IN THE COURT OF APPEAL OF UGANDA, AT KAMPALA
CIVIL APPEAL NO. 56 OF 2008
HON. JUSTICE A. TWINOMUJUNI, JA
HON. JUSTICE A. S. NSHIMYE, JA
HON. LADY JUSTICE M. S. ARACH AMOKO, JA
CHARMAS CHARANIA & OTHERS::::::::::::::::::::RESPONDENTS
Succession Act – grant of letters of administration – whether the High court has jurisdiction to grant letters of administration to the estate where the deceased was domiciled in Belgium at the time of his death- whether the appellant had a right to the grant of letters of administration to the estate of the late Walji.
Will – variation of a will – whether the will could be varied to cater for the interests of the appellant – will – whether the deceased died intestate.
JUDGMENT OF THE COURT
The background to the appeal is briefly as follows:
The Appellant had applied to the Administrator General for the grant of Letters of Administration to the estate of the Late Nurdin Mohammed Walji (hereafter referred to as Walji) in the capacity of his daughter. After obtaining the letter of No Objection before the grant could be made to her, the Respondents lodged a caveat objecting to her application on the ground that she was not the daughter of late Walji and that he had left a Will. Consequently, the Appellant filed HCCS No. 239 of 2002 pursuant to section 265 of the Succession Act (Cap 162) Laws of Uganda where she insisted that she was indeed the biological daughter of late Walji and sought a declaration that the caveat be removed and Letters of Administration be issued to her.
The Respondents in their defence maintained their objection and contended that the Appellant had obtained the Certificate of objection through misrepresentation. The late Walji had left a will and she was not one of his dependants. The High Court of Uganda had no jurisdiction over the said estate since Late Walji was domiciled in Belgium at the time of death. She was therefore not the proper
person to administer the said estate.
At the scheduling conference it was agreed that the deceased died in Belgium on 28/01/2001 and left property in Uganda and elsewhere in the world.
The issues agreed upon for determination before the trial Judge were:
The agreed facts were:
The agreed issues from the appeal and cross appeal are:
Mr. Peter Nsibambi, learned Counsel for the Appellant contended that the finding of the Lower Court was correct; and this Court should so find.
The issue here was whether the Appellant was the daughter of the deceased. The Appellant had averred in the plaint that she is a biological daughter of the deceased, hence her interest in the said estate. The burden lay squarely
upon her shoulders to prove her case on the balance of probabilities. Has she discharged this burden?
As proof of her paternity, the Appellant submitted in evidence two documents; a Birth Certificate (Exhibit P1) issued by the Registrar of Births and Deaths on the 5th September 2003 indicating that she was born at Nsambya Hospital to Alice Norah Nalugwa and Nurdin Walji Mohammed on the 12th November 1952 both of Mengo.
The Appellant also produced a short Birth Certificate (Exh. P.2). In addition, she submitted a copy of the Register book of Births of Nsambya Hospital, which Court admitted for identification only subject to the Nsambya Hospital authorities’ production of the register from which the information was obtained. The Appellant however failed to do so. On their part, the Respondents called Ms Rebecca Nakate, a Records Officer with Nsambya Hospital who tendered the page of the Register containing the entry of 12th November 1952 where the Appellant was born as (Exhibit D1). This document only indicated that on that day, a lady called Alice Norah Nalugwa delivered a baby girl. The reference in the Delivery Book was No. 561/52. The name of the baby was not given. The name of the baby’s father was also not recorded. Ms Nakate testified that she used this information to prepare the short Birth Certificate (ID1) she
had no information about the father. It was the Appellant who gave her the name of her father which she put on the said document. These two documents are in our view inconclusive
evidence. They were based on evidence from the Appellant and prepared
after the suit was filed which indicates that they were prepared for the purposes of the suit.
They required corroboration from an independent witness which could have been found if Hon. Rukutana had testified and produced the files the Appellant said he kept in his office as record
of the money the late Walji used to give her. Hon. Rukutana was not called or ever listed among the Appellant’s witnesses for some unexplained reason. Instead, it was only Mr. Bossa (PW2) the Appellant’s maternal uncle who testified. The fact that the late Walji gave her assistance is not conclusive evidence of paternity.
This ground fails.
Issue No. 2:
Mr. Nsibambi’s submission was that the deceased died intestate. Mr. Sekabanja contended that the deceased left a Will. A copy of a document said to be the Will was tendered as (Exh. P4 by DW2) written in Flemish and translated into English. It was accompanied by a letter explaining its contents and background.
The learned Judge referred to the provisions regarding the drawing of Wills as set out in Section 50 of the Succession Act and found that the deceased left a Will which is valid in Belgium where he (deceased) was domiciled at the time of his death. As far as the Laws of Uganda are concerned, he found that Exh D4 contained the testator’s intentions and wishes which must be given effect as far as possible and accepted them as genuine.
We agree with the learned trial Judge’s findings on this issue.
Issue No. 2 and 4:
In view of our findings on the first issue, these issues do not arise.
Issue No. 5:
The law is clear. This Court would have jurisdiction over the immovable property in Uganda only. Section 207 of the Succession Act provides that:
“Where the deceased has left property in Uganda, Letters of Administration shall be granted according to the foregoing provisions, although he or she may have been a domiciled inhabitant of a Country in which the Law relating to testate and intestate
succession differs from the Law of Uganda.”
However, this issue is irrelevant after our findings on issue No. 1.
In the result, the appeal is dismissed with costs to the Respondents.
Dated at Kampala this....17th...day of ...February...2011
HON. JUSTICE A. TWINOMUJUNI
JUSTICE OF APPEAL.
HON. JUSTICE A. S. NSHIMYE
JUSTICE OF APPEAL.
HON. LADY JUSTICE M. S. ARACH AMOKO
JUSTICE OF APPEAL.