Court name
High Court of Uganda
Case number
Civil Appeal-2019/84
Judgment date
28 September 2020

Okello v Akello (Civil Appeal-2019/84) [2020] UGHC 186 (28 September 2020);

Cite this case
[2020] UGHC 186
Short summary:

Civil Procedure — Fraud—Allegations of fraud must be strictly proved: although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than mere balance of probabilities is required — However, under section 234 (1) (c) of The Succession Act, when an allegation of fact is proved to be untrue, whether ignorantly or inadvertently made, if it is essential in point of law to be taken into account as forming the basis for the grant, then the Act assumes a deliberate design and a motive to mislead — an untrue statement is a designedly misleading statement; something beyond mere inaccuracy.

Family Law — Gifts — At common law, property that is transferred from a parent to a child, or spouse to spouse, is presumed to be a gift and would defeat any presumption of a resulting trust — The presumption of advancement is a presumption of law that a spouse who purchases property and puts it in the other spouse's name or voluntarily transfers property to the marriage partner Intends to make a gift and it is for the spouse making the transfer to the other spouse to prove there was no such intention — The burden of proving that the transfer was not intended to be a gift, is on the challenger to the transfer — A gift can be revoked when still incomplete or imperfect; when title still remains with the donor - when a gift is absolute and not conditional, the donee acquires absolute title upon perfection of the gift — The subsequent conduct of the donee is not a ground for rescission of a valid gift — Customary Marriages — Following the

promulgation of The Constitution of the Republic of Uganda, 1995 to hold that partial payment of bride price is a ground for nullification of a customary marriage would be repugnant to natural justice, equity and good conscience — Whereas cohabitation alone is not sufficient to constitute a customary marriage, celebration and / or blessing of the union in a manner that treats it as a marriage by the customs of the respective families to which the parties belong, followed by cohabitation as a result of the blessing of that relationship, is sufficient evidence of the existence of a customary marriage _____________________________________

Payment of bride price as a token of appreciation for the blessing of the union has only probative significance since it serves as additional proof of consent by the parties’ respective families given to the customary union.

Succession — Letters of administration — It is only property held solely or held as tenants in common that is covered on intestacy — Disclosure of an item of property is necessary where by reason of its value, nature or a character, it has a substantial bearing on the court’s decision as to its jurisdiction over the estate, or the suitability of the applicant in the management of that estate — for dependency, there has to be proof of regular payments by the deceased for the economic or other financial support of the recipient. It is not the mere fact of receipt of support but the dependence or reliance upon another to provide it that matters — no person should be so appointed whose personal interests conflict with and are adverse to those of the estate — Section 265 of The Succession Act — Upon lodgement of a caveat forbidding the grant of letters of administration requires that the proceedings thereafter should take, as nearly as may be, the form of a regular suit according to the provisions of the law relating to civil procedure, in which the petitioner for probate or letters of administration, as the case may be, is the plaintiff, and the person who may have appeared to oppose the grant is the defendant — section 234 (1) (b) and (c) of The Succession Act — Some of the grounds upon which a grant of letters of administration may be revoked include concealing from the court something material, and making an untrue allegation of a fact essential in point of law to justify the grant, even though such allegation is made in ignorance or inadvertently, all known property belonging to the deceased, that is material to the decision whether or not to grant the application, should be disclosed in the petition for the grant. —There is no requirement of proof of the motive for the making of the untrue allegation. —The fact that the property was co-owned with the deceased cannot be a reason for denying the respondent the grant since as a general principle, tenants in common and joint tenants can petition a court to partition the property. — Section 202 of The Succession — subject to section 4 of The Administrator General’s Act, administration should be granted to the person entitled to the greatest proportion of the estate under section 27 of The Succession Act — Section 30 (1) of The Succession Act was declared unconstitutional as it takes away a surviving spouse's right to a share in the property on the simple ground that he or she was not literally staying in the same house-hold with the intestate deceased spouse. It disregards a surviving spouse's contribution which may have been monetary or indirect through provision of domestic services and provision of emotional support and comfort.

Land Law — Co-ownership — when registered land is acquired by two or more persons jointly, there is a presumption that it is granted as a joint tenancy unless the deed specifies otherwise —The presumption can be displaced by indications from the words and conduct of the parties that they intend to take the estate as tenants in common - when co-owners contribute to the purchase price in unequal shares, equity considers this to have been a tenancy in common rather than a joint tenancy.

Coram
Mubiru, J

 

IN THE HIGH COURT OF UGANDA SITTING AT GULU

Reportable

Civil Appeal No. 0084 of 2019 In the matter between

APPELLANT

HELLEN OKELLO

 

And

AKELLO JENNIFER OCAN                                                                            RESPONDENT

Heard: 23 June, 2020.

Delivered: 28September, 2020.

Civil Procedure — Fraud—Allegations of fraud must be strictly proved: although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than mere balance of probabilities is required — However, under section 234 (1) (c) of The Succession Act, when an allegation of fact is proved to be untrue, whether ignorantly or inadvertently made, if it is essential in point of law to be taken into account as forming the basis for the grant, then the Act assumes a deliberate design and a motive to mislead — an untrue statement is a designedly misleading statement; something beyond mere inaccuracy.

