Zziwa and 3 Others v Namusisi (Civil Suit 301 of 2021) [2023] UGHCFD 149 (21 August 2023)

#### **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT KAMPALA**

## **(FAMILY DIVISION)**

#### **CIVIL SUIT NO. 301 OF 2021**

# **(Arising out of Probate and Administration Cause No. 440 of**

## **2013)**

# **(IN THE MATTER OF THE ESTATE OF THE LATE DR. LWANGA STANLEY MAGATTO)**

#### **1. ZZIWA RONALD**

- **2. LWANGA STANLEY** - **3. NAMIRIMU BARBARA** - **4. NYOMBI BULYAKE……………....………………………. PLAINTIFFS**

#### **VERSUS**

**NAMUSISI NAKIWU LWANGA……………………………. DEFENDANTS**

# **BEFORE: HON. LADY JUSTICE CELIA NAGAWA JUDGEMENT**

# **1.0 Introduction.**

1.1 Zziwa Ronald, Lwanga Stanley, Namirimu Barbara and Nyombi Bulyake hereinafter referred to as the (Plaintiffs) instituted this suit against the Defendant Namusisi Nakiwu Lwanga in respect of the Estate of the Late Dr. Stanley Magatto seeking the following;


- **1. Letters of Administration in respect of the Estate of the Late Dr. Lwanga Stanley Magatto granted to the defendant be granted to the plaintiffs.** - **2. An order directing the defendant to give a true inventory and account of the Estate of the late Dr. Lwanga Stanley Magatto from the time that they were issued (granted) to the date of Judgement.** - **3. An order of cancellation of all sales, transfers, sub divisions and illegal entries done by the defendant on the land forming part of the estate of the deceased.** - **4. An order directing that the estate of the late Dr. Lwanga Stanley Magatto be distributed to all the beneficiaries in accordance with the rules of intestacy.** - **5. That the Defendant be directed to return the grant obtained from court.** - **6. A permanent injunction restraining the defendant, her agents or persons claiming under her from interfering with the plaintiff's administration of the deceased's estate.** - 1.2 The defendant filed a Written Statement of Defense on 16th November, 2021.

# **2.0 Representation.**

- 2.1 The plaintiffs were represented by Mr. Henry Mukiibi of M/S Sage Advocates, Kampala. - 2.2 The Defendant was represented by Ms. Apwono Stella Charity of M/S Apwono Advocates & Associates, Kampala.


## **3.0 Background.**

- 3.1 The plaintiffs are beneficiaries of the estate of the late Dr. Lwanga Stanley Magatto. The deceased was the plaintiff's grandfather and at the time of his death, he was survived by seven lineal descendants namely, Namusisi Lwanga Nakiwu (the defendant), Namirimu Bayiita, Mirimu Edward, Senyonjo Nalabirawo, Nazziwa Sarah, Kaggwa Fred and Nanyonjo Betty. - 3.2 The plaintiffs brought this suit as the lineal descendants of the late Lwanga Stanley Magatto. They contend that the defendant obtained letters of administration over the estate of the late Stanley Lwanga. They aver that ever since the defendant obtained the letters of administration, she has deliberately failed to distribute the same and to file a comprehensive inventory of the estate. The defendant has for the past 8 years, willfully and deliberately without reasonable cause failed to exhibit a true and a comprehensive inventory on the properties that have come into her possession as an Administrator of the deceased's estate. The plaintiffs also contend that the defendant registered herself as the proprietor of the land left by the deceased. She subdivided and sold off the land comprised in the estate of the deceased. - 3.3 On the other hand, the defendant contended that at the time of the deceased's death, the plaintiffs were not direct dependents of the deceased. She averred that the land in Kasungulu was gifted to the defendant's mother Nalongo Perusi Nanfuka. She


also stated that she was willing to distribute the two properties in Namasuba and Buloba but they are subject to a court dispute.

