Were and 3 Others v Were Immaculate (Civil Suit 6 of 2022) [2024] UGHC 444 (12 April 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT TOROROSUIT NO. 0006 OF 2022**

- 1. **PATRICIA WERE** - 2. **DOUGLAS WERE** - 3. **MICHAEL WERE** - 4. **MATHEW WERE :::::::::::::::::::::::::::::::::::::::::::::PLAINTIFFS**

### **VERSUS**

## **WERE IMMACULATE::::::::::::::::::::::::::::::::::::::::DEFENDANTS JUDGMENT**

## **BEFORE: HON DR. JUSTICE HENRY 1. KAWESA**

The Plaintiffs brought this suit challenging acquisition of letters of administration of the estate of the late Were Patrick Wedakule, and alleging trespass to land, by the Defendant. They allege that the Defendant acquired the said letters of administration fraudulently by claiming to a wife of the late Were Patrick Wedakule, the Plaintiffs' father; and did so well knowing that the Plaintiffs were also in the process of acquiring the same. Further, that the Defendant omitted stating some of the deceased's children in her petition, say; Lydia Were, Douglas Were, and Mathew Were.

Furthermore, that the Defendant illegally shifted to premises (hereinafter the suit property) where the late Were Patrick Wedakule was living and had lived with the Plaintiffs' biological mother for 27 years immediately before his demise hence committing trespass to land.

The Defendant filed a written statement of defence wherein she denied all the Plaintiffs' allegations hence putting them in issue. She alleged that she is a widow of the late having been married to him on the 11th of August, 1976 before the District Commissioner of Bukedi District at Tororo and had 6 issues together with him, although one died. That at the time of obtaining letters of administration, she named the children she knew off head and embarked on establishing all beneficiaries, among others, thereafter. That she was called at the office of the Chief Administration of Busia for a meeting scheduled on the 18th of March, 2022, to arrange the opening of her matrimonial bedroom, on the suit property, from which the late died and had been maintained as a crime scene by Police. That she wished all children to be around but some were unable hence the postponement of the meeting. That she lived with the late as husband and wife save for her public service career which involved several transfer from place to place. That she was staying with the deceased in Kampala in a rented house and the late was on about a monthly routine spending night overs and she would also join him on a quarterly basis at her matrimonial home at Mululumbi village.

The Defendant also counterclaimed against a one Damalie Kiwanuka, the Plaintiffs' biological mother. However, there is no proof on the record that the counterclaim was served upon the counter-Defendant. Accordingly, the counterclaim is dismissed under **O.5 R. I(3) of the Civil Procedure Rules s.1 71-1**.

The Plaintiffs filed a reply to the written statement of defence wherein they maintained that the Defendant has never been married to the late and that the alleged marriage is a forgery. That the late has never lived with the deceased for 27 years otherwise she would have known all his children he lived with on the alleged matrimonial home. Further, that the meeting at the CAOs office was initiated by the Defendant and for the purpose of beginning the process of applying for letters of administration and not opening the late's bedroom; and that the suit property is not the Defendant's matrimonial home.

A scheduling conference was held and the parties raised four issues for determination, that is;

- l. Whether the Defendant legally acquired Letters of Administration to the estate of the late Were Patrick Wedakule? - 2. Whether the Defendant was married to the late Were Patrick Wedakule? - 3. Whether there exists a just cause for the revocation of the grant of Letters of Administration of the estate of the late Were Patrick Wedakule to the Defendant? - 4. What remedies are available to the parties?

#### Representation

The Plaintiffs are represented by M/S ASB Advocates; and the Defendant is represented by MBS Advocates. Counsel for the parties filed written submissions which the Court shall consider in resolving the issues above,

Counsel for the Plaintiff raised a preliminary point of law to the effect that the Defendant admitted liability and therefore a judgment on admission ought to be issued. Counsel relied on 0.13 R.6 of the Civil Procedure Rules S.1 71-1.

