[1989] UGHC 1

The Hon. Mr. Justice B. J. Odoki (J. S. C)

## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA CIVIL SUIT NO. 1068 OF 1983

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LUCY NYENDWOHA : : : : : : : PLAINTIFF because if any fact of $V$ E R S U S only in the set of $V$ E R S U S

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ROBERT MUGENYI NYENDWOHA O : : : DEFENDANTS EMMANUEL BYENKYA

Before: The Mon. Mrs. Ag. Justice C. K. Byamugisha.

## JUDGMENT Av Organokman

The plaintiff Lucy Nyendwoha described in the plaint as the widow of the late Wilson Nyendwoha sued the defendants as grantees of the Letters of Administration to the estate of her late husband.

She is claiming for orders that the Letters of Administration granted to the defendants be revoked and be granted to her. The letters were granted by this Court under Miscellaneous Cause No. 165/82 and did meetind bagolavab deck our nede

The facts leading to this case appear not to be contested. The plaintiff was lawfully married to the late Wilson Nyendwoha on 30th day of October 1971 at Bweranyangi Church of Uganda in Bushenyi District, After the ceremony of marriage, they cohabited in their matrimonial home .accod al' de cond four i ser adouncer. at Rubaga. adv vd betworts now "Timping, of the Newl" no

There were five issues to the marriage namely:-

Mabel Nyendwoha aged 76% years Patrick " aged 15 years Hannington " aged 12 years

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Kenneth Nyendwoha aged 9 years aged 6 years Edina

There were six other children from different mothers namely Robert Mugenyi Nyendwoha, the first defendant. At the commencement of the proceedings, the Court was informed officially that he is dead.

CRIS (Fried)

Rose Nyendwoha aged 24 years David Nyendwoha aged 23 years Timothy Nyendwoha aged 18 years Harriet Nyendwoha aged 15 years Isaac Nyendwoha aged 10 years Caroline Nyendwoha aged 18 years

**Service Contracts**

In 1980 the late Nyendwoha retired from public service and decided to do private business. He carried out business both in Kanpala and Masindi where he had another permanent house. In 1981 the Nyendwohas moved from Rubaga to Masindi because of what the plaintiff called insecurity at that time. The couple stayed together in Masindi until 1982 when problems developed between the plaintiff, her late husband and some in-laws.

After discussing the matter the couple decided that the plaintiff should return to Rubaga. On 21/5/82, she left Masindi and came to Rubaga but because of insecurity, she decided to go to her home in Bushenyi. On 2/6/82 the late Nyendwoha was gunned down at his house.

On 21/6/82 the plaintiff was arrested by the police and detained for six months as a suspect for the murder of her husband. During the time of her detention the defendants applied and were duly granted Letters of Administration to the estate of late Wilson Nyendwoha.

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Again in 1984, the plaintiff was re-arrested and charged with the nurder of her husband. The case was tried by this Court in 1986 and she was acquitted. In 1983, the present Suit was filed seeking the revocation of the Letters of Adminstration and that the same should be granted to the plaintiff. owners adolf to detail it to

The facts upon which the plaintiff is relying are set out in paragraph four of the plaint as follows:colmary nekralishman is around only sentent

4(a) the plaintiff is the legal widow of the deceased having married the deceased on 30th October 1971 .....

(b) that neither the first defendant nor the second defendant is entitled to the greatest notactera proportion of the estate as vis a vis the plaintiff as such they were not colonic entitled to the grant of Letters of reannus. Administration ........... TOJEE appivor

(c) that the defendants obtained the Letters of Administration in respect of the deceased's estates by means of an untrue allegation of fact, to wit, that the plaintiff had, in law, separated from the deceased at the time of ore his death and that the plaintiff was at the time of the petition for Letters of Administration was in the Republic of Kenya which was outside the jurisdiction of the High Court of Uganda.

bath a (d) That the defendants to whom the Letters of Administration in respect of the deceased's il Jate La estate was granted have not to date exhibited an inventory or account in respect of the 20年 年10年 and refundeceased's estates as by law required or at all."

In the written statement of defence the 2nd defendant stated that the plaintiff was separated from her husband at the time of his death. The petition and affidavit filed in the application for Letters of Administration were annexed to the written statement of defence.

