Irumba and 10 Others v Mpuuga (Originating Summons 1 of 2023) [2024] UGHC 885 (30 August 2024)

#### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT HOIMA ORIGINATING SUMMONS NO. 1 OF 2023 (Formerly Masindi High Court Originating summons No. 03 of 2022) IN THE MATTER OF AN APPLICATION FOR DISTRIBUTION OF THE ESTATE OF THE LATE TIGAMBIRWA STANLEY FORMERLY OF BUTALE CELL. HOIMA **CITY BETWEEN** 1. IRUMBA SAMUEL $2.$ **BIGIRWA SIMON** 3. **BARONGO ROBERT** $4.$ ALINAITWE CONSTANCE $5.$ KATUSIIME MARGARET YABEZI TUMWESIGE 6. 7. ASABA ROBINA 8. KARUBANGA GODFREY 9. ISINGOMA FENEHANSI

10. KABATUNZI GLADYS

#### 11. SUNDAY GEORGE **HERRICH HERRICH STATE** APPLICANTS AND

### MPUUGA STUART:::::::::::::::::::::::::::::::::::

### BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA

### **RUILING**

### **Background**

- $[1]$ This application is brought under the provisions of $0.37$ rule 1 (a), 2 (a), (b) and 8 of the Civil Procedure Rules SI71-1 for orders that: - All the 15 children and widow of the late Stanley Tigambirwa are a) entitled and be given their shares in the estate of the late **Stanley Tigambirwa** who died intestate on the 24.2.2019. - The purported will attributed to the late **Stanley Tigambirwa dated** $b)$ 24.08.2018 be declared invalid. - A declaration that the late **Stanley Tigambirwa** died intestate, and his $c)$ estate should be distributed under the laws of intestate succession. - $d$ The properties of the estate of the late **Stanley Tigambirwa** be shared amongst the beneficiary that's to say 15% to the widow, Sarah **Tigambirwa** and 85% shared equally amongst all the beneficiaries. - A surveyor be appointed at the cost of the estate for purposes of $e)$ subdivision of the estate properties in accordance with the agreed and/or lawful shares to each beneficiary

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- $f$ ) The Respondent refunds to the estate money which over time has come to his hands and/or the same be set off from his share in the estate. - The estate be distributed and wound up. $g)$

In the alterative the applicants be appointed joint administrators to the estate of the late Stanley Tigambirwa and tasked to distribute the entire estate within 6 months and file an inventory in court and costs of the Application.

$[2]$ The application is supported by the affidavit of SUNDAY GEORGE, the $11<sup>th</sup>$ Applicant. The application was opposed through an affidavit in reply deposed by the respondent, MPUUGA STUART dated 22.2.2022. The 11<sup>th</sup> Respondent filed an affidavit in rejoinder dated 3.3.2022.

# **Counsel Legal Representation**

$[3]$ The Applicants were represented by Mr. Simon Kasangaki of M/s Kasangaki & Co. Advocates, Masindi while Mr. Ronald Wobusobozi of M/s **Lubega & Co Advocates, Hoima** appeared for the Respondent. Both counsel filed and adopted their submissions in support and opposition to this originating summons. I have read and considered the submissions on record in determining this matter

## The law on originating summons

The law on originating summons was discussed in the case of Kulsumbai $[4]$ Gulamhussein Jaffer Ramji & Anor v Abdulhussein Jaffer Mohamed Rahim [1957] I EA 699 (HCZ) cited with approval in the case of the High court of Uganda at Kampala-Makindye Family Division (Serunjoji Charles Musoke & Katemba John Semakula (Administrator of estate of late John Serunjojo Mukasa) v Tonny Nkuubi HC Family Division O. S No 007 of 2019, arising from Administration Cause No 149 of 2010, before Lady Justice Ketra **Kaitariisibwa Katunguka,** where it was stated that such procedure is primarily

designed for the summary and ad hoc determination of points of law or construction of certain questions of fact such as claims of a legatee.

Order 37 rule 1 of civil procedure rules SI 71-1 provides for who may take $[5]$ out originating summons and in respect of what matters and states thus:

"The executors or administrators of a deceased person, or any of them, and the trustees under any deed or instrument or any of them, and any person claiming to be interested in the relief sought as creditor, devisee, legatee, heir, or legal representative of a deceased person, or as cestui que trust under the terms of any deed or instrument, or as claiming by assignment, or otherwise, under any such creditor or other person as aforesaid, may take out as of course an originating summons, returnable before a judge sitting in chambers, for such relief of the nature or kind following, as may by the summons be specified, and the circumstances of the case may require, that is to say, the determination, without the administration of the estate or trust, of any of the following questions—

- any question affecting the rights or interest of the person claiming to $a)$ be creditor, devisee, legatee, heir or cestui que trust; - the ascertainment of any class of creditors, devisees, legatees, heirs, or $b)$ others: - the furnishing of any particular accounts by the executors, $C$ administrators or trustees, and the vouching, when necessary, of such accounts: - the payment into court of any money in the hands of the executors, $d)$ administrators or trustees; - directing the executors, administrators or trustees to do, or abstain $e)$ from doing, any particular act in their character as executors, administrators or trustees: - the approval of a sale, purchase, compromise, or other transaction; or $f$ - the determination of any question arising directly out of the $q)$ administration of the estate or trust." - [6] Furthermore, under O. 37 rule 2 (a) and (b) of the Civil Procedure Rules S. I 71-1 any of the persons named in Rule (1) of this Order may in like manner apply for and obtain an order for the administration of the personal estate of the deceased and the administration of the real estate of the deceased. The Applicants under this provision of the law are entitled to bring this originating summons to determine the interest of each beneficiary in the estate of the late Stanley Tigambirwa and the widow.

