Byampaka v Tumusiime (HCT-01-CV-CS 38 of 2023) [2024] UGHC 758 (20 August 2024)

#### **THE REPUBLIC O UGANDA**

# **IN THE HIGH COURT OF UGANDA AT FORT PORTAL** 3 **HCT – 01 – CV – CS – NO. 038 OF 2023 (ARISING OUT OF ADMIN. CAUSE NO. 08 OF 2022) BYAMPAKA IBRAHIM ::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF** 6 **VERSUS TUMUSIIME BEATRICE ::::::::::::::::::::::::::::::::::::::::: DEFENDANT BEFORE: HON. JUSTICE VINCENT WAGONA** 9 **JUDGMENT**

**(Exparte)**

12 The plaintiff, a father to the defendant who is the administratrix of the estate of the late Kabyesiza Mary brought this suit seeking revocation of the letters of administration of the estate of the late Kabyesiza Mary granted to the defendant, 15 an order directing the defendant to furnish a true account and inventory of the estate of the late Kabyesiza Mary; an order of a permanent injunction restraining the defendant, her agents, servants, legal representative or anyone claiming 18 through them from interfering, subleasing, entering, removing from, unlawfully entering upon, transferring, subdividing, selling/disposing of, alienating, mortgaging, creating third party interest, letting out or in any way dealing with 21 the estate contrary to the interests of the beneficiaries; an order removing the property of the plaintiff from the estate of the late Kabyesiza Mary; general


damages for loss caused to the estate of the late Kabyesiza Mary and costs of the suit.

- 3 It was averred by the plaintiff that he was legally married to the late Kabyesiza Mary at the time of her death and their union was blessed with 11 children including the defendant. That the plaintiff had bought a number of properties - 6 which were regarded as family property and used by the whole family including the deceased. That at the time of her death, Motor vehicle Reg No. UAU 614E Canter Tipper, pieces of land like a plot with a commercial house at Katadoba, - 9 titled land measuring 13.102 hectares comprised in Block 146, Plot 7 at Muhwezi were in the names of the plaintiff. That the defendant when she was applying for letters of administration to the estate of the late Kabyesiza Mary, included the - 12 above properties as forming part of the estate of the late.

That the defendant excluded the plaintiff in the process with intent to fraudulently include his properties in the grant without his consent. That since securing the

- 15 grant, the defendant has on several occasions acted unreasonably through sending threats and intimidation and causing arrest to the plaintiff and renting out the banana plantation to third parties and grabbed the plaintiff's motor vehicle. - 18 That in the application for letters of administration, the defendant acted fraudulently by among others excluding the plaintiff in the process for letters of administration yet he was a beneficiary, including personal properties of the - 21 plaintiff in the grant, and failure to disclose that the deceased was survived by a widower. On such account, he asked court to have the letters of administration granted to the defendant over the estate of the late Kabyesiza revoked and other - 24 reliefs in the plaint.


**Issues:**

**(1)Whether there are sufficient grounds to warrant a revocation of letters** 3 **of administration granted to the defendant over the estate of the late Kabyesiza Mary.**

**(2)What remedies are available in the circumstances?**

### 6 **Representation and Hearing:**

Mr. Kasigazi Francis appeared for the plaintiff. The defendant was served on two occasions and never entered appearance in the manner prescribed under the Civil

Procedure Rules. On the 15th 9 of April 2024, an exparte order was entered against the defendant allowing the plaintiff to proceed and prove his claim exparte.

## **Burden of Proof and Standard of proof:**

- 12 It is a settled position of law that in civil cases the plaintiff bears the burden to prove his / her claim on the balance of probabilities. Section 101 of the Evidence Act is to the effect that whoever desires any Court to give judgment as to any - 15 legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist. (See: *Kamo Enterprises Ltd Vs. Krytalline Salt Limited, SCCA No. 8 of 2018*). The evidential burden per section 102 and 103 of 18 the Evidence Act keeps shifting depending on facts as alleged by a given party to - prove the existence of such facts.

## 21 **Consideration of the issues:**

Section 230 of the Succession Act Cap 268 (revised) allows court to revoke a grant of letters of administration where it is established that:


*(a) That the proceedings to obtain the grant were defective in substance;*

*(b) That the grant was obtained fraudulently by making a false* 3 *suggestion, or by concealing from the [court](https://ulii.org/akn/ug/act/ord/1906/1/eng@2000-12-31#defn-term-court) something material to the case;*

*(c) That the grant was obtained by means of an untrue allegation of a* 6 *fact essential in point of law to justify the grant, though the allegation was made in ignorance or inadvertently;*

*(d) That the grant has become useless and inoperative through* 9 *circumstances; or*

*(e) That the person to whom the grant was made has willfully and without reasonable cause omitted to exhibit an inventory or account in* 12 *accordance with Part XXXIV of this Act, or has exhibited under that Part an inventory or account which is untrue in a material respect.*

