[2025] UGHCFD 54

#### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

## (FAMILY DIVISION)

## **CIVIL SUIT NO. 240 OF 2017**

1. NAMAGERA ROVINCER

2. WILLIAM MUBIRU

3. NAMYALO CHRISTINE

4. NAMBAJWE PROSSY

5. NANSAMBU MARGARETE:::::::::::::::::::::::::::::::::::

#### **VERSUS**

LWANGA KAGUJJE PATRICK::::::::::::::::::::::::::::::::::::

#### BEFORE: HON. JUSTICE JOHN EUDES KEITIRIMA

### **JUDGMENT**

1]. The Plaintiffs claim against the defendant is for an order for grant of letters of administration to the estate of the late Patrick John Wasswa to the plaintiffs, a permanent injunction restraining the defendant from mismanaging, selling off, disposing, mortgaging or in any way dealing with the said estate, compensation for the loss caused by the defendant in the estate, general damages and costs of the suit.

2]. The facts constituting the plaintiffs cause of action against the defendant as stated in their plaint is as follows:

- The plaintiffs are the biological children of the late Patrick John Wasswa $\mathbf{L}$ and hence the beneficiaries of his estate. - That the said Patrick John Wasswa died intestate on the 14^th day of II. . January 1994.

$\mathbf{1}$

That the deceased was survived by eighteen children. III.

3]. The plaintiffs contend that the said deceased left behind a plot of land at Makindye Likuli with a residential house thereon. That the defendant fraudulently and without the knowledge and consent of the plaintiffs and without letters of administration purported to assume ownership of the house/home together with a plot of land at Lukuli Makindye.

4]. That since the death of the late Patrick John Wasswa, the defendant has chased away the plaintiffs and other beneficiaries from the home previously owned by their late father.

5]. The plaintiffs further contend that the defendant has mismanaged the estate of the said deceased by selling part of the estate land located at Lukuli Konge Makindye Division to a one Semukaaya Solomon Abraham who is not a beneficiary of the said estate and that the proceeds from the said sale were never distributed to the beneficiaries.

6]. The plaintiffs stated in their plaint that the defendant has sold some of the land left behind by the said deceased and used the proceeds for his own benefit and against the interests of the beneficiaries. That the defendant holds intentions to sell the rest of the estate's land without the consent and approval of the other beneficiaries.

7]. The plaintiffs further contend that since the death of their said father, the defendant has frustrated the process of acquiring letters of administration for the estate of their late father.

8]. The plaintiffs are seeking for the following remedies:

- An order for grant of letters of administration to the estate of the late $\mathbf{I}$ . Patrick John Waswa to the plaintiffs. - A permanent injunction restraining the defendant from mismanaging, II. selling off, disposing, mortgaging or in any way dealing with the estate of the late Patrick John Waswa. - A permanent injunction restraining the defendant from chasing away the $\mathbb{H}$ . plaintiffs and other beneficiaries from the estate's property located at Lukuli Makindye.

$\overline{2}$

- An order for accountability in respect of the affairs of the estate of the late IV. Patrick John Waswa while the defendant was in charge. - An order directing the defendant to compensate the plaintiffs and other V. beneficiaries for the loss caused to the estate. - General damages. VI. - Costs of the suit. VII.

9]. In his written statement of defense the defendant states inter alia:

- That he was too young when his late father, Patrick John Wasswa died and I. he grew up in the care of his late mother and in the custody of his paternal uncle Livingstone Kityo. - That when he became of age, he was informed by his mother and paternal П. uncle that his late father had bequeathed the land and house at Lukuli Kyadondo to him and that the house and the land were handed over to him in the presence of the family members. - That upon the death of his late mother, the defendant took full possession $\mathsf{III}$ . of the land and occupied the house therein and continues to be in occupation of the same.

10]. The defendant contends that he is aware that his late father left a will wherein he had distributed his land to his children and the older children including the 2^nd plaintiff were utilizing their shares by the time of his death.

11]. The defendant contends that he has never frustrated any process of obtaining letters of administration as he was too young at the time of his late father's death to comprehend the legalities involved in the management of estates of deceased persons. That it is incomprehensible that he could stand in the way of his elder brothers and sisters among whom are the plaintiffs in any attempt to obtain letters of administration.

12]. The defendant further contends that the $1^{st}$ , $3^{rd}$ and $5^{th}$ plaintiffs were allocated land housing single roomed rentals by their late mother on the part of the land at Lukuli which they manage and collect rent and in 2015 the defendant signed an allocation agreement in their favour.

13]. That the defendant is not an administrator of the estate of the late Patrick John Wasswa to account for the assets of the estate nor has he sold estate land to

$\overline{3}$

account for the proceeds but rather he has only sold part of the land allocated to him individually as a beneficiary.