Family Law — Gifts — At common law, property that is transferred from a parent to a child, or spouse to spouse, is presumed to be a gift and would defeat any presumption of a resulting trust — The presumption of advancement is a presumption of law that a spouse who purchases property and puts it in the other spouse's name or voluntarily transfers property to the marriage partner Intends to make a gift and it is for the spouse making the transfer to the other spouse to prove there was no such intention — The burden of proving that the transfer was not intended to be a gift, is on the challenger to the transfer — A gift can be revoked when still incomplete or imperfect; when title still remains with the donor - when a gift is absolute and not conditional, the donee acquires absolute title upon perfection of the gift — The subsequent conduct of the donee is not a ground for rescission of a valid gift — Customary Marriages — Following the

promulgation of The Constitution of the Republic of Uganda, 1995 to hold that partial payment of bride price is a ground for nullification of a customary marriage would be repugnant to natural justice, equity and good conscience — Whereas cohabitation alone is not sufficient to constitute a customary marriage, celebration and / or blessing of the union in a manner that treats it as a marriage by the customs of the respective families to which the parties belong, followed by cohabitation as a result of the blessing of that relationship, is sufficient evidence of the existence of a customary marriage _____________________________________

Payment of bride price as a token of appreciation for the blessing of the union has only probative significance since it serves as additional proof of consent by the parties’ respective families given to the customary union.

Succession — Letters of administration — It is only property held solely or held as tenants in common that is covered on intestacy — Disclosure of an item of property is necessary where by reason of its value, nature or a character, it has a substantial bearing on the court’s decision as to its jurisdiction over the estate, or the suitability of the applicant in the management of that estate — for dependency, there has to be proof of regular payments by the deceased for the economic or other financial support of the recipient. It is not the mere fact of receipt of support but the dependence or reliance upon another to provide it that matters — no person should be so appointed whose personal interests conflict with and are adverse to those of the estate — Section 265 of The Succession Act — Upon lodgement of a caveat forbidding the grant of letters of administration requires that the proceedings thereafter should take, as nearly as may be, the form of a regular suit according to the provisions of the law relating to civil procedure, in which the petitioner for probate or letters of administration, as the case may be, is the plaintiff, and the person who may have appeared to oppose the grant is the defendant — section 234 (1) (b) and (c) of The Succession Act — Some of the grounds upon which a grant of letters of administration may be revoked include concealing from the court something material, and making an untrue allegation of a fact essential in point of law to justify the grant, even though such allegation is made in ignorance or inadvertently, all known property belonging to the deceased, that is material to the decision whether or not to grant the application, should be disclosed in the petition for the grant. —There is no requirement of proof of the motive for the making of the untrue allegation. —The fact that the property was co-owned with the deceased cannot be a reason for denying the respondent the grant since as a general principle, tenants in common and joint tenants can petition a court to partition the property. — Section 202 of The Succession — subject to section 4 of The Administrator General’s Act, administration should be granted to the person entitled to the greatest proportion of the estate under section 27 of The Succession Act — Section 30 (1) of The Succession Act was declared unconstitutional as it takes away a surviving spouse's right to a share in the property on the simple ground that he or she was not literally staying in the same house-hold with the intestate deceased spouse. It disregards a surviving spouse's contribution which may have been monetary or indirect through provision of domestic services and provision of emotional support and comfort.

Land Law — Co-ownership — when registered land is acquired by two or more persons jointly, there is a presumption that it is granted as a joint tenancy unless the deed specifies otherwise —The presumption can be displaced by indications from the words and conduct of the parties that they intend to take the estate as tenants in common - when co-owners contribute to the purchase price in unequal shares, equity considers this to have been a tenancy in common rather than a joint tenancy.

JUDGMENT

Introduction:

The respondent applied for a grant of letters of administration to the estate of the late Ocan Benson, whereupon the appellant lodged a caveat forbidding the grant applied for. The respondent then sued the appellant seeking a number of declarations; (i) that she is a legally recognised wife of the late Ocan Benson; (ii) that she is a beneficiary of the estate of the late Ocan Benson; (iii) that land measuring approximately 30 metres x 40 metres, situated at Kabedo-opong village, Keyi “A” sub-ward, in Gulu district was jointly owned by herself and the late Ocan Benson; (iv) that the said land constituted their matrimonial home; (v) that motor the vehicle, a Toyota Spacio Registration number UAR 453 N, is her private property and does not form part of the estate of the late Ocan Benson; (vi) that the said vehicle should be handed over to her immediately; (vii) that a caveat lodged by the appellant against the respondent’s application for a grant of letters of administration to the estate of the late Ocan Benson be vacated; (viii) that the respondent be granted letters of administration to the estate of the late Ocan Benson; (ix) that the appellant renders an account of her dealings with the property of the late Ocan Benson that is in her custody; (x) a permanent injunction issues restraining the appellant, her agents, successors and workers from interfering with the respondent’s enjoyment of her property; (xi) and award of general damages for inconvenience and the costs of the suit.

