Nampa v Ssebagalamba (Civil Suit 143 of 2024) [2024] UGHC 913 (3 October 2024)

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KIBOGA

### HCT-23-LD-CS-0143 OF 2024

### (FORMERLY MUBENDE CIVIL SUIT NO. 111 OF 2023)

# (ARISING OUT OF ADMINISTRATION CAUSE NO. 645 OF 2015)

NAMPA KATE::::::::::::::::::::::::::::::::::::

#### **VERSUS**

### SSEBAGALAMBA CHARLES LWANGA:::::::::::::::::::::::::::::::::::

### **BEFORE: HON MR JUSTICE KAREMANI JAMSON. K**

#### JUDGMENT

#### Introduction.

Nampa Kate (hereinafter referred to as the plaintiff) brought this suit against Ssebagalamba Charles Lwanga (hereinafter referred to as the Defendant) for the following orders;

- a) Revocation of letters of administration granted to the defendant in respect of the estate of the late Nyazira Sarah (hereinafter referred to as the deceased), - b) an order compelling the defendant to surrender the said letters of administration to this court, - c) an order for a comprehensive and true statement of account of all dealings with the estate of the deceased,

$-$ *Mar*

- d) an order that a grant of letters of administration of the said estate be issued to the plaintiff, - e) a permanent injunction restraining the defendant from undertaking any further dealings with the estate of the deceased, - costs of the suit be paid by the defendant. $f$

The defendant was duly served with the summons and the plaint in this suit through substituted service but he failed to file the defence within the time provided. As a result, the suit was set down for hearing ex parte and hence this judgment.

#### Representation

The plaintiff, was represented by Mr. Kitimbo Simon Peter of M/S Kitimbo Associated Advocates who upon closure of the plaintiff's case, filed written submissions for consideration in the determination of this suit.

## **Background**

It is the plaintiff's case is that she is a biological sister and beneficiary of the estate of the late Nyanzira Sarah. That the said Nyanzira Sarah died intestate on the 11<sup>th</sup> day of February 2003 leaving 187.72 acres of land comprised on LRV 909 Folio 5 Singo Block 643 Plot 6 land at Bundimbo Estate, Kiboga district. That the defendant applied and was granted letters of administration by on $20/11/2015$ . That in petitioning for the letters of administration, the defendant fraudulently stated that he was a nephew of the deceased yet he was not in any way related to the deceased. That the defendant did not hold the alleged family meeting on $5/2/2015$ and if the same was held, all the attendants were not family members or beneficiaries of the estate of the deceased. That the defendant wants to sell off the estate to third parties to the detriment of the plaintiff who is the only surviving beneficiary of the estate of the deceased.

Wam<sup>\*</sup>

#### Issues for determination

- 1. Whether the defendant fraudulently obtained Letters of Administration in respect of the estate of the late Nyanzira Sarah. - 2. What remedies are available to the parties?

## Burden and standard of proof.

Section 101(1) of the Evidence Act Cap 8 provides that whoever desires court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts, must prove that those facts exist. This position was fortified in the case of **Uganda Petroleum Co. Ltd -V- Kampala City** Council Civil Suit No.250 of 2005, where it was held that in civil cases the burden lies on the party who alleges to prove his or her case on the balance of probabilities.

The standard of proof is on a balance of probabilities.

## Resolution of the issues.

1. Whether the defendant fraudulently obtained Letters of Administration in respect of the estate of the late Nyanzira Sarah.

Counsel for the plaintiff submitted that it was the unchallenged evidence of the plaintiff (PW1) that she is the only surviving biological sister and beneficiary of the deceased. That the plaintiff and the deceased were the only children of their late parents. That the defendant in applying for letters of administration neither included the plaintiff nor any family members of the deceased to participate in the family meeting. Counsel further submitted that the participants of the said family meeting are not blood relatives of the deceased.

That the defendant alleged to be a nephew of the deceased whereas not. That all the actions of the defendant in holding out to be a relative of the deceased are fraudulent therefore, the letters of administration were obtained through deceit

— wani

and misrepresentation. Counsel cited the case of Fam International Limited and Anor -V- Mohammed El Faith SCCA NO. 19/1993.

