Aida Mbwali and Ors v Ashokumar K Jethwa (Civil Suit-1997/789) [2006] UGHC 15 (05 May 2006);
IN THE HIGH COURT OF UGANDA AT KAMPALA
1.
AIDA MBWALI
2.
SANTABEN alias ZULABEBI
3.
NATUBHAI KHIMJI alias
ZUBAIRI HABIBU
ASHOKUMAR K. JETHWA::::::::::::::::::::::::::::::::::::::::DEFENDANT
BEFORE HON. JUSTICE GIDEON TINYINONDI:
RULING:
for the Plaintiff. Thereafter the file went missing. I am now (05/05/2006) informed that the file has been retrieved from the High
Court archives.
I now proceed to write the ruling.
The plaint reads: -
The First Plaintiff is an adult Ugandan of Sound mind and a widow of the late KHIMJI JUTHABHAI TAILOR also known as KHIMJI J. JETHWA and her address for purposes of this suit is C/o M/s Byaruhanga & Co. Advocates, P. O. Box 6491 Kampala, Uganda and Messrs Muhanguzi, Mugisha & Co. Advocates, Total House, Plot 29/33 Jinja Road, P. O. Box 8376 Kampala, Uganda.
2.
3.
4.
5.
Revocation and/or Annulment for just cause of the letters of administration granted to the Defendant
for the estate of the late KHIMJI JUTHABHAI TAILOR in the High Court Administration Cause no. 132 of 1994.
A grant of letters of administration of the estate of the late KHIMJI JUTHABHAI TAILOR to the Plaintiffs jointly;
A declaration that property comprised in Plot 6 Owen Road, Jinja constitutes the matrimonial home
and that the Plaintiffs should continue to occupy it.
A Permanent injunction to restrain the Defendant from evicting the Plaintiffs from the residential
holding–cum-matrimonial home on the said Plot 6 Owen Road, Jinja;
The Plaintiffs are entitled to their respective shares in the estate of the late KHIMJI JUTHABHAI TAILOR as envisaged under the succession Act Cap. 130 as amended by the Succession (Amendment) Decree 22 of 1972;
Costs of this suit and interest thereon.
6.
In High Court Civil Suit No. 19 of 1994 (Jinja District Registry) it was established that the First Plaintiff is a widow of the late KHIMJI JUTHABHAI TAILOR and the Second and Third Plaintiffs are issues of the marriage; (A certified copy of the High Court Proceedings will be produced at
the hearing of the above suit and will be relied upon);
In Civil Appeal No. 1 of 1996 of the Court of Appeal of Uganda arising from the said High Court Civil Suit No. 19 of 1994 the First Plaintiff’s claim in the lower court that the property on the said Plot No. 6 Owen Road Jinja did not form part of
the late KHIMJI JUTHABHAI TAILOR’S estate was not entertained. (A certified copy of the Court of Appeal Proceedings will be produced and relied upon at the hearing of
the above suit).
In the said Civil Appeal No. 1 of 1996 the Court held that whether or not the return of the property and Plot No. 6 Owen Road Jinja would leave the First Plaintiff and her
children in the cold was a matter to be pursued under The Succession Act;
The Proceedings to obtain the grant of letters of administration in Administration Cause No. 132 of 1994 were defective in substance in that;
The Plaintiffs were not disclosed as members of the family or other relatives of the late KHIMJI JUTHABHAI TAILOR;
Property including Plot 6 Owen Road Jinja left within the jurisdiction of the High Court of Uganda was
not disclosed;
The Petition for the letters of administration was not subscribed by the Petitioner’s advocate.
The grant was obtained fraudulently;
PARTICULARS OF FRAUD;
The Defendant falsely stated that the Defendant and his mother were the only survivors of the deceased
KHIMJI JUTHABHAI TAILOR when he knew or ought to have known that the Plaintiffs were also members of the family of the deceased;
The Defendant falsely implied that the Defendant’ mother SANTABEN KHIMJI JETHMA was the only person whose consent was required when he knew or ought to have known that all the First Plaintiff being the lawful
widow of the decease her consent w duly required;
iii).