The respondent’s claim was that on 14th February, 2008 she married the late Ocan Benson under Lango customary law. During the subsistence of that marriage, they jointly acquired a plot of land measuring approximately 30 metres by 40 metres situated at Kabedo-opong village, Key “A” sub-ward, in Gulu district, from a one Nyero Jacob Pa’Labongo. The respondent and the late Ocan Benson then constructed a residential house on the said land which became their matrimonial home. Ocan Benson died on 25th October, 2015 after a long illness. Following the death of the late Ocan Benson, the appellant, who is the mother of the deceased, had on multiple occasions broken open padlocks placed by the respondent on the said premises and replaced them with hers, with intentions of forcefully taking over and occupying the said property. The appellant further claimed that motor vehicle, Toyota Spacio Registration number UAR 453 N belonged to the deceased yet it is the respondent’s private property. The appellant refused to hand it over to the respondent. On 8th December, 2015 the respondent applied for a grant of letters of administration to the estate of her late husband, but the appellant lodged a caveat forbidding the grant, hence the suit.

In her written statement of defence, the appellant contended that the process of the respondent’s marriage to the late Ocan Benson was commenced but was never completed. It therefore was not a customary marriage under the law. The respondent only forged a marriage certificate to enable her secure employment with the non-governmental organisation, “World Vision.” The title deed to the land at Kabedo-opong village, Key “A” sub-ward, in Gulu district is in the sole names of the deceased. The land was never jointly acquired with the respondent. At the time the land purchase agreement was signed, the respondent’s name appears on the agreement because she was the wife of the late Ocan Benson but she lost that privilege when she abandoned him on his sick bed for another man. At the time of his death, Ocan Benson had for three years separated from the respondent and was cohabiting with another woman at that home. The late Ocan Benson financed the purchase of the motor vehicle, Toyota Spacio Registration number UAR 453 N only that he caused its registration in the respondent’s name as his wife then, but revoked the gift and took the vehicle back when the respondent eloped with another man, with whom the respondent now has a child. Since the respondent is cohabiting with another man, she is not fit and proper to be appointed administrator of the estate of the late Ocan Benson.

The appellant's evidence in the court below:

In her defence as D.W.1., the appellant Hellen Okello testified that the deceased and the respondent began their relationship while still students at Uganda Christian university. It culminated in a customary marriage that occurred sometime during the year 2008. The bride price was at shs. 5,000,000/= and two cows, goats and chicken. They only paid shs. 3,000,000/= goats and chicken. The respondent was not the wife of the deceased because the bride price was not paid in full. The respondent obtained the certificate of marriage only for purposes of her employment. The deceased obtained a bank loan from KCB Bank which he sued to construct the house. He also borrowed some of the money from her. The respondent refused to attend the family meetings. During the year 2013 the respondent separated from the deceased and attempts to reconcile them where fruitless. The respondent was living with another man in Amolatar, a one Obia David Ogwal. Since the respondent had stopped coming home, the deceased entered into a relationship with a one Atim Catherine Peace, who cared for him while he was admitted at Lacor Hospital. At the time of his death, the deceased had two dependants; Auma Stella his cousin and Lubangakene Emmanuel, his nephew. In 2017 she gained access to her late son’s house, cleaned it and let it out to a tenant. The respondent did not have any of her personal property in that house ta the time. The appellant used the death certificate in order to obtain the title deed. The deceased had bought the vehicle for the respondent but took it back when she married another man. He then gave the vehicle to the appellant while he was admitted in hospital.

D.W.2. Komakech Lawrence testified that the respondent was married to the deceased on 19th October, 2007 but had separated from him at the time of his death. The bride price included ten hoes, one box of washing soap, a bag of toilet soap, 10 heads of cattle, two bags of sugar, one bag of salt and shs. 5,000,000/= but was never paid in full. All items save the ten heads of cattle and shs. 2,000,000/= were paid. Although he did not know how the land was acquired and the building constructed thereon, he helped with plastering it and lived with the couple for three weeks. The respondent never participated in the construction of the building. The family does not consider the respondent to be a suitable administrator because the traditional marriage was never completed; she is already living with another man, and had no child with the deceased.

D.W.3 Lutwa Titus Omach testified that the bride price was not paid in full. At the time the respondent applied for letters of administration, she was already living with another man and they have a child together. She was at the funeral for only a short time. The family does not consider the respondent to be a suitable administrator because the traditional marriage was never completed; she is already living with another man, and had no child with the deceased. D.W.4 Hiram Wilfred Ochola testified that the deceased and the respondent bought the land in issue. Bride price was not paid in full. For construction of the house, the deceased bought a hundred bags of cement from Gulu Barracks. The deceased obtained a salary loan from Post Bank Limited and Centenary Bank Limited that helped him construct the house. The witness guaranteed the loan from Centenary Bank Limited. The respondent got involved with another man at Amolatar and separated from the deceased. At the time of his death, the deceased was cohabiting with a one Peace Atim. Barely three months after the death of the deceased, the respondent had a still birth from the man she was cohabiting with. The respondent was never recognised as the widow of the deceased at his burial. She cannot be a suitable administrator hen she is living with another man.

