Nalukwago v Administrator General and 4 Others (Civil Suit No. 0071 of 2005) [2009] UGHC 256 (30 October 2009)


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

## **JUDGMENT**

2003. The plaintiff claims other remedies including: The plaintiff's suit is for an order revoking Letters of Administration to •the estate of the late George Livingstone Kiwanuka that was granted to the 1st defendant in this court's Administration Cause No. 529 of


- (i) A declaration that the second to fifth defendants are not beneficiaries to the estate of George Livingstone Kiwanuka. - (ii) An order granting to her and three others, Letters of Administration to the late Kiwanuka's estate.

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## (3) Remedies available to the parties.

The Plaintiff led evidence from four witnesses to resolve the issues, .while the defendant adduced evidence from three witnesses on the same issues. Let me summarise the evidence before disposing of the issues framed.

The first witness for the plaintiff was Bendicto Kiggundu Mitala (PW1) whose testimony was that he is a younger brother of the late Livingstone Kiwanuka (deceased) and that the only child his late brother produced with one Joy is the plaintiff. He testified that Joy never lived with the deceased but she was introduced to him in the 1990s at Wandegeya. He was t^refore surprised when the deceased introduced to the second, third, fourth and fifth defendants to him as his children, the deceased also asked him to give them Kiganda surnames. He claimed to have questioned his brother on the wisdom of having waited so long to give the Kiganda names.

Mr. Arsen Rutalindwa was the second witness (PW2). His evidence identified Christopher Tumwizere of Kisoro as the father of the four defendants. PW2 claimed that Christopher and Joy liveJas husband and wife in Kisoro where Christopher introduced Joy to him as his wife. At the time the four defendants were residing with their parents. The plaintiff testified as third witness. She too claimed that the father of the four defendants was Christopher Tumwizere. She


testified that her mother informed her in about 1997 that she and the four defendants had different father:. The information came about when she was getting ready to marry, she and her mother had intimate discussions concerning their affairs. Later, she learnt the identity of the defendants' father from her maternal grand-mother. The plaintiff's other evidence was that the four defendants cannot, have been fathered by Kiwanuka because their surnames are not names known to her clan.

The last witness for the plaintiff was Mr. Augustine Mbonijaba (PW4) who claimed in his testimony that he knows the 2nd to 5th defendants as children of Tumwizere because their parents were his villagemates, his neighbour and he was the Chairperson LC1 of their village. He claimed further that all the children (the four defendants) were born in the village.

For the defendants Jacqueline Nakabugo (DW1) testified the 2nd to 5th defendants are sisters of the plaintiff of full blood. She denied' knowledge of Tumwizere and insisted that she always lived with her father before his death. She insisted that her status was never in issue till she complained to the 1st defendant concerning the plaintiff's plan to sell of part of the estate. Dr. Charles Banga Senyoni (DW2) was a neighbour and is the person the deceased entrusted with certificates of title to his land. He testified that he attended a function the deceased held at his home to introduce the four defendants to residents of Bukoto East Village. Mr. Gingo was

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the other witness who testified that he attended a meeting held at the home of the deceased to discuss administration of his estate. At the end of discussions the deceased's children chose the plaintiff and two others to apply for certificate of No objection and to administer the estate. The choice of administrators was drawn up in the form of a consent that was written by the 4th defendant.

That is briefly the evidence in the case. I now turn to the first issue, namely: whether the 2nd, 3rd, 4th, and 5th defendants are children of the late George Livingstone Kiwanuka.

Mr. Kiboneka for the plaintiff submitted that the testimony of PW1 confirms that Kiwanuka had only one child with Joy i.e. plaintiff. The evidence was corroborated by that of PW2 who knew Joy and her husband well. The learned Mr. Kiboneka contended further that PW4 who was a neighbour, Chairperson LC1 of the villages where Joy and Tumwizere lived confirmed that the two lived as husband and wife and that Christopher never complained of adultery by Joy. The' presumption is therefore that he was father of the four defendants. Lastly on the plaintiff's evidence, he submitted that the plaintiff knew the 2nd to 5th defendants as half sisters fathered by Christopher Tumwizere, a fact that the plaintiff's grand-mother confirmed.

Concerning evidence for the defence, the learned Mr. Kiboneka argued that DW1 was not a credible witness because she

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tried to hide fact that her mother co-habited with Tumwizere. She also lied that she resided with the late Kiwanuka all along when there is evidence to the contrary by PW2, while DW2 saw her at Kiwanuka's home for 1st time as a grow- up person, Counsel pointed out that the four defendants had maiden names that are associated with ethnic groups who live in the Western part of Uganda and not Ba^janda. Counsel invited court to accept the evidence of DW2 in which described 2nd to 5th defendants as people whom he learnt the .late Kiwanuka was only looking after till they were old enough to go to where they belonged.