The Defendant concealed the existence of the Plaintiffs and the property on Plot No. 6 Owen Road, Jinja which
were material to the application for letters of administration;
The Defendant being the Administrator of the estate of the late KHIMJI JUTHABHAI TAILOR has willfully and without reasonable cause omitted to file an inventory of the property and credits in court within the prescribed
period;
The property at Plot No. 6 Owen Road, Jinja was owned by the late KHIMJI JUTHABHAI TAILOR as a residential holding and the deceased’s matrimonial home by th time of his demise;
At all material times the Plaintiffs were the occupiers of the said property and they were entitled
to continue occupying the said property.
7.
of administration granted to the Defendant;
8.
with eviction from the above said matrimonial home.
9.
10.
11.
12.
The Defendant denies every allegation of fact stated in the plaint as if each were
put forth and specifically traversed Seriatum save as herein admitted.
2.
3.
4.
The court of Appeal in Civil Appeal No. 1 of 1996 (arising from Civil Suit No. 19 of 1994) found that
the issue of whether or not the First Plaintiff was married to the Defendant had been wrongly raise in the High Court and should/be
perused under the succession Act. Reliance shall be had on the court of Appeal judgment and proceedings therein.
The Late Khimji Juthabhai Tailor died intestate in London in 1981 and was not at the time of his death in occupation of Plot 6 Own Road Jinja as his residential holding or at all.
(c).
The late Khimji Juthabhai Tailor was not living with the first Plaintiff at Plot 6 Owen Road Jinja at the time of his death as husband and wife or at all.
(d).
The late Khimji Juthabhai Tailor was not married to the first Plaintiff.
(e).
The court of Appeal in the said Civil Appeal No. 1 of 1996, set aside the judgment and orders of High
Court in Civil Suit No. 19 of 1994 and;
(i)
(ii)
The proceedings leading to the grant of Letters of Administration to the Defendant in High Court Administration
Cause No. 132/94 were not defective in substance or at all because: -
The Plaintiffs were not known to the Defendant as wife and children of the late Khimji Juthabhai Tailor.
There was no caveat or other objection lodged against the said grant by the Plaintiffs or anybody.
At the time, the Defendant had no details of the property such as Plot 6 Own Road Jinja left by the late Khimji
Tailor although he knew he had some property left in Uganda at the expulsion of Asians from Uganda n 1972.
The petition was drawn and filed by the applicant without an Advocate and could hence not be subscribed by
an advocate.
7.
he could not state the Plaintiffs as Juthabhai Tailor as he did not know them as such.
(b).
the first Plaintiff is not a widow of the late Khimji Juthabhai Tailor, and her consent was not required.
(c).
the Defendant did not conceal the existence of the Plaintiffs’ because he did not know them as
members of late Khimji Tailor’s family.
The Defendant as Administrator of the estate of late Khimji Juthabhai Tailor denies that he
has willfully and without reasonable cause omitted to file an inventory of the property and credits in court, and will contend that:
-
(a)
(b)
Court Civil Suit No. 19/94, Civil Appeal No. 1/96 and intended Appeal in the Supreme Court, all at the instance of claim of ownership
by the First Plaintiff.
9.
of the late Khimji Jethwa Tailor because: -
(a).
at the time of his death in 1980 the late Khimji Tailor had been living in London separate from the
First Plaintiff.
at the time of his death in 1980, the late Tailor was not living at Plot 6 Owen Road Jinja as his residential
holding or matrimonial home or at all.
since 1980, year the late Tailor died, the First Plaintiff had fraudulently held out as the lawful owner
of property at Plot 6 Owen Road until Civil Appeal No. 1/96 when it was established it still belonged to the late Tailor’s
estate and she was ordered to give vacant possession to the Defendant’s agent.
On 25/02/1997, the First Plaintiff through her Lawyers filed a Notice of Appeal in the court of Appeal
against the judgment in Civil Appeal No. 1/96, thus still pursuing her alleged right of ownership of Plot 6 Own Road Jinja against
the interests of the lawful administration of the estate of the Late Khimji Tailor. A copy thereof is attached and marked “A”.
10.
(a).
