Abusa v Yundhu (Civil Suit 88 of 2018) [2024] UGHC 624 (3 July 2024)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT JINJA **CIVIL SUIT NO. 088 OF 2018.**

# ABUSA REBECCA MARIAM ::::::::::::::::::::::::PLAINTIFF

#### **VERSUS**

#### 1. DAVID GODFREY YUNDHU

## 2. WILBUR YAFESI LWIGALE

# 3. **YAFESI YUNDHU:::::::::::::::::::::DEFENDANTS**

# BEFORE: HON. LADY JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI

## **RULING**

### **Background**

The Plaintiff instituted this suit against the Defendants for an order revoking the grant of letters of administration to the defendants, a permanent injunction restraining the defendant from any other dealings in the estate and costs.

The Plaintiff's case is that the deceased Vasco da Gama Lwigale passed away in 1995 and that the defendants obtained Letters of Administration from Jinja High Court on 27th September 1995. It was her contention that the defendants have failed to discharge their duties as administrators by; failing to file an inventory and account on how the estate is being managed, intermeddling with the estate leading to misuse of the estate by selling off land comprised in LRV Folio 14 also known as M.32 and a sublease comprised in LRV 305 folio 14 also known as plot M.31 to a one Lukabuwe Livingstone; conniving with Njeru town council and Lukabuwe Livingstone to unlawfully curve plot M. 31 into private mailo now comprised to Block 295 plot 507, 508, 509, 510, 511 and 512 without the knowledge of the beneficiaries. She contended that the estate is on the verge of being wasted away by the defendants as the 1st and 2nd defendants are mentally incapacitated, and that the acts of the defendant amount to mismanagement of the deceased's estate.

In their defence, the defendants contended that they are the lawful holders of letters of administration of the estate of the late Vasco da Gama Lwigale from the time they were granted the same in 1995. That the defendants being the legal representatives of the estate have discharged their obligations properly and allegations of mismanagement of the estate and intermeddling do not arise. That they are of sound mind. It was their contention that the said property no longer forms part of the estate of the late Lwigale as the sub-lease was terminated and the same reverted back to the original owner who sold to Mr. Lukabwe Livingstone. That they have never sold the said Njeru land but were just compensated as squatters without any interest by Lukabwe Livingstone. That the plaintiff is guilty of intermeddling with the estate without the consent of the administrators. That they are fit and proper people to administer the estate.

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## **Representation**

The plaintiff was represented by Counsel Simon Peter Ssekide from Ssekidde Associated Advocates while the 3rd defendant was represented by Counsel Bernard Bagumiza Arinaitwe.

On 25th April 2022, it is on record that basing upon his own confirmation & this admission, court entered judgment in favour of the Plaintiff against the 2nd defendant.

At the hearing on 13th October 2022, counsel for the Plaintiff raised a point of law. It was his contention that the point of law was under Section 234 (2) of the Succession Act, Letters of Administration became inoperative when one or two of the Administrators has ceased or can no longer perform the functions or obligations of an administrator.

I also take note of the court record that the 1st defendant, by a letter dated 12th May 2022, addressed to the Trial Judge at the time agreed that the letters of administration be revoked.

#### **Submissions**

The parties were directed to file their respective submissions on the point of law. However, only the plaintiff's written submissions are on court record and counsel for the 3rd defendant defied court's directives with regard to the filing of the written submissions.

Counsel for the plaintiff raised two issues so as to address the point of law.

- 1. Whether or not the court should revoke the said grant of the letters of administration? - 2. What are the remedies available to the parties?

On issue one, he argued that the law on revocation of grants is settled under Section 234 of the Succession Act which is to the effect that a grant for letters of administration may be revoked for just cause.

He submitted that the conditions that may lead the court to revoke the grant for letters of administration are generally if it is found that the process leading to the grant was faulty and if after the grant, the grant has become useless and inoperative through circumstances or that the holder failed to file an inventory.

It was his submission that the grant has become useless and inoperative through circumstances. He cited Section 234 (2) (d) of the Succession Act and submitted that an inoperative grant is that, which has become useless, unable to work, moot or that which has becon rendered substantially powerless circumstances. It was his submission that a grant may have been properly made but for a reason that has occurred as a result of subsequent events, it may become necessary for the court to revoke the grant for practical reasons, for example where an administrator becomes incapable of managing his affairs by reason of mental or physical incapacity, the grant will be revoked. He cited the case of Goods of Galbraith [1951] P 422 which was relied on by Justice Stephen Mubiru in the matter of an application for revocation of letters of administration and grant instead to Piwa Clare and Biywaga Joan (Miscellaneous Civil Application 53 of 2016) [2016] UGHCFD & (01 **July 2016).**

He argued that in the instant case, two of the defendants who were granted Letters of Administration as co-administrators of the estate of the late Vasco Dagama Lwigale expressly demonstrated their desire to relinquish their authority as co-administrators and would wish to

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seize from being administrators of the deceased's estate because of their inability to administer the same. He submitted that the 1st defendant David Godfrey Yundhu by a letter dated 12/05/2022 which was filed in court gave reasons why he could not administer the said estate and stated that; "I am unable to fulfill my duties because I live in London" and also urged this court to revoke the same owing to their failure to administer the estate of the deceased hence rendering the grant inoperative and useless.

He also submitted that the 2nd defendant, Wilbur Yafesi Lwigale, is on this court record expressing his desire to be relieved of his duties as an administrator and that he does not wish to continue to administer the estate of the deceased.

