Aheebwa v Muhumuza and 2 Others (HCT-01-CV-CS 43 of 2020) [2023] UGHCCD 180 (28 April 2023)

#### **THE REPULIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA HELD AT FORT PORTAL.**

## **HCT-01-CV-CS-043 OF 2020**

**AHEEBWA HABERT :::::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF**

#### **VERSUS**

## **1. MUHUMUZA SIMON**

## **2. AMANYIRE WILSON**

**3. KAHUNDE ANNET (Administrators of the Estate of the Late Kaseregenyu Selevano ::::::::::::::::::::::: DEFENDANTS**

## **BEFORE HON MR JUSTICE VINCENT EMMY MUGABO**

#### **JUDGMENT**

The Plaintiff sued the defendants for a declaration that his late mother, Nyakaisiki Margaret is a beneficiary to the estate of the late Kaseregenyu Selevano, a declaration that the defendants breached their duty in failing to distribute the estate of the late Kaseregenyu Selevano, an order that the letters of administration to the said estate be revoked against the defendants and granted to the Administrator General, an order for the distribution of the estate, general damages, punitive damages and costs of the suit.

The plaintiff avers that the late Kaseregenyu Selevano died intestate in 2003 and was survived by his widow and children including the plaintiff's mother. That the defendants applied for and obtained letters of administration to the estate in 2018 but they have not distributed the estate to date.

In their written statement of defence, the defendants contend that it is true that the plaintiff's late mother was a daughter to the late Kaseregenyu Selevano and before her death, she had received her share from her father which was later sold by the plaintiff.

**Representation and hearing.** The Plaintiff is self-represented and the defendants are represented by Mr. Victor Businge of Ngaruye Ruhindi, Spencer & Co. Advocates. The hearing proceeded by way of witness statements and cross examination. The parties file written submissions tha have been considered herein.

The plaintiff led the evidence of two witnesses. Himself as PW1 and Twesige Julius as PW2. The defendants led evidence of four witnesses. Babyenda Mugenyi Ibrahim as DW1, Kahunde Annet as DW2, Kaija Francis as DW3 and Richard Rugumayo as DW4.

In the joint case scheduling memorandum, the parties framed the following issues;

- 1. Whether the Plaintiff is a beneficiary to his mother's estate claiming interest in the estate of the late Kaseregenyu Selevano - 2. Whether the land sold by the plaintiff was his mother's share from her father Kaseregenyu Selevano - 3. Whether the plaintiff is entitled to the remedies sought

Issue 1 & 2 will be handled concurrently and issue 3 separately.

# **Burden and Standard of proof**

The burden of proof is upon the Plaintiffs to prove their case on a balance of probabilities. Section 101, 102 and 103 of the Evidence Act provide that he who asserts a fact must prove it. Whoever desires any court to give the judgment as to any legal rights or liability dependent on the existence of the fact which he or she asserts must prove that fact exists.

The court has to be satisfied that the Plaintiff has furnished evidence whose level of probity is such that a reasonable man might hold that, the more probable conclusion is that for which the Plaintiff contends, since the standards of proof is on the balance of probabilities /preponderance of evidence (see *Lancaster Vs Blackwell Colliery Co. Ltd 1982 WC Rep 345* and *Sebuliba Vs Cooperative Bank Ltd (1982) HCB130*)

## **ISSUES 1 & 2**

These two issues seek to determine whether the plaintiff's late mother had received her share of her late father's property.

The plaintiff (**PW1**) testified that his late mother was a daughter to the late Kaseregenyu Selevano. His mother died in June 2020. At the time of the plaintiff's mother's death, the defendants had already obtained letters of administration to the estate of the late Kaseregenyu Selevano. He states that the estate of the late Kaseregenyu Selevano has never been distributed and he claims the benefit that his mother was entitle to from the estate. Further that he received a gift of land from his grandfather, the late Kaseregenyu in 2001 and sold it in 2008 when his mother was still alive and the said sale was witnessed by some of the children and grandchildren of the late Kaseregenyu including Kadoma, Isingoma Peter, Twesige and Businge Godfrey. During cross examination, he stated that this land he sold did not belong to his mother but had been given to him by the late Kaseregenyu. He relied on the sale agreement (**Pexh4**).

