[1997] UGCA 17

# ,I'HL, REPUIJI-IC O}.' UGANDA

### IN IHE COUR'I' OTT APPh,AL OII UGANDA

### HELD AI I( ATIPAt\_A

# (colr: IANIINDO - rXlJ. G. I. OKELLO - l, S. G. ENGUAU - J)

#### CIVIL APPI,AL NO. 26l96

## BEIWLL,N

#### S U MAN NARESH KAI(A APPELLAN I

## - VERS U S -

#### NAROI IAM DHARAMSI BHAI'IA ................. ... RhSPONDENI

(Appeal against the Judgment 01 Lugayizi, J, delivered in H. C. C. S. No. 425 ol L994, 16-l-gb).

### J UIJGEMhN I UT. O}. ELLU J,

J

This is an appeal against the decision of the HiEh Court (Hon, Justice Lugayizi) given on the l2th lrebruary 1996, whereby he disnissed the Appellant's suit with costs and also dismissed the Respondent's counter clain with costs.

'Ihe background to this appeal is straight lorurard. 'Ihe appellant and the respondent are brother and sister. 'Ihey are the children of Moraj Dharamsy tshatla and his wlfe Manibhai tshatia. Both parents are now dead. They had lived in Uganda for many years and had amassed wealth in Uganda during their stay here. They had left Uganda in 1957, and went to live in Bombay - lndia. Anongst the properties Moroj Bhatia and his u'ife Monibhai lelt in Uganda were shares ln a family conpany known as "ljharamsy Moraj tshatia and Sons Ltd." ln that conpany the father and the nother held 25S of the shares each and the renaining 50S was held by the Respondent. their only son.

Mrs. Manibhai Bhatia died in flonbay lndia in 1990, six years after her husband's death. 'Ihat left the Respondent as the so-[e Director of l{/s. Dharansy

Uoraj Bhatia and Sons Ltd, Mrs. llanibhai Bhatia left a Uillin rrhich she appointed the appellant the sole executrix and bequeathed a token ot 2000 Rupees to the Respondent.

l

'fhe Appellant later applied in the High Court ot ^Ug anda for grant of Probate VI of the JPill ot Mrs. llanibhai Bhatia. lhe ltespondent lodged a caveat against the grant of Probate to the Appellant. lhe caveat vas supported by the aflidavit syorn by Atul Rodin, a duly appointed Attorney of the Respondent. In accordance with section 265 of the Succession ectfCaO. rf.r, rhe Appellant flled in the High Court Civil Suit No.425 of 1994 vith the Respondent as the defendant. In that suit, theappellant sought a dec.laration that the Wlll ln question vas avalid Willof rs/ Nanibhai Bhatia. She also sought in the sale suit an order litting the caveat lodged by the l{espondent. lhe Respondent filed a vritten staterent of defence and a counter claiL, In both the yritten staterent ol defence and the counterclaln. the Respondent raised a nunber ot glounds attacking the Wlll. One of the grounds ralsed yas that at the tiDe ot her death, IlanibhaiBhatia the l'estator, was doniciled ln lndia and that theretore the High Court of Uganda had no jurisdiction in the natter of the deceased's Estate Corprising shares which vere ova b1e proper tie s.

When the case came up for hearing. the trlal ludge found that the appellant should have obtained Probate fron a court in India then brought it to the High Court of Uganda only for resealinS, ln etfect he held that the Hlgh Court ot Uganda has no jurlsdiction to grant Probate in this case, Hence thls Appeal.

'Ihe nenorandun oI the Appeal set three grounds. narnely:-

1. Ihat the learned Judge erred ln lav and on the facts in laillng to address trinself on the evldence and pleading s with regards tothe P.laintilrs / Appellan t s clain that the vill ot ilanibhai Dharansy dated 2nd February 1983 vas valid.

- 2. lhat the learned Judge erred in lav and fact ln holding that the lav ol dolicile strictly governs the iurisdlction ol the court vithout considering that there rras no grant ol probate in respect to the assets in Uganda or in any other court varrantlng strict corpliance to the sectlon J ol the Probate (Resealins) Act Cap 144. - 3. 'fhat the leaned Judge erred in lav in lalling to handle the latter llnally as a court of conpetent jurisdiction to as to ayold nultipllcity of proceedlnSs and in relying on a mere technicality to disniss the suit properly brought before cour t.

