Babumba v Katumba (Civil Application No. 11 of 2004) [2000] UGHC 48 (20 December 2000)

Full Case Text

# THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

CIVIL APPEAL NO. 23/97 (From Mbale Civil Appeal NO. 18/1988)

ISSA BUMBA APPELLANT

#### Versus

KALIDI KATUMBA RESPONDENT

### **BEFORE: HON. MR. JUSTICE AUGUSTUS KANIA**

# **JUDGMENT**

This is an appeal against the decision of His Worship, R. I S. Oyoit, Chief Magistrate as he then~vyas sitting at Mbale dated 1/2/90.

The brief background to this appeal is as follows.-

The respondent filed Civil Suit No. 48/1985 against the appellant for recovery of the estate of his brother Saleh Bumba who died in 1981. He was suing in his capacity as the personal representative of his deceased brother. The appellant disputed the grant of letters of administration to the respondent on grounds was made in disregard of the Will of the decease. The learned trial Magistrate found for the respondent and the instant appellant filed an appeal in the Chief Magistrate's Court. The learned Chief Magistrate upheld the decision of the trial Magistrate and dismissed the appeal hence the instant appeal.

The appellant filed five grounds of appeal namely:-

- **1.** because the learned Chief Magistrate erred in law when he on his own Motion perused the Court Register as additional evidence on which he based his decision. - 2. Because the learned Chief Magistrate in law when held that on an unapproved and illegal grant the respondent was entitled to possession of the appellant's 3 pieces'of land which did not form the estate of the late Saleh Bumba as the same had been unreservedly given to the appellant by the late Saleh Bumba before his death.

- 3. Because the learned Chief Magistrate erred in law when he held that the respondent was entitled to the grant of letters of administration to the exclusion of the appellant who is the deceased's son. - 4. Because the learned Chief Magistrate erred in law when as first appellate court he failed to subject the whole of the evidence to that fresh and exhaustive scrutiny which the appellant was entitled to expect. - 5. Because the learned chief magistrate like the Hon. trial Magistrate formed an un imbalanced view of the evidence and in the result reached a decision which was insupportable if the defence was duly taken into account.

Mr. Owori, the learned Counsel, argued ground 1 separately and ground 2 and 3 and 4 and 5 together in that order.

In arguing ground 1, Mr. Owori submitted that the learned Chief Magistrate wrongly called additional evidence on which he relied contrary to the provision of Order 39, rules, 22, 23 and 24 of the Civil Procedure Rules. He argued that the above order does not empower the court to call additional evidence on its own motion. Counsel submitted that there having been no evidence to prove the grant of letters of administration, the respondent had no evidence to prove the grant of letters of administration, the respondent had no locus to file Civil Suit NO. 48/1985 on the authority of Margaret M. F. Okecho vrs Trapsocean (u) Ltd HCCS No. 742/93. He argued that on these grounds alone the appeal ought to succeed.

**■: § I** M)t Natsomi, learned counsel for the respondent, submitted that the respondent by his evidence of how he obtained letters of administration had proved on a balance of probabilities proved that he obtained letters of administration to the estate of Saleh Bumba on the 16/3/92 and that this was corroborated by the evidence of PW3 Hussein Jombo. He submitted that the [earned Chief Magistrate evaluated the evidence regarding the grant and pjjtpmerly held the grant had been proved. Mr. Natsomi contended that the jearped Chief Magistrate did not peruse the court register on his own motion andjthat the fact that he perused the register at all was not calling additional evidence in terms of the provision of Order 39 of the CPR Mr. Owori sought to rely upon.

Section 190 of the Succession Act provides as follows:

"190, Except as hereinafter provided no right to any party 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."

What the above implies is that a person who claims a right over the property of a person who died intestate must by evidence prove that he has obtained letters of administration to the estate of such person. In Civil Suit No. 48/1985 the respondent claimed that he had obtained letters of administration to the

estate of late Saleh Bumba. He testified that he handled the grant to his lawyers M/s Natsomi & Wandera & Co. Advocates. During the trial in the trial court the alleged grant was not produced. The explanation given by Mr. Natsomi for not tendering the grant was that the respondent being illiterate he would not have been able to identify the letters of administration even if they had been tendered in evidence. PW3 Hussein Jombo supported the evidence of the respondent and testified that though illiterate he could identify the letters he claimed were letters of administration to the estate of the late Saleh Bumba.

Having claimed that he was given a grant to the estate of Saleh Bumba and that it was in the possession of his lawyers, these letters ought to have been exhibited in court. The explanation of Mr. Natsomi during his submission that it was not exhibited because the respondent is illiterate is of no merit. Letters of administration are an official document of which court would have taken judicial notice. Even if the grant given to the respondent had been lost or misplaced the respondent should have made a search for the court file on which Administration Cause was filed. From the facts of this case no such thing was done. From the failure of the respondent to exhibit the letters of administration which he claimed were in the possession of his counsel and the fact that no attempt was made to locate the file on which the letters of administration were granted, I agree with Mr. Owori that the respondent did n<pt prove that he had obtained letters of administration to the estate of Saleh j Bbmba and therefore did not prove that he had locus to bring Civil Suit No. ; £4?/1985.