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At the commencement of the hearing the Suit three issues were framed for determination and these are:-

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- whether or not the plaintiff and her late husband were legally separated at the time of the death of Wilson Nyendwoha; - 2. whether or not the plaintiff is entitled to the administration of the estate; - whether the Letters of Administration granted $3.$ to the defendant ought to be revoked for . Pref Tedojust cause. beaseout out beling gained

As the regards the first issue of whether the plaintiff was legally separated, this depends on the interpretation to be given to the provisions of section $31(1)$ of the Succession Act as amended by Decree 22/72. The section provides inter alia:

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"No wife or husband of an intestate shall take any interest in the estate, if at the death of the intestate he or she was separated from the intestate as a member of the same household." Provided that this section shall not apply where such wife or husband has been absent on an approved course of study in an educational institution."

It is not disputed that the late Wilson Nyendwoha died intestate and that at the time of his death the plaintiff was not at their matrimonial home at Kinyala. She was in Bushenyi. She did not apply for exemption under the provisions of sub-section (2) of section 31 within a period of six months after the death of her husband. The section is silent as to what constitutes separation.

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None of the advocates who appeared before me was able to cite any authority in which the provisions of the above section have been interpreted and I am not aware of any. But as I pointed out in my ruling in the case of Modest Banage v. Attorney General Miscellaneous Cause 74/88 (unreported) the best and most sensible guide to the intention of all legislation is provided by what the legislature itself said. In the case of Lav v. Jeypee Investments Ltd. / 1972 7 EA 512 it was held as per Madan J. that every statute must be interpreted on the basis of its own language since words derive their colour and content from the context and the object of the statute is a paramount consideration. In the case of Opoya v. Uganda $/$ 1967 7 EA 754 it was held inter alia that the duty of the Court in interpreting a statute is to put upon the words of the legislature honestly and faithfully its plain and rational meaning according to its express or manifest intention. Oxford Advanced Learners Dictionary defines separation as an arrangement which does not end a marriege but one which requires married persons no longer bound to live together. compt - forcetter

Black's Law Dictionary also defines separation as a cessation of cohabitation of husband and wife by Mutual agreement or in the case of judicial separation under the decree of a Court.

The outstanding feature in these two definitions is that the husband and wife ought to have ended their matrimonial relationship either by mutual agreement, or judicial separation by Court (rder or by any other means. In my opinion, it does not include mere physical separation for one reason or another. It would defeat the intention of the legislation if the law was to be otherwise. In

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my view for a husband or wife of an intestate to be disentitled under the provisions of section 31 (1) referred to above, the matrimonial relationship must have ceased to exist. Therefore the intention of the parties at the time of separation and the surrounding circumstances have to be looked at before making a finding on the question of separation. In otherwords each case must depend on Manufaction of the its own facts.

In the instant case, it is the defence case that the it is the from her husband therefore not plaintiff was separated and entitled to the estate. The law is quite clear that whoever makes an allegation of facts has the burden to prove those facts. The burden is therefore on the defence to prove the fact of separation. Four witnesses testified on behalf of the defence. Byenkya (D. W. I) testified that at the time of the death of late Nyendwoha the plaintiff was not living with her husband. He stated that they had agreed to separate and this was done in the presence of other people. He further stated that the plaintiff did not attend late Nyandwoha's funeral and it was widely believed that she was involved in her husband's death. was a blook Under cross-examination the witness admitted that the plaintiff was the rightful widow that she has the right to claim her rights to administer the estate of her husband and that he has no right to object to her being granted Letters of Administrations. These admissions go along way to support the plaintiff's case that she was not separated from her husband thus entitled to the estate as of right. She testified that she was still in love with her late husband and I have no reason to disbelieve her testimony. The plaintiff gave an explanation as to how

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and why she left Kinyala (Masindi) to come to Kampala and then later on go to Bushenyi. None of the defence witnesses were present except perhaps Byarero (D. W.3) when the plaintiff left. So they could not give evidence as to the circumstances leading to her going and what her intentions were of those of her late husband. No evidence was adduced to show that the plaintiff wifully separated herself from her late husband.

