Wamulima v Wamale (Civil Suit 3 of 2022) [2025] UGHC 269 (12 May 2025)

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBALE CIVIL SUIT NO. 03 OF 2022

ARISING FROM ADMINISTRATION CAUSE NO. 0012 OF 2021 <table>

WAMULIMA TOM:::::::::::::::::::::::::::::::::::: [Suing as a beneficiary to the estate of the late Masaaba George Wills] **VERSUS**

ROSE MASABA WAMALE ::::::::::::::::::::::::::::::::::::

## **BEFORE: HON. JUSTICE LUBEGA FAROUQ** JUDGMENT

#### 1. Introduction

2. This is a family dispute about the administration and distribution of property of an intestate estate person. In this case, the first born and son of the deceased seeks revocation of letters of administration granted to her step mother citing that; the Defendant was not lawfully married to the deceased, and that she has failed to distribute the estate to all the beneficiaries, and to file an inventory of how she has managed the deceased's estate. The Plaintiff also seeks general damages, interest and costs of the suit.

#### 3. Background

- 4. The Plaintiff case is that he is a son and a beneficiary to the estate of the late Masaba George Wills formerly a resident of Bungwanyi village in Mbale district who died intestate in 2021. That the deceased left a number of properties including, land situate at Bungwanyi Village Bwikhonye Parish, Busano Sub-County in Mbale district and retirement benefits from NSSF among other properties. The deceased was also survived with nine children, with the Plaintiff being his first born. - 5. Upon the death of the late Masaba George Wills in 2021, the Defendant applied for letters of administration, and the same was granted to her on the 19<sup>th</sup> day of April, 2021 vide Administration Cause No. 012 of 2021.

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6. That from the time the Defendant obtained the letters of administration from court to administer the estate of the late Masaba George Wills, she has mismanaged the said estate, failed to distribute the same to all the beneficiaries and has not filed an inventory in court showing how she has managed the estate. The Plaintiff also alleges that the Defendant fraudulently obtained the letters of administration in respect to the estate of the late Masaba George Wills since the Defendant was not legally married to the deceased.

#### 7. Representation

8. The Plaintiff was represented by M/S STABIT Advocates while the Defendants were represented by $M/s$ Spencer Associated Advocates.

#### 9. Issues for determination of court

- 10. Five issues were proposed by the parties in their joint scheduling memorandum filed in court. I will adopt the same in determining this case. The issues are as follows - a) Whether the Defendant committed fraud at the time of obtaining letters Administration for the Estate of the late Masaba George Wills? - b) Whether the Defendant filed an inventory within six (6) months from the date of grant of letters of Administration? - c) Whether the Defendant as Administrator distributed the estate *property amongst the surviving beneficiaries?* - *d) Whether the land situate at Kakindu with developments thereon* forms part and parcel of the Estate of the late Masaba George Wills? - *e) What remedies are available to the parties?*

#### 11. Burden of proof

12. The burden of proof as to any particular fact lies on that party who alleges the existence of such fact. (See: Section 101 of the Evidence Act, Cap. 8)

### 13. Standard of proof

- 14. According to Section 103 of the Evidence Act, Cap. 8 the standard required for proof in civil cases is on a balance of probabilities. (See: Miller V Minister of Pensions [1947] 2 Allery 372 and Katumba V Kenya Airways, Civil Appeal 9 of 2008 (SCU)) - 15. Analysis of court - 16. Issue one: Whether the Defendant committed fraud at the time of obtaining letters Administration for the Estate of the late Masaba George Wills? - 17. The Plaintiff submitted that the Defendant acted fraudulently in acquiring the letters of Administration in respect of the estate of the late Masaba George Wills. It was urged that the Plaintiff concealed important information at the time of applying for letters of administration by leaving out some properties that comprise of the estate of the late Masaba George Wills. - 18. The plaintiff states that among the properties that were concealed by the Defendant include the existence of a telecommunication mast on the land situate at Bungwanyi Village, Bwikhonye Parish, Busano Sub-County in Mbale district which generates an annual income of Ug. Shs $3,392,000/$ = (Uganda Shillings three million three hundred ninety-two thousand). - 19. Also, the Plaintiff urges that the Defendant deliberately concealed to indicate the actual size of the estate land which is 3.596 acres, part of which is covered by eucalyptus trees. - 20. Secondly, the Plaintiff points out that the Defendant was not legally married to the late Masaba George Wills. He argues that the Defendant's representations made to court at the time of applying for the letters of administration to administer the deceased's estate about her marriage status with the deceased was fallacious. The Plaintiff relied on the evidence of PW1-Wakalamu Paul who testified that he is a biological brother of the late Masaba George Wills. This witness stated that the Defendant only

cohabited with the late Masaba George Wills, but there was no formal arrangement of marriage between the two.

