Nabiwemba & Another v Namugerwa & Another (Civil Suit 2 of 2009) [2011] UGHCFD 2 (16 February 2011)

Full Case Text

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA FAMILY DIVISION CIVIL SUIT NO. 02 OF 2009**

## **1. NABIWEMBA BESUSEBA PLAINTIFFS 2. NAMUTEBI BETTY**

**VERSUS**

## **1. NAMUGERWA TEOPISTA DEFENDANTS 2. MULWANA CHRISTOPHER MICHAEL**

## **BEFORE: HON. LADY JUSTICE C. A. OKELLO JUDGEMENT**

This suit was filed by Nabiwemba Besuseba (lsl plaintiff) and Namutebi Betty (2nd plaintiff) for orders including: (i) an order revoking the Letters of Administration (LOA) granted to Namugerwa Teopista (1st defendant) and Christopher Mulwana (2nd defendant) in respect to the estate of the late Yefusa Weraga Ssegane (deceased). Other reliefs are: (ii) an order issuing fresh Letters of Administration jointly to the plaintiffs and the defendants; (iii) an order directing the defendants to surrender to court Letters of Administration they are currently holding; and (iv).an order that the defendants should file a comprehensive and correct statement of account oftheir dealings with the estate.

In their pleadings, the plaintiffs alleged that the defendants obtained Letters of Administration to Ssegane's estate secretly and with intent to defraud them and other beneficiaries ofthe estate. They further alleged that since obtaining the grant the defendants have administered the estate in a deceitful and fraudulent manner.

Particulars ofthe deceit and fraud pleaded include under- declaring the value ofthe estate and forgery of a number of documents for purposes of obtaining a grant.

In their amended written statement of defence (WSD), the defendants denied obtaining the grant secretly and/or fraudulently. It was averred that letters of administration were obtained with the consent and knowledge ofthe family after a family meetings held before application for a grant was filed. The Written Statement of defence further averred that on obtaining the grant, the estate was administered intestate in the mistaken belief that the deceased died intestate. However, in their counter-claim the defendants pleaded that the deceased actually died testate. His will was discovered after the issuance of the grant; and since the discovery, the estate is now being administered in accordance with the will. They prayed for an order declaring that the deceased died testate and a further declaration that the defendants' grant be deemed to be Letters of Administration with-the-will annexed.

The plaintiffs' reply to the counter-claim denied that their father died testate. They pleaded that the document said to be a will was forged to defeat the plaintiffs' interests in the suit estate.

A number of facts were agreed upon during scheduling conference. I reproduce them hereunder:-

- 1. The defendants have Letters of Administration dated 1/3/2007. - 2. The deceased, who died on 1/7/2006 was survived by the following:- - (a) One widow, Namugerwa Teopista the first defendant. - (b) Seven children namely: - (i) Nansubuga Rebecca

- (ii) Nabiwemba Besuseba, (the first plaintiff). - (iii) Namutebi Betty, (the second plaintiff). - (iv) Christopher Mulwana, (the second defendant). - (v) Tezaawa Alice. - (vi) Namugula Esther. - (vii) Nsubuga Eriasafu (now deceased). - (c) Six dependants:- - (i) Nalwanga Annette; - (ii) Mugula Ivan; - (iii) Nansubuga Teddy; - (iv) Nalwoga Annette; - (v) Seruganda Derrick; - (vi) Ssegane Eriasafu.

(b)The deceased's properties so far discovered by the defendants include:

- (i) Kyadondo Block 29 Plot No. 749 and 821 at Kanjokya; - (ii) Mawokota Block 309 Plot No. 30; - (iii) Bulemezi Block 676 Plot No. 44 at Bamugolode; - (iv) Kyadondo Block 32 Plot No. 181 at Mutundwe; - (v) Busiro Block 536 Plot No. 52 at Bumpenje. - (vi) Kyadondo Block 208 Plot Nos. 774, 775, 776 and 777 at Kawempe.

- (vii) Kyadondo Block 265 Plots 329 and 249 at Bunamwaya. - (viii) Busiro Block 438 Plots 154, 184, 359 and 366 at Abayita Babiri. - (ix) Busiro Block 438 Plot No. 105 on the same certificate of title formerly Plot 9.