The respondent's evidence in the court below:

The respondent, Akello Jennifer Ocan testified as P.W.1 and stated that she underwent a Lango customary marriage with the deceased on 19th October, 2017 at her parents’ home situated at Angwetangwet village, Boke Parish, Adekokwok sub-county, Lira District. They were issued with a certificate of customary marriage on 14th February, 2008. During the year 2014 she was cohabiting with the deceased, having started the cohabitation in 2004 while still students at the University. During the year 2017, the deceased paid bride price of shs. 1,000,000/= in cash to her parents in the village, leaving a balance of shs. 1,000,000/= outstanding. They purchased the land jointly with the deceased at the price of shs. 7,000,000/= out of which she made a contribution of shs. 5,000,000/= Using savings from their salaries, they constructed a matrimonial home on the land jointly. She spent over shs. 20,000,000/= on the construction, part of which was financed by a mortgage from Centenary Bank. They occupied the house on 5th January, 2010 before its completion. She was on 1st October, 2013 posted to Amolatar District as a Senior Assistant Secretary. The appellant brought a one Atim Peace Catherine as a wife to the deceased, during the time the respondent had returned to school. The deceased died on 25th October, 2015.

The respondent left soon after the burial of the deceased in fear for her safety. She bought the bed, beddings and sofa set while the deceased bought the electronic appliances in the home. He never had a child with the deceased. She bought the car in issue during the year 2012 at the price of shs. 11,000,000/= The appellant broke into the house and took away the entire respondent’s household property. She has since had two pregnancies following the death of the deceased, the first one being four months after the death of the deceased.

The father of the child was the CAO of Amolatar District but they were not living together. The appellant did not turn up for meetings at the office of the Administrator General at which the respondent was authorised to go ahead with her application for a grant of letters of administration. The appellant obtained the certificate of title in the sole names of the deceased; it was issued on 18th December, 2015 yet the deceased died on 25th October, 2015.

P.W.2. Otile Patrick testified that he got to know the respondent in 1993 when she was living with the deceased. He was involved in the negotiation for the bride price as mediator but did not witness its payment. The two lived together as husband and wife following that ceremony. He is aware that bride price was paid in full. Around the year 2014 he learnt that the deceased was living with another woman as his wife.

P.W.3. Nyero Jacob Palabongo testified that he sold the land, measuring 30 x 40 metres, to the respondent and the deceased jointly on 7th March, 2008. They paid the purchase price in instalments. He received one of the instalments ate the respondent’s place of work. The agreement was subsequently during the year 2008 presented to the L.C.1 to witness. P.W.4 Aboda Isaac Omoo testified that he attended the traditional marriage ceremony between the respondent and her late husband. Two cows and goats were part of the bride price. He did not witness the last payment of the bride price. The appellant attended the ceremony. Around the year 2014 he learnt that the deceased was living with another woman as his wife.

P.W.5 Odoch Ernest Oyoo presented a witness statement but was not available to be cross-examined. His testimony was accordingly disregarded. P.W.6 Obalim Richard Oyoo testified that the respondent and the deceased lived together as husband and wife from the year 2007 until 2015. The appellant did not approve of the respondent’s marriage to her late son. The appellant broke into the house on 8th May, 2017 and carried away all the household property of the deceased and the respondent. The appellant backdated and forged the signature of Aber Irene when executing a tenancy agreement with the current tenant of the house, Oloka James. P.W.7 Lubangakene Justine testified that the respondent and the deceased lived together at Pabbo. He made bricks at the site of the construction. He helped the two move their personal property into the house.

Judgment of the court below:

In his judgment delivered on 30th August, 2019, the trial Magistrate found that in her defence, the appellant admitted the existence of the respondent’s marriage to her late son, Ocan Benson. There was a customary marriage ceremony but her only contention is that bride price was not paid in full. That of itself is not a ground for annulling the marriage. The appellant failed to discharge the onus cast on her to prove that the customary marriage certificate was forged. The sale agreement names the respondents and the deceased as joint purchasers of the land at Kabedo-opong village. The appellant obtained the certificate of title after the death of her sons and did not involve the respondent in its acquisition. It was not a legal justification to deprive the respondent of her joint ownerships of the land simply because she had separated from the deceased. It remained co­owned matrimonial property of the respondent and the deceased. The respondent is the only legally recognised wife of the deceased. They were never divorced until his death. Separation is not divorce. There is no evidence to show that the customary marriage was terminated. The respondent, as wife of the deceased, qualifies to a grant of letters of administration to the estate of her deceased husband. Ownerships of a motor vehicle is proved by its log-book. It is the respondent indicated as owner in the log book. The respondent having discharged the burden of proof, judgment was entered in her favour. She was declared the lawful wife of the deceased, the land and developments thereon situated at Kabedo-opong village were declared to be the matrimonial property of

 

the respondent and the deceased, she was declared a beneficiary of the estate of the deceased entitled to a grant of letters of administration.

The trial Magistrate further declared that motor vehicle, Toyota Spacio Registration number UAR 453 N belongs to the respondent and that registration of the title to the land at Kabedo-opong village posthumously in the sole name of the deceased was done fraudulently. A permanent injunction was issued restraining the appellant from interfering with the assets of the deceased, including the matrimonial property. The court directed the appellant to account for all the property of the deceased hand over the motor vehicle to the respondent and to meet the respondent’s costs of the suit.

The grounds of appeal:

The appellant was dissatisfied with that decision and appealed to this court on the following grounds, namely;

  1. The trial magistrate erred in law and in fact in holding that there was a valid marriage between the respondent and the deceased Ocan Benson.
  2. The trial magistrate erred in law and in fact in holding that the respondent and the deceased Ocan Benson had not separated at the time of the death of Ocan Benson.
  3. The trial magistrate erred in law and in fact when he held that the certificate of title was processed fraudulently by the appellant yet the said fraud was never pleaded by the respondent.
  4. The trial magistrate erred in law and in fact when he ignored the law on holding a title and held that the property at Kabedopong was co-owned and hence reaching a wrong conclusion.
  5. The trial magistrate erred in law and in fact in granting the respondent letters of administration as a sole administratrix.