At the hearing. the follouing Iacts yere agreedr

t

- l. that the alleged Yill of llrs. ltanibhai Bhatia rras iode and erecuted in l n dla. - 2. that the Pill in question related to conpany shares. - 3. that corpany shares are rovable properties. - 4. that these shares ln the instant case are sltuated in Uganda vhere the registered office of the cotrpany is situated.

Grounds I and 2 were not pursued because they yere overridden by the guestion oI jurlsdlction. Only ground 3 vas argued. Ihe only salient question raised l.n that ground for deternination of the court is rrhether the High Court of Uganda has jurisdiction to grant Probate of a Yill vhich rIas nade and executed outside U ganda and relating to novable properties situated in U ganda vhen at the tlre of her death. the'Iestator was doniciled in another country.

llr. Peter llulira, learned counsel for the appellant, criticised the decision of the trial Judge lor holding that the Hlgh Courr had no jurisdictlon. He thought that the trial Judge iisdirected hiEself because he relied only on section 3 of the

Probate ResealinS Act (Cap. 144) when there are laws that confer on the High Court jurisdiction. He cited article 1J9(1) of the Constitution of USanda 1995 and section 16 ot the Judicature Statute No.lJ ot l99o as the lavs that confer unlinited original jurisdiction on the fligh Court in all natters, Counsel polnted out correctly in ny viev. that the jurlsdictlon so conlerred on the High Court is k exercised su bject to the Cons titution.f udicature Act and any ot her lav, According to llr. Mulira, both the Constitution and the Judicature Statute do not lirit the jurisdiction of the High Court in this regard,

I

As to sectlon 5(2) ol the Succession Act \vhich falls under any other lav, Mr. llulira contended that this section too does not oust the jurisdiction of the Htgh Court. 1he section provides that Succession to novable property ls reSulated by the laU of the country of doricile of the lestator at the tire of his or her death. llr, llulira subnilted that this section should be understood as referring to devolution as opposed to petition for grant. for this viey he relied on the book entltled "A I'reatise on Wills," by Thomas Jarnan 8th Edn Vol l. In counsel's vlew in the present case. the petition for grant should be reSulated by the laf, of the locality of the shares. In thls case lavs of USanda rrhere the shares are situated.

The second argurent of tlr. l{ulira was that{esealing is an alternative procedure. fhat lf an applicant obtained a granl ol Probatein a foreigncourt, the resealing is necessary to Iake the grant ellective tor adninistration ln Uganda. That thereis no law u,hich lequires a person to obtain Probate from abroad when there is no property ot the deceased there. He subnitted that the High Court has Jurlsdiction to Srant Probate in the circurstances of this case. He relled on the En S lish case oI a Chet t vs. S,N, Su rarania Chet ^t a Priv y Council decision (1916) AC 6U3.

ln response llr. Byenkya for the Respondent subnitted that the trial Judge ryas right in holding that he lacked jurisdiction because the deceased was at the tine of her death doriciled in India and that shares, the property involved being

rovable property. section 5(2) of the Succession lc(an {f33) Ofaces a llnit on the jurisdiction ol the court by reguirinS it to only apply the lau ot the country ol donicile of the deceased at the tine ot lris or lrer death. He argued that under section 19 ot the Succession Act. lar/s ol Uganda can only regulate succession to rovable properties where there ls no prool that the deceased r,as doniciled elsevhere. He pointed out that section 2 of the Succession Act specifies vhat constitutes the lays of Uganda pertailring tof,l."..rion as being only Succession Act as amended. lt contains the provision relating to validity of a Will, and vho ray petition tor Probate. He dismissed the distinction betyeen admlnlstration and succession as non-existent in Uganda because the legislature, in its yisdo! did I not state so. ln hls vier., petition and devolution are tere aspects of succession. He subritted that if the legislature, rranted to nake such a distinction, it vould have found no dlfficulty in statinS so even in the lnterpretatlon Decree.