14]. The defendant contended that should the plaintiffs wish to be appointed administrators, they should go through the right process of calling for a family meeting which should be able to approve or reject them. That lodging a claim against the defendant alleging disposal of the estate property and using the same to request for grant of letters of administration is a ploy to bypass the consent of the other children of the late Patrick John Wasswa and hoodwink court into their fraudulent intentions.

15]. That the defendant has never chased away any of the plaintiffs from the family property of the late Patrick John Wasswa but it was the family that unanimously agreed to move the ancestral home and burial grounds from Lukuli – Kyadondo to a more spacious land at Lukoma Namayumba and by memorandum dated 6^th December 2008 wherein it was agreed that the land at Lukuli be sold.

16]. The defendant denies selling any family land and states that any family land that has been sold has been done with the full knowledge and consent of the plaintiffs. The defendant prayed that the plaintiffs case should be dismissed with costs.

17]. At the scheduling conference the following were the agreed facts:

- That the late John Patrick Wasswa died on 14^th January 1994. L. - The said deceased left eighteen children and at the hearing of the case $\mathbf{H}$ . three of them had since died. - The said deceased left three widows and at the hearing of the case two of $\mathbf{H}$ . them had since died. - IV. The defendant is the customary heir of the said deceased. - There was no grant of letters of administration to the estate of the late V. John Patrick Wasswa.

17]. The following issues were raised for determination:

L Whether the deceased died intestate.

- П. Whether the defendant intermeddled in the affairs of the estate of the late John Patrick Wasswa. - III. Whether the plaintiffs are entitled to the remedies sought.

# Preliminary objection by the defendant.

**18].** The defendant submitted that the suit was barred by the law of limitation. The defendant cited **Section 20 of the Limitation Act** which provided that subject to **Section 19(1)** No action in respect of any claim to the personal estate of a deceased person or to any share or interest in such estate, whether under a Will or intestate shall be brought after the expiry twelve years from the date when the right to receive the share or interest accrued.

19]. The defendant submitted that the plaintiffs were bringing this claim under the estate as beneficiaries over twenty years after the death of the late Patrick John Wasswa who died in 1994. The defendant contended that the claim was barred by statute of limitation and cannot be sustained in court.

# Reply by the Plaintiffs to the defendant's preliminary objection

**20].** The plaintiffs submitted that the defendant never raised a point of law in any of his pleadings as his written statement of defense did not disclose the preliminary point of law.

21]. The Plaintiffs submitted that Order 6 Rule 8 of the CPR is couched in mandatory terms and including a point of law in pleadings is a prudent practice as it gives the earliest warning of the intended objection. The plaintiffs contended that since they were not given the opportunity to respond to the point of law court should expunge it from the record.

**22].** The plaintiffs submitted that the cited provision of the law by the defendant only applies when there was a grant or where the estate is lawfully administered and that time begins to run from the date of the grant. That the right to an interest in the estate commences from the date the estate is administered. That in this case no grant was ever made.

**23].** The Plaintiffs submitted that as long as administration of the estate is still open, the authority of the administrators is open to challenge in which case limitation under Section 20 does not apply. The plaintiffs submitted that

$\mathsf{S}$

limitation should be seen as a shield and not a sword and should be applied hand in hand with Article 126 and Article 26 of the Constitution so that especially where people are related reconciliation and ensuring of substantive justice should always as much as legally possible be promoted because sticking to limitation while the dispute roams in the family is a dangerous trend.

## Decision of Court on Preliminary objection

24]. Order VI Rule 28 of the Civil Procedure Rules provides that "Any party shall be entitled to raise by his or her pleading any point of law, and any point so raised shall be disposed of by the court at or after the hearing; except that by consent of the parties, or by order of the court on the application of either party, a point of law may be set down for hearing and disposed of at any time before the hearing."

**25].** Therefore, a point of law should be pleaded to avoid trial by ambush. It should be raised at the earliest point so that the court determines it at that stage especially if it can dispose of the entire case and save the court's time in a protracted litigation. Raising a point of law during submissions and especially when it was not raised as an issue or in pleadings is not prudent practice. It is however my considered view that a point of law cannot be ignored if it has the potential of disposing a matter even if it was not pleaded.

**26].** In this case I agree with the submission by counsel for the plaintiffs that the right to an interest in an estate commences from the date the estate is administered. No one has administered the said estate so far and in their pleadings the plaintiffs claim that the defendant has frustrated the process of acquiring Letters of Administration to the estate of the deceased. The plaintiffs could only derive their interest from the date the estate is administered not before.

27]. Section 187 of the Succession Act Cap 268 provides that "Except as provided in this section, but subject to section 4 of the Administrator General's Act, 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.**" The Plaintiffs right to receive the share or interest from the said estate could only be established when the estate was administered.

The preliminary objection is therefore overruled.

## Whether the deceased died intestate

## The Plaintiffs Evidence

28]. The Plaintiffs evidence was adduced by Namagera Rovincer whom I will hereinafter refer to as "PW1". She stated inter alia that the defendant was her young brother. That their late father John Patrick Wasswa Lwanga left a residential home in Lukuli Makindye and was not aware of any other property their father left.

