[2022] UGHCFD 40

### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA (FAMILY DIVISION) **CIVIL SUIT NO. 256 OF 2017** (ARISING FROM ADMINISTRATION CAUSE NO. 1928 OF 2016)

1. SENYONGA JACKSON <table>

2. SSOZI CHRISZESTOM....................................

#### **VERSUS**

**MATOVU SAMUEL....................................**

**Before: Lady Justice Ketrah Kitariisibwa Katunguka.**

#### Judgment

#### **Introduction**

- 1. The Senyonga Jackson and Ssozi Christzeston(Plaintiffs) sued Matovu Samuel(Defendant); seeking an order for removal of the caveat lodged by the Defendant against the Plaintiffs' petition for grant of letters of administration vide Administration Cause No. 1928 of 2016; A declaration that the Plaintiffs are entitled to grant of Letters of Administration in respect of the estate of their late grandfather/great grandfather, Kagugube Kabbo Yovani; An order granting the Letters of Administration of the late Kagugube Kaboo Yovani to the Plaintiffs; An order removing a caveat lodged by the Defendant on the 15^th day of November 2016 upon land comprised in Block 89 Plot 158 at Kakusubula Kyadondo and a permanent injunction restraining the Defendant from intermeddling in the estate of the deceased. - 2. It is the Plaintiffs' case that they are the great grandson and grandson of the late Kagugube Kabbo Yovani, respectively, and that he died intestate on the 22^nd day of September, 1991. at the time of his death, the deceased left no widow but had two (2) surviving children; Nabukera Aidah (now aged 87 years) and Naiga Eseza Faizi (now deceased). That the 1^st Plaintiff is the grandson of Naiga Eseza Faizi and the 2^nd Plaintiff is the son of Nabukera Aidah. - 3. That the deceased left behind approximately four (4) acres of land comprised in Block 89, Plot 158 situate at Kakusubula, Kyandondo, Wakiso District, one acre of which was sold off by the deceased to Sebunza Brown; a family meeting was convened on the 26^th day of February, 2015 where the family members of the deceased consented that the Plaintiffs be granted a certificate

of no objection to administer the estate on their behalf; in 2015, the Plaintiffs applied for and were granted a Certificate of No Objection, they petitioned this Honourable Court vide Administration Cause No. 1928 of 2016 for grant of letters of administration of the deceased's estate but discovered that on the 3^rd of November, 2015, the Defendant had lodged a caveat in court barring its issuance; the Defendant also lodged a caveat on the land comprised in Block 89, Plot 158 at Kakusubula, Kyadondo and begun to sub-divide and intermeddle with the estate.

4. The Defendant in his Written Statement of Defence has maintained that the deceased left a will in which he bequeathed to him the two $(2)$ acres of land and that the Plaintiffs were not selected as Administrators of the estate at the family meeting.

Both parties relied on a number of documents which I have considered, and I shall refer to in the course of the resolution of the case.

During the hearing of this matter, the second Plaintiff, Ssozi Chriszestom died.

#### 5. **Representation:**

The Plaintiffs were represented by Counsel Rodgers Odyang from M/S Okello Oryem & Co. Advocates while the Defendant was represented by Counsel Richard Kiwanuka of Kiwanuka & Co. Advocates.

The issues that were framed before hearing of the case were;

- i. Whether the late Yovani Kagugube died intestate? - ii. Whether the Plaintiffs were appointed as administrators of the estate of the late Yovani Kagugube? - 6. In the course of hearing the case and considering the reliefs sought I have found it pertinent (under O.15 r.3 of the Civil Procedure Rules S. I 71-1,); to add the issues as to whether the Defendant has the right to administer the estate of the deceased? and what remedies are available to the parties?