Ur. tsyenkya distinguished the Engllsh cases cited by counsel for the appellant as not relevant because the decision in the instant case vas based on ^a provision o, a statute.

lhe trial Judge dealt f'ith the issue ot iurisdiction in his judgrent in this way:-

> "As far as the second issue is concertred, that the deceased r,as dortrici.led in lndia lravin g established before her death. ^a perusal ot section J of the Probate (Resealing) Aclfcap. fna) vould reveal that iatters relating to her estate vere not correctly handled ln this case"

Then he reproduced section J of Probate (Hesealing) Act thus.

"Where a court ol Probate in any part of the Cornonvealth had granted Probate or Letters ol Adrinistration in respect of the estate of a deceased person, the Probate or letter so Sranted nay, on belng produced to and a copy thereof

deposited vith the High Court, be sealed ulth the seal ol that Court and thereupon shall be ot the like torce and effect and have lhe sa[e operation in Uganda as it granted by Court."

Thereafter, he vent on to say,

"Needless to say, that the plaintitl did not obtain the above Probate. As a result therefore, all she purported to do under Probate and Ad inistration Cause No.164/1983 and subsequently the suit vas irproper, nisconceived, and had no legitiracy ln lav"

Then he disnissed the suit.

It is clear from the above that the trial Judge dismissed the sult on the basls of Section J of the Probate (Reseallns) Act. ln eftect the reason for the disiissal as could be Sathered lron the judgnent is that the court did not haye jurisdictlon to grant Probate in the case. lhe trial .,udge dld not expressly state the reason Uhy he thought the High Court did not have jurlsdiction to handle the appllcation for grant oI Probate in the case belore it.

It is inportant to note that on the question of iurlsdiction of the High Court, Article 139(l) of theConstitutlon of Uganda 1995 is c.lear. It confers on the High Court unlirited origlnal jurisdiction in all natters. Ihe relevant article of the con stitution read s.

> "'lhe High Court shall subject to the provisions of the Constitution have unlirlted oriSinal iurisdiction in all !atters and such appellate and other iurisdiction as !ay be conferred on lt by this constitution or other laI,s."

Section 16(1) of the ,ludicature Statute No.lJ of 1996 also confers on the Hlgh Court unlinited origlnal Jurisdiction in all natters.'lhe Section is couched alrost verbatir as the above article of the Constitution. I agree vith counsel for both parties that, the poi,/er so conlerred on the High Courl by these larrs is exercised subject to the Constitution. the Judicature Act and any other lavs. l hat is the lar,.

ln the instant case, Mr. Byenkya sublitted that Section 5(2) of the SuccessionAct places a lirlit on tlre jurisdiction ot the High Uourt by stating that, "Succession to novab-te Property ol a deceased person is reSulated by the lar ol the country in vhich he had his donicile at the tine of her death."

As seen earlier in this judgnent, the deceased r,as at the tine of her death doriciled in lndia and the property coLprised in her UiIl are her shares in the conpany. Ihese are no\rable properties and are situated in Uganda. 'Ihere ts no dispute about these. Howevet, llr. Mulira's contention that the rule that Successlon to novable Property ol person deceased is regulated by the Iav of the countryln vhich he had his donlcile at the time ol his death, be understood to be referring to adninistration or devolution as opposed to Succession or Petition for Srant is not tenable. First because the authority! "A lreatise on Wills" on vhich he relied is ol doubtful authority. Secondly in U8anda distinction betrreen adninistration and Succession is Don-existent. Petition for grant and devolution are merely part of successlon rrhich according to section 5(2) above nust be re8ulated by lav of dornicile.

I considered the Eng lish case ot: S. ft{, K. R, I{evaDDa ehetty -v s- N. s. lju!raEalrian Chetty above to which our attention vas dravn ^b y Counsel for the Appellant for the viev that the High Court has iurisdicition to grant Probate in this case. E.nglish Authorities are persuasi\,e authorities. But I found this particular case unhelpful because its decision vas based on a provision of ^a Statute not sinilar to Section 5(2) of the Succession Act. It vas based on Sectlon 3 of the Civil Procedure Code Ordinance No. 13 ol the Straits Settlenents. Ihat Section alloved adoption rrith the necessary roditications of the procedure and practice ol the Supreie Coutt of Judicature of England yhere there vas no law in the Strail Settlenents on a rnatter. Ihere vas nothing in the Codeor any tal,

'1

/

in force in the Straits Settlements precluding the Supreme Court of the Straits Settlements from granting Probate of the Will of a person wherever domiciled. So the English practice was applicable. The English practice was that Probate may be granted of the Will of a person domiciled abroad upon proof that it is valid according to the law of domicil and that there was no assets within the jurisdiction.