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his affidavit in reply and counsel in his submission that the will of the late Stanley Tigambirwa was attested by Mukidi, Yositansi, Bagire John and **Kyomuhendo Jackson Rubohore** is not supported by any evidence and the will itself.

- [10] In the case of Estate of James Ngengi Muigai (deceased), Nairobi High Court Succession Cause No. 523/1996, Koine J. noted that a Will must be in writing, signed by the testator attested to by two or more competent witnesses who must see the testator write, sign or affix his mark on the document. Guided by these authorities it is a fact that the Will in question (as submitted by counsel for the Applicants) did not conform to the above formalities and is invalid. - [11] I find the defects in the will, were the reason the Respondent applied for a certificate of no objection from the office of the Administrator General since the law at the time never required an executor named in the will to first seek for a certificate of no objection from the Administrator General to secure a grant to administer the estate of the deceased, see \$.5 of the Administrator General's Act. A copy of the certificate of no objection is annexed to the affidavit in support of the originating summons marked "E". The will of the late Stanley Tigambirwa was only signed by the testator. It was not witnessed by any other witness and is therefore invalid. I therefore find that the late Stanley Tigambirwa died intestate. $\mathbf{L} = \mathbf{L} \mathbf{L}$ - Issue 3: Which properties forms part of the estate of the late Stanley Tiaambirwa. $\mathcal{L} = \mathcal{L} \mathcal{L}$ - [12] There is no contest as to what properties comprise the estate of the late Stanley Tigambirwa. The 11<sup>th</sup> Applicant stated under paragraph 4 of the affidavit in support that the late **Stanley Tigambirwa** left the estate property to include: - i. 60 hectares of land at Butale Cell, comprised in Block 14, Plot 10 Hoima District. - $\overline{ii}$ A commercial house at Mpaija Trading centre, - $\widehat{\text{III.}}^{(\text{eff})}$ 15 heads of cattle. - $iV$ A commercial house at Wright road Hoima Cell, - A lock.up at Central market Hoima City, Hoima District. $\mathbf{v}$ . - vi. Toyota Premo registration No UAM 122S/UAN 343 V, - vii. Motorcycle Registration No UDS 479E Bajaj boxer and - Proceeds on a bank account held with Centenary Bank. viii. - [13] The Respondent in the affidavit in reply does not oppose the fact that the listed properties belonged to his late father. In fact, in the petition for letters of administration, he listed them as estate properties of the late Stanley Tigambirwa. It is the finding of this court therefore that the above properties form part of the estate of the late Stanley Tigambirwa to which all his children and widow are beneficiarie's under intestacy, See Hadad Mohamed Rajab & 2 others V. Muzamil Mohamed Rajab & 2 others HCCS No. 188 of 2015.

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### Issue 4: Whether the respondent has intermeddled with the estate of the late Stanley Tigambirwa.

- [14] The $11$ <sup>th</sup> applicant in the **affidavit** in support to the application stated under **paragraph** 4 that the deceased left properties which are being disputed over by the beneficiaries. The properties are currently in the possession of the Respondent who is intermeddling with the estate for his personal benefit to the detriment of the beneficiaries. The Respondent without letters $of$ administration processed a certificate of title for land comprised in FRV MAS 153 FOLIO 23 PLOT 23 WRIGHT ROAD MEASURING APPROXIMATELY 0.0460 HECTARES for the estate commercial house in his own name and that this has caused great disharmony among the beneficiaries as there have been many disagreements especially on the use of the estate property and individual shares. The estate properties benefit none of the beneficiaries due to the constant squabbles except the Respondent who has misappropriated the rent from the estate which he has used for his personal benefit. - [15] The 11<sup>th</sup> applicant further stated under Paragraph 14 of the affidavit in support that the Respondent collects an annual rental income of UGX 60,000,000/=(sixty million Uganda SHILLINGS ONLY) from tenants on Wright road Hoima and Mpaija Trading centre from 39 rooms since the death of their father and has not accounted to the beneficiaries at all. Finally, that all efforts for harmonious regularisation of the estate have not yielded results necessitating taking out of the instant application for effectual earmarking of the shares to the various beneficiaries in accordance with the law. - [16] The Respondent in his affidavit in reply contended that the properties were bequeathed to him by his father in his will. I have Already found that the alleged will is invalid for lack of attesting witnesses. The Respondent could not acquire a valid bequest of the claimed properties through the said will. Having found that the deceased dies intestate, all his property is distributable amongst his children and widow under the law of intestacy. - $[17]$ Section 268 of the Succession Act is to the effect that a person who intermeddles with the estate of the deceased does any other act which belongs to the office of the executor while there is no rightful executor thereby makes himself the executor of his or her own wrong. In the case of Annet Namubiru Ndaula Vs Rev Aloni Mulondo & 2 ors HCCS No. 27 of 2011 it was held that an intermeddler is a person who assumes the authority of an executor and becomes an executor de son tort i.e, a person who assumes to act in the administration of the estate without having been properly appointed. An executor *de son tort* is an executor of his own wrong. Intermeddling includes assuming authority to administer the estate of another when a person does not have such authority. - In the instant case, the Respondent is collecting rent and appropriating the $[18]$ same for personal use and he had procured a certificate of title to the estate plot in his personal names without a legal representative appointed to the

