Wilberforce John v Sezi Wako and 2 Others (Civil Appeal 1 of 98) [1998] UGCA 54 (24 September 1998)

Hon. Justice A. E. Mpagi-Baligeine J. A

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CORAM: THE HON. MR. JUSTICE C. M. KATO, JA. THE HON. MR. JUSTICE G. M. OKELLO, JA. THE HON. LADY JUSTICE MPAGI-BAHIGEINE, JA.

#### CIVIL APPEAL 1/98

WILBERFORCE JOHN ::::::::::::::::::::::::::: APPELLANT

#### - VERSUS -

SEZI WAKO :::::::::::::::::::::::::::::::: 1ST RESPONDENT WILLIAM KAIJA ::::::::::::::::::::::::::: 2ND RESPONDENT SUSAN TIBANANUKA :::::::::::::::::::::::: 3RD RESPONDENT

### JUDGMENT OF C. M. KATO, J. A.

This is an appeal against the ruling of the High Court dated $21/11/97$ . The appellant was the defendant in the court below where the respondents were the plaintiffs.

The facts giving rise to the appeal are briefly as follows. There was a lady called Aida Naume Nyabalega who died on $3/9/83$ . She left a will in which she appointed the 3 respondents in this appeal as her executors. The 3 respondents applied for probate on $4/7/96$ under probate/Administration Cause No. DR. MFP 24 of 1996. The appellant then lodged a caveat stopping them from being granted the probate. On the 31st day of August, 1996 the respondents filed Civil Suit No. DR. MFP 10 of 1996 to have the caveat removed so that probate could be granted to them. When this suit came up for

$\mathbf{1}$

hearing learned counsel for the appellant raised a preliminary objection. The substance of his objection was that the suit by the plaintiffs was time barred under S.21 of the Limitation Act, because they had brought the matter in court 13 years after the death of the deceased. Learned counsel for the respondents opposed the preliminary objection. His ground being that the section relied upon by counsel for the appellant did not apply to the respondents since they were only petitioning for probate. Section 21 applies to those people who are claiming shares or interest in the estate of the deceased. The learned trial Judge agreed with the respondents' counsel and dismissed the preliminary objection, hence this appeal.

There are 3 grounds of appeal, viz:

- That the learned trial Judge erred in law and $"1.$ in fact in that he erroneously interpreted section 21 of the Limitation Act Cap.70 when he found and, or ruled that it does not apply to the Respondent/Plaintiffs.(sic) - That the learned trial Judge erred in law and $2.$ in fact when he failed to consider, assess evaluate and weigh the glaring evidence on record in favour of the Appellant/Defendant $($ sto $)$ and he therefore wrongly ruled that the Respondent/Plaintiffs $\wedge$ did not claim any beneficial interest and or share in the Deceased's estate.

$\overline{2}$

That the learned trial Judge erred in law by з. dismissing the preliminary objections thereby holding that the suit is maintainable."

$\mathbf{I}$

When the appeal came up for hearing, Mr. Kituma-Magala the learned counsel for the appellant abandoned the second and third grounds restricting himself to the first ground. While arguing this ground, Mr. Kituma submitted that the learned trial Judge was wrong in holding that the provisions of section 21 of the Limitation Act was not applicable to cases where executors or administrators are applying for probate or letters of administration. He relied on: Registered Trustees of Kampala Institute vs Departed Asian Properties Custodian Board, Civil Appeal No.81/93 (Supreme Court) (unreported): Samuel W. Muyonga vs. Mutanje, Civil Appeal No.29/96 (Court of Appeal). (unreported).

On his part, Mr. Paulo Mugamba learned counsel for the respondents argued that the learned trial Judge was correct in his finding. According to him section 21 is applicable only to those who claim shares or interest in the estate of the deceased.

Section 21 of the Limitation Act which is the bone of contention in this case reads as follows:

> Subject to the provisions of subsection (1) of $"21.$ section 20 of this Act, no action in respect of any claim to the personal estate of a deceased person or to any share or interest in such estate, whether under a will or on intestacy, shall be brought after the expiration of twelve years from the date when the right to receive the share or interest accrued, no action to recover arrears of interest in respect of any legacy, or damages in respect of such and

> > 3

shall be brought after the expiration of arrears, six years from the date on which the interest became due.'

Looking at the contents of this provision of the law $\quad \texttt{it} \quad$ cannot be said with any justification that this section applies to those people applying for probate or letters of administration. In his ruling the learned trial Judge dealt with the matter in the following way:

> "In my humble judgment and with all due respect to Mr. Kituma-Magala what the section is saying is that one cannot claim a share or interest in the estate of the deceased person after the expiration of 12 years after the claim, interest or share has become $due...$

> ...... Applying for probate is not an assertion for a claim over property. It is not an assertion to interest in the estate. All they were a share or doing was to get probate as to be able to administer the estate for those interested in it $(sic)$ . Section 21 of the Act does not say that an executor cannot apply for probate after the expiration of 12 years."

I entirely agree with the learned trial Judge as that is the correct position of the law on this matter. The learned trial Judge correctly applied the law in this.connection. The $\overline{2}$ cases cited by the learned counsel for the appellant are not relevant to the facts of this case.

$\overline{4}$

In the result, I find no merit in this appeal. It is $\frac{1}{2}$ accordingly dismissed with costs to the respondents in this court and the court below.

Dated at Kampala this . 2.4. ... day of ...................................

C. M. KATO<br>JUSTICE OF APPEAL

### THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA

## **HOLDEN AT KAMPALA**

**CORAM:**

THE HON. MR. JUSTICE C. M. KATO, J. A.; THE HON. MR. JUSTICE G. M. OKELLO, J. A.; AND THE HON. LADY JUSTICE MPAGI-BAHIGEINE, J. A.

# CIVIL APPEAL NO. 1 OF 1998

#### BETWEEN

WILBERFORCE JOHN:::::::::::::::::::::::::::::::::APPELLANT

### AND

SEZI WAKO:::::::::::::::::::::::::::::::::::: WILLIAM KAIJA::::::::::::::::::::::::::::::::::: SUSAN TIBANANUKA:::::::::::::::::::::::::::::::::

> [Appeal from the Ruling and Orders of the High Court (Katutsi J.) at Fort Portal dated 28th November, 1997 in HCCS No. DRFP 10/96.]

# JUDGMENT OF OKELLO, J. A.

I agree with the judgment of C. M. Kato, J. A. and have nothing to add.

Dated at Kampala this ... Z. Ho..............................

$\ddot{\phantom{a}}$

OKELLO USTICE OF APPEAL.

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

THE HON. MR. JUSTICE C. M. KATO, JA. CORAM: THE HON. MR. JUSTICE G. M. OKELLO, JA. THE HON. LADY JUSTICE A. E. MPAGI-BAHIGEINE, JA.

#### CIVIL APPEAL 1/98

WILBERFORCE JOHN ......... $\ldots$ APPLICANT

#### **VERSUS**

SEZI WAKO .................................... WILLIAM KAIJA .......... ...................................... SUSAN **TIBANANUKA** ....................................

> (Appeal from the Ruling and Orders of the $% \mathcal{L}_{\mathcal{A}}$ High Court (Katutsi, J.) at Fort Portal dated<br>28th November, 1997 - HCCS No. DR MFP 10/96)

JUDGMENT OF A. E. MPAGI BAHIGEINE, J. A.

$\mathbf{1}$

I agree with the judgment of Kato, J. A. and I do not wish to add anything.

Dated at Kampala this $24$ th day of $24$ . plen to 1998

A. E. Mpagi-Bahigeine JUSTICE OF APPEAL

$\mathbf{R}$