Arguments of Counsel for the appellant:

In their submissions, counsel for the appellant, submitted that custom requires that a customary marriage is not valid until the last instalment is paid in full or unless it is waived off (Uganda v. Eduku [1975] H.C.B 372). Alternatively, section 30 (1) of The Succession Act bars a wife separated from the deceased at the time of death, from being a beneficiary to the estate of the deceased. The evidence showed that the deceased and the respondent had separated and they were no longer living as husband and wife at the time of his death. At the burial, the respondent was never recognised as the widow of the deceased. The deceased was cohabiting with another woman and the respondent had another man. Despite having learnt of the existence of the title deed to the land in the sole names of the deceased on 8th December 2015, the respondent never sought its cancellation in her pleadings.

Counsel submitted further that under the law, a certificate of title is conclusive proof of ownership. Anyone impeaching a registered title must prove actual fraud on part of the registered proprietor, i.e. dishonesty of some sort, and not constructive or equitable fraud. The respondent did not adduce such evidence. The respondent in her application listed Lubangakene Emmanuel (a minor) as the beneficiary of the estate. The minor has since the demise of the deceased lived with the appellant who had let out the house at Kabedopong for his sustenance. The respondent has since obtaining the grant evicted the tenant but has not provided for the beneficiary’s upkeep. Rather than entrusting the estate with a lady who has even before and after the death of the deceased found her life and gone ahead to cohabit and give birth to two children with two different men, the estate will be better managed by the mother of the deceased for the benefit of the beneficiary. They prayed that the appeal be allowed with costs.

Arguments of Counsel for the respondent:

In response, counsel for the respondents, submitted that the first ground of appeal is too general and vague and therefore should be struck out. Concerning the complaint that the respondent in her application never disclosed the dependants of the deceased, a person claiming to be a dependant relative must, in addition, prove his or her dependency to the deceased wholly or substantially on the date of the deceased’s death. The appellant in her written statement of defence in the lower court, did not state that the late Ocan Benson had dependants, the determination as to whether the appellant, Auma Stella or Lubangakene Emmanuel were dependants of the late Ocan Benson was not one of the issues during trial in the Court below and more so, the appellant did not call any witness to testify as a dependant of the late Ocan Benson. The appellant besides making the above plain testimony did not show Court how the said Auma Stella and Lubangakene Emmanuel where dependants of the late Ochan Benson. The appellant during trial failed to discharge her obligation to prove that the late Ocan Benson had dependants. Auma Stella and Lubangakene Emmanuel were not proved as being substantially dependent on the deceased.

Counsel submitted further that the respondent and the late Ocan Benson were not separated within the meaning of the law at the time of death of the late Ocan Benson. The respondent was therefore entitled as of right to their matrimonial property. They prayed that the appeal be dismissed with costs.

Duties of a first appellate court:

It is the duty of this court as a first appellate court to re-hear the case by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny and re-appraisal before coming to its own conclusion (see Father Nanensio Begumisa and three Others v. Eric Tiberaga SCCA 17of 2000: [2004] KALR 236). In a case of conflicting evidence, the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions (see Lovinsa Nankya v. Nsibambi [1980] HCB 81).

In its appellate jurisdiction, this court may interfere with a finding of fact if the trial court is shown to have overlooked any material feature in the evidence of a witness or if the balance of probabilities as to the credibility of the witness is inclined against the opinion of the trial court. In particular, this court is not bound necessarily to follow the trial magistrate’s findings of fact if it appears either that he or she has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on demeanour of a witness is inconsistent with the evidence in the case generally.

The appeal generally criticises the findings and decision of the trial Magistrate as being erroneous. Upon lodgement of a caveat forbidding the grant of letters of administration, the proceedings thereby having turned contentious, section 265 of The Succession Act requires that the proceedings thereafter should take, as nearly as may be, the form of a regular suit according to the provisions of the law relating to civil procedure, in which the petitioner for probate or letters of administration, as the case may be, is the plaintiff, and the person who may have appeared to oppose the grant is the defendant (see also In the matter of the Estate of Musa Kyakonye Misango (Deceased) [1973] HCB 57; Nkwakwa v. Kyomugyemo [1976] HCB 291 and Namungo Kakaira Yokana S. v. Nakku Namusisi Kilyankusa [1980] HCB 65).

Contentious probate and administration proceedings may take many forms, such as; where the validity of the will is questioned, disagreement about the distribution of the estate, concerns regarding suitability and competence of the applicant, or the way the estate is being managed, the inventory of estate property, the number and particulars of beneficiaries, rectification of a will, when the interest of a party to a grant of letters of administration is disputed or the entitlement of someone claiming to be a beneficiary under a will, and so on. Such proceedings include any contentious matter arising in connection with an application for the grant of probate or letters of administration. However, the key considerations at the stage of applying for a grant of letters of administration are; suitability and competence of the applicant; comprehensives of the inventory of estate property; the number and particulars of beneficiaries. It is against those parameters that the correctness of the decision of the court below will be analysed.

i. Comprehensives of the inventory of estate property.