- 21. The Plaintiff summed up by characterizing the above conduct of the Defendant as being dishonest, and false representations which led the court to issue a grant to her to administer the estate of the late Masaba George Wills. Counsel for the Plaintiff invited court to rely on the decision of the Supreme Court in the case of Fredrick J. K Zaabwe V. Orient Bank ltd & 5 others, SCCA No. 054 of 2006 - 22. On the other hand, the Defendant who testified as DW1, stated that she honestly disclosed all the properties which were known to her as belonging to the estate of the late Masaba George Wills at the time she applied for the letters of administration. DW1, DW2- Muleyi Nathan Walimbwa and DW3-Mukale Emmanuel, the clan leader of Bufwoto clan informed court that the Defendant was customarily married to the late Masaba George Wills hence there was no fraud committed during and after the application of letters of administration of the estate of the late Masaba George Wills. - 23. Section 230 (1) of the Succession Act, Cap. 268 provides that-

"The grant of probate or letters of administration may be revoked or annulled for just cause."

24. Among the conditions constituting a just cause expounded under Section 230 (2) (b) of the Succession Act, Cap. 268 is where a grant was obtained fraudulently. It thus provides that-

> "....... where the grant was obtained fraudulently by making a false suggestion, or by concealing from the court something material to the case"

25. I have reviewed the petition filed by the Defendant when she was applying for the letters of administration to manage the estate of the late Masaba George Wills. In the said petition, under paragraph 6, the Defendant (then Petitioner) stated that the late Masaba George Wills left properties, to wit; land at Bungwanyi Bwikhonye Parish, Busano Sub-County, Bungokho Central, in Mbale district and benefits from UTL company.

# 26. Section 242 (e) of the Succession Act, Cap. 268 provides that-

"An application for letters of administration shall state the amount of assets which are likely to come to the petitioner's hands."

- 27. In my view, the spirit of the above provision in the Succession Act is to ensure that a party applying for letters of administration makes an effort to fully disclose all the known assets of the deceased at the time of applying This is aimed at streamlining the for the letters of administration. management of the estate of the deceased without having to issue different grants on the same estate. It therefore, follows that deliberate concealment of the property of the deceased by the applicant may form a just cause for revocation of letters of administration. - 28. The plaintiff testified that the deceased concealed properties of the deceased including the existence of a telecommunication mast on the land situate at Bungwanyi Village, Bwikhonye Parish, Busano Sub- County in Mbale district which generates an annual income of Ug. Shs $3,392,000/$ = (Uganda Shillings three million three hundred ninety-two thousand), and equitable interest over the land situate at Kakindu, Kawuku in Entebbe. - 29. However, I note that in cross examination the Plaintiff who testified as PW2 informed court that he did not grow up with the deceased, and that he does not know how many properties the deceased left behind. - 30. The Plaintiff's admission that he does not know how many properties the deceased left behind defeats his own allegations about the properties which he says that were concealed by the Defendant at the time of applying for letters of administration to the estate of the late Masaba George Wills. - 31. The Defendant informed court that the late Masaba George Wills left one piece of land situate at Bungwanyi Village, Bwikhonye Parish, Busano Sub-County in Mbale district, and that it is part of that very land where a telecommunication mast was constructed. - 32. I hold the view that it is prudent practice for the applicant of the letters of administration to indicate the size of the land forming the estate of the deceased, but I find it implausible to conclude that an omission to indicate

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the size of the land is an act of fraud as was submitted by counsel for the Plaintiff.

