Tumwine v Mujuni & Another (Originating Summons 2 of 2018) [2024] UGHC 672 (12 July 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-CV-OS-0002-2018

# TUMWINE ASAPH :::::::::::::::::::::::::::::::::::: APPLICANT VERSUS

### 1. MUJUNI STENDER

## 2. THE ADMINISTRATOR GENERAL ::: RESPONDENTS

BEFORE: HON LADY JUSTICE JOYCE KAVUMA

### RULING

#### Introduction.

[1] This application was commenced by way of Originating Summons under Order 37 Rule 1(f) and (h) of the Civil Procedure Rules seeking for this court to answer the following questions;

1. Why should this honourable court not order and direct the 2nd Respondent to proceed to disregard the 1st Respondent's deliberate blockade of the family meeting of its own motion choose as administrators;

(a)The Applicant, Tumwine Asaph. (b)Joseph Mugume, brother to the 1st Respondent

So, the estate is surveyed and administered and the office closed with an inventory.

2. Why shouldn't this honourable court order the 1st Respondent to file and make good accountability for all revenue collected from the estate since assumption of administration of his own fault.

The Applicant prayed for the following declarations and orders from this court;

- 1. That the 2nd Respondent endorses the Applicant and Joseph Mugume and issues certificate of No Objection to them. - 2. That the 1st Respondent gives accountability of the estate for the period of intermeddling. - 3. Any other or further declarations and/or orders this court may deem meet for the ends of justice.

## Background.

[2] The factual background of the instant application as can be drawn from the supporting affidavit was as follows;

The Applicant was one of the children and beneficiary of the estate of the late of the late Sezi Rwampunu late of Ihunga cell, Rutunguru parish, Ihunga Sub- County, Kajara Ntungamo District who died around the year 1980. The late was survived by three widows and sixteen children and his estate comprised of land measuring seventeen acres neighbouring Ihunga Sub- County headquarters Kajara in Ntungamo district. That the Applicant made a report of his father's death with the 2nd Respondent in or about 2008 and a file was opened with reference number ANK/AC/390/2009.

That following the file opening, the 2nd Respondent directed her agents who included the Chief Administrative Officer and Town Clerk to investigate the deceased's estate and report back to her with a view of issuing a Certificate of No Objection and pave way for the elected representatives to apply to this court to administer the estate.

That on all occasions, the 1st Respondent had engineered family disagreement in all family meetings chaired by the Town Clerk and even one when the Applicant was elected as representative by the family. That there were no substantive disputes to be resolved concerning the estate property save for non-existent issues raised by the 1st Respondent to block the lawful administration of the estate to his benefit and that of his mother. That the 1st Respondent had assumed office of an administrator without lawful authority and purported to administer the estate by allocating areas of the estate to his mother's siblings to build houses. That the 2nd Respondent had abdicated her duty and failed to reign in on the 1st Respondent and issue a certificate of no objection to the Applicant and Joseph Mugume.

[3] The record of court indicates that all the Respondents were served and an affidavit of service was filed in this regard on 24th September 2018. Only the 2nd Respondent filed a reply to the application wherein it was deposed on her behalf by Ms. Karungi Betty Gafabusa that; The allegations under the affidavit in support of the instant application were misconceived, far-fetched, remote and grounded on fiction and sheer imagination which could not amount to any imminent danger to the estate or otherwise constitute any valid grounds for court to rely on, and grant the instant application. That the 2nd Respondent has on several occasions conducted mediation meetings with the family of the late Sezi Rwampunu with the aim of advising them but the family did not agree on the beneficiaries to be granted a certificate of no objection. The 2nd Respondent further contended that they wrote several letters to the Chief Administrative Officer Ntungamo District Local Government, the Regional Police Commander and District Police Commander to further mediate the parties but the parties still failed to agree on the Applicants for a certificate of no objection.

#### Representation.

[4] The Applicant was represented by M/s Dhabangi & Co. Advocates while the 2nd Respondent was represented by the Attorney General's Chambers. Both Counsel addressed this court by way of written submissions which I have considered.

#### Analysis and decision of court.

[5] The instant application was commenced under Order 37 Rule 1(f) and (h) of the Civil Procedure Rules, however, having read the two provisions stated above in line with the Originating Summons filed, none of them were found applicable to the instant matter. The said provisions relate to the office of Administrators and Executors. It is not in dispute by both parties that no Administrator or Executor has ever been appointed for the estate of the late Sezi Rwampunu.

In line with Article 126 (2) (e) of the 1995 Constitution, I overlooked this as a mere technicality.

[6] The gravamen of the application in view of this court, upon a careful perusal of the pleadings and submissions of both counsel relates to an impasse existing amongst the beneficiaries of the estate of the late Sezi Rwampunu in choosing who should administer it.

In line with that impasse, the Applicant seeks this court to answer the question of why this court can not order and direct the 2nd Respondent to endorse the Applicant and a one Joseph Mugume and issue a Certificate of No Objection to them.

Secondly that the 1st Respondent had intermeddled with the estate of the late Sezi Rwampunu out of which the Applicant sought from this court to answer the question and further order him to account for the period he has been administrator of his own right.

[7] The law on when Originating Summons may be the appropriate procedure of other modes of institution of suits is now settled.