**PW1** wrote a letter (**Pexh2**) to the defendants dated 22/06/2022 asking them to distribute the estate but he received a response (**Pexh3**) from the defendant's lawyers that the plaintiff had no claim to the estate of the late Kaseregenyu.

**PW2** stated that he is also a grandson to the late Kaseregenyu. He states that before his death, the late Kaseregenyu gave him land as a grandchild in 2001 which he developed by planting tea and bananas. It was about half an acre in Kirongo village. In 2008, the defendants evicted him, uprooted the tea and bananas, took possession and planted their own bananas thereon. That the land that the plaintiff sold in 2008 was the plaintiff's having received the same as a gift in 2001. Further that since the acquisition of letters of administration, the defendants have never distributed the estate of the late Kaseregenyu, to the detriment of all beneficiaries.

During cross examination, **PW2** stated that the late Kaseregenyu gave land to many grandchildren including the plaintiff and PW2 when he was still alive in 2001. He was chased by the defendants from the one he got and he reported to the LC1, the Sub County but has no documentary support for the reporting.

**DW1** stated that the plaintiff is his nephew and is known to be a chaotic member of the family with selfish interests. He stated that the plaintiff's mother received a piece of land from her father the late Kaseregenyu. The plaintiff then demanded for land from his mother. His mother then gave him the land she had received from her father and the plaintiff sold the same in 2008. PW2 is surprised that the plaintiff is still demanding for another share in the estate of the late Kaseregenyu.

**DW2**'s evidence is similar to that of **DW1**. In cross examination, she stated that she has never distributed the estate of the late Kaseregenyu. The evidence given by **DW3** is similar to that of **DW1**. **DW3** is the LC1 chairperson of Karongo village, Bugaaki Sub County where the late Kaseregenyu used to stay before he died. **DW4** also testified in the same terms as the rest of the defendants' witnesses.

In his submissions, the plaintiff argued that relying on **Pexh4**, it is clear that the land he sold in 2008 was gotten from his grandfather and not his mother. He argues that he sold the said land when his mother was still alive and has nothing to do with his mother's beneficial interest in the late Kaseregenyu's estate which the defendants as administrators have refused to distribute.

In response, counsel for the defendants argued that judging from the defendants' evidence, the plaintiff's mother was given her share during the life time of the late Kaseregenyu which was sold by the plaintiff as evidenced in **Pexh4.** Further that the said land could not have been given to the plaintiff as a gift *inter vivos* in the absence of documentary proof. Counsel concluded that the plaintiff has failed to prove his case to the required standard and the same ought to be dismissed with costs.

I have carefully studied the parties' pleadings, evidence and submissions. I need to agree with counsel for the defendants that the circumstances of the case do not point to any gift *inter vivos*. But that goes either way to diminish any claims that the land that the plaintiff sold had been given to the plaintiff's mother.

Decision of Hon. Justice Vincent Emmy Mugabo Page **5** of **10** The defendants aver that the plaintiff's mother received her share before the death of the late Kaseregenyu. Many questions come to mind with this assertion. Did the late Kaseregenyu choose to give land to only the plaintiff's mother among his children during his life time or he also gave to other children including the defendants? Did the late Kaseregenyu intend that the plaintiff's mother be excluded from his inheritance upon his demise? It is noted from **Pexh4** that some of the children of the late Kaseregenyu

including Steven Kadoma and Isingoma Peter witnessed the agreement by which the plaintiff sold land in 2008. These were biological brothers to the plaintiff's mother and uncles to the plaintiff. Did they just witness their sister's property being sold off irregularly? The plaintiff sold the land in 2008 during the life time of his mother. Did she just let go of her property without any form of protest?

Again looking at **Pexh4,** it reads in part, "*I Ahebwa Habert I have sold my land that was given to me by my maternal grandfather…*" This is the agreement that some of the children of the late Kaseregenyu witnessed. Coupled with the fact that the defendants could not prove that the said land had been given to the plaintiff's mother as a gift *inter vivos*, the defendants could not turn around and aver that the same was the plaintiff's mother's share in the estate of the late Kaseregenyu. PW2 additionally stated that the late Kaseregenyu gave land to many grandchildren including himself and the plaintiff. This is more believable.

