Mazarau & Another v Agotre (Miscellaneous Application 49 of 2021) [2024] UGHC 1002 (3 October 2024)

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT ARUA

## **MISCELLANEOUS APPLICATION NO. 0049 OF 2021**

# (ARISNG OUT OF ADMINISTRATION CAUSE NO. 0114 OF 2017)

# IN THE MATTER OF THE ESTATE OF THE LATE IYOSIGA ADAM GEGE $(DECEASED)$

#### AND

## IN THE MATTER OF AN APPLICATION FOR STRIKING OUT THE NAMES OF AGOTRE KASSIM GADUMULA AND REVOCATION OF LETTERS ADMINISTRATION AND GRANT INSTEAD TO MAZARAU SAMIRA (WIDOW) AND ONDO ZAINABU (SISTER)

### 1. MAZARAU SAMIRA

2. ONDO ZAINABU:::::::::::::::::::::::::::::::::::: Letters of Administration of the late Iyosiga Adam Gege)

#### **VERSUS**

AGOTRE KASSIM FADUMULA :::::::::::::::::::::::::::::::::::: 20 of Letters of Administration of the Late Iyosiga Adam Gege)

#### BEFORE: THE HON. JUSTICE COLLINS ACELLAM

#### **RULING**

#### 25 Introduction

This is an Application brought by way of Notice of Motion under Section 98 of the Civil Procedure Act, Section 234(2) (d & e), & Order 52 Rule 1,2 & 3 of the Civil Procedure Rules seeking orders that the letters of Administration vide HCT-08-CV-AC-0114 of 2017 be revoked and instead granted to the Applicants.

#### 30 Background

The Applicants herein together with the Respondent applied for and were granted letters of Administration to the estate of the late Iyosiga Adam Gege vide Administration Cause No. HCT-08- CV- AC - 0114 OF 2017 on the 7th day of March 2018. A copy of the grant was attached to this Application.

However, one of the Co Administrators who is the Respondent in this matter has since become 35 uncooperative after a misunderstanding with the other Administrators (Applicants herein) on the allegation of unaccounted for funds against the Respondent. That a family meeting was called and presided over by the CAO of Yumbe District and that the Respondent made it clear that he was no longer interested in managing the affairs of the above-mentioned estate. That the family

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then decided that he be removed and the two Applicants remain as the only Administrators of $\mathsf{S}$ the Estate of the deceased.

Grounds of the Application

The grounds of the Application were set out in the application and the two affidavits that whereas the grant on 7th March 2018 was made to the Applicants and the Respondent jointly, the Respondent Agotre Kassim Fadumula has since become uncooperative. And that;

- 1. Since the grant of the letters of Administration, the Respondent with the help of the Applicants withdrew money severally from the bank account of the estate but the Respondent denied them access from the money and squandered the money in his own way alone without proper accountability. - 2. That the Respondent has withdrawn form the Administration of the estate hence rendering the grant useless and inoperative. - 3. That as result, they have failed to file inventory to date due to the conduct of the Respondent who is uncooperative with the Applicants in the management of the estate. - 4. That as a result of the actions of the Respondent, the children of the deceased and other beneficiaries to the estate have suffered and the whole estate is being wasted due to the conduct of the Respondent. - 5. That it would be in the interest of substantive justice if this honourable court were to permit the Applicants to strike out the names of the Respondent from letters of Administration and instead grant the same to the Applicants. - According to an affidavit of service sworn by Aluma Hellen the Respondent was served with the $25$ hearing notices and the Application on 19/11/2022 at 12:40 in the presence of the LC1 of Lobe Trading Centre to which he acknowledged receipt by appending his signature as can be referenced from the court copy.

### **Representation and hearing**

The Applicants were represented by M/s Oketcha Baranyanga & Co. Advocates while the 30 Respondent even though duly served was not represented and neither was he present in court. This matter proceeded by way of written submissions. The Applicants filed their written submissions but the Respondent has not filed any submissions up to date and has not furnished this court with any reason as to why despite being served effectively.

#### Submissions of Counsel for the Applicants 35

Counsel for the Applicant submitted that letters of Application were granted to the Applicants and Respondent jointly however, the administration and management of the estate has become difficult and non operational because of the Respondent who by virtue of the disagreement amongst themselves has opted out of the administration of the estate. Counsel then prayed that the application be allowed and the letters granted jointly with the Respondent be revoked and

fresh letters of administration be granted.

To fortify their submissions, Counsel cited Section 234(2) of the Succession Act which permits court to revoke letters of Administration which have become inoperative for reasons that the Administrator has become incapable of managing affairs of the estate by reasons of mental and

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physical incapacity. Counsel further relied on the case of Piwa Clare and Biywaga Joan $\mathsf{S}$ Miscellaneous Application No. 0053 of 2016.

Evidence of the Applicant.

The Application is supported by the affidavit evidence of Mazarau Samira and Ondo Zainabu.