- (x) Kyadondo Block 11 Plot 1174 at Kabowa (the principal and Matrimonial home). - (c)The last funeral rites were held on the 30/1/2009. - (d) The plaintiffs filed a suit against the defendants on the 12/1/2009 before the last funeral rites were held. - (e) Busiro Block 536 Plot No. 52 at Bumpenje was sold by the defendants with the consent of all "stake-holders". - (f) Three certificates of title were deposited in court following order of the court. [Particulars were not available during scheduling conference].

The four agreed issues were:

- (1) Whether the deceased died testate. - (2) If so, whether Letters of Administration granted to the defendants should be deemed to be Letters of Administration with the Will annexed. - (3) Whether there is just cause for revocation of Letters ofAdministration. - .(4) Whether the parties are entitled to their respective reliefs sought.

The parties adduced evidence on these issues. Mr. John Baptist Mujuzi (PW1); Nabiwemba Besuseba (PW2); and Mr. James Mponye (PW3) testified on behalf of the plaintiffs. The defendants called four witnesses namely Mr. Kamulegeya Yusufu Jamil Ssalongo (DW1); Mr. Daniel Makoba (DW2); Mr. Joseph Olanya Okwonga (DW3); and Mr. Mulwana Christopher (DW4).

Before examining the issues along with evidence relevant to each of them, I need to dispose off some preliminary objections raised in the written submissions of counsel for the defendants. The first objection concerns the competence of this

suit, and the other is concerned with the number ofthe plaintiffs in the suit. On the first objection, Mr. Muhwezi submitted that the plaintiffs filed a representative suit for themselves and other beneficiaries but without following proper procedures prescribed in order 1 rule 8 (1) of the Civil Procedure Rules. Counsel submitted that a suit so filed is incompetent and should be struck out. He cited the holding on a similar objection in Constitutional Petition No. 11 of 1997 Dr. James Rwanyarare and anor vs. Attorney General.

The offending part of the plaint subject of the objection is in Para 6 (b) wherein it was pleaded that **"...the defendants secretly and with intent to defraud the plaintiffs and some other beneficiaries, applied for ...etc".** This pleading in my judgment falls short of making the suit a representative action. It should be noted that nowhere in the plaint did the plaintiffs claim to have filed the suit for themselves and on behalf of others. The quoted text merely says our rights have been violated, just like the rights of other beneficiaries. They were saying that there were others in the same boat in which they were, (so to speak).

However, the first plaintiff stated during cross-examination that the suit is indeed a representative one filed for plaintiffs and other beneficiaries. The Constitutional petition No. 11 of 1997 relied on by Mr. Muhwezi is clear about the fate of a representative suit brought in violation of Order 1 rule 8 (1). Such action is unsustainable on behalf of those allegedly represented without leave of the court. In this case, the tone of the pleadings is not that of a representative action; the plaint did not even disclose the names of people on whose behalfthe suit was filed. In as far as these undisclosed litigants are concerned; their suit is unsustainable and cannot be entertained. Be that as it may, the suit as it relates to violation of the plaintiffs' rights in their father's estate is competent. I shall proceed in due course to dispose offthat part ofthe suit on merit.

The second objection concerns the number of plaintiffs in the suit, For the defendants, it was submitted that there is only one plaintiff; i.e. the first plaintiff. The second plaintiff was said to have withdrawn her suit against the defendants.

My ruling on this objection is guided by the contents of the court record; and the only information of the withdrawal is that given to court by counsel for the plaintiffs on the 21s1 May 2009. On that date, counsel told court that the second plaintiff was co-erced into withdrawing her name from the suit. However, the original copy ofthe letter by which the second plaintiff is alleged to have informed court of her withdrawal from the suit (exh D9), is not on court file. I notice in passing that the High Court receiving stamp on the letter is 6.10.2009 whereas the so-called letter of withdrawal is dated 21 May 2009. I do not consider the withdrawal to be effective for basically two reasons: (i) the second plaintiff said she was the one withdrawing from the suit. A plaintiff cannot withdraw from his/her suit, what the plaintiff does is to withdraw the suit against the defendant(s). (ii) The so called withdrawal was made long after closure of pleadings when the suit was undergoing scheduling. Therefore, the withdrawal should have been in accordance with the provisions of Order 25 Rule 1 (2), or Rule 2 or even Rule 6, of the Civil Procedure Rules. This withdrawal was not done in accordance with the rule. Assuming that it is the suit that was withdrawn, I find the withdrawal to be ineffective as it was done without the leave of the court and without orders or consent of the parties on costs. Consequently, the withdrawal is rejected. I shall now address the issues.