Some of the grounds upon which a grant of letters of administration may be revoked under section 234 (1) (b) and (c) of The Succession Act, include concealing from the court something material, and making an untrue allegation of a fact essential in point of law to justify the grant, even though such allegation is made in ignorance or inadvertently. Such concealment or untrue allegations made with intention to deceive the court into granting the letters of administration, when discovered, will result in rejection of the application.

It follows therefore that an applicant for a grant of letters of administration should ensure that all known property belonging to the deceased, that is material to the decision whether or not to grant the application, should be disclosed in the petition for the grant. Disclosure of an item of property is necessary where by reason of its value, nature or a character, it has a substantial bearing on the court’s decision as to its jurisdiction over the estate, or the suitability of the applicant in the management of that estate. If fraud is alleged or a material concealment is suggested, such fraud must not only be pleaded, but also be proved. Vague suggestions about concealment which do not go to the root of the matter and which are not material in the application cannot also be considered.

It is only property held solely or held as tenants in common that is covered on intestacy. Any property held jointly as joint tenants will automatically pass to the surviving joint owner. In the instant case the respondent is accused of not having declared motor vehicle, Toyota Spacio Registration number UAR 453 N as one of the assets comprised in the estate of the deceased. While the respondent argued that the vehicle is her private property and does not form part of the estate of the late Ocan Benson, the appellant argued that by the time of his death the deceased had divested the respondent of that vehicle and taken it back into his possession. It no longer belonged to the respondent but rather was the property of the deceased.

According to section 30 of the Traffic and Road Safety Act, the person in whose name a motor vehicle, not subject to a hiring agreement, or a hire-purchase agreement or a finance lease agreement is registered, unless the contrary is proved, is presumed to be the owner of the motor vehicle. The effect of this section is to shift the burden of proof to the party seeking to rebut the presumption. The party against whom a presumption is directed has the burden of producing evidence to rebut the presumption, once the party invoking the presumption establishes the basic facts giving rise to it. To rebut the presumption, the appellant only presented the argument that the vehicle was a gift to the respondent by the deceased during their cohabitation, which gift was revoked when they broke up.

A gift is a transfer of property without any monetary consideration by one person in favour of another and accepted by him or her or by a person on his or her behalf. At common law, property that is transferred from a parent to a child, or spouse to spouse, is presumed to be a gift and would defeat any presumption of a resulting trust (see Waters’ Law of Trusts, at p. 378; Hyman v. Hyman, [1934] 4 D.L.R. 532 (S.C.C.), at p. 538 and Gascoigne v. Gascoigne [1918] 1 KB 223). The presumption of advancement is a presumption of law that a spouse who purchases property and puts it in the other spouse's name or voluntarily transfers property to the marriage partner intends to make a gift and it is for the spouse making the transfer to the other spouse to prove there was no such intention. The presumption provides a guide for courts in resolving disputes over transfers where evidence as to the transferor’s intent in making the transfer is unavailable or unpersuasive. The presumption of advancement applies in regards to any purchase of property made in the name of the child or spouse of the purchaser. The burden of proving that the transfer was not intended to be a gift, is on the challenger to the transfer.

For example in Gascoigne v. Gascoigne [1918] 1 KB 223, a husband took a lease of a land in his wife’s name and built a house with his own money. He used his wife’s name in the transaction with her knowledge and connivance because he was in debt and was trying to protect the property from creditors. It was held that the property belonged to the wife as there was a presumption that it was a gift. The presumption is based on the concept that where a property is transferred to a person to whom the transferor has an obligation to support, it is presumed to be an advance of the interest the dependent might reasonably expect to receive on the death of the transferor. In the absence of evidence to the contrary, property bought by a husband in the sole name of his wife or intended wife is presumed to be a gift to her.

It was contended by the appellant that before his death, the deceased had revoked what had been a gift to the respondent. A gift is revoked on any of the grounds on which it might be rescinded had it been a contract. At common law, where consent to an agreement is caused by coercion, undue influence, fraud or misrepresentation, it is voidable at the option of the party whose consent was so obtained. Thus, where the gift is not made voluntarily because of any of the factors mentioned above, the gift may be revoked by the donor (see for example Arthur Sajjabi v. Catehrine Namutebi Muyizzi and another, C. A. Civil Appeal No. 25 of 2017). A gift can be revoked when still incomplete or imperfect; when title still remains with the donor (see S. Sarojlni Amma v. Velayudhan Pillai

Sreekumar, AIR 2018 SCC5232; JT 2018 (10) SC 488). A conditional gift is incomplete until the conditions attached to it remain unfulfilled and may be cancelled. A conditional gift only becomes complete on compliance of the conditions.

While a conditional gift only becomes complete on compliance with the conditions, when a gift is absolute and not conditional, the donee acquires absolute title upon perfection of the gift. Acceptance of the gift and delivery of the property together make the gift complete. The donor is divested of his or her title and the donee becomes absolute owner of the item. The subsequent conduct of the donee is not a ground for rescission of a valid gift (see the Supreme Court of India case of Asokan v. Lakshmikuty, (2007) 13 SCC 210 at para 31). Once a gift has been perfected, it cannot be revoked by the mere fact that the donor's feeling towards the recipient have changed.

