogo's estate had other beneficiaries. Lastly, the defendant pleaded that he distributed part of the land to the ungrateful plaintiffs who have failed to appreciate all the services he has rendered to them over the years. He prayed for an order dismissing the suit with costs.

As I said earlier, the defendant who filed his defence in person did not serve a copy thereof on Counsel for the plaintiffs. He did not take steps to apply for time to serve the defence; in fact he did not take steps to be heard in the suit. Consequently, the suit proceeded ex-parte under Order 9 rule 11 (2) of the Civil Procedure Rules.

Only two issues were framed for determination:-

- (1) Whether the defendant has mismanaged the suit estates. - (2) Remedies available to the parties.

The fifth plaintiff Geoffrey Kanyike was reported by Counsel for the plaintiffs to have died, the surviving plaintiffs continued with the suit with four of them testifying therein. The first witness was Ronald Kigula (PW1) followed by Jessica Muganga (PW2); Kyeyune Godwin (PW3); Sarah Nabunya Bakaluba (PW4). Two other witnesses - Nuwa Nkwangu and Musisi Mutazabwa also testified as (PW5) and (PW6) respectively.

In their testimony, all the four plaintiffs stated that they are siblings, and the defendant is their eldest brother. Their mother was Keziya Nankwangu who died after inheriting some land from her father the late Yefusa Kikonyogo. She however, died before transferring the land into her names. Particulars of the pieces of land were given as:

(i) Two acres at Lugala Block FC 15280 Vol. 154 Fol. 6;

- (ii) 510 Acres at Buzibwera Bulemezi Block FC. 18375 vol. 2671 Fol. 12; - (iii) 109 Acres and 40 decimals at Yandwe Bulemezi Block FC 18376 FC. 267 Fol. 13. - (iv) 120 Acres at Bwerenga Busiro Block FC. 13653 Vol. 20;

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(v) 40 Acres in Busujju Busiro Block FC. 19536 Vol. 1302 Fol. 10.

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On Keziya's death, her family chose the defendant to apply for Letters of Administration of her estate as well as that of the late Yefusa Kikonyogo. Since the grants were issued in Administration Cause No. 808 of 1998 (estate of Keziya) and Administration Cause No. 90 of 2002 (the estate of Yefusa); the defendant has distributed only the two acres of land at Lugala. He sold off 90 acres of the land in Buzibwera Bulemezi, without the knowledge and consent of the plaintiffs. To make matters worse, he never shared the proceeds of the sale with any of them. Each plaintiff in turn prayed for among others the orders already mentioned earlier.

Nuwa Nkwangu (PW5) and Musisi Mutazabwa's (PW6) testimony concerned the purchase by Nuwa Nkwangu of part of the Buzibwera land from the defendant. According to the evidence of these two witnesses, Mr. Nkwangu bought 90 acres of land being part of land comprised on Block 463 Plot 25 at Buzibwera on the 18/3/2005. (Exh. P5 and P6). He paid shs. 4,550,000/= in all for the 90 Acres. The sale agreement was

witnessed by Muisi Mutazabwa, (exh. P5 and P6 already mentioned). That is briefly the evidence before this court. I turn to the issues.

The first issue is whether the defendant has mismanaged the suit estates. The answer to this issue calls for examination of the duties and powers of an administrator of an estate. It further requires me to determine whether the defendant has discharged the duties and exercised the powers in accordance with the law.

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Section 277 of the Succession Act *et seq.* (the Act); contain the duties of an administrator of an estate. The first duty is performing the funeral of the particular deceased. In this case, letters of administration were issued after the funerals of the two deceased it, would therefore follow that the defendant would have had to attend to the expenses and liabilities incurred or arising from the funerals retrospectively. There is no complaint regarding the discharge of this duty, I take it that he discharged the duty satisfactorily.

The next duty is one of diligently collecting all property of the'deceased including those to be collected from people indebted to the particular deceased then exhibiting an inventory and account of the estates. There is a time-frame of six months from the date of issuance of a grant for the discharge of the duty (Section 278 (1)). In the event of an administrator being unable to act within the six months, the law expects him/her to apply

for more time to discharge it. The other duty is payment of debts owed by the estate in the manner and sequence provided for in sections 280 to 286 of the Act. The balance after discharge of liabilities is distributed to the beneficiaries in kind or the money equivalent in accordance with the relevant law. Finally, an administrator should file the final accounts of the estate (section 278 (2) of the Act). Performance of this final duty leads to formal completion and close of administration; it further leads to the administrator being discharged from his/her obligations as administrator in the eyes of the law.

There is satisfactory evidence before me proving that the late Yefusa Kikonyogo devised to the late Keziya Nankwangu various pieces of land mentioned in the testimony of the plaintiffs (exh Pl). The defendant did not file inventory of these assets in accordance with section 278 (1). There is further evidence that the defendant made two sale transactions of assets of the estates. He sold two acres of land situate at Lugala and 90 acres of land at Buzibwera. He is said to have distributed the proceeds of the first sale though this court has no record of the sale in the absence of inventory and accounts of the estates. There is evidence which I have found to be credible, that he did not distribute the proceeds from this second sale. The defendant has not filed an inventory; he has not filed an account of any of the estates despite the lapse of several years since the two grants were issued to him. Above all, he has not applied to court to give him more time to discharge these duties.

Since the second sale was conducted and concluded in March 2005, I can only take it that the defendant has kept the proceeds of sale for himself. In my judgment, his failure to discharge most of the duties of administrator constitutes mismanaging the estate. The omissions leave the beneficiaries as well as the court in the dark regarding the entire state of affairs of the estates. It puts the beneficial interests of the plaintiffs in jeopardy. In the result, I find in answer to the first issue that the defendant has mismanaged the suit estates.

The second issue is remedies available to the parties.

The evidence before this court proves that the defendant is not a suitable person to administer the suit estates. The evidence also proves that the plaintiffs are entitled to the remedies they are sought from 'court. I therefore issue these orders:

- 1. Letters of administration issued to the defendant in respect to the estates of Keziya Nankwangu and Yefusa Kikonyogo are revoked. - 2. The defendant shall forthwith deliver to this court the letters of administration of the two estates. - 3. The defendant shall within three months from the date hereof, file a full inventory as well as exhibit an account of the estate detailing assets of the estates that he managed and the manner in which he dealt with them.

- *4.* Except for actions necessary for compliance with order (3) herein, an order of permanent injunction is hereby issued restraining the defendant either directly by himself, and/or through his agents, or servants from further administering any of the two estates in this suit; or dealing with them in any way as administrator. - 5. Fresh letters of administration of the estates of Keziya Nankwangu and Yefusa Kikonyogo shall issue to Jessica Muganga and Ronald Kigula forthwith. - 6. The defendant shall pay costs of this suit.

C. A. Okello JUDGE

1.11.2010