I start with the first issue: whether the deceased died testate. The plaintiffs' evidence on this issue was all directed at proving that the signature that appears on page six of a document said to be a will ofthe deceased (exhibit P8), is not that of the deceased. In this respect, the first plaintiff testified that on the eve of the last funeral rights, Mr. Kamulegya (DW1) brought a document said to be a will of the deeeased. It was read to the gathering but PW2 was not satisfied with the signature it. The next day she obtained a photocopy of the document from Mr. Kibuuka, a clan official, which she took to a Hand-writing expert (PW1) for analysis. Later, a second document also said to a will ofthe deceased turned up, the second will was the same in all respects as the one she had photocopied. PW2's further evidence was that the defendants had a hand is forging the will because she came across drafts that probably preceded the final copy tendered in evidence (exh. DI8). The suspected draft was marked exh. Pl 1.

The expert who examined the documents submitted by PW2 was Mr. John Baptist Mujuzi. He testified that in November 2009, he received three documents for examination to determine whether all the three were signed by the same person. The documents were: (i) a photocopy of a six page handwritten Will with the questioned signature appearing on page 6; (ii) a typed estimate of expenditure dated 10/10/2004 with a signature thereon; and (iii) a photocopy of typed and signed instruction dated 19/9/2004 issued to land surveyor. On examining and comparing the two specimen signatures with the questioned signature on the Will, Mr. Mujuzi concluded that the two specimens signatures were made by one and the same person. However, the signature on page 6 ofthe Will was not the same as the specimens signatures; it was by a different person. Mr. Mujuzi explained the differences between the two sets of signatures in his report (exh. P2). Mr. Mujuzi

stated in cross-examination that the questioned signature he analysed was not obtained from the will tendered in evidence in this trial (exh. D 18).

The defendants relied on the testimony of two witnesses to prove that the deceased died testate. The first one was Mr. Yusufu Kamulegeya (DW1) and a Handwriting expert Mr. Joseph Olanya Okwonga (DW3). According to Mr. Kamulegeya the late Ssegane went to his home on the 22/2/05 in the company of a woman and a man. He had with him two Wills that he wanted DW1 and the two people to attest to as witnesses. The deceased signed the Wills in the presence of the 3 people; the three then signed the Wills as witnesses. Ssegane went away with the wills but retuned and deposited them with DW1 a month later with instructions that the wills should be read at the last funeral rites. Kamulegeya followed the instructions by handing over the Wills to Mr. Kibuuka, on the eve of the last funeral rights. He told Mr. Kibuuka to read them on the last day ofthe rites.

Mr. Mulwana on his part testified that he and the 1st defendant obtained Letters of Administration in March 2007 with no knowledge of the existence of the Will. \* o I They proceeded to administer the estate intestate till the Will was brought during the last funeral rites on 31/1/2009. Mr. Joseph Olanya Okwonga (DW3) is the Hand-writing expert for the defendants who testified that in March 2010 he was requested to examine and verify Werega Ssegane's signature appearing on page six of a Will which he marked "A" in his report of 30/3/2010. He was also given five sample documents bearing genuine signatures of the deceased that he marked exh. "B", exh. "C", exh. "D", exh. "E" and exh. "F" on the report. Mr. Olanya examined all the six signatures and noticed important similarities and individual characteristics between the questioned signature on the Will and the signatures on the five samples. He concluded that the signature on the Will was that of the late Ssegane. His report is (exh. DI 1).

On this evidence counsel for the plaintiffs submitted that defence evidence leaves doubt whether the deceased signed the Will because only one attesting witness testified despite the fact that rest were listed as witnesses. Learned Counsel referred to portions of PWl's evidence wherein he described and differentiated the questioned signature from the specimens by pointing out distinctive features of the two sets ofsignatures. He also pointed out features ofthe deceased's signature that were not in the questioned signature - factors which led PW1 to conclude that the signatures on KI and K2 were not made by the person who signed QI. The learned Mr. Kangaho speculated that DW1 could have replaced the Will with another.

Mr. Muhwezi for the defendants prefaced his submissions with a statement that even the 1st plaintiff learnt of the existence of the Will during last funeral rites in January 2009 but decided to acquiesce in the administering of the intestate. She should not turn round now to challenge it. Secondly, counsel submitted that 1st plaintiff did not cross-examine DW1 on his evidence of having attested the Will of the deceased.