Counsel for the Plaintiffs relies on a piece of evidence by DWI to indulge Court into passing a judgment on admission to the effect that she omitted mentioning some children of the late in her petition for letters of administration. Counsel submitted that the said admission constituted a just cause for revocation of letters of administration under **Section 234(2)(c) of the Succession Act Cap. 162**. Counsel further supported the submission with the case of John Peter Nazareth vs Barclays Bank International Ltd EACA 39 of 1976 where it was held that for a judgment to be entered on admission, such an admission must be explicit and not open to doubt.

In reply, Counsel for the Defendant agreed with the authorities cited by the Plaintiffs' Counsel and argued, in brief, argued that the alleged admission is not clear and specific since the Defendant added that she only included children she knew off head. The case cited by Counsel for the Defendant include *Board of Governors Nebbi Town SSS vs. Jaker Food Stores Ltd HCMA No.0062 of 2016* where it was held the alleged admission is not clear and specific, it may not be appropriate to take recourse to the provisions of **Order 13 Rule 6 of the Civil Procedure Rules**.

This Court addressed itself to the evidence concerning the alleged admission and the provisions of **Section 234(2)(c) of the Succession Act Cap. 162**. Upon that, it doubted that the said evidence constituted a clear admission which entitles the Plaintiffs to a judgment. In its considered view, the matter shall be reserved for settlement while resolving issue three.

#### **Resolution of the Issues**

The Court finds it necessary to first resolves issue two, then issue one, three and four. This is because the resolution of issue two might affect the rest of issues.

#### **Issue No.2**:

#### Whether the Defendant was married to the late Were Patrick Wedakule?

The Plaintiffs' Counsel argued that the Defendant did not prove the alleged marriage between herself and the late; and that the alleged certified marriage certificate by Uganda Registration Services Bureau which was adduced as DEXH6 was a forgery. Counsel relied on DEXH7, which is a search letter from Uganda Registrations Service Bureau dated 29th of March, 2022 denying the certification of DEXH6 and concluding that it is a forgery.

Counsel for the Defendant however submitted that DEXH7 was not properly exhibited since neither its author nor recipient (K & K Advocates) Were called 10 exhibit it.

**Section 66 of the Evidence Act Cap.6** requires that where a document is alleged to be signed (or to have been written) by any person, the signature (or handwriting) must be proved to be in his or her handwriting.

The signature on DEXI-17 was not proved. It should have been proved by either calling the signatory to DEXH7 or the recipient so as to establish its authenticity. Since none of them was called as a witness, the Court is constrained to agree with Counsel for the Defendant and hereby rejects DEXH7. The Court, therefore, finds that the evidence of the alleged forgery is lacking.

Further, the Plaintiffs Counsel argued that the Defendant did not adduce evidence of her marriage; and that she failed to exhibit the original copy of the alleged marriage certificate as ordered by Court. However, as noted by the Defendant's Counsel, the Defendant supplied Court with the original marriage certificate. Unfortunately, neither was the said certificate nor its copy were exhibited.

Nevertheless, DWI testified that she was married to the late on the 11th of August, 1976. DW2 corroborated DWI 's evidence by stating that he is an uncle to Defendant and a brother to her father. That in June 1976, his brother informed him of his expectation of visitors who happened to be the late and company. That the late expressed to him an interest in marrying the Defendant and informed him also that he was going to see the District Commissioner to legalise their relationship. That a marriage indeed happened. During cross examination, DW2 testified that he witnessed the marriage and that they even ate (on that day).

It suffices to note that DW2's testimony in chief was never challenged at all during cross examination. According to the *Supreme Court* in *U. R. A vs. Stephen Mabosi*

#### *S. C. C. A. No.26 of 1995*:

*'Where evidence in chief by a party to proceedings is not challenged by the opposite party on a material or essential point either through cross-examination, or put in issue by the opposite party who had opportunity to do so, it leads to the inference that the evidence is accepted and it is always open to the Court seized with the matter to act upon such evidence before it'*.

Accordingly, the Court infers that the Plaintiffs accepted DW2 's evidence and it shall act upon his evidence,

It is noted also that DWI testified that PW3 was a witness to her marriage to the late. In his evidence in chief, PW3 denied DWI 's evidence by stating that the marriage he witnessed on the date, month and year asserted by the Defendant was between the late and a one Josephine Matama—not the Defendant.