**■th** Mr. Mwebesa for 2nd to 5tfl Defendants submitted that evidentiary burden of proof had not been discharged by plaintiff. He argued that the evidence of PW1 was unreliable because he was not close to his brother, so did not know his affairs well. PW3 herself learnt or identity of defendant's father from her grand-mother and not from her mother. In contrast defence evidence proves that 2nd to 5th defendants were acknowledged as children of Kiwanuka till they complained against sale of their father's land. Finally counsel submitted that DNA is the primary and best way of proving contested paternity yet no evidence of the kind was adduce by the plaintiff. (In Re 'T' a child [2001] EWHC FAM <sup>1</sup> was cited).

I am in agreement with the learned Mr. Mwebesa that the plaintiff bears the burden of proving that the four defendants were not

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fathered by the late Kiwanuka. It remains to be seen whether she has discharged her burden of proof.

$h$ is $q$ used in $\mathcal{I}$ $\mathcal{I}$ $\mathcal{I}$ $\mathcal{I}$ $\mathcal{I}$ Mr. Kiwanuka set out to prove that the plaintiff as the only child the ·late Kiwanuka produced with Joy. His testimony ended up proving that Joy and the deceased co-habited for some time, and even continued seeing each other frequently afterwards. I quote PW1's testimony both in Chief and cross-examination-

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Sanyu's mother never came back to Kiwanuka's home. I saw her again as a visitor. First at Wandegeya when Kiwanuka introduced her to me as mother of Sanyu. I met her several times at Wandegeya. At the time, she would go to Mulago and branch to the shop at *Wandegeya.*" (Emphasis added).

To talk of Joy never coming back to Kiwanuka's home and of seeing her again as a visitor, to me is admission that Joy and deceased once co-habited as husband and wife. It is further admission that even when co-habitation ceased, the two continued seeing and interacting with each other thus presenting opportunities for the two to produce other children.

The testimony of PW1 also proves that the deceased publicly admitted paternity of the four defendants; he received them in his home and introduced them to village-mates as his children. He went further to give them Kiganda sur names and to cause their names to be recorded in the cian book by no other then PW1. I again quote:-

> "Kes, *I have ever seen Nakabugo Jacqueline, I know the <sup>2</sup>nd' <sup>3</sup>rd, <sup>4</sup>th and <sup>5</sup>th defendants. I first saw them at the home of Kiwanuka. I used to find the defendants at Kiwanuka's home during my visits".*

## Later in cross-examination-

" *Yes, I recall giving them our dan names but with <sup>a</sup> question mark. I asked my elder brother why he had waited that long to bring the children for naming. His answer was..... "you know the conduct ofthe affairs ofmen".*

The testimony of the plaintiff's other witnesses was not very useful to her case. Mr. Rutalindwa claimed that Christopher was his friend and workmate with Uganda Hotels Ltd. whom he visited several times in Kisoro. But an analysis of PW2's testimony reveals that he was only slightly acquainted of Mr. Tumwizere, he merely bumped into' Tumwizere at Travellers' Rest Hotel when the witness sought accommodation from a worker at the Hotel called Seremba. His evidence shows that he took Tumwizere to be the defendants' father because he was staying with Joy and her children. It is obvious from his testimony that paternity of the defendants was never discussed; so neither Tumwizere nor Joy ever made any authoritative pronouncements on the subject. This same witness admitted that

the he later saw the four defendants in Bukoto where they were residing.

Then there was the testimony of Augustine Mbonijaba who claimed •to have known Tumwizere's family as village-mate, neighbour and Chairperson LC1 of the village. According to this witness, Tumwizere lived in Karumena village, Kisoro Town Council from 1970 till his death in a year the witness could not recall. He claimed that the four defendants were all born, and grew up in the same place.

My analysis, of PW4's testimony, shows his evidence to be a concoction of hearsay, assumptions and speculation. PW4 told court that he was 40 years old (on 24/03/2009). He must have been bornin <sup>1969</sup> just <sup>a</sup> year before Tumwizere moved to Karumena village ii/ 1970. It is unlikely that at the young age of <sup>a</sup> year or less, he was\ well placed to observe and remember much about Tumwizere's family and the movements of its members in and out of the village in those early years. PW4 became LC1 Chairperson in 1995 just about' the time Tumwizere died. Other credible evidence before me has it that by 1995, Joy and Tumwizere had long separated with each going a separate way. Even the four defendants had left the village with their mother. Therefore, the "To whom it may concern" letter that his Council wrote for the plaintiff, (Agreed exh. P5) stating that Christopher Tumwizere was father of the four defendants is speculative. It has no evidentially value.

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The evidence for the defendants on the other hand has consistently been that the four defendants grew up with their mother but were later brought to their father who owned up to paternity, took and introduced them as his children. He gave them sir names of his clan and took over their education up to his death.