The First Plaintiff has for a long time been renting out for hire, the property at Plot 6 Owen Road
Jinja and has therefore not been physically occupying if for accommodation.
the Plaintiffs have alternative accommodation at plot No. 3 Haji Tamachi Road Jinja owned by the 1st Plaintiff.
The Defendant admits having issued quit-notices from Plot 6 Owen Road Jinja to the First Plaintiff,
for purposes of fulfilling his duties as Administrator of the estate of the Late Tailor.
12.
(a).
the First Plaintiff has at all material times refused and/or resisted handing over the property at Plot
6 Owen Road Jinja to the Defendant as pat of the estate of the late Tailor for its lawful administration by the Defendant.
The first Plaintiff has made the Defendant’s Work as Administrator of the estate of late Tailor
virtually impracticable by filing Civil Suit No. 19/94 wherein she fraudulently claimed outright ownership thereof and has in the
same light to date filed the instant suit claiming to be a widow and beneficiary to the estate of Late Tailor.
13.
letters of Administration granted to the Defendant in Administration Cause No. 132/94.”
by the Jinja High Court in HCCS. No. 19/94 where judgment was entered for the Plaintiff on 29/04/1996. That the Defendant appealed
(CA 1/96) and the judgment of the High Court was reversed on 05/03/1997. That in the Jinja High Court Civil Suit the Plaintiff sought
a declaration that Plot 6 Owen Road, Jinja belonged to her and her children. That, that claim was similar to the claim in paragraph
5 (c) and (d) in the present suit.
the property in question had been given to her by her alleged husband as a wife to own together with her children and therefore entitled
them to live in the house. That the Court of Appeal had rejected the document as a forgery. That no appeal had been preferred against
this ruling. That the Plaintiffs could not therefore claim any benefit from the deceased’s estate because there was no evidence
that the Plaintiffs were the widow, son and daughter of the deceased. Referring to the Court of Appeal decree Counsel stated that
orders 1 to 6 in essence dispossessed the Plaintiff and all her children of any interest in Plot 6, Owen Road, Jinja. That in view
of the above arguments, this Court should not entertain this suit. He cited Section 7 of the Civil Procedure Act in his aid.
they had been misled by the obita dictum of the D.C.J in the Court of Appeal-CA No. 1/96 who had pointed out that the matter could
have been resolved under the law of succession and had gone ahead to file the present suit. {I must confess my inability to appreciate
Counsel’s trend of argument under this head of objections and so will not pronounce on it}.
the late Khimji Juthbhai Tailor had transferred Plot 6, Owen Road to the Plaintiff and whether the repossession of it by the Plaintiff
in the Jinja case was valid. In that case Kato, J. held the transfer valid and repossession having done within the law. That the
Court of Appeal considered the issue of repossession when at Page 7 paragraph 3 the DCJ stated: -
No. 27/73 and Act No. 9/82.”
Counsel for the Plaintiff further contended that res judicata applies where issues are the same in the previously instituted as in
the subsequently instituted suit. He referred to page 9 paragraph 1 of the Civil Appeal judgment where it was stated:
“The learned trial judge seems to have been unnecessarily bothered by the fact that by returning the suit property to its owner
the respondent and her children would be left out in the cold as it were. In my view that was a matter to be pursued under the Succession
Act.”
pursued under the Act. Counsel for the Plaintiff referred to paragraphs 2 and 3 of the plaint to answer that the Plaintiff had a
cause of action and locus standi.
of the Jinja Court and the Court of Appeal of Uganda.
i).
The issue of revocation of letters of administration granted to the Defendant was not an issue
in the Jinja High Court, while it is before this Court.
The Court of Appeal was not seized of the matter in (i) above because it was not an issue in the lower
Court.
Accordingly the preliminary points stand over-ruled. The Defendant to pay the costs of this application in any event.
I hand this file back to the Registrar to re-allocate it to the appropriate High Court circuit.
Sgd:
Gideon Tinyinondi
JUDGE
05/05/2006.
05/05/2006 – 10.00 a.m.
Mr. Oging for Defendant
No appearance for Plaintiff
Ms. Kauma , Court Clerk
Court:
Sgd:
Gideon Tinyinondi
JUDGE
15/05/2006