- 33. The other property which the plaintiff alleges was concealed by the Defendant is the land/kibanja situate at Kakindu, Kawuku in Entebbe in which the deceased allegedly held an equitable interest. PW3- Zacharia Buyera testified that he was a friend of late Masaba George Wills. That the deceased once told him that he had acquired a kibanja in Entebbe. He took him around and inspected the said kibanja together. That later, the deceased got financial problems and sold part of his said kibanja, and remained with a certain portion. - 34. The Defendant refuted the said allegations of the deceased owning a kibanja in Entebbe. She testified that the kibanja in Entebbe is her own, and thus distinct from the estate of late Masaba George Wills. She tendered in court the purchase agreement DEX4 to prove her ownership of the said land/kibanja. - 35. On consideration of the evidence above, I have not found any satisfactory information with positive affirmation of the Plaintiff's allegations that the Defendant left out or concealed some properties when she was applying for letters of administration to administer the estate of late Masaba George Wills. - 36. Further, the Plaintiff condemns the Defendant for misinforming court that she was legally married to Masaba George Wills whereas not. The Plaintiff's counsel submitted that, it was because of such misinformation that court issued a grant of letters of administration in respect of the deceased's estate to the Defendant believing her to be the widow of the deceased. PW1 testified that he is a biological brother of the late Masaba George Wills. He stated that the Defendant only cohabited with the late Masaba George Wills, but there was no formal arrangement of marriage between the two. - 37. In the petition which was filed by the Defendant while applying for letters of administration which was admitted in evidence as PEX2. The Defendant averred therein under paragraph 2 that she was the widow of the late

Masaba George Wills. She stated that her marriage with the deceased was one of a customary nature. She also led evidence of DW2 and DW3 who informed court that the Defendant was customarily married to the late Masaba George Wills. Accordingly, it was submitted for the Defendant that there was no fraud committed during and after the application of letters of administration of the estate of the late Masaba George Wills.

38. It is settled law that if a customary marriage was not registered, it can be proved through evidence of long term cohabitation where the parties lived together as husband and wife, or through testimonies of witnesses who attended the customary marriage ceremony or have knowledge of the existence of such marriage. In the case of Mifumi (U) Ltd & Anor V. Attorney General & Anor (Constitution Appeal No. 2 of 2014) [2015] **UGSC** 13, the supreme court guided that-

> "It is not a mandatory requirement of the law to formally prove existence of a customary marriage. It is a marriage based on customs widely practiced and acknowledged by a given community. Therefore, courts can take judicial notice of it."

- 39. In that view, I do not find the information presented by the Defendant at the time of applying for letters of administration about her marital status with the deceased misleading. The evidence presented by the Defendant is sufficient to prove that the Defendant and the deceased were customarily married. - 40. I would therefore, resolve issue one in the negative. - 41. **Issue two:** Whether the Defendant filed an inventory within six (6) months from the date of grant of letters of Administration? - 42. The Plaintiff's case on this issue was that the Defendant in violation of section 278 (1) of the Succession Act, failed to file an inventory within a period of six months to show how she has managed the estate of the late the late Masaba George Wills. - 43. The plaintiff's testimony was that the Defendant was granted letters of administration in respect of the estate of the late Masaba George Wills on

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$\mathcal{L} = \mathcal{L}$ the 19<sup>th</sup> day of April, 2021, but she never filed the inventory within the required period of six months from the date of grant of the said letters of administration.

44. In reply, the Defendant testified that, it is true that she was granted letters of administration to administer her husband's estate (the late Masaba George Wills) on the 19<sup>th</sup> day of April, 2021, but she was interrupted by the lockdown due to COVID 19, but she was later able to file an inventory on the 17<sup>th</sup> of January, 2022. The copy of the inventory was exhibited in court and admitted in evidence as DEX2.

45. Section 273 (1) of the Succession Act, Cap. 268 provides that-

"An executor or administrator shall, within six months from the grant of probate or letters of administration, or within such further time as the court which granted the probate or letters may from time to time appoint, exhibit in that court an inventory containing a full and true of all the property in possession, and all the estimate credits,....................................

- 46. However, where the administrator deliberately omits to file an inventory, he or she commits a criminal offence under the Penal Code Act. Section - 273 (4) of the Succession Act, Cap. 268 is to the effect that-

"If an executor or administrator, on being required by the court to exhibit an inventory or account under this section, intentionally omits to comply with the requisition, he or she shall be deemed to have committed an offence under section 104 of the Penal Code Act."