The law on execution of wills is in section 50 of the Succession Act (the Act in Cap. 162). The section provides that the testator has to fix his signature to the will with the intention to make it his/her will. The fixing is required to be done in the presence of two people who act as witnesses to the signature. On examination of the evidence before me, I am persuaded that the signature examined by PW1 was obtained by the first plaintiff from one ofthe two alleged wills of deceased handed

over to Mr. Kibuuka by DW1. It should be observed that the parties all agreed that two similar documents turned up as the wills of the deceased during his last funeral rights. It is equally common evidence that the two wills were word for word the same, so were the signatures on them; they were handed over to Mr. Kibuuka. I believe that PW2 photocopied one of these similar documents complete with all signatures thereon; she submitted the photocopy to PW1 to analysis the deceased signature thereon.

The results of analyses carried out by both Mr. Mujuzi and Mr. Olanya deary show differences between the samples/specimens, and the questioned ones. Mr. Mujuzi described the differences in very clear terms, i.e. the specimen signatures were written on imaginary horizontal and vertical alignments while the questioned signature was all on a horizontal line. The specimen signatures had two distinctive double loops towards the beginning and about the middle ofthe signature while the questioned one had only one loop at both points in the signature, even then the loops had missing features. PW1 also pointed out the back stroke from the last lower case "e" in the signature and letter formations that are all different from the questioned one. Mr. Olanya on the other hand glossed over the differences but made two significant concessions during cross-examination. The expert admitted that he could not see some features ofthe sample signatures in the questioned one. He mentioned some of the features such as the number of loops: there were more loops in the sample signatures than those in the questioned signature. Secondly, there is an extraneous stroke to the left of the questioned signature that is absent in the samples. I must add that his analysis did not detect or bring out the two obvious horizontal and vertical alignments in the sample signatures which are not seen in the questioned one.

Having studied the signatures analysed by the experts side by side, and having studied their reports side by side as well, I am not persuaded that the deceased signed the document presented to court as his will. He died intestate. In this respect, I am of the considered opinion that Mr. Kamulegeya's testimony is a concoction, and not credible. Since the deceased did not sign any of the documents presented before me as his will, he cannot be said to have died testate. The answer to the first issue is therefore that the deceased died intestate.

I move to the second issue which follows from the first one: whether letters of administration granted to the defendants should be deemed to be letters-with the will-annexed. Having answered the first question in the negative, the second issue is also briefly answered in the negative since the deceased did not make a will.

The third issue is whether there is just cause for revoking letters of administration. The plaintiffs led evidence to prove that there are several just causes warranting revocation of the defendants' grant. The plaintiff complained that the defendants applied for letters of administration without the knowledge and consent ofthe adult members of the family. They kept this fact a secret so that as late as 10.12.2006 she was still hopping to join the defendants to apply for a grant (exh. P2). According to PW2 she discovered letters of administration after the meeting of 10.12.2006 and funeral rites of 31.1.2009 when she was investigating the sale of the land at Bumpenje.

Secondly, the plaintiffs' complaint is that when the defendants applied for letters of administration, they deliberately declared in their petition that all the children of the deceased (except the second defendant), were minors (exh. P9 and Pl 8). They further lied in the same petition that the Administrator General had issued to them

a Certificate of no objection when none was issued. PW2 also complained that the defendants falsely stated that no Certificate of Death was issued in respect to the deceased death whenNsambya Hospital issued one (exh. PIO).

In his testimony the second defendant stated that the family held a meeting on 10.12.2006 whereat they consented to the defendants applying to administer the estate, and after obtaining a grant, another meeting was held on 29.11.2007 to discuss administration of the estate. The defendants have denied deliberately falsifying the ages of the children of the deceased. DW4 explained that the errors in the ages were merely topographical errors that were pointed out to former counsel for corrections. The witness insisted that the corrections were made though a copy is not on court records. Concerning the Certificate of no objection from the Administrator General, DW4 insisted that it was issued (exh. DI6) although there is oone in the court file.

Counsel for the parties submitted on the evidence. I do not propose to summarise the submissions, suffice it to say that I read and considered the submissions. What then is just cause for revocation of a grant? The submissions of both counsel referred to section 234 of the Act for definition of just cause. I agree that the section defines just cause for revocation or annulment of a grant. Sub-section (2) lists five causes including defect in the proceedings leading to a grant, second is obtaining the grant by fraud by making false suggestion or concealing from court something that is material to the proceeding. The third cause is if the grant was obtained by an untrue allegation offact essential in point of law to justify the grant etc.