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Mr. Kiwuwa counsel for the defendants while making submissions on the first issue invite Court to disregard the admissions made by the defendant because, according to the learned counsel, the question of whether the plaintiff is the rightful widow to claim the estate is a matter of law and therefore the defendant was not competent to give his opinion. With respect to the learned counsel, the defendant was not giving his opinion on the provisions of section 31 (1) of the Succession Act nor was he interpreting the same. He was answering questions put to him during cross-examination.

The defendant was making admissions of fact and in terms of section 21 of the Evidence Act (cap 43 Laws of Uganda) admissions are admissible against the maker. The admissions were material to the case and cannot be ignored by Court. On the evidence before me, I am satisfied on a balance of probabilities that the plaintiff was still a member of her late husband's house hold and she was not separated from him within the meaning envisaged by section 31 (1) of the Succession Act as amended by Decree 22/72.

The second issue framed by parties was whether the plaintiff is entitled to the administration of the estate.

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shrowing, bus deaton to saven's been such and parvausto First I will set out the law as I understand it: Section 201 of the Succession Act provides:-

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"Subject to the provisions of section 5 of the Administrator General Act, Administrator shall be granted to the person entitled to the greatest proportion of the estate under section 28 of this Act." sit i de wode or boarding oer

The widow would be entitled to 15% of the estate. In the case of Re Kibiego / 1972 7 EA 179 the Court held that the widow of whatever race is the proper person to obtain Letters of Administration to her husband's estate particularly where the children are under age. The Court went on the observe that in the normal course of events, she is the person who would rightfully properly and honestly safeguard the assets of the estate for her benefit and those of her children. Although the case I have quoted is from Kenya and not binding on this Court, I find it persuasive authority and the principle enunciated therein applicable to the matter before me.

In the instant case, it has already been established that the plaintiff is the rightful widow and in the circumstances she is entitled to the administration of her husband's estate in terms of the section I have quoted above. But the opposition to her getting Letters of Administration were apparent from the evidence adduced by the defendant. Such evidence came from David Kyoma (D. W.2) whose application to be subsited as a co-administrator was caveated by the plaintiff; Byarero (D. W.3) who is currently occupying the deceased's house at Hoima, and Birigenda (D. W.4) who is partly occupying the deceased's

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house at Kinyala. The main purpose of bringing these witness was to show, in the words of Mr. Kiwuwa (counsel for the defendant) that the estate is complex and has diverse interests. Mr. Kiwuwa fortified this opposition by submitting that the plaintiff is not a fit and proper person to administer the estate. However there is no legal requirements that the widow should be a proper and fit person. Mr. Kiwuwa did not point out to this Court how the plaintiff is not a fit and proper person. Both Byerero and Birigenda can properly be described as guarded witnesses. They have an interests to protect. They are currently occupying the houses of late Nyendwoha and from the evidence adduced, they are being supported financially from the estate. Yet in the petition filed by Mr. Kiwuwa's firm of Advocates in 1982 (see paragraph 4 of annexture "A" to the written statement of defence) the two gentlemen were not included in the list of late Nyendwoha's dependants. Whereas it might be true that late Nyendwoha was giving them money while he was still alive, this was because of the various tasks they performed on the form. According to the evidence on record Byarero (D. W.3) used to drive the lorry and the tractor. Birigenda was doing some Clerical work.

Mr. Kiwuwa referred me to the decision of this Court in the case of Francis Dibua Nduga v. Rita Nansikombi /1980 7 H. C. B. where the Court held inter alia that the Court should take into account such factors as the nature of interest, safety of the estate and probability of proper administration as contained under section 224 of the Succession Act. The above case can be distinguished from the matter before me on the facts. In Nduga's case, the youngest son was tussling it out with his mother and oldest

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brother. who had obtained Letters of Administration. The defendants were better entitled to the administration of the estate.

It would appear to me that some of the objections raised were superfluous and were merely intended to keep the defendant and late Nyendwoha's relatives enjoying the estate at the expense of the beneficiaries. There is no doubt the beneficiaries of the estate are the children of the deceased most of whom are still of tender age and have no way they can stop the relatives of their late father from occupying the houses or using the proceeds from the estate except if the plaintiff gets the Letters of Administration. In my opinion, the estate cannot remain in the lands of hostile relatives. While the beneficiaries are scattered with no proper place to live in. The plaintiff is both in law and fact entitled to the administration of her late husband's estate and I see no good ground to exclude her.