#### Analysis.

Letters of administration entitle the administrator to manage the deceased person's assets. It follows therefore that after the grant of letters of administration, no person other than the person to whom the same has been granted has the power to act as a representative of the deceased until the letters of administration have been recalled or revoked. See: Katushabe Generous -V-Tukamuhebwa Godfrey HCCS No. 043 of 2021.

It is trite law that a grant remains valid until revoked. Even in cases where a grant has been obtained by fraud, so long as the grant remain unrevoked, the grantee represents the estate of the deceased

Section 230 (1) of the Succession Act cap 268 as amended provides for revocation of letters of administration for a just cause. Sub section 2 states;

#### *In this section, just cause means*

- a) that the proceedings to obtain the grant were defective in substance; - b) that the grant was obtained fraudulently by making a false suggestion, or *by concealing from the court something material to the case;* - c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though the allegation was made *in ignorance or inadvertently;* - d) that the grant has become useless and inoperative through circumstances; - e) that the person to whom the grant was made has willfully and without *reasonable cause omitted to exhibit an inventory or account in accordance with Part XXXIV of this Act, or has exhibited under that Part an inventory or account which is untrue in a material respect; or* - *f)* that the person to whom the grant was made has mismanaged the estate.

Wan."

In the instant case the main ground for revocation of the letters administration that the grant was obtained fraudulently by deceit and misrepresentation.

Fraud is defined to include anything calculated to deceive whether by a single act or combination or suppression of truth or suggestion of what is false, whether it is by direct falsehood or innuendo by speech or silence, word of mouth or look or gesture. It includes dishonest dealings in land or sharp practice to deprive a person of an interest in land. See: Fredrick Zaabwe -V- Orient Bank and 5 Others SCCA No. 04/2006; Kampala District Land Board and Another -V-Venancio Babweyaka and 3 Others Civil Appeal No. 02 Of 2007.

In this case, it was the undisputed evidence of the plaintiff (PW1) that she is the only biological sister of the deceased and the only beneficiary to the deceased's estate. That the defendant obtained letters of administration of the said estate through concealing important information about her existence and stating that Kayitesi Betty and Kakuza Margret are children of the deceased yet the deceased had no children.

The law on failure to challenge evidence on a material or essential fact is that such evidence is deemed to be admitted and to be inherently credible and probably true. See Uganda Revenue Authority -V- Stephen Mabosi No. SCCA No. 26 of 1995.

Furthermore, the law is to the effect that if evidence of a witness is unchallenged in cross examination, it is deemed to have been admitted by the other side. In evaluating such evidence, the court would consider the totality of the evidence adduced by the party. The assessment of the evidence gives value and quality of such evidence to the issues for determination. See: Geoffrey Brown -V- Ojijo

## Pascal HCCS No. 228/2017

The main reason for revoking letters of administration as has been held by courts is to ensure the due and proper administration of an estate and protection of the interests of the beneficiaries. See **Miscellaneous Application No.053 of 2016**

- Man

# In the estate of Javuru Apollo and Miscellaneous Application No.0149 of 2023 In the estate of late John Peter Otto.

In this case from the evidence adduced by the plaintiff, I am convinced that the letters of administration in Administration Cause No.645 of 2015 were not properly obtained. I find that the defendant's grant of letters of administration by this court in respect of the estate of the late Nyanziri Sarah was fraudulently obtained.

#### 2. What remedies are available to the parties?

Having found that the grant of letters of administration of the estate of the late Nyanzira Sarah was obtained fraudulently, judgment is entered in favour of the plaintiff with the following orders;

- a) The letters of administration granted to the defendant in respect of the estate of the late Nyanzira Sarah vide Administration Cause no. 645 of 2015 are hereby revoked. - b) The defendant is ordered to delivered the original grant of letters of administration into this court. - c) Letters of Administration in respect of the estate of late Nyanzira Sarah are hereby granted to the plaintiff. - d) A permanent injunction is hereby issued against the defendant restraining him from undertaking any further dealings with the estate of the late Nyanzira Sarah. - e) The plaintiff is awarded costs of the suit.

I so order. tuan **Appont**

KAREMANI JAMSON. K **JUDGE** 03/10/2024

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