Mr. Byenkya has submitted that Section 5(2) of the Succession Act places a limit on the jurisdiction of the High Court in matters relating to movable property of a deceased person who at the time of his death was domiciled elsewhere. That is the law. And it is important to observe that available authorities indicate that for a statute to oust the jurisdiction of the Court, it must state so expressly or by irresistable inference. This was the holding in:- David Kayondo -vs- The Co-operative Bank (U) Ltd. Civil Appeal No. 10/91 (Supreme Court of Uganda) unreported.

In the instant case, Section 5(2) of the Succession Act states that,

"Succession to movable Property of a deceased person is regulated by the law of the country in which he had his domicile at the time of his death."

The essence of that section is that Petition for grant of Probate or Letters of Administration, validity of Wills and devolution of the movable property of such a deceased person are regulated by the laws of the Country of domicile. That is clear enough to oust the application of the law of the Country of locality.

It is clear that the High Court has no jurisdiction to entertain the application for Probate in that case. I would uphold the decision of the trial Judge though on a different ground that Section 5(2) of the Succession Act(Cap $\angle$ 139) as amended places a limit on the jurisdiction of the High Court not to grant Probate of a Will of a person relating to movable Property where at the time of his death the person was domiciled elsewhere.

The counter claitr ol the respondent had also t een disnissed by the trial Judge. ln his counter claim. the respondent had sought orders. declaring that the WllI in issue x,as not made by Manibhai Bhatia. Ln the alternative, he sought ^a declaration that if the court found that the Uill flas nade by anibhai Bhatia then it (Will) vas bad for disinheritlng the Hespondent her natural son. I he Respondent also sought an order lor a reasonable share ol the deceased's estate to be set aside for the Respondent.

There Is no appeal against the dlsnissal of the counter clain. As such I vould rake noconrent ln that respect. hor the reasons given, I would dlsrniss the appeal wit h cos t s.

Dated at Karpala this day ol 199 l.

G.ll.okello ^JUIXjE

#### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA

#### HOLDEN AT KAMPALA

S. T. MANYINDO - DCJ, S. G. ENGWAU - J, EGONDA-NTENDE - J) (CORAM: CIVIL APPEAL NO. 26 OF 1996

#### BETWEEN

| SUMAN NARESH KARA: | $\cdots\cdots$ | APPELLANT | |--------------------------|----------------|------------| | | $\mathbf{v}$ S | | | NAROTTAM DHARAMSY BHATIA | $\cdots\cdots$ | RESPONDENT |

(Appeal arising from Judgment of the High Court Lugayizi, J. H. C. C. S. No. 425 of 1994)

## JUDGMENT OF MANYINDO - DCJ:

I read the judgment of Okello, J. in draft. I agree with it and as Engwau, J. also agrees, the appeal is dismissed with costs to the respondent.

DATED at Kampala This:....................................

#### S. T. MANYINDO DEPUTY CHIEF JUSTICE

I certify that this is the true copy of the Original.

**MURANGIRA** $\mathbf{J}$ COURT OF APPEAL REGISTRAR

For:

#### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CORAM: MANYINDO, DCJ.: G. M. OKELLO, J.: S. G. ENGVAU, J.)

## CIVIL APPEAL NO. 26 OF 1996

#### **BETWEEN**

SUMAN NARESH KARA ...... APP ILANT

RESPONDENT

**VERSUS**

NAROTTAM DHARAMSY BHATIA $\cdots\cdots$

> (Appeal against the Judgment of Lugayizi, J. delivered in $H_0C_0C_0S_0$ . No. 425 of 1994, 16-2-96).

### JUDGMENT OF ENGLAU, J.

I had the chance of reading the judgment of Okello, J. in draft and I agree with him.

Dated at Kampala this 5th day of February, 1997.

................... S. G. INGWAU, J. JUDGE.

I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL.

CH MURINGIRA

for RUGISTRAR COURT OF APPEAL.