The procedure of Originating Summons is intended for simple and noncomplex matters. Matters where there is no substantial dispute as to facts but rather on legal consequences of the set facts. (See Zalwango Eliverson and Anor vs Dorothy Walusimbi and Anor (High Court OS no. 03 of 2013); Kaggwa and Ors vs Yowana Kiwanuka [1993]3 KALR 17; Kulusumbai vs Abdul Hussein [1975] EA 708 and E Nakabugo vs Francis Drake Serunjogi [1981] HCB 58).

It is normally a suitable procedure where the main point at issue is one of construction of a document or statute or is one of pure law. (See E Nakabugo vs Francis Drake Serunjogi (Supra)).

[8] The question of why this court should not order and direct the 2nd Respondent to proceed to disregard the 1st Respondent's deliberate blockage of family meetings and of its own motion choose the Applicant and Joseph Mugume as suitable persons for grant of a certificate of no objection by 2nd Respondent and order the 2nd Respondent to issue the certificate of no objection is one of mixed fact and law.

Section 5 of the Administrator General's Act requires an intending applicant for grant of probate of administration, except for widows or widowers of the deceased or executors in a will, to produce to court proof that the 2nd Respondent or his or her agent has declined to administer the estate, or proof of having given the 2nd Respondent fourteen day's written notice of the intention to apply for the grant.

The import of the aforementioned provision is that a statutory duty is imposed upon the 2nd Respondent to issue certificates of no objection to intending applicants for grants.

[9] In the instant case, it is undisputed by both parties that the 2nd Respondent allowed the family of the late Sezi Rwampunu to convene meetings for purposes of choosing amongst the family members who of them would be issued with a certificate of No Objection as evidenced in annexures A1, A2, A3, A4, C1, C2, C3, C4 and C5. This is a clear indication on the part of the 2nd Respondent that she had no objection to a chosen member of the family of the late Sezi Rwampunu administering the estate.

It is also undisputed that on all occasions, the family members of the late Sezi Rwampunu failed to agree to who should administer his estate.

The Applicant by the instant application now wants this court to pass over the other family members and order that he and a one Joseph Mugume are appointed as the suitable persons to be appointed administrators of the estate of the late Sezi Rwampunu.

This in my view would be contrary to the law.

[10] The discretion of this court to pass over other relatives and order for appointment of one of them as Administrators is dictated by Section 202 of the Succession Act, Cap. 162 and Section 4 of the Administrator General's Act, Cap 157.

Section 202 of the Succession Act provides that, Subject to Section 4 of the Administrator General's Act administration shall be granted to the person entitled to the greatest portion of the estate in priority to all other relatives of the deceased. (See also Bulasio Konde vs Bulandina Nankya and Anor (Court of Appeal Civil Appeal no. 7 of 1980).

Similarly, Section 203 of the same Act, administration shall not also be granted to any other relative if there is some other relative or an appointed heir entitled to a greater portion of the estate until a citation has been issued and published calling on that relative or heir to accept or refuse letters of administration.

According to Section 27 of the Succession Act, it is clear that a wife/widow/husband or widower is entitled to the greatest portion or share of the estate of a deceased person who has died intestate and would in the first instance therefore be entitled to a grant of Letters of Administration. (See also Administrator General vs Akello Joyce Otti & Donato Otti (Supreme Court Civil Appeal no. 15 of 1993)).

However, according to Section 4 (5) (a) of the Administrator General's Act, this court may when the peculiar circumstances of the case appear to it so to require, for reasons recorded in its proceedings, of its motion or otherwise, after having heard the Administrator General, grant Letters of Administration to any other person even though there are persons who, in the ordinary course, would be legally entitled to administer.

[11] According to paragraph 2 of the Applicant's affidavit in support of the instant application, the late Sezi Rwampunu was survived by three widows named Mrs. J Rwampunu, Mrs. Siadora Rwampunu and Mrs. Ruth Rwampunu.

Nowhere in the said affidavit has the Applicant shown this court that a citation was issued against the above widows requiring them to either accept or refuse letters of administration as provided for under Section 203 of the Succession Act above before the Applicant and Joseph Mugume could be considered for appointment by court.

[12] This court heard from the Administrator General through an affidavit deposed to by a one Karungi Betty Gafabusa who deposed under paragraph 5 that the allegations of the Applicant were misconceived, far-fetched, remote and grounded on fiction and sheer imagination which could not amount to any imminent danger to the estate of the late Sezi Rwampunu.

The Administrator General further deposed under paragraph 9 of her affidavit in reply that the instant application was a speculative gamble and its grant would be inconsistent with the statutory mandate of the office of Administrator General.

[13] It would therefore follow that such an application to have this court order the 2nd Respondent to appoint particular beneficiaries as favorable for grant of a certificate of No Objection over other beneficiaries including widows is a contentious matter requiring a full hearing and calling of witnesses to be examined and cross-examined which is not possible in such an application.

A similar stance exists in relation to the second question of calling on the 1st Respondent to account to this court all revenue collected from the estate since assumption of administration of the estate of the late Sezi Rwampunu.

Evidence would be required of the Applicant to first of all show this court when the 1st Respondent started the acts of intermeddling and what exact properties of the estate he intermeddled with before he could make a proper account.

In the upshot, for the above reasons, the Originating Summons will not issue as prayed for by the Applicant. The Applicant is advised to pursue an option of a formal suit.

This application is dismissed without orders as to costs.

I so order.

Dated, delivered and signed at Mbarara this 12th day of July 2024.

## Joyce Kavuma Judge