The respondent contended that she purchased the vehicle from her own income. This was refuted by the appellant who contended that it is the deceased who purchased it and gave it to the respondent. Even when considered from the latter perspective, when the deceased caused registration of the vehicle in the respondent’s name, he did so unconditionally and the gift was complete and irrevocable upon that registration. The trial court therefore came to the right conclusion when it found that motor vehicle, Toyota Spacio Registration number UAR 453 N is the property of the respondent and did not form part of the estate of the late Ocan Benson. The respondent’s exclusion of that item from the inventory of the estate assets did not constitute a concealment from the court of something material, and neither was it an untrue allegation of a fact essential in point of law to justify the grant.

Grounds three and four;

By grounds three and four of the appeal, it was in essence contended further that the application for a grant of letters of administration filed by the respondent contained an untrue allegation of a fact essential in point of law to justify the grant when the respondent claimed to be co-owner of land comprised in FRV HQT 634 Folio 22 being 0.1380 hectares at Plot 43 Laliya Road, Keyi “A” yet it was in the sole names of the deceased. This is premised on the fact that in paragraph 6 (a) of the petition for a grant of letters of administration to the estate of the late Benson Ocan filed in the court below on 8th December, 2015 as Administration Cause No. 464 of 2015, the respondent stated that at the time of his death, among other properties, the deceased co-owned with her, “land 30 metres x 40 metres at Keyi “A” sub-ward.” The value of the entire estate was estimated at shs. 30,000,000/=

It was the appellant’s case that in claiming co-ownership of that property, the respondent made an untrue allegation of a fact essential in point of law to justify the grant. This is based on the fact that on 3rd December, 2015 a Freehold title deed in the sole name of the deceased was issued in respect of FRV HQT 634 Folio 22 being 0.1380 hectares at Plot 43 Laliya Road, Keyi “A” (exhibit D. Ex.5). The respondent counteracted by adducing evidence of an agreement dated 8th July, 2008 showing that the plot was purchased jointly by herself and the deceased at the price of shs. 7,000,000/= (exhibit P. Ex.5). In response, the respondent contended that the title deed was obtained fraudulently by the appellant, to defeat the respondent’s interest in the property.

It is trite that if a spouse purchases property out of his or her own money and puts it into his or her own name then (in the absence of evidence to the contrary) the inference may be drawn that it was to be the property of that spouse, bought of course for the common use or common occupation during the marriage. However, where both parties are earning and by their joint earnings purchase property, intending it to be a continuing provision for them for their joint lives, it is the prima facie inference from their conduct that the property is a “matrimonial asset” in which each is entitled to an equal share (see Rimmer v. Rimmer [1953] 1 Q.B. 63). Lord Upjohn in Pettitt v. Pettitt, [1969] 2 WLR 966, [1970] AC 777 stated;

Where both spouses contribute to the acquisition of a property, then my own view (of course in the absence of evidence) is that they intended to be joint beneficial owners and this is so whether the purchase be in the joint names or in the name of one. This is the result of an application of the presumption of resulting trust. Even if the property be put in the sole name of the wife, I would not myself treat that as a circumstance of evidence enabling the wife to claim an advancement to her, for it is against all the probabilities of the case unless the husband's contribution is very small. Whether the spouses contributing to the purchase should be considered to be equal owners or in some other proportions must depend on the circumstances of each case.”

Alternatively, at common law where land in purchased by more than one person, there is a presumption in favour of joint tenancy rather than a tenancy in common. It is presumed that a joint tenancy is created every time there is more than one owner of land (See Morley v. Bird (1798) 3 Ves 628).

Similarly, when registered land is acquired by two or more persons jointly, there is a presumption that it is granted as a joint tenancy unless the deed specifies otherwise (see section 56 of The Registration of Titles Act). Joint tenancy being the default form of co-tenancy by statute, and since equity follows the law, it follows that when un-registered land too is acquired by two or more persons jointly, unless the deed specifies otherwise or there is evidence of unequal contribution to the purchase price, there is a presumption that it is granted as a joint tenancy. Joint tenants hold single unified interests in the entire property. The result of this is that joint tenants own 100% of the property jointly and through survivorship one of the joint tenants will own 100% upon the death of the other. Therefore, survivorship restricts the freedom of alienation of the property as all of the interest of a deceased co-owner passes to the other co-owner(s) on his death. As joint property it would not have been included as part of the deceased’s estate. The intestacy rules have no effect on this neither does a will. If the deceased had owned the land as a joint tenant, then it would have passed automatically to the surviving tenant regardless of the intestacy rules.

The presumption of joint tenancy is rebutted in two circumstances: by lack of one or more of the four unities or by the use of words of severance in the conveyance such as “between” or “equally.” This would sever the unities and convert the joint tenancy into a tenancy in common. A joint-tenancy may be severed in three ways; (i) an act of any one of the persons interested operating upon his or her own share may create a severance as to that share; (ii) by mutual agreement; or (iii) any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common (see Williams v. Hensman (1861), 70E.R. 862 and Burgess v. Rawnsley [1975] 3 All E.R. 142).