: vThe exception to the provisions of section 190 of the Succession Act is that in *;* Qfje case of land of a deceased person one in possession may bring an action &gt;vfor its recovery even if he does not have a grant to the estate of such

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. . deceased person. See Geheil Nsindika vrs. Seperanzi Tindibuhwa (1977) : r-HCB 31. In the instant case at the trial, the respondent testified that he : ^brought the action to evict the appellant from the land near the road but not ; ofrlom other pieces of land the appellant was occupying. From his own : evidence it is clear the respondent was not in possession of the land he claimed a right over. Therefore having failed to a grant and not being in possession the respondent had not locus to bring Civil Suit No. 48/1985.

The finding by the learned trial Magistrate that the alleged letters of administration were granted to the respondent is not at all based on evidence. He concluded that the letters must have been granted after the application for them was advertised and not challenged by lodging a caveat when no evidence was adduced to the effect that the application for them was advertised and not challenged by lodging a caveat when no evidence was adduced to the effect that the application was ever published. This was pure speculation.

Mr. Owori attached the finding of the learned appellate Chief Magistrate that a grant had been made to respondent on the ground that this finding was based on his calling for and examining the court register. He contended that this amounted to calling for additional evidence contrary to the provisions of Order

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39, rules 22, 23 and 24 of the Civil Procedure Rules. He argued that under those rules the High Court is not empowered to call such evidence on its own accord. Mr. Natsomi submitted that those rules don't apply to the learned Chief Magistrate perusing the court register because his action did not amount to calling additional evidence as envisaged by Order 39, rule22, 23 and 24 of the Civil Procedure Rules.

In his judgment at page 14, the learned Chief Magistrate found that the purported grant to the respondent was proved because he perused the court register of miscellaneous applications. He found in it that letters of administration had been granted to the respondent under Misc. Appl. No. 4/1982. According to him the grant was sealed with the court seal under the hand of Higenyi Soloboya, Magistrate Grade 11.

Order 39, rules 22, 23 and 24 provides as follows:-

- i(a) (b) 'S **-•-iL. leGiS''KAl?**.... *T!Pv '-Oiyf OF* tJf - **"22. (1)** High Court'll The parties to an appeal shall not be entitled to produce .additional evidence whether oral or documentary in the HighCourfpbut if - ■TheiCourt from whose decree the appeal is preferred, has refused to admit evidence which ought to have been admitted or; - 20 The High Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause the High Court may allow such evidence or document to be produced or witness to be examined. - (2) **25** Wherever additional evidence is allowed to be produced by the High Court, the court shall record the reason for its admission. - **23** Wherever additional evidence is allowed to be produced, the High Court may either take such evidence or direct the court from whose decree the appeal is preferred or any other Magistrate's subordinate court to take such evidence and to send it when taken to the High Court. - **24.** 35 Where additional evidence is directed or allowed to be taken, the High Court shall specify the point to which the evidence be confined and record on its proceedings the points so specified."

**40** From the wording of this rules it is clear that they apply to additional evidence taken on appeal with the leave or at the direction of the High Court. They don't, as Mr. Natsomi rightly pointed out, apply to appeal before a Chief Magistrate. There is however no equivalent provision relating to appeals to Chief Magistrates Courts. From the judgment it is apparent that the learned Chief Magistrate based his finding that the respondent obtained a grant of

letters of administration from his perusal of the court register which seems to have been done in the course of preparing his judgment in the absence of the parties. In as far as the perusal of the court register formed the basis of his finding it, in my view amounted to calling additional evidence which by all standards was irregular since no law empowered him to act in such a manner.

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In the result the respondent did not prove his grant to the estate of Saleh Bumba on a balance of probabilities. There the first ground of appeal succeeds. As pointed out by Mr. Owori ground 1 of appeal having succeeded in fact means the whole appeal is disposed of. However I propose to discuss the rest of the grounds as well.

With regard to ground 2 of appeal, Mr. Owori contended that the learned Chief Magistrate erred in law he held that on an unproved and illegal grant the respondent was entitled to possession of the appellant 3 pieces of land which did not form the state of the late Saleh Bumba as the same had unreservedly been given to the appellant by the late Saleh Bumba before his death. In Civil Suit No. 48/85 the respondent sued as the legal representative of the estate of the late Saleh Bumba the appellant to recover 3 pieces of land comprising the said estate. The respondent was the successful party and the appellant appealed to the Chief Magistrate who upheld the trial Magistrate judgment and dismissed the appeal.