In this case I believe the plaintiffs evidence that they (plaintiffs) were not consulted on the choice ofthe two defendants as administrators, nor were they kept informed of the progress in the application for a grant. This is evident from mintites of the family meeting of 10.12.2006 (exh. D17) which shows that the family were s.till discussing who should apply to administer the estate as late as that date. Yet court file of the relevant administration cause No. 1462 of 2006, shows that the defendants had filed their petition for a grant one and half months earlier on the 19.10. 2006 (exh. P9). Secondly, the ages of the plaintiffs, among others, were deliberately falsified in the petition; they were not the result oftopographical errors as claimed by DW4. I believe that the defendants did not want the plaintiffs to know of the application, nor did they want risk awkward questions being asked about the other adult children of the deceased. They deliberately lied that the plaintiffs and other children of the deceased - except the second defendant, were minors. They also lied that the 2nd defendant was the only son of the deceased so omitted the name of the late E. Nsubuga from the list of adult children. All these falsehoods were calculated to pre-empt any questions being asked regarding consent or participation of the adult children. The evidence that counsel for the defendants was instructed to correct the errors is a lie.

To begin with, information on particulars of the deceased's children must have been given to counsel by the defendants, counsel could not have come up with the ages by himself. The defendants furnished counsel wrong ages deliberately. Secondly, the defendants signed the solemn declaration on page two of the petition, if the wrong ages resulted from topographical errors, the defendants who conceded noticing the errors would not have signed the declaration containing such serious errors. Concerning certificate of no objection from the Administrator General, I am not convinced that one was obtained by the time application for

grant was made. There is certainly no copy in the court file of the cause; and the one tendered here was allegedly issued on the 31.10.2006 (exh. DI6). Meanwhile the petition for grant stated in Para 6 that a Certificate of no objection was annexed to it. How could a document that was yet to be issued on the 31.10.2006-be annexed to the petition filed on the 19.10.2006? Then there is the Affidavit sworn by the second defendant in lieu of the Death Certificate for the deceased, it says that no death certificate was issued. This is evidence of another systematic falsehood committed by the defendants in the course of obtaining a grant. All these falsehoods and fraudulent information uttered to secure a grant are seriousness; they warrant revocation ofthe grant under section 234 Act already mentioned.

I shall briefly say that the conduct ofthe defendants since the issuance ofthe grant to them equally warrant revocation oftheir grant. After weighing the evidence on the sale of the Bumpenje land, I have no doubt in my mind that the lan,d was sold to Mr. Kaija and Kaija only at Shs. 45.5m/=. There was no sale Mr. Makoba whose Bank statements shows him to be a man of modest means (exh. P 15 and Pl6). His claim of not banking large amount of cash is not convincing. All in all, there are just causes for revoking the letters of administration granted to the defendants in Administration Cause No. 1462 of 2006 based on defects in proceeding for the grant. There is evidence as well that they have been less than honest in the manner in which they have managed money from the deceased's property at Abayita Babiri in addition to under-declaring the sale price for Bumpenje land. The grant ought to be revoked; I hereby revoke the same under section 234 (2) (a), (b), (c) and (e) aforementioned.

The last issue is whether the parties are entitled to the respective reliefs sought. The plaintiffs have proved entitlement to the reliefs sought with the qualification

that I have formed the opinion that they cannot administer the estate together with the second defendant as stated in their prayer. In my opinion they need a fairly "long spoon" to successfully administer the estate with the 2nd defendant, they do not have it. The defendants on the other hand have not proved entitlement to any of their prayers. In the result, the defendants counter-claim is dismissed with costs to the plaintiffs. The plaintiffs are entitled to the following orders:

- 1. Letters of administration granted to the defendants in Administration Cause No. 1462 of 2006 is revoked forthwith. - 2. The defendants shall within seven days of delivery or reading of this judgment deliver up the said grant to this court under section 335 ofthe Act. - 3. Letters of administration shall issue to the plaintiffs and the first defendant (Teopista Namugerwa)jointly. - "4. The defendants shall within one month from the delivery or reading this judgment, file an account ofthe estate under section 278 (1) ofthe Act. - 5. The defendants shall pay plaintiffs costs in this suit and the counter claim. - 6. For emphasis, the defendants counter-claim is dismissed with costs to the plaintiffs.

C. A. Okello Judge 16.02.2011