29]. PW1 further stated that the defendant has mismanaged the estate by chasing them from the home and selling off the estate property. PW1 stated that the defendant had sold some of the estate land to Semukaya Solomon and in 2015 he attempted to sell more land to the said Semukaya but he was sued and refunded the money to the said Semukaya. That they were able to redeem some of the property.

30]. PW1 contended that the defendant sold about half of their late father's property and did not obtain letters of administration. PW1 further stated that the defendant threw them out of their father's home.

31]. PW1 further stated that their late father died intestate and they were seeking to be granted letters of administration for their father's estate and a permanent injunction against the defendant. They were also seeking for accountability from the defendant of the estate and costs of the suit.

## The defendant's evidence

32]. In his defence Lwanga Kagujje Patrick hereinafter referred to as "DW1" stated that he never evicted the plaintiffs from the residential house. He stated that when his sisters grew up they left the residential house and he stayed there alone. He later got a companion and a child.

33]. The defendant contended that his late father bequeathed the residential house to him in his Will and that the plaintiffs also got a share in the estate which

$\overline{7}$

was a plot with four rooms from where they still collect rent. DW1 further contended that each of his father's wives had her own property.

34]. DW1 stated that he sold part of the land to Semukaya Solomon which was part of the estate but did not sell the share of the plaintiffs. That there were previous sales that were made by the plaintiffs and even his mother had sold her share. He also stated that no one had obtained letters of administration for the estate of his late father.

35]. DW1 contended that his late father left a Will and it was in the custody of his lawyer. DW1 stated that the original Will was with the clan leader a one Livingstone Kityo but the Will had no witnesses and was dated 30^th March 1988.

36]. DW1 further stated that he sold part of his father's estate and was sued at the Chief Magistrate's Court of Makindye and won the case. DWI stated that his sisters left the house and the clan leaders gave him authority by virtue of being the heir. DW1 further stated that he did what he did as a beneficiary.

## Decision of Court on Issue one

37]. In his evidence, DW1 stated that his father left a Will which had no witnesses. Section 50 of the Succession Act Cap 162 (which was applicable then) provided that a Will must be in writing dated and signed by the testator and had to be witnessed by two or more attesting witnesses who had seen the testator write, sign or affix his mark.

38]. Therefore, by his own evidence even if his late father had left a Will, it was invalid as it had not been witnessed. The purported Will had not conformed to the required formalities of the law.

**39].** It is therefore basing on the above reasons that I find that the late Patrick John Wasswa died intestate.

# ISSUE TWO: Whether the defendant intermeddled with the estate of the deceased

40]. Section 265 (2) of the Succession Act Cap 268 provides that "A person is taken to intermeddle with the estate of a deceased person where that person, while not being the Administrator General, an agent of the Administrator

General or a person to whom probate or letters of administration have been granted to by court-

(a) takes possession or disposes of the property of a deceased person; or

# (b) does any other act which belongs to the office of the executor or executrix, or administrator or administratrix."

41]. An intermeddler is a person who assumes the authority of an executor or administrator **de son tort.** During cross examination, the defendant admitted having sold part of his late father's estate to a one Solomon Semukaya. It is not disputed that no one has obtained letters of administration or probate to the estate of the late Patrick John Wasswa. By selling part of the estate of his late father without probate or letters of administration, the defendant had intermeddled in the said estate.

## **Remedies available to the parties**

42]. I will enter judgment for the plaintiffs against the defendant with the following orders:

- $\mathbf{L}^{\mathbf{L}}$ The beneficiaries of the estate of the late Patrick John Waswa are to meet within a period of three months from the date hereof and propose names of administrators to the estate of the late Patrick John Waswa. - $\mathbf{H}$ . The Administrator General will then meet with the proposed administrators for purposes of issuing a certificate of no objection to the proposed administrators to enable them petition court for letters of administration. - III. A permanent injunction will be issued against the defendant from selling or disposing or mortgaging the estate property of the late Patrick John Wasswa. - A permanent injunction will be issued restraining the defendant from IV. chasing away the plaintiffs and other beneficiaries of the estate of the late Patrick John Wasswa which is currently situate at Lukuli Makindye.

- The defendant is to account to all the beneficiaries and this court what he V. has so far done with the estate property and whatever he has disposed of will be considered as part of his share in the final distribution of the estate. - VI. In event that what the defendant has disposed of is over what he is entitled to in the said estate he will refund the excess to the other beneficiaries for redistribution. - The defendant will pay twenty million shillings (20,000,000/=) as general VII. damages for the inconvenience he has caused to the plaintiffs by denying them their rightful share of the estate for a long time. - The defendant will also pay the costs of this suit. VIII.

Hon. Justice John Eudes Keitirima

13/06/2025