- 3.4 She also contended that out of the 3.1 acres in Buloba, the deceased had sold off 1 acre to the father of Kigundu Jimmy Mukasa and the title was in their possession. - 3.5 The defendant contends that she has been in court for over 10 years trying to recover part of the Estate. The defendant avers that she only subdivided the land for the purpose of obtaining legal fees for the two matters regarding Namasuba and Buloba Land.

# 4.0 **Issues for Determination by this Court.**

- 1. Whether the Letters of Administration granted to the defendant should be revoked? - 2. Whether the defendant distributed the property forming the estate of the late Dr. Stanley Lwanga Magatto? - 3. Whether the land in Kasangula was gifted to the defendant's mother Nalongo Perusi Nanfuka? - 4. Whether the defendant filed a true and comprehensive inventory of the estate of the late Dr. Stanley Lwanga Magatto? - 5. What remedies are available to the parties?

# **5.0 Written Submissions.**


5.1 Learned Counsel filed written submissions and basing their arguments on the respective supporting written statements, evidence and authorities these have assisted me in determining this Suit. I have carefully perused the record and considered the submissions of learned counsel. I have also read a number of authorities from this Court on this matter and what runs through all the authorities is the fact that the law and the principles in this area are well settled and will guide this court in the determination of this issue.

## 6.0 **Burden of Proof.**

- 6.1 In all civil matters, he who alleges bears the burden to prove his/her case on a balance of probabilities. The plaintiffs in this matter bears the burden to proof as required under Section 101,102 and 103 of the Evidence Act, Cap 6. Section 101 of the Evidence Act (supra) is to the effect that; "Whoever desires any Court to give judgment as to any legal right or liability, dependent on the existence of the facts which he or she asserts must prove that those facts exist". - *7.0* **Resolution of Issues by this Court.** *The issues will be resolved not in a particular order as presented by counsel.*

# **Issue 3: Whether the land in Kasangula was gifted to the defendant's mother Nalongo Perusi Nanfuka?**

7.1 It was the contention of the defendant under Paragraph 16 of her written statement of defense that the land was gifted to her


mother by the deceased. It was the assertion of the plaintiffs that this land had never been gifted to the defendant's mother. They contended that during cross examination the defendant could not state when the land had been gifted or its dimensions.

- 7.2 A gift *inter vivos* is defined in **Black's Law Dictionary 8th Edition at page 710** as "…a gift of personal property made during the donor's life time and delivered to the done with the intention of irrevocably surrendering control over the property". - 7.3 The law, as it relates to the issue of gifts inter vivos, is well established. In the case of **Joy Mukobe Versus Willy Wambuwu HCCA No. 55 of 2005 (cited in Trustees, Kampala Archdiocese Versus Nabitete Nnume Mixed Co-operative Farm Limited (Civil Suit-2000/1559) [2017] UGHCLD 4 (14 June 2017)** relying on other decided cases, the court held that "…for a *gift inter vivos* to take irrevocable roots, the donor must intend to give the gift, the donor must deliver the property, and the donee must accept the gift." In this case the defendant did not provide evidence as to the delivery/transfer of the gift, its conveyance, or the intention to transfer the land by the deceased. - 7.4 **According to Mellows in The Law of Succession 5th Edition, Butterworth 1977 pages 9 to 10** it is stated as follows regarding gifts *inter vivos*, "Various formalities are necessary for gifts *inter vivos*. Thus a gift of land must be by deed; a gift of land where the title is registered at the Land Registry must be effected by an instrument of transfer which is registered".


- 7.5 According to the case of **The Registered Trustees Anglican Church of Kenya Mbeere Diocese The Rev. David Waweru Njoroge Civil Appeal No. 108/2002** the known principle is that in equity a gift is complete as soon as the donor has done everything that the donor has to do, that is to say, as soon as the donee has within his control all those things necessary to enable him, the donee to complete his title. - 7.6 The defendant merely made an assertion that her mother was given the land in Kasangula. She did not provide any evidence as to when the deceased gifted the land, how much of it was gifted, who was present and how it was gifted to the deceased. The defendant did not provide this court with any proof of conveyance or transfer of the gift. One cannot merely allege that land was given to another without proof of transfer as this is a court of law and the assets are of great value. The law of evidence is clear in stating that he who alleges must prove and the defendant failed to discharge her evidentiary burden to the satisfaction of this court. - 7.7 This court therefore finds that the land in Kasangula formed part of the estate of the deceased that was to be distributed by the defendant.