47. In the present case, it's not disputed that the Defendant did not file the inventory within the six months as required under the law, but she gave an explanation why she was not able to file the inventory within time as I have indicated above. I have carefully comprehended Section 273 (1) of the Succession Act, which requires an administrator to file the inventory within six months from the date of grant of the letters of administration. I note that the said provision of law is silent about the effect of not filing the inventory within time. Literally, the administrator will only be liable for a criminal offence under section 104 of the Penal Code Act, if he or she deliberately fails to file an inventory.

- 48. I am aware that courts in our jurisdiction have interpreted failure to file an inventory as a just cause which has an effect of revoking the letters of administration. In my view, this interpretation is viable in circumstances of deliberate failure, but not like the present case, where a factual explanation has been offered to clarify the lapse. - 49. Following my analysis on this issue, I am unable to fault the Defendant for not filing the inventory within the six months from the date when the grant was issued to her. - 50. I would also hold this issue in the negative. - 51. Issue three: Whether the Defendant as the Administrator distributed the *estate property amongst the surviving beneficiaries?* - 52. It is not disputed that the late Masaba George Wills died intestate, and was survived with nine (9) children, three of whom were minors undertaking studies. Section 23(1) (a) (iii) of the Succession Act, Cap. 268 provides inter alia that-

".......the lineal descendants shall receive seventy five percent......."

53. The law also requires that the lineal descendants must share their proportion on the deceased's intestate property equally. Section 24 (1) of the Succession Act (supra) provides that-

> "All the lineal descendants, spouses and dependent relatives of an intestate estate shall share their proportion on the deceased's intestate property referred to in section 23 (1), in equal share."

54. In the present case, the Plaintiff informed court that the Defendant as an administrator of the estate of late Masaba George Wills has never taken an initiative to distribute the estate to all the beneficiaries. In particular, the Plaintiff testified that he has never received his share as beneficiary to the estate of the late Masaba George Wills.

55. The Defendant rebutted the Plaintiff's allegations and stated that the deceased left only one property, that is; land measuring approximately 3 acres situate at Bungwanyi Bwikhonye Parish, Busano Sub-County, Bungokho Central in Mbale district. DW1 also informed court that on this said land is where the deceased had his residential home, and part of it comprises of the family burial grounds.

that the time of the property

56. The position of the law is that in the distribution of an intestate estate, the residential home of the deceased vests on the legal representative of the deceased subject to occupation rights provided for under the law. Section 22 (1) of the Succession Act (supra) provides that-

> "The residential holding normally occupied by a person dying intestate prior to his or her death as his or her principal residence or owned by him or her as a principal residential holding, including the house chattels in the principal residential holding, shall be held by his or her personal representative upon trust for his or her spouse and lineal descendants subject to the rights of occupation and terms and conditions set out in the third Schedule to this Act."

- 57. The copy of the inventory which was filed in court by the Defendant on the $17/01/2022$ shows that the Plaintiff was given a portion of land measuring 111ft by 60.9ft/ 72 ft by 115.5ft. When court visited locus, it was observed that the Plaintiff was given land measuring approximately 94 ft/ 117 ft over 52ft by 73 ft which was allocated to him by the administrator (the Defendant). - 58. Despite the plaintiff contesting that the Defendant filed the said inventory out of time without seeking leave of court, the contents therein are not disputed. This means that the plaintiff acknowledges that he received a share from the estate of his father the late Masaba George Wills. - 59. In my view, the portion of land which was allocated to the defendant in the size described above out of about three and a half acres constituting the entire estate of the late Masaba George Wills is a fair and just share to the plaintiff given the total number of children left by the deceased.