Mazarau Samira in her affidavit in support of the Application stated that her and the deceased were married until his demise in 2017. That her and the deceased also had children together. 10 She further stated that her, the 2nd Applicant and the Respondent applied for letters of administration for the estate of her husband's estate vide HCT-08 - CV - 0114 of 2017 and obtained the same on 7th March 2018. It was also her testimony that the Respondent developed a misunderstanding between himself and the Applicant. That in 2020 the Respondent then withdrew from the Administration of the estate because the Applicants disagreed with the way 15 he was administering the estate and that this same assertion was reported to the Chief Administrative Officer of Yumbe District to help them and in a meeting there the Respondent confirmed that he was no longer interested in managing the estate of the deceased. That to that effect the Chief Administrative officer wrote a letter to the Registrar of this court and a copy was

attached. That because of the non cooperation of the Respondent with the Applicants, they have 20 failed to file inventory and as such the grant has become useless and inoperative in the circumstances and this is causing a strain on the estate. That there was a family meeting held on 19th of June 2021 and the family resolved that the Respondent be removed from the administration of the estate and chose the Applicants to continue with the same. The same evidence was confirmed in the affidavit of Ondo Zainab who was a sister to the deceased. 25

The Applicants also attached the letter from the CAO Yumbe District, the minutes from the family meeting eliminating the Respondent from the administration of the estate since he had withdrawn and was being non cooperative.

### Determination of the Application.

Before I proceed, I would like to state that I have read through the pleadings of Counsel for the 30 Applicant, the evidence attached and the written submissions, I have also advised myself on the law cited by counsel and all the other relevant laws to this matter while making my decision.

Section 234(1) of the Succession Act as amended provides that the grant of letters of Administration maybe revoked for a just cause.

Section 234(2)d of the Succession Act as amended then defines just cause to mean that the grant 35 has become useless and inoperative through circumstances.

It must be noted that one of the reasons as to why courts revoke letters of Administration is to ensure proper administration of the estate and interests of all the beneficiaries of the estate. This principle was highlighted in the case of Goods of William Loveday (1900) P. 154 wherein Jenne

40 P at page 156 stated that;

> "After all, the real object which the court must always keep in view is the due and proper administration of the estate and the interests of the parties beneficially entitled thereto; and I could see no good reason why the court should not take fresh action in

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regard to an estate where it is made clear that its previous grant has turned out abortive and inefficient. If the Court has made a grant in belief and hope that the person appointed will properly and fully administer the estate, and it turns out that the person so appointed will not and cannot administer, I do not see why the court should not revoke an inoperative grant and make a fresh grant."

10 In the present Application, the Applicants have adduced evidence to show that a grant was issued by this Court on the 7th March 2018 to the Applicants and the Respondent jointly. That the Respondent has since been mismanaging the funds from the accounts of the estate, that the Applicants have also failed to file inventory because the Respondent is non cooperative and that because of the conduct of the Respondent the beneficiaries of the estate are suffering and that 15 the estate has not been duly and properly manage hence this application.

Further, in the case of Re Piwa Clare and Binywaga Joan Miscellaneous Application No. 0053 of 2016, Justice Stephen Mubiru stated that;

"There is only one way in which the name of an administrator of an estate maybe be removed from a grant and that is by revocation of the grant and making of a fresh grant. That a court can not simply strike out the name of one administrator from a grant and continue on without revoking the grant; A fresh grant should be made because a grant is a public document and often must be produced to third parties as the proof that the holder is the personal representative and thus enable him or her to administer the estate."

However, where a grant to two or more administrators is revoked and a new grant is issued to 25 the other original administrators, a court does not require the continuing administrator to prove once more all of the matters which were proved in order to obtain the original grant. (See. Gould vs Gould (2005) NSWSC 914 at 9 per Campbell J

In the case before me, the Applicants were also co administrators in the administration of the estate as evidenced by the letters of administration attached. Therefore, this court does not 30 require them to prove once more all the matters required of them in order to obtain the original grant.

I therefore find that the Applicants have made out a proper case for the revocation of the grant and it is here by revoked. And in order to ensure the due and proper administration of the estate and protection of the interests of those beneficially interested. I therefore order and make a fresh 35 grant in respect of the estate of the late Iyosiga Adam Gege to the other Administrators (Applicants) that is Manzarau Samira (widow of the deceased) and Ondo Zainabu (biological sister of the deceased).

For avoidance of any doubt;

a) The existing grant bearing the three administrators (Manzarau Samira (widow of the deceased), Ondo Zainabu (biological sister of the deceased)) and Agotre Kassim Fadumula (biological brother to the deceased) is revoked and a fresh grant is hereby granted to the Applicants, Manzarau Samira (widow of the deceased) and Ondo Zainabu (biological sister of the deceased).

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b) There is no order as to costs

I so order

Dated at Arua this ....................................

Collins Acellam **JUDGE**

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