However, as the Defendant's Counsel noted, during his cross examination and when Defendant unmasked her face and PW3 looked upon her, he stated that the Defendant was the one whom he witnessed getting married to the late; that she got married to the late in the 1970s and, that she is the late's wife with whom they begot children. This is a very grave inconsistence and contradiction by PW3 for which no explanation was given. In the Court's opinion, PW3 was not truthful at all.

The Plaintiffs' Counsel argued that PW3 's evidence was not contested, but the Court respectfully doubts this submission in light of the highlighted contradiction and inconsistence.

It is a settled principle of law that grave inconsistencies or contradictions unless satisfactorily explained, will usually but not necessarily result in the evidence of a witness being rejected (*See Twinomugisha Alex and 2 Others vs. Uganda, S. C. Criminal Appeal No. 35 of 2002 and Uganda vs. Abdallah Nassur 119821 HCB)*. In this case, the Court rejects PW3 's evidence for the reasons above.

Having compared the evidence of the Plaintiffs and the Defendant, in light of the above observations, the Court finds it more probable than not that the Defendant was married to the late or conducted a civil marriage. Accordingly, the second issue is found in the affirmative.

#### **Issue No. 1**:

Whether the Defendant legally acquired Letters of Administration to the estate of the late Were Patrick Wedakule?

The first Plaintiffs' complaint, as far as the issue is concerned, is that the Defendant presented herself as a widow to the late when acquiring letters of administration. This view is deduced from the Plaintiffs' evidence and their Counsel's submission. However, having found that the Defendant was married to the late, the Court respectfully finds that this complaint is misplaced. The Defendant can legally be treated as the late's widow as far as the evidence is concerned. Secondly, the Plaintiffs complain that the Defendant based on a forged certified copy of a purported marriage certificate when acquiring letters of administration. Nevertheless, this Court already found the evidence of the alleged forgery lacking. It is therefore unable to affirm to the Plaintiffs' assertion as regards the same.

Furthermore, the Plaintiffs' evidence, given through PW 1 and PW2, was that the Defendant was not living with the late at the suit property for approximately 27 years. Their Counsel relied on **Section 30(1) of the Succession (Amendment) Act, 2022**, which provides that a spouse shall not take any interest in the estate of the intestate if at the of the intestate's death he or she separated from the intestate as a member of the same household. The Plaintiffs' Counsel argued that if the Court is inclined to find that the Defendant was married to the late, then it should find that she was separated from the deceased which implies that she acquired the grant illegally.

The evidence shows Defendant was probably not living with the late at the time of his death as a member of the same household. Her evidence that the late was on about a monthly routine spending nights over and that she would also join him on a quarterly basis at the suit property is highly doubtable; having admitted in paragraph 13, 14 and 15 of her witness statement that the late was having an extramarital relationship with a one Damalie Kiwanuka; and that when the late and Damalie Kiwanuka shifted from Equator Inn, following its foreclosure in 1995, the duo hijacked the guest wing of her matrimonial home where they stayed up to 2019 when the two separated.

DWI, reasonably speaking, could not be expected to remain in the same household with the late in the presence of a one Damalie Kiwanuka with whom he was having an extra-marital affair. Therefore, she should not be faulted for having long separated With the late as a member of the same household. She probably had no choice.

Under **Section 30(2) of the Succession (Amendment) Act, 2022**, it is provided that the provisions of **Section 30(1)** of the same Act do not apply where the intestate is the one who caused the separation. In this case, the Court finds that the separation was probably caused by the late. Consequently, it respectfully disagrees with the Plaintiffs' Counsel that **Section 30(1) of the Act** applies to the Defendant.

In the circumstances, therefore, the Court finds no illegality in the Defendant's acquisition of letters of administration of the estate of the late Were Patrick Wedakule. Accordingly, the first issue is found in the affirmative as well.

## **Issue No. 3**:

Whether there exists a just causel for the revocation of the grant of Letters of Administration of the estate of the late Were Patrick Wedakule to the Defendant?