- 60. The defendant testified that she retained a portion on the estate of the deceased to enable her facilitate the education of the minor children. It is shown in the copy of the inventory (DEX2) that the money generated from the telecommunication mast amounting to Ugx 3,018,000/= is used to pay school fees for the minor children. - 61. It should be noted that the law requires that where the deceased was survived with minor children, and with children above eighteen years but below 25 years who are undertaking studies, twenty percent of the intestate estate should not be distributed, it should be held in trust by the legal representative to cater for the category of those children. - 62. Section 23 (4) of the Succession Act, Cap. 268 is to the effect that-

"................ twenty percent of the estate shall not be distributed, but shall be held in trust for the education, maintenance and welfare of-

- a) Minor child of an intestate, and where he or she attains of eighteen years of age until he or she ceases to qualify under paragraph (b) or (c) - b) A lineal descendant of the deceased who is above eighteen years of age, but below twenty-five years of age if, at the time of the death of an intestate was undertaking studies, and was not married..." - 63. Considering, the above analysis, I find that the Defendant partly distributed the estate of the late Masaba George Wills to the beneficiaries of his estate. Specifically, court observed that the plaintiff received his share. For the remaining part which the defendant has not distributed, a viable explanation was offered that she is retaining it for the minor children. - 64. **Issue four:** Whether the land situate at Kakindu with developments thereon forms part and parcel of the Estate of the late Masaba George Wills? - 65. The plaintiff testified that the Defendant concealed the land/kibanja situate at Kakindu, Kawuku in Entebbe in which the deceased allegedly held an equitable interest. PW3- Zacharia Buyera testified that he was a friend of late Masaba George Wills. That the deceased once told him that he had acquired a kibanja in Entebbe. He took him around and inspected the said

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kibanja together. That later, the deceased got financial problems and sold part of his said kibanja/land, and remained with a certain portion.

나라는 눈, 어쩌다는데 그녀들의 비난의

66. In the case of Joseph M. Nviri V. Palma Joan Olwoc & 2 others, Civil No.926 of 1998, the court reaffirmed that-

> "Estate property refer to all property, rights and obligations that *belonged to the deceased at the time of death."*

- 67. In rebuttal, the defendant refuted the allegations that the land situate at Kakindu in Entebbe belongs to the estate of late Masaba George Will. She testified that the said land is her own having acquired it with her own money. She tendered in court the purchase agreement DEX4 to prove her ownership of the said land/ kibanja. - 68. The Defendant presented to court a purchase agreement as proof of her ownership of the land at Kakindu. The only plaintiff's evidence connecting the ownership of the said land to the estate of late Masaba George Wills was that of PW3 who testified that when the deceased was still alive, he took him around, showed him the said land and told him that he had purchased it. - 69. In the face of the purchase agreement which was executed in favour of the Defendant (DEX4), I am hesitant to believe the evidence of PW3 who was only allegedly told by the deceased that the land at Kakindu belonged to him. In that view, I hold that the land situate at Kakindu with developments thereon belongs to the Defendant, and thus it does not form part of the Estate of the late Masaba George Wills. - 70. **Issue five:** What remedies are available to the parties? - 71. The plaintiff prayed for general damages of Ugx $20,000,000/$ = (Uganda shillings twenty millions) and costs of the suit.

## 72. General damages

73. The Nigerian supreme court in the case of Hon. Nze Herbert Osuji & Anor. V. Anthony Isiocha (1989) 3 N. W. L. R. (Pt. 111) 623 at 636, paras. C-D per Uwais, J. S. C. (as he then was) explained the meaning of general damages. He thus stated that"The quantum of general damages need not be pleaded or proved; for and it is generally presumed by law. The manner, therefore, in which general damages is quantified is by relying on what would be the opinion and judgment of a reasonable person"

- 74. Therefore, in awarding general damages, the court simply is guided by the opinion and judgment of a reasonable man in determining what sum of money will be reasonably awarded in the circumstances of the case. - 75. I have found in the foregoing that the Plaintiff's case fails on all the issues. I therefore find no basis to award general damages to the plaintiff as prayed for.

76. Costs

- 77. The award of costs is in the discretion of court, and costs usually follow the event. (See: Section 27 (1) & (2) of the Civil Procedure Act Cap. 282) - 78. In the case of Francis Butagira V. Deborah Mukasa SCCA No.6 of 1989, it was held that-

"A successful party should not be deprived of costs except for good reasons. I accordingly find no reason to deny the Plaintiff *costs of this suit."*

- 79. The parties to this suit are family members. For purposes of promoting harmony and reconciliation between them, I find it prudent that each party bears its own costs. - 80. In light of the above findings, I hereby dismiss this suit.

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I so order.

## AROUO **LUBEGA** Ag. JUDGE

Judgment delivered electronically via the emails of the Advocates of the parties on *the* $12^{th}$ *of May,* 2025

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