In the persuasive dicta by Mwita, J in the Kenyan case of *Albert Imbuga* 15 *Kisigwa vs Recho Kavai Kisigwa Succession Cause No. 158 of 2000* it was observed that*:"Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be*

- 18 *exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account* - 21 *interests of all beneficiaries entitled to the deceased's estate and ensure that the action taken will be for the interest of justice."*


In *Stella Maris Stella Maris Amabilis & Anor v Esther Nabusakala (HCT-00- FD-CS 72 of 2007) [2009] UGHC 21 (23 February 2009)* Justice Egonda Ntende 3 (High Court Judge then) observed in relation to section 234 (now 230) of the Succession Act thus: *"According to section 234(2)(c) of the Succession Act, ignorance or inadvertence does not save the situation. For as long as the* 6 *allegation was untrue, whether made ignorantly as claimed in this case, it is sufficient to annul the grant. On this point alone, I revoke the letters of administration grant to the defendant on 23rd September 2005…."*

- 9 In the present suit, PW1 testified that the late Kabyesiza Mary was his wife and the defendant is a daughter. That after the death of his wife, unknown to him the defendant applied and obtained a grant of letters of administration over the estate. - 12 That on 15/3/2021, a family meeting was convened without his knowledge where they named his properties as forming part of the estate of the late to wit; a residential house at Katadoba, in Kasese District, 41 acres of titled land at - 15 Muhwezi with a banana plantation and eucalyptus trees, and a lorry truck Reg No. UAU 614E and other properties (*PE1*). That the land measuring 41 acres is personal property of the plaintiff where he has a title (*PE3*) and the vehicle in - 18 issue is also registered in his names (*PE4*). That the letters of administration to the defendant (*PE2*) were fraudulently granted since the defendant was excluded as a widower and his personal properties were included in the grant. - 21 The evidence presented demonstrates that the defendant fraudulently obtained the grant over the estate of the late Kabyesiza Mary and was aware of her fraudulent acts and the fact that the properties in issue did not belong to her late mother. The 24 fair conclusion to be drawn from the facts is that in order to have an orderly


administration of the estate of the late Kabyesiza Mary for the benefit of all the children and other beneficiaries under the estate, the grant to the defendant should

- 3 be cancelled since it was secured fraudulently by making false suggestions. I noted in *Cyprian Rwaheru& 3 others v Rwambale Kadhiri, Civil Suit No. 074 of 2019* that where a beneficiary is intentionally excluded from the process - 6 leading to the grant, that amounts to a false suggestion or concealment of facts relevant to the grant. I thus find that there is sufficient cause to warrant revocation of letters of administration granted to the defendant.

#### 9 *Remedies:*

The plaintiff asked for several remedies to wit; revocation of the letters of administration of the estate of the late Kabyesiza Mary granted to the defendant; 12 an order directing the defendant to furnish a true account and inventory of the estate of the late Kabyesiza Mary; an order of a permanent injunction restraining the defendant, her agents, servants, legal representative or anyone claiming 15 through them from interfering, subleasing, entering, removing from, unlawfully entering upon, transferring, subdividing, selling/disposing of, alienating, mortgaging, creating third party interest, letting out or in any way dealing with 18 the estate contrary to the interests of the beneficiaries; an order removing the property of the plaintiff from the estate of the late Kabyesiza Mary; general damages for loss caused to the estate of the late Kabyesiza Mary and costs of the 21 suit.

Since the plaintiff has proven his claim, I grant the reliefs sought save for general damages and costs. The defendant is a biological daughter of the plaintiff and 24 granting general damages and costs would fuel the feud in the family. The


plaintiff did not convince me on the serious inconveniences or loss he was subjected to. He talked about arrest but no evidence was put before me to that 3 effect inform of a reference at police or any case lodged to that effect against the

defendant. Therefore, I decline to award general damages and costs.

This suit therefore succeeds with the following orders:

- 6 **1. The letters of administration granted to the defendant in Admin. Cause No. 08 of 2022 over the estate of the late Kabyesiza Mary are hereby revoked.** - 9 **2. The defendant is ordered to immediately return to this court the letters of administration in HCT-01-CV-AC-08 OF 2022 issued to her by this court over the estate of the late Kabyesiza Mary.** - 12 **3. An order is hereby issued directing the defendant to furnish a true account and inventory of the estate of the late Kabyesiza Mary within 2 months from the date of delivery of this judgment.** - 15 **4. A permanent order of injunction is hereby issued restraining the defendant, her agents, servants, legal representative or anyone claiming through them from interfering, subleasing, entering,** 18 **removing from, unlawfully entering upon, transferring, subdividing, selling/disposing of, alienating, mortgaging, creating third party interest, letting out or in any way dealing with the estate contrary to** 21 **the interests of the beneficiaries.** - **5. An order is hereby issued removing the property of the plaintiff from the estate of the late Kabyesiza Mary.** - 24 **6. No order is made as to general damage and costs.**


I so order.


- 3 Vincent Wagona **High Court Judge FORTPORTAL** - 6 **DATE: 20/08/2024**