So the issues for resolution are;

1. Whether the late Yovani Kagugube died intestate?

- 2. Whether the Plaintiffs were appointed as administrators of the estate of the late Yovani Kagugube? - 3. Whether the Defendant has the right to administer the estate of the deceased;

4. What remedies are available to the parties.


# **Determination. Whether the late Yovani Kagugube died intestate.**

7. The plaintiffs contend that the deceased died intestate which is denied by the defendants; the burden is on the defendant to prove existence of a will. Two documents purported to be wills, one dated 8/07/1986 marked as A2 of the Defendant's trial bundle, the second one dated $10/12/1987$ admitted as DExb.1, were presented by the Defendant to court as evidence of the deceased's testacy; the translated copy of the purported Will dated $10/12/1987$ (DExb.1); is witnessed by two people; the plaintiffs also presented a Will with the same date admitted as Exb. P'4'; the two versions of the said will have similar wording and handwriting; however, Exb. P'4' has no witnesses. During the hearing, the defendant presented the original document of DExb.1 which has two witnesses; the Defendant's copy $(D. I. D 1)$ was duly witnessed by two (2) witnesses.

I shall consider each of the wills starting with the one dated $10/12/1987$ marked as Dexb.1.

8. Section 50 of the Succession Act (as amended) Cap 162 provides that, '... every testator... must execute his or her will according to the following provisions— (a) the testator shall sign or affix his or her mark to the will, or it shall be signed by some other person in his or her presence and by his or her direction; (b) the signature or mark of the testator or the signature of the

person signing for him or her shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will; (c) the will shall be attested by two or more witnesses, each of whom must have seen the testator sign or affix his or her mark to the will, or have seen some other person sign the will in the presence and by the direction of the testator, or have received from the testator a personal acknowledgment of his or her signature or mark, or of the signature of that other person; and each of the witnesses must sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of *attestation shall be necessary.*'

- 9. Section 101 (1) of the Evidence Act Cap 6 provides 'Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist.' **Section 102** provides that, 'The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.'; - 10. Section 72 (2) of the Evidence Act Cap 6 provides for the comparison of signature, writing or seal with others admitted or proved and states that, 'The court may direct any person present in court to write any words or figures for

the purpose of enabling the court to compare the words or figures so written with any words or figures alleged to have been written by that person.'

- 11. Kamulegeya David testifying as DW3, told court that he was a friend to the deceased; that he is the one who wrote Dex.1 on the instruction of the testator; he also claimed to have signed as a secretary and that it is his signature that is on the purported Will of $10/12/1987$ (DExb.1); according to the will in issue, the said secretary or writer of the 1987 Will did not indicate his or her names but rather a signature. - 12. P. Exb 10 is a specimen signature produced by DW 3(signed in court) to confirm that it is his signature that was appended to the will. On the face of it, the specimen signature significantly differs from the signature appended to the will. In the case of **Ggobi vs.** Nabunya HCCA No. 4/2007 it was stated that court may as experts of experts make findings on handwriting without a *handwriting expert. I* hold the same view especially where the parties have not presented expert witnesses, whose evidence is opinion ;(see Adrabo Stanley vs Madila Jimmy HCCS No. 24/2013 where court quoted Sakar's Law of evidence, $17^th$ Edition 2010 page 1258); my naked eye has convinced me that it is not DW3 that signed the 'wills'.

Both counsel for the parties did not address the law that seeks to protect 13. Illiterates, but I have found it prudent to refer to it. Section 3 of the Illiterates' **Protection Act Cap 78** provides for the verification of documents written for illiterates. It states that, 'Any person who shall write any document for or at the request, on behalf or in the name of any illiterate shall also write on the document his or her own true and full name as the writer of the document and his or her full address, and his or her so doing shall imply a statement that he or she was instructed to write the document by the person for whom it purports to have been written and that it fully and correctly represents his or her instructions and was read over and explained to him or her.' Section 4 of the same law makes it an offence for the writer of a document or witness to the signature of the illiterate not to write his full name and address on the document.