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estate. The Respondent's procurement of the certificate of title of the estate property comprised in FRV MAS 153 Folio 23, Plot 23, Wright Road, Hoima $\mathcal{R} \subset \mathbb{R}$ City for the commercial house in his own names without letters $of$ administration was fraudulent and illegal. By the above acts, I find that the Respondent has intermeddled with the estate of the late Stanley Tigambirwa.

[19] Evidence shows that the Respondent has engaged in acts that amount to intermeddling, including registering estate property in his own name and collecting rental income without proper authorisation. This conduct is found to be unlawful and detrimental to the proper administration of the estate.

### Issue 5: What remedies are available to the parties.

- [20] It has been proved in this application that there is no administrator to the estate of the late Stanley Tigambirwa as yet and the estate needs to be organised which task the applicants are ready and willing to undertake. It is also established that the respondent has applied for letters of probate on the invalid will which is erroneous and untenable. The Applicants sought an order appointing them administrators to manage the estate of the late Stanley Tigambirwa. - [21] The applicants further stated that for the sake of peace and future harmony, it is only wise and prudent that the respective shares be earmarked and divided amongst the beneficiaries according to the law of **intestacy**. The Applicants prayed that the estate of the late Stanley Tigambirwa be distributed to its beneficiaries and wound up. To this end, the applicants prayed that a surveyor be appointed at the cost of the estate for purposes of subdivision of the estate properties in accordance with the agreed and/or lawful shares to each beneficiary. - [22] The Respondent is alleged to be collecting rent from the estate properties and converting the same for his personal benefit. In reply, he asserted that the properties belong to him having been bequeathed to him by his late father in a testamentary disposition. I have found that the will which is the basis of the Respondent's claim is invalid. It therefore follows that the Respondent is holding onto property belonging to the estate of the late Stanley Tigambirwa. - [23] As a result of the above, it is logical in this case to order that the Respondent renders a compressive account of all rent collected from the suit houses and other property that came into his possession to the beneficiaries and file the same with the Registrar of this court within a period of one month from the date of this ruling. Since the late Stanley Tigambirwa died on 24<sup>th</sup> February 2019 and there is no administrator of the estate, it is also logical that the Applicants are jointly appointed administrators of the estate of the late Stanley Tigambirwa who shall have the task to manage the estate in compliance with the orders that shall be issued by this court. The claim by the Respondent that at the time of his death, the deceased had disowned the 11<sup>th</sup> Applicant on the ground that he assaulted him is baseless. The police SD Refs

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attached to the affidavit in reply are evidently not authentic because they bear no certification of any police authority to authenticate their source.

- [24] In conclusion, the Application is accordingly allowed with the following final orders: - a) The Applicants including the widow, Sarah Tigambirwa are jointly appointed as administrators of the estate of the late Stanley Tigambirwa's estate. - b) The purported will of **Stanley Tigambirwa** dated 24.08.2018 is declared invalid. - c) It is declared that the late **Stanley Tigambirwa** died intestate. - d) The estate of the late Stanley Tigambirwa shall be distributed amongst his 15 children and the widow under the law of intestacy. - e) The commercial plots at Wright Road Hoima city and Mpaija trading centre, Hoima shall be sold, and the proceedings shared amongst the beneficiaries under intestacy. - f) An order does issue directing the Commissioner for Land Registration to cancel the title for land comprised in FRV MAS 153 FOLIO 23 PLOT 23 **MEASURING WRIGHT** ROAD **APPROXIMATELY** 0.0460 **HECTARES** registered in the name of the Respondent and substitute it in the names of the Applicants and/or administrators of the estate of the late **Stanley** Tigambirwa. - g) A surveyor be appointed at the cost of the estate to demarcate the individual shares of the applicants and all beneficiaries in the 60 hectares of land as determined herein above - h) The Respondent is directed to file a true and accurate account of all monies and property that came to his possession from the estate within a period of 1 month from the date of this order. - i) The Respondent shall refund all funds obtained from the estate or have such amounts set off against his share. - j) Each party shall bear his or her own costs since they are both beneficiaries of the estate of their deceased father.

$\sim$ 24| It is so ordered

Dated at Hoima this $30<sup>th</sup>$ day of August 2024.

# .......................................

### **Byaruhanga Jesse Rugyema**

### **JUDGE**