He also cited in the matter of an application for revocation of letters of administration and grant instead to Piwa Clare and Biywaga Joan (supra) where the court suggested while revoking the letters of administration that;

"there is only one way in which the name of an administrator of an estate may be removed from a grant and that is by revocation of the grant and the making of a fresh grant. A court cannot simply strike out the name of one administrator from a grant and continue on without revoking the grant. A fresh grant should be made because a grant is a public document and often must be produced to third parties as proof that the holder is the personal representative and thus enable him or her to administer the estate".

He also submitted that exhibiting an inventory in court is a mandatory statutory obligation breach of which renders the letters of Administration revocable. He cited Section 234 (2) (e) of the Succession Act and the case of Babumba & 13 others Vs Ssali Babumba Civil Suit No. 78 of 2021 [2015] UGHCFD 31 which relied on the case of Paulo Kavuma vs Moses Sekaya & Another Civil Suit No. 473 of 1995; to support his position.

In regard to issue two; he concluded his submission by reiterating the plaintiff's prayers to revoke the said letters of administration for being inoperative and for the defendant's failure to file an inventory and true accounts to this honorable court.

#### **Analysis.**

Section 234(1) of the Succession Act Cap 162 provides, inter alia, that the grant of letters of administration may be revoked for just cause. The meaning of just cause is provided in subsection (2) of section 234 of the Act. Under paragraph $2(d)$ just cause means where the grant has become useless and inoperative through circumstances.

By the grant becoming "useless and inoperative", to my mind, means, the grant is no longer fulfilling the intended or desired purpose and thus not having the usual effect.

In my considered view, circumstances that render a grant useless and inoperative are varied and will always depend on the facts of each case. Therefore, Courts have given instances where a grant of letters of administration or probate has become useless and inoperative, for instance, where an administrator becomes incapable of managing his or her affairs by reason of mental or physical incapacity occasioned by old age, sickness, or otherwise; and also where the administrator or administrators are deceased. See: In the matter of the Estate of the late Nyeko Charles Lukwayi, Misc. Application No. 0107 of 2020 (Mubiru, J.); In the matter of the estate of the late Javuru Apollo Michael (deceased) High court Misc.

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## Civil Application No. 0053 of 2016 (arising from HCT-08-CV-0023 of 2014) (Mubiru, J.); In the Matter of the Estate of the late Aedeke John Omuto, Misc. Application No. 82 of 2022 (arising from HC Admin. Cause No. 4 1 of 2008) (Dr. Henry Peter Adonyo, J.)

In a similar matter court held that by an administrator relinquishing his job of an administrator, it satisfies the requirement of section 234 (2) (d) of the Succession Act, since an administrator cannot be forced to administer an estate even though he had initially agreed to administer it. See: Paulo Kavuma Vs. Moses Sekaija & another, HCCS No. 473 of 1995, digested in [1995] 3 KALR 18 (Kireiu, J.)

In my opinion, the rationale for revoking letters of administration is to ensure proper administration of the estate and to protect the interest of the beneficiaries. In the Goods of **WilliamLoveday** [1900] P, 154, is opposite. There, it was held that:

"the real object which the court must always keep in view is the due and proper administration of the estate and the interests of the parties beneficially entitled thereto, and I can see no good reason why the court should not take fresh action in regard to the estate where it is made clear that the previous grant has turned out abortive or inefficient. If the court has in certain circumstances made a grant in the belief and hope that the person appointed will properly and fully administer the estate and it turns out that the person so appointed will not or cannot administer, I do not see why court should not revoke an inoperative grant and make a fresh grant."

I agree with the above views reason being that the revocation of an inoperative and useless grant creates a path for making of a fresh grant. I also find that a court cannot simply strike out the name of the administrator who has relinquished his duties as administrator of the estate and continue with the willing administrator without first revoking the useless and inoperative grant. This should be done before a fresh grant can be made.

I also agree that there is no point in requiring the new administrators to prove all matters that were necessary for the purposes of the earlier grant, especially where at least one of the newly proposed administrators was an administrator with respect to the revoked grant. Thus the process of applying, advertising, obtaining letters of no objection, etc., need not be repeated in fresh grants. See: In the matter of the Estate of the late Nyeko Charles Lukwayi, Misc. Application No. 0107 of 2020 (supra), in which the persuasive authority of **Gould Vs. Gould [2005] NSWSC 914)** was followed with approval.

In the present matter, the applicants have proved that two of the initial three administrators have agreed to relinquish their obligations and duties as administrators to the estate of the late Vasico Dagama Lwigale.

In the circumstances, I find that the grant of the letters of administration to the original administrators has become useless and inoperative as the third administrator will not singly serve the purpose for which the initial grant to three administrators was intended to achieve.

I find this a proper case in which court ought to revoke the grant of letters of administration made on the 27th day September, 1995. The same stands revoked. Consequently, the original copy of the Letters of Administration dated 27th September, 1995 issued by this court shall be returned to court following this Order.

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The plaintiff has not prayed for issuance of a fresh grant of letters of administration and this presupposes that following this revocation of the current grant, the estate of the late Lwigale has no custodian and/or representative. I, therefore, direct the Plaintiff and her family members to hold a family meeting and appoint new persons to apply for a fresh grant within 30 days from the date of delivering this ruling.

I make no order as to costs.

Obiter

Before I take leave of this matter, I have noted that the estate has never been distributed and has been administered for the aggregate period of slightly about twenty-nine years, since 27th September, 1995. The future Administrators of the estate are advised to follow the law regarding administration of the estate since estate administration is not intended to be indefinite. See Anecho Haruna Musa Vs. Twalib Noah & 2 others, Civil Suit No. 0009 of 2008.

It is so ordered.

## HON. FARIDAH SHAMILAH BUKIRWA NTAMBI

**JUDGE** Ruling delivered on ... S. day of ... day. .. 2024.

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