In the case before this court, **DW 3**, the alleged author of the wills, even $14.$ if he had proved to have authored the purported wills, did not comply with this provision and therefore the deceased's interests, as an illiterate, would not have been protected.

15. I shall now address the contradictions in the defendant's evidence, raised by counsel for the Plaintiff; **DW2** stated in his examination in chief that he presented the will of 1987 at the funeral rites after he had received it from Cranmer Katumba (DW 1). DW 4 on cross examination testified that he had attended the deceased's last funeral rites from beginning to end and that there was no document presented at this ceremony.

Section 101 (1) of the Evidence Act Cap 6 states that, 'Whoever 16. desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts *exist.*' Section 102 of the same law further provides that, 'The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.'

The Defence case was that the will was presented at the deceased's last 17. funeral rites where DW 2 was declared the customary heir of the deceased. The evidence regarding the presentation of this document was contradicted by the Defence witnesses themselves; where one claimed that a document was presented and another stated that he did not see any document presented at the said ceremony. It is up to who alleges, to prove without ambiguity that what he states is true; otherwise the ambiguity if grave will be to his detriment; (see Uganda vs. Kavuma (Criminal Sessions case No. 0819 of 2016) [2018] **UGHCCRD 145 (4 July 2018);** the gravity is established based on how central the evidence is to the determination of the matter (see Alfred Tajar V Uganda EACA Cr. Appeal No. 167 of 1969).

In the case at hand determination of whether the deceased left a will or 18. not is the gist of the case. In the first place the authorship of the will itself is not certain owing to the differences in the alleged author's signatures. Secondly, the contradiction of the Defendant's witnesses regarding whether the will was presented at the deceased's last funeral rites or not casts further doubt on the origin of the document; then presentation of different versions of the 1987 wills purportedly signed by the deceased further casts doubt on the defendant's case. The Plaintiff's copy (Exb P 4) was not witnessed whereas the Defendant's copy $(D. I. D 1)$ was allegedly witnessed by two $(2)$ witnesses in accordance with Section 50 of the Succession Act. A look at the documents shows that the witnesses were included later as the 'age' of the ink for the witnesses, to the human eye appears more recent than the rest of the document.

The above inconsistencies and contradictions are major because they are 19. essential to the determination of the case. The authorship of a will is material in the determination of the validity of a will, and in this case the authorship has not been proven. It casts further doubt on the Defendant's case when the information pertaining to the presentation of 'the will' at the last funeral rites ceremony is not consistent among two Defence witnesses that claim that they were both in attendance. The absence of witnesses on the Plaintiff's copy of the 1987 will and then the appearance of two witnesses on the Defendant's copy of

the will is also suspicious; it appears that there could have been documents that were never made into a will by the deceased. The defendant has failed to disentangle the contradictions.

In the premises I find that the Defendant has failed to prove the validity $20.$ of the deceased's will or of existence of any will at all. In the absence of a valid will, the deceased died intestate. Issue No.1 is resolved in the affirmative.

# Issue 2. Whether the Plaintiffs were appointed as administrators of the estate of the late Yovani Kagugube?

The Plaintiffs were appointed administrators in a family meeting held 21. before the Sub-County Chief of Gombe in Wakiso District. (Refer to Exb P3 for the minutes of the meeting.) The Chief Administrative Officer of Wakiso confirmed this meeting in **Exb P.2**. **Exb. P.5** is the nomination of the Plaintiffs as Administrators by the daughters of the deceased: Naiga Eseza Faisi (now deceased) and Nabukeera Aida.

DW 2 acknowledged in his cross examination, that he attended this 22. family meeting, that he signed the attendance list and that he was no.7 on the said list. The resolutions of the meeting are well documented in the minutes, and I therefore find that the Plaintiffs were duly nominated to apply for the grant of letters of administration of the deceased's estate. The Defendant's disagreement with the nomination does not disqualify the nominees.

Issue 2 is answered in the affirmative.