# **Issue 2: Whether the defendant distributed the property forming the estate of the late Dr. Stanley Lwanga Magatto?**

7.8 In their submissions to this court, the plaintiffs contended that the defendant not only did not distribute the estate of the

 deceased, but also failed to present any evidence that could counter the testimony provided by the plaintiffs regarding the non-distribution of the deceased's estate. The plaintiffs averred that the defendant had neglected to furnish a comprehensive inventory detailing the specific plot numbers that were distributed, along with pertinent information about their respective sizes. The plaintiffs further asserted that the defendant was well aware of their vested interest in the estate as direct descendants of her brothers. The plaintiffs also alleged that the defendant had initiated the sale of segments of the estate land to unrelated third parties.

- 7.9 The plaintiffs relied on the case of **Leonard Mubiru Versus Israel Lwanga CACA No. 78 of 2016,** where it was emphasized that, the Administrator of an intestate individual's estate is obligated to uphold a fiduciary duty by holding the land and the associated title in a position of trust for the ultimate benefit of the designated beneficiaries. The plaintiffs asserted that by the date of 4th March, 2012, the defendant had not yet obtained letters of administration and therefore her assertion that property distribution had occurred by that date was untenable, as she had not yet obtained formal letters of Administration to solidify her legal authority. - 7.10 In contrast, the defendant, maintained a contrary stance regarding the distribution of the deceased's property. She argued that she had indeed distributed her late father's estate. Furthermore, she contended that the plaintiffs themselves had


received portions of the estate both in Namasuba and Buloba, receiving the shares of their respective parents. The defendant further substantiated her claim by asserting that the land situated in Kasangula had been presented as a gift to her mother, who was the widow of the deceased. Additionally, the defendant emphasized that the plaintiffs had acknowledged their receipt of a share of the property in Namasuba, reinforcing her assertion that proper distribution had taken place.

#### **Kasangula**

7.11 Upon Resolution of Issue 3 above, it is clear that the land comprised in Kasangula was not distributed by the defendant.

### **Namasuba**

7.12 During their cross examination in court, the plaintiffs gave sworn testimony as to having received their shares of the land in Namasuba with the help of the Local Council 1 Chairman and the Resident District Commissioner.

## **Buloba**

7.13 The plaintiffs contended that they had not received any share of the property in Buloba. They averred that the Defendant sold part of the land in Buloba to Vincent Muhenda, Spellanza Baguma and Harriet Namiiro. It was the Defendant's aversion that this land was sold to pay legal fees for the cases in court regarding the said suit land. The defendant also averred that she had distributed 50 FT X 50 FT to the boys including the plaintiffs which assertion was denied by the plaintiffs. At the time of the alleged distribution of the Buloba land, the


defendant had not obtained letters of administration and could therefore not have distributed the said suit land. The defendant could not identify what parts of the land she had distributed to the plaintiffs. She also admitted that she had not distributed the land to the girls during her cross examination in court.

- 7.14 The defendant did not provide proof of distribution of the suit land in Buloba. She admitted to having sold part of it and did not provide proof of consent of all the beneficiaries of the estate. To this effect and minus proof to the contrary, the court finds that the land in Buloba was not distributed. - 7.15 Therefore, it is this court's determination that the land in Buloba and Kasangula was not distributed by the defendant.