The just causes for the revocation of Letters Of Administration from the Defendant, according to Counsel for the Plaintiffs are:

- 1. Omitted three children of the late from the petition yet she knew them; - 2. That she was never married to the late and failed to produce the original marriage certificate; - 3. That she procured the grant of Letters of Administration by use of a forged certified marriage certificate; and - 4. That she separated from the late and had separated at the time of his death for approximately twenty-seven (27) years.

The Court has already expressed itself on 2, 3, and 4 above. Thus, it will only entertain the alleged just cause under 1.

Counsel for the Plaintiffs argued that the Defendant obtained the grant by concealing from Court something material to the case contrary to **Section 234(2)(b) of the Succession Act Cap. 162 as amended.**

**According to Section 234(1) Of the Succession Act Cap. 162, the grant of letters of administration may be revoked for a just cause. Under Subsection (2) of the section**, a just cause means:

(a) that the proceedings to obtain the grant were defective in substance;

(b) that the grant was obtained fraudulently by making 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) person to whom the grant was made has willfully and without reasonable cause omitted to exhibit an inventory or account in accordance with Part XXX/V of this Act, or has exhibited under that Part an inventory or account which is untrue in a material respect.

There is no complaint or evidence with regard to (a), (d), and (e) above.

As regards the provisions under **Section 234(2)(b)**, as referred to by the Plaintiffs' Counsel, there is no evidence of fraud by the Defendant, or that the Defendant deliberated omitted the said three children or that she had full knowledge of their existence.

DWI testified that she stated children she knew of at the time of applying for the letters of administration. Therefore, she probably did not know of all the children. In fact, the Plaintiffs' themselves are ignorant of all late's children; PW 1 having admitted, during cross examination, of omitting a one Were Neil Joseph in a list of the late's children in paragraph 1.2 of her witness statement unlike the Defendant who listed him in her petition for letters of administration, PEXHH. It would be contradictory to believe the Plaintiffs' ignorance of all the late's children but disbelieve the Defendant, especially in the absence of evidence. Accordingly, the Court respectfully disagrees with the Plaintiffs' Counsel that the Defendant omitted to state children she knew in her petition. This implies that the provisions of just cause under **Section 234(2)(b) of the Succession Act Cap. 162** are inapplicable.

The Court now turns to the provisions of **Section 234(2)(c) of the Succession Act Cap. 162**. It is its observation that the said provisions are strict. According to them, t is immaterial that the untrue allegation of fact essential in point of law to justify he grant was made ignorantly (or inadvertently). In this case, it is obvious Defendant omission to state all the late's children in her petition for letters of administration constitutes an untrue allegation of fact.

However, it is not essential in point of law to negate a revocation of a grant, since under **Section 201A of the Succession (Amendment) Act, 2022**, as cited by the Defendant's Counsel, a surviving spouse has preference over any other person on the administration of the estate of the deceased. For that cause, letters of administration would nevertheless be granted and preferably to the Defendant regardless of whether ignorantly or inadvertently omitted some of the late's children in her petition. This finding settles the concern of the alleged admission, that isthe Defendant's admission of ignorantly omitting some of the late's children did not constitute an admission which entitled the Plaintiffs to a judgment on admission.

In conclusion, the Court is unable to find any just cause for revocation of the grant of letters of administration in issue. It agrees with the Defendant's Counsel that the Plaintiffs did not prove any just cause. Accordingly, this issue is found in the negative.

## **Issue No.4**:

What remedies are available to the parties?

The Plaintiffs sought for an order revoking the grant of letters of administration held by the Defendant, a permanent injunction, and general damages.

However, considering the findings above, the Court is unable to grant any of the reliefs sought This issue is found in the negative as well.

Finally, the Plaintiffs' claim having failed, the suit is hereby dismissed.

Counsel for the Defendant argued that the dismissal should attract costs, since the Defendant has continuously incurred costs in pursuit of justice. Mindful of the provisions of **Section 27(2) of the Civil Procedure Act Cap. 71** that costs follow

the event unless otherwise ordered by Court, the Court grants the Defendant the costs of the suit.

It is so ordered.

Delivered at Tororo this Day of 2024

In the presence of: tJj

Sgd: Edimu Hellen **AG. ASST. REGISTRAR** 12/04/2024