The last issue to consider is whether the Letters of Administration granted to the defendants should be revoked for just cause: Section 233 (1) of the Succession Act as osmabine amended by Decree 22/72 provides:-

> "the grant of probate or Letters of Administration may be revoked or annulled for just cause." In this section "just cause" means:-

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(b) that the grant was obtained frandulantly by making a false suggestion or by concealing from the Court something material to the case;

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(e) that the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of section 280 of this Act."

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There are two basic principles which the Court applies in deciding whether to revoke a grant namely; the interest of the person who is truly entitled to the grant shall prevail over other interests, and two the Court has to take into account the interest of the beneficiaries under the will or intestancy. offer of may val

It was submitted on behalf of the plaintiff that Emmanuel Byenkya made a false suggestion and an untrue allegation of a fact in paragraph 5 of the petition in that the plaintiff had been separated from her husband at the time of his death. Secondly he also made an untrue allegation and false suggestion that he was a brother of the late Nyendwoha whereas in his testimony in Court he testified that he has no blood relationship with late Wilson Nyendwoha. It was further submitted that no inventory was submitted within six months after the grant and no account has been rendered to Court by the grantees and therefore letters should be revoked and granted to the plaintiff.

On the otherhand counsel for the defendant submitted that there was no ulterior motive in the swearing the way he did and he did not take out the Letters of Administration for the sake of enriching himself but was choses by a care taker committee. It was further submitted that should the Court find the defendant lacking in some material particular it should join David Byomya (D. W.2) as a co-administration.

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After listening the submissions of both counsel, I have to point out that the question of an untrue allegation and false suggestions that Emmanuel Byankya was a brother of late Nyendwoha were not denied either in the written statement of defence or in Court. There was no specific

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or implied denial that the grantees have ever filed an account of the estate or an inventory since they were granted the Letters of Administration in 1982. These matters do need no further proof. Emmanuel Byenkya in his testimony, told Court that the house at Rubaga is being occupied by himself and some one else whom he called a tenant. He failed to account for the rent the alleged tenant is paying. It appears to me that that is a private arrangement between the tenant and the defendant. The same witness told Court that the deceased's house at Makindye is being occupied by unknown people and is not aware whether they pay any rent. While this state of affairs are like this, the beneficiaries are scattered. The plaintiff testified that she has not been able to live with her children since the death of her husband because she rents a small house in Ndeeba and they cannot all fit in. At the time of hearing this Suit, some of the children are said to be in Mubende presumably with someone who has a big house.

Taking into account, the interest of the beneficiaries and the fact that the affairs of the estate are not being properly managed by the defendant - a man who does not stand in equal degree of kindred to the deceased and who lied on oath, it is just in the circumstances of this case, that the Letters of Administration should be revoked.

Counsel for the defendant requested Court that if the defendant is found wanting, Kyomya should be joined as a co-administrator of the estate. Section 202 of the Succession Act provides:

> "If the Court thinks proper, it may associate an person or persons with the widow in the administration who would be entitled solely to the administration, if there was no widow."

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Kyomya (D. W.2) as the eldest son now would be entitled to the administration of his father's estate if there was no widow and there is evidence on record that he applied to be substituted as an administrator after the death of his brother Robert Nyendwoha but the application was caveated by the plaintiff. There is also evidence that some of the properties are situated in Kinyala, Masindi where Kyoma resides. Considering the complex nature of the estate and the history of this case, it would be proper to associate someone else with the widow in its administration. I will exercise my discretion under the above section and allow David Kyoma to be joined as a co-administrator to the estate of late Nyendwoha.

In conclusion, I find on the evidence before me that the plaintiff has proved her case on a balance of probabilities. Judgment will be entered in favour of the plaintiff against the defendant(s) and the Letters of Administration granted to the defendant(s) in respect of the estate of late Wilson Nyendwoha are hereby revoked and granted to the plaintiff and one David Kyoma. Costs of this Suit will be awarded to the plaintiff. So be it.

BYAMUGISHA (MRS) C. K.

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