This in effect was the evidence of Dr. Charles Banga Senyoni (DW2) testified that he attended a function held at the home of the late Kiwanuka at which the four girls/defendants were introduced to the residents of the village as children of the deceased. Later Kiwanuka asked DW2 to look after his family till an heir was chosen. In the discharge of that function, Dr. Senyoni paid fees for Ahimbisibwe (4th defendant) and "Yimova" (2nd defendant) among other children. His evidence is corroborated by official record at the 1st defendant's offices, i.e. the Report of Death Form made to the 1st defendant's •office (exh. P6). The names of the four defendants appear therein as children of Kiwanuka. The evidence is further corroborated by the testimony of Mr. Gingo (DW2) who attended a meeting held at Kiwanuka's home to discuss administration of his estate. According to Gingo, the four defendants participated in choosing the administrators, no one objected to their participation as members of that family.

Given the deceased's own admission of paternity, the plaintiff ought to have adduced scientific evidence in the form of results of DNA or blood group test to prove that her father was wrong to admit

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paternity. She did not. I find overwhelming evidence before me proving that the 2nd, 3rd, 4th and 5th defendants are all children of the late Kiwanuka declare them so to be.

-The second issue is whether Letters of Administration granted to the first defendant should be revoked.

The learned Mr. Kiboneka submitted that the 1st defendant's failure to file an inventory within the statutory period of six months prescribed in section 234 of the Succession Act amounts to "just cause" within the meaning of section warranting revocation of Letters of administration granted to the 1st defendant. Mr. Mwebesa submitted that failure to file an inventory was not a ground the plaintiff pleaded for revocation. (He cited Paulo Kavuma vs. Moses Sekajja and Anor - HCCS No. <sup>473</sup> of <sup>1995</sup> in support of the submission).

The reasons pleaded in the Amended plaint in support of the prayer for an order for revocation of the 1st defendant's grant, is illegality, and fraud. The particulars of fraud pleaded are that the 1st defendant obtained the grant at the instance of the 2nd to 5th defendants who are not biological children of the deceased, and further that upon obtaining the grant, the 1st defendant distributed the proceeds of the estate to the four defendants who are not entitled to benefit. In as far as the other defendants are concerned, particulars of their fraud are that they held themselves out and benefited from the estate as children of the late Kiwanuka.

The 1st defendant pleaded in Para 4 (f) of it-WSD that the family of the deceased failed to resolve some issues of the estate. The 1st defendant there after^ advised the disputing parties to seek redress from court.

Apart from evidence challenging paternity, no other evidence was adduced for the plaintiff to prove entitlement to the prayer for revocation. I have already examined that evidence at length and drawn conclusions based thereon. Be that as it may section 234 gives court discretion to determine whether failure to file inventory should result in revocation of a grant. Having examined the composition of the deceased's family (children who do not have the same mother) and considering the disagreement that led to cancellation of the certificate of no objection, I find no reason to revoke the 1st defendant's grant. In fact, I have concluded that the .suit estate is best administered by the first defendant.

The last issue is remedies available to the parties.

The two principal issues have been decided against the plaintiff; the result is that the plaintiff's suit fails. She is not entitled to the remedies she sought. On the other hand, the defendants are on the evidence entitled to their prayers for dismissal of the suit with costs. This suit is dismissed with costs to the defendants.

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**rw t** C. A. Okello Judge **' C' G,**


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## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CIVIL SUIT NO 0071 OF 2005

| | <table> NALUKWAGO MILLY SANYU PLAINTIFF</table> | | |-------------------------|--------------------------------------------------|--| | | VERSUS | | | 1. ADMINSTRATOR GENERAL | | | | 2. NAKABUGO JACQUELINE | | | | NALUZZE HELLEN | ) | | | 4. NAGAWA JUDITH | | | | 5. NAMYALO JOAN | | | | DECREE | | |

This suit coming for final disposal before The Hon Lady Justice C. A Okello in the presence of Mr. Bogezi Ronald holding brief for Mr Richard Kiboneka Counsel for the Plaintiff and the 2<sup>nd</sup>, 4<sup>th</sup> and 5<sup>th</sup> Defendants in person.

IT IS HEREBY ORDERED and DECREED that

$(1)$ The Plaintiff's suit be and is hereby dismissed.

$(2)$ The Plaintiff shall pay the costs of the suit.

We Approve

M/s MATOVU AND MATOVU ADVOCATES COUNSEL FOR THE PLAINTIFF

Given under my hand and the seal of this court this... $\frac{2}{2}$ C......day of $\ldots$ C. C. K.................................

in Streeten Admates DEPUTY REGISTRAR DRAWN AND FILED BY: M/S NIWAGABA & MWEBESA ADVOCATES CITY CENTRE COMPLEX, THIRD FLOOR PLOT 12 LUWUM STREET P. O. BOX 6714 **KAMPALA** Lpam<br>Nottel For: SECRETARY TO JUDICIARY COURT OF JUDICATURE - UGANDA 12:40 Pr