### Issue 3. Whether the Defendant has a right to administer the estate of the deceased?

**Section 202 of the Succession Act**, provides that "*subject to section 4 of* $23.$ the Administrator General's Act, administration shall be granted to the person entitled to the greatest proportion of the estate under section 27". Section 27 (1) (a) (iv) of the Act lists the lineal descendants as the recipients of the greatest proportion to the estate. Section $28(1)$ provides that all lineal descendants, spouses and dependent relatives of an intestate shall share their proportion of a deceased intestate's property, in equal share; subsection 2 provides that where a lineal descendant entitled to benefit under the estate of a deceased intestate predeceased the intestate person, the portion of the estate that would have accrued to the deceased lineal descendant shall be granted to the lineal descendant of the deceased lineal descendant;

Granting of Letters of administration or choosing the person to apply for $24.$ the same is, unless the family agrees otherwise, guided by, among other

factors, how much one is entitled to the deceased's estate and how safe the estate would be in such hands; (see also *Ngugira vs. Nansikombi 1980 HCB*).

PW1, PW2 and PW3 all maintained that they are not related to the $25.$ Defendant, a fact that the Defendant has not contested. On the other hand, the Plaintiffs are the direct lineal descendants of the deceased; great grandson and grandson of the late Kagugube Kabbo Yovani. The Plaintiffs being lineal descendants are entitled to a bigger portion of the estate and therefore are the rightful people to apply for letters of administration. The Defendant's only claim to the deceased's estate is that he was appointed the customary heir.

**Section 191 of the Succession Act provides that '...no right to any part** $26.$ 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'*. Section $268(1)$ provides that a person who inter meddles with the estate of a deceased person commits an offence and is liable, on conviction, to a fine not exceeding one thousand currency points or imprisonment not exceeding ten years, or both. Subsection $2(a)$ and (b) of the act 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- takes possession or disposes of the properly of a deceased person; or does any other act which belongs to the

office of executor or administrator;

The defendant was not appointed by any will and even if he was a 27. customary heir he is simply that and nothing else unless the family approves him to also take up the role of administrator; (see Onesforo Ngaaga & An'or vs. Matovu & Anor. HCCS No. 107 of 2003). If the deceased left land the customary heir would be entitled to 1% (see section $27(1)(a)(iv)$ ; he therefore would not be entitled to be preferred as a person to apply for letters of administration compared to the lineal descendants of the deceased;

I accordingly answer issue 3 in the negative.

### **Issue 4. What remedies are available to the parties?**

28. The late Kagugube Kabbo Yovani died intestate; the Defendant's actions of attempting to or distributing the property to the daughters of the deceased and allocating himself two $(2)$ acres of the estate by virtue of the fact that he was a customary heir amount to intermeddling with the deceased's estate; he had no right to caveat the petition for letters of administration; had no right to lodge a caveat upon land comprised in Block 89 Plot 158 at Kakusubula Kyadondo belonging to the estate of the late Kagugube Kabbo Yovani; the plaintiffs being

the lineal descendants of the late Kagugube Kabbo Yovani are more entitled to apply for letters of administration;

Section 27 of the Civil Procedure Act provides that costs follow the event therefore the plaintiffs are entitled to costs;

In the premises the case succeeds and it is hereby ordered as follows:

- 1. The Plaintiffs were appointed to apply for letters of administration of the estate of the late Kagugube Kabbo Yovani; - 2. The Caveat lodged by the defendant against the plaintiffs' petition for Letters of administration is hereby removed. - 3. The caveat upon land comprised in Block 89 Plot 158 at Kakusubula Kyadondo belonging to the estate of the late Kagugube Kabbo Yovani is hereby removed and vacated; - 4. The defendant shall be investigated and prosecuted for inter meddling in the estate of the late Kagugube Kabbo Yovani. - 5. The defendant shall bear the costs of this case.


Ketrah Kitariisibwa Katunguka Judge 21/10/2022

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