# **Issue 4: Whether the defendant filed a true and comprehensive inventory of the estate of the late Dr. Stanley Lwanga Magatto?**

- 7.16 **The Black's law dictionary** defines an inventory as 'A detailed list of articles of property; a list or schedule of property, containing a designation or description of each specific article; an itemized list of the various articles constituting a collection, estate, stock in trade, etc., with their estimated or actual values. In law, the term is particularly applied to such a list made by an executor, administrator, or assignee in bankruptcy.' - 7.17 The prescribed period for filing an inventory is six (6) months. If the administrator finds herself (or himself) unable to file the inventory within the prescribed time, she is duty bound to apply to the court which issued the grant for extension of time, stating


the reasons for her inability to perform the required task within the 6-month period. The court, if persuaded by the administrator's grounds for extension of time, may grant the application. This in my opinion ought to be the correct procedure under Section 278(1) of the Succession Act.

- 7.18 When the defendant received the Letters of Administration, she was instructed to "*to make a full and true inventory of them, and to exhibit it in this court within six months from the date of this grant, or within such further time as the court may from time to time appoint, and also to render to this court a true account of the property and credits within one year from the same date, or within such further time as the court may from time to time appoint'.* The defendant only filed an inventory to this court on the 12th November, 2021 after this suit had been instituted. Furthermore, the Account was neither true nor detailed. She did not specify what portions she gave to the beneficiaries. The defendant willfully ignored the instructions of the court to exhibit an inventory until this suit was filed. - 7.19 The filing of an inventory is a crucial and mandatory part of the succession process which has for the most part been disregarded by holders of letters of administration and grants of probate. The omission of the defendant will not be excused simply for the reason that she filed an inventory and account upon the filing of this suit. The issue is therefore answered in the negative as she only filed this inventory upon the suit before this court.


### **Issue 1: Whether the Letters of Administration granted to the defendant should be revoked?**

- 7.20 Under **Section 234 of the Succession Act, Cap. 162** of the Laws of Uganda, a grant for Letters of Administration may be revoked for just cause under the following circumstances; if it is proved that the grant was obtained through substantially defective proceedings, or obtained by fraudulently making a false suggestion, or by concealing from the court something material to the case; 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; that the grant has become useless and inoperative through circumstances; or 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. - 7.21 The conditions that may lead the court to revoke the grant for Letters of Administration are generally; if it is found that the process leading to the grant was faulty and if after the grant, the grant has become useless and inoperative through circumstances, or that the holder failed to file an inventory. This is premised on the principle that whatever is done without authority or done fraudulently has no base and will crumble. - 7.22 The grant appoints administrators who undertake to administer the same and to make a full and true inventory of the said


properties and credits and exhibit the same in this court and where they fail to do so within the legally stipulated time, they commit a breach of the court order.

7.23 Mismanagement of the estate is not listed under Section 234 as a just cause for Revocation of the Letters of Administration. However, Letters of Administration are premised on the fiduciary duty of Administrators to administer the estate of the deceased fairly and equitably among the beneficiaries of the deceased in the absence of a Will. In this matter, the defendant not only failed to administer the estate and exhibit an inventory and account to this court within the directed time. She also went on to sell some of the suit land without the consent of the beneficiaries. She averred that the land was sold to pay legal fees for the benefit of the estate, however, she presented no evidence of payment slips or an account of how the money was used or disbursed.

### 8.0 **Conclusion.**

- 8.1 In the final result, the court finds as follows. - 1. The Letters of Administration in respect of the Estate of the Late Dr. Lwanga Stanley Magatto granted to the defendant are hereby revoked. - 2. The plaintiffs are hereby directed to apply for a fresh grant of Letters of Administration. - 3. The defendant is hereby directed to return the grant obtained from court within 7 (seven) days from the date of this judgement.


- 4. A permanent injunction is hereby issued restraining the defendant, her agents or persons claiming under her from interfering with the administration of the deceased's estate. - 5. The defendant shall not be entitled to any share in the remaining portion of the estate of the deceased as she sold off portions of the estate. - 6. Costs awarded to the plaintiffs.

*Dated, Signed and delivered by email this 21st day of August, 2023.*