Eridadi Wabwire v Yowana Lukudo (Civil Suit 67 of 1998) [1999] UGHC 24 (15 April 1999)

## **IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE CIVIL SUIT NO. 67/1998 ERIDADI WABWIRE PLAINTIFF VERSUS**

**YOWANA LUKUDO DEFENDANT**

## **JUDGMENT**

## **BEFORE HON. JUSTICE A. KANIA - JUDGE**

The plaintiff has brought this suit by Originating Summons as the Administrator of the estate of the late Christopher Egesa under the provisions of Order 34 rules <sup>1</sup> and 5 of the Civil Procedure Rules. The Summons is supported by the affidavit of Eridadi Wabwire. By it the plaintiff is seeking that his interest in Plot No. 16 A Hadongole Road Busia Township which formed part of the estate of the late Christopher Egesa and which was sold to the defendant be determined to establish the legality of such sale to the defendant.

The defendant Yowana Lukudo filed an affidavit in reply and averred that as a bona fide purchaser for value from the administratrix of the estate of the late Christopher Egesa he has an unimpeachable title to the property in issue

The brief history of this case as can be gathered from the affidavits filed by both parties and from the submissions of their respective counsel is that the suit comprised part of the estate of the late Christopher Egesa who died intestate and was survived by his spouse Maria Wabwire Egesa. The latter obtained letters of Administration to the estate of her deceased husband on 12lh December 1995 and the following year sold the suit property to the defendant. It is not known when but the plaintiff alleges that the said Maria Wabwire who is since deceased, having converted to Islam and remarried had no right to dispose ofthe suit property since she ceased to have authority over the estate of her late husband.

Having obtained letters of administration to the estate himself on the 13th November 1988 the plaintiff demanded that the defendant yields to him the suit property. The defendant has refused hence this suit.

Mr. Mudangha recited the contents of the affidavit in support of the Originating Summons and submitted that Maria Egesa widow of the late Christopher Egesa having converted to Islam and having re married ceased to exercise authority on the estate of her late husband. He contended that for this reason the suit property reverted to the estate of the late Christopher Egesa and therefore the suit property was unlawfully and wrongly purchased by the defendant. Mr. Mudangha argued that the plaintiff having rightfully obtained letters of administration now to the estate of the late Christopher Egesa *,* he should rightly be declared the rightful person to administer the said estate including the suit property. He prayed that judgment be entered for the plaintiff with costs.

Mr. Mageni, learned counsel for the defendant submitted that this action is improperly brought by Originating Summons which is a procedure intended

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to dispose of simple matters. According to him from the pleadings and submissions made on behalf of the plaintiff complex issues of trespass, conversion and fraud were raised which go beyond the procedure envisaged by Originating Summons.

He also argued that in conceding that he became an administrator of the estate of Christine Egesa after the widow had administered the said estate the plaintiff had admitted the widow had the authority to sell the suit property. Counsel submitted that the claim of the plaintiff would have had merit if the sale being challenged was done after he himself had obtained Letters of Administration. Mr. Mangeni finally submitted that the Letters of Administration to the Estate of the late Christopher Egesa were wrongfully granted to the plaintiff because his application for Letters of Administration were to the estate of the late Maria Egesa. He prayed that the suit be dismissed with costs.

Though the plaintiff does not state that by the time the widow of the late Christopher Egesa, the late Maria Nawire Egesa sold the suit property comprised in Plot No. 16 A Hadongole Road in Busia Township, she had obtained Letters of Administration to her late husband's estate, it has been established that in fact she had such Letters of Administration. By the same the estate of the late Christopher Egesa was vested in her, including the suit property. To gain authority on the suit property the plaintiff ought to have obtained Letters of Administration to the Estate of the late Maria Nawire Egesa but not to the estate of Christopher Egesa whose estate was extinguished upon the death of his widow. The plaintiff instead obtained letters of administration purportedly to the estate of the late Christopher

Egesa which can not legally vest authority over an estate that had now vested in the late Maria Nawire Egesa.

Secondly the claim of the plaintiff is based on the ground that the late Maria Nawire Egesa who sold the suit property changed her religion from Christianity to Islam, re married and went to live with her new souse. It was argued on his behalf that the act of her conversion to Islam and her remarriage divested her authority over the estate of her late husband and entitled the plaintiffto apply for letters of administration to the same.

From Annexture "AC" to the affidavit in reply which was not in any way contested, the widow Maria Nawire obtained Letters to the estate ofthe late Christopher Egesa on the 12 day of December 1995 and sold the suit property on the 16 day of December 1996 while already in possession of the Letters of Administration. On the face of it the suit property comprised part ofthe estate that fell under the Administration ofthe widow.

From the facts of the case the plaintiff does not say if the sale took place before or after the widow had changed her religion and re married. Even if this was the case I was not referred to any authority to the effect that a person having Letters of Administration to an estate ceases to have authority on such estate once he changes his religion or remarries. Such a rule seems only to apply to residential holdings where the widow ceases to have rights of occupancy upon re marriage. Change of religion is not one of such conditions either. *See Rule 8 (a) Rules Relating to the Occupational Residential holdings Schedule 2 to the Succession Amendment Decree 22/1972 .* The argument that the widow of Christopher Egesa ceased to be

an Administrix of his estate, even if she sold the property when she had already converted to Islam and had re married is without merit.

In the Originating Summons the plaintiff, sought among other things for the legality ofthe sale transaction between the late Maria Nawire Egesa and the defendant to be determined. All that can be said is that the late Maria Nawire Egesa sold the suit property when she had valid Letters of Administration to the estate of Christopher Egesa in the Chief Magistrate's Court Tororo not withstanding that the defendant averred in his affidavit they were obtained from the High Court. She had then the authority to deal in the estate of her late husband. To the defendant this apparent authority was sufficient. He had no duty to enquire beyond this before buying the suit property. In the result I find the defendant a bona fide purchaser for value without notice.

Mr. Mangeni submitted that this suit was improperly brought by Originating Summons. He argued that Originating Summons is a procedure intended to resolve simple matters but not matters of great legal complexity requiring adducing evidence. I agree Originating Summons is intended to solve simple and clear issues but not for matters of great legal complexity. *See Kulsumnai G. J. Ramii Vs Abdulhussein J. M. Rahim [ 1957 ] EA 699 and BhagBhari Vs Mehdi Khan [ 1965] EA 94.*

This suit is specifically brought under order 34 rule <sup>1</sup> g to determine a matter arising out of the Administration of an Estate. The key issue to determine here was whether the widow of the late Christopher Egesa had the authority to deal in and sell the suit property. In this respect I am ofthe view it was a

simple matter of no complexity requiring calling of evidence. I don't share the view of Mr. Mageni that it involved fraud, trespass and conversion. This matter was therefore properly before this court.

However, having found that the plaintiff is in possession of the Letters of Administration to the wrong estate, that the late Maria Nawire had authority over the suit property when she sold the same to the defendant and that the defendant is a bona fide purchaser for value without notice, the suit accordingly stands dismissed with costs.

AUGUSTUS KANIA JUDGE 15/4/1999