Even if the defendants' averments were to be believed, would the giving of the plaintiff's mother land during the life time of the late Kaseregenyu exclude her from inheritance after the death of the late Kaseregenyu? I think not. But the answer could be found in the late Kaseregenyu's intention at the giving of the said property or its size in comparison with the property available in the estate among other pointers. The defendants have not adduced any evidence to point court in the above direction.

It is my finding that it is more probable than not that the plaintiff's late mother did not receive a share of her late father's estate and she is still a beneficiary to the same. Issue 1 is answered in the affirmative. The plaintiff is right to claim for his late mother's beneficial interest in the estate of the late Kaseregenyu. Issue 2 is answered in the negative. The land sold by the plaintiff in 2008 was not his late mother's share in the property of the late Kaseregenyu.

## **Issue 3:** Remedies

The plaintiff prayed for declaration that his late mother, Nyakaisiki Margaret is a beneficiary to the estate of the late Kaseregenyu Selevano. It is so declared.

# Revocation of letters

Under **Section 234 of the Succession Act Cap 162** of the Laws of Uganda, a grant for Letters of Administration may be revoked for just cause under the following circumstances; if it is proved that the grant was obtained through substantially defective proceedings, or obtained by fraudulently making a false suggestion, or by concealing from the court something material to the case; that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though the allegation was made in ignorance or inadvertently; that the grant has become useless and inoperative through circumstances; or that the person to whom the grant was made has willfully and without reasonable cause omitted to exhibit an inventory or account in accordance with Part XXXIV of this Act, or has exhibited under that Part an inventory or account which is untrue in a material respect.

The plaintiff asserts that because the defendants have not distributed the estate, they have breached their duty to the beneficiaries of the estate. As such, the letters should be revoked.

While an administrator ought to collect the estate property and distribute it to the beneficiaries, in the circumstances of this case I don't agree with the plaintiff's assertion that the letters should be revoked. The plaintiff has not pleaded to the satisfaction of court any of the grounds for revocation of a grant under section 234 of the Succession Act. The defendants' omission can be rectified. This prayer is declined.

# Distribution of the estate

**Section 278 of the Succession Act Cap 162** requires an administrator of an estate to file an inventory of the estate he/she is administering within six months from the grant, or such further time as the court may appoint; and to exhibit an account of the estate within one year from the grant, or such further time as the court may appoint.

The governing principle in this case is the law of succession. The fact that the defendants hold letters of administration is not a licence for ownership of the property of the deceased. A holder of letters of administration is a mere agent (legal) of the deceased who deals with the estate in accordance with the provisions of the Succession Act.

Letters of Administration constitute a legal document issued by the Court, which allows the administrator(s) to manage and distribute the deceased's assets at the appropriate time. Under the law, the administrator's fiduciary duties are primarily owed to the beneficiaries of the estate. The purpose of a grant of Letters of Administration is to collect the deceased's assets, pay any debts and then distributing the assets to the beneficiaries equitably in accordance with the classes of beneficiaries entitled.

Decision of Hon. Justice Vincent Emmy Mugabo Page **8** of **10** The Succession Act as amended under **Section 259** states that a person to whom letters of administration are granted under subsection (1) shall administer the estate for a period not exceeding two years. The law envisages that a holder of letters of administration should not hold them and continue administering the estate for eternity. Within the two years, the administrator ought to have collected the estate, paid debts, distributed the same and accounted.

Consequent to the above, the defendants obtained the letters of administration in September 2018. The same ought to be distributed.

## General damages

The plaintiff argued that the defendant's conduct subjected him to untold suffering. I find that this assertion is unsubstantiated and the prayer is declined.

In the ultimate result, this suit succeeds and I make the following declarations and orders;

- a. The late Nyakaisiki Margaret, the plaintiff's late mother is a beneficiary to the estate of the late Kaseregenyu Selevano - b. The defendants are ordered to collect the estate of the late Kaseregenyu Selevano and distribute it in accordance with the law governing intestate succession and file and account of the same in this court within a period of six months from the date of this judgment. - c. Each party shall bear its costs of this suit

It is so ordered

Dated at Fort Portal this 28th day of April 2023. .

# **Vincent Emmy Mugabo Judge**

The Assistant Registrar will deliver the judgment to the parties

# **Vincent Emmy Mugabo Judge**

28th April 2023.