During the trial, the respondent gave evidence to the effect that the land he was claiming was that near the road having borders with Juma Fire and Sulaiman Mukama. He did not adduce any evidence on the other 2 pieces of land. He re-emphasised this by testifying in cross-examination that the deceased died without land except for a portion he gave the deceased. From the above evidence, the trial Magistrate erred to uphold the judgment of the learned trial Magistrate. Even if it had been proved that the respondent had a grant to the estate of the late Saleh Bumba, the only piece of land forming part of his estate could only be that the respondent claimed in his evidence but not all three pieces of land as claimed in the plaint. In the result the learned Chief Magistrate erred in upholding the judgment of the learned trial Magistrate awarding all three pieces of land. The second ground of appeal therefore succeeds.

The 4th ground of appeal was the learned Chief Magistrate erred in law when as a first appellate court he failed to subject the whole of the evidence to that fresh and exhaustive scrutiny which the appellant was entitled to expect. Mr. Owori submitted that if the learned Chief Magistrate had evaluated the evidence of the respondent that he gave land to the deceased who later gave it to the appellant and that of the appellant that the land in dispute was given to him by the deceased as a whole, the Chief Magistrate would not have upheld the trial Magistrate's judgment. Mr. Natsomi on his part submitted that the learned Chief Magistrate evaluated the evidence as an appellate court and rightly arrived at the conclusion that the respondent was entitled to vacant possession because the evidence in support of the appellant's case was contradictory. "------- ----- -----—- —

*I CERTIFY THAT* THIS 'S I COPY OF THE *DRIWAL*

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The first appellate court as the learned Chief Magistrate's in the instant case is empowered to evaluate the evidence on record and to arrive at his own conclusion bearing in mind that he does not enjoy the benefit which the trial court had of observing the demeanour of the witnesses in the witness box. See **Pandya vrs R (1957) EA 336 and Peters vrs Uganda Post Ltd (1958) EA 424.**

The evidence of the respondent with regard to his claim was that at the time of the death of the deceased, the deceased had no land except for **a** piece which the respondent gave him. This is in spite of the claim in his plaint that he was suing for 3 pieces of land

PW3 Hussein Jombo confirms this when he testified that the respondent's claim was in respect of the piece of land the appellant had built a house on in 1968. The appellate on his part testified that the estate of the deceased Saleh Bumba comprised of 3 coffee plantations, 2 banana plantations and other effects which were disposed of. It was the duty of the respondent to prove his claims to the 3 pieces of land by adducing evidence on a balance of a; probabilities. Having proved or adduced evidence on only one piece of land, c? the learned Chief Magistrate did not properly evaluate the evidence on record co in awarding all the 3 pieces of land to the respondent assuming that the grant S to the respondent had been proved which I have already held was not the T base. Likewise as already discussed above in this judgment, the learned \_ Chief Magistrate did not evaluate the evidence regarding the existence of the grant. In the result grounds 2 and 3 of appeal succeed.

a ! . 'T\* With regard to the 3 ground, Mr. Owori, learned counsel for the appellant (submitted that the learned Chief Magistrate erred in law when he held that the ^respondent was entitled to the grant of letters of administration to the

— ^exclusion of the appellant who is the deceased son. I have carefully read the judgment of the learned Chief Magistrate but I must say that I find not find the learned Chief Magistrate's holding that the respondent was entitled to a grant of letters of administration to the exclusion of the appellant. The general tenor of the judgment appears to me to be that to assert his rights over the estate of the deceased the appellant would first have to cause the revocation of the purported grant of letters of administration and to obtain a grant of the Will he claimed he was appointed executor of. This particular ground of appeal has not merit and it must fail.

With regard to the 5th and last ground, Mr. Owori complained that the learned Chief Magistrate like the Hon. the trial Magistrate formed an imbalance view of the evidence ayrd in the result reached a decision which was insupportable of the defence w^duly taken into account. This ground is essentially the same as the 4th ground of appeal where Mr. Owori complained that the learned Chief Magistrate failed to subject the whole evidence to that fresh and exhaustive scrutiny which the appellant was entitled to expect.

Having found that the learned Chief Magistrate failed to evaluate the evidence as to arrive to his own conclusion as was his duty, that findings also disposes of this 5ih ground of appeal and it accordingly succeeds.

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$-15 -$ 1 In the result this appeal must succeed. The Judgment and Orders of the learned Chief Magistrate are set aside with costs here and the courts below. $\wedge$ **AUGUSTUS KANIA** JUDGE r "LOO $\mathsf{S}$ O R D E R: This judgment is to be read by the Deputy Registrar. $\Box$ / **AUGUSTUS KANIA JUDGE** 2000 $\alpha$ I CERTIEY THAT THIS 'S A TRUE COPY OF THE ORIGINAL $\sim$ $\cdots, \cdots,$ DEFUTY REGISTRAR $\cdots\cdots$