The three rules may be summarized as follows: Rule 1: unilaterally acting on one’s own share, such as selling or encumbering it; Rule 2: a mutual agreement between the co-owners to sever the joint tenancy; and, Rule 3: any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common. Similarly, it is to be inferred that if a tenant in common wishes to act on their "share," they must be presuming that they no longer wish to be regarded as a tenant in common. Any act by a tenant in common operating upon his or her own share, severs their interest. The person so acting must have intended the act to be final and irrevocable (see Mortgage Corporation Ltd v. Shaire [2001] Ch 743)

The presumption can be displaced by indications from the words and conduct of the parties that they intend to take the estate as tenants in common. A joint tenancy may be severed by mutual conduct, where the conduct is such that the pattern of dealing between all of the parties is, though not quite unambiguous and explicit enough to constitute a mutual agreement to sever, nevertheless evince a clear common intention to sever the tenancy in common. There must be a consensus between all the joint tenants, as disclosed by a pattern of dealings with the co-owned property, which would in effect exclude the future operation of the right of survivorship (see Williams v. Hensman (1861) 70 E.R. 862\ Barton v. Morris [1985] 1 WLR 1257; [1985] 2 All ER 1032 and Quigley v. Masterson [2011] EWHC 2529). If the acts and dealings of the parties of the joint tenancy indicate an intention to treat it as property held in common and not jointly, the court will, from those acts and dealings, infer an agreement to sever the joint tenancy. In the instant case, the parties indicated that when they ceased cohabitation and each acquired a different partner.

In the following cases, equity will declare a tenancy in common over the equitable estate rather than a joint tenancy, and the list is not exhaustive; express or implied words of severance, absence of the “four unities,” contributions towards the purchase price in unequal proportions, and commercial partners (see Malayan Credit Ltd. v. Jack Chia-MPH Ltd [1986] AC 549 and City of London Building Society v. Flegg [1988] A.C. 54). The presumption may also be rebutted by evidence that it was not, or ceased to be, the common intention of the parties to hold the property jointly.

It was the testimony of the respondent that she purchased the land jointly with the deceased at the price of shs. 7,000,000/= out of which she made a contribution of shs. 5,000,000/= Having contributed to the purchase price in unequal shares, equity considers this to have been a tenancy in common rather than a joint tenancy. Being a tenancy in common, upon the death of the co­owner, the deceased’s interest in the property passed to his estate. It is only the share of the deceased that would pass to his beneficiaries as part of the estate.

Ordinarily allegations of fraud must be strictly proved: and although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than mere balance of probabilities is required (see Ratilal Gordhandhai Patel v. Laljimakanji [1957] EA 314 at 317; Kampala Bottlers Ltd v. Damanico (u) Ltd, S.C. Civil Appeal No. 22 of 1992 and Fam International Ltd and another v. Mohamed Hamird El- Fatih, S. C. Civil Appeal No. 16 of 1993). By that standard it would be necessary to place before court material which, to the required standard, compels the conclusion that there was a deliberate design and a motive for the making of an untrue allegation of fact which is essential in point of law, directed at misleading the Court in making the grant.

However, under section 234 (1) (c) of The Succession Act, when an allegation of fact is proved to be untrue, whether ignorantly or inadvertently made, if it is essential in point of law to be taken into account as forming the basis for the grant, then the Act assumes a deliberate design and a motive to mislead. There is no requirement of proof of the motive for the making of the untrue allegation. That it was in fact made is enough. In this context, an untrue statement is a designedly misleading statement; something beyond mere inaccuracy. It is a statement which is factually incorrect. I find that in light if the evidence adduced before the court below, the appellant did not prove that the respondent’s claim to be co-owner with the deceased, of the 30 metres x 40 metres at Keyi “A” sub­ward was an untrue statement. It follows therefore that the respondent’s listing of “land 30 metres x 40 metres at Keyi “A” sub-ward” in the inventory of the estate assets, as property she co-owned with the deceased, was not an untrue allegation of a fact essential in point of law to justify the grant. The trial court came to the correct conclusion when it found so.

The fact that the property was co-owned with the deceased cannot be a reason for denying the respondent the grant since as a general principle, tenants in common and joint tenants can petition a court to partition the property. The court is asked to divide the property into different lots or sections. There are two general types of partitions. The first is a partition in kind. This is the physical division of land. The court determines how to divide the property based on the ownership interest of each tenant in common. The second type of partition is a partition by sale. Through this process, the court orders the sale of the property, even if the co-tenants did not want to sell their share. The court distributes the share of the profits to each co-tenant in relation to their ownership interests. Any tenant in common, however small his or her percentage may be, is entitled at any time and without having to offer any particular reason, to seek the termination of the tenancy in common. Even if the result could be economically disastrous, the court must grant partition, either by physical division of the property or sale and division of proceeds, if even one concurrent interest plaintiff insists (see Priddell v. Shankie (1945) 69 C.A. 2d 319). That is an issue that can be addressed after the grant, as part of the management of the estate property.

Counsel for the appellant argued further that a certificate of title is conclusive proof of ownership. Anyone impeaching a registered title must prove actual fraud on part of the registered proprietor, i.e. dishonesty of some sort, and not constructive or equitable fraud. The respondent did not adduce such evidence and therefore it was erroneous for the trial court to have declared her a beneficiary of the said property. Indeed, in seeking cancellation or rectification of title on account of fraud in the transaction, the alleged fraud must be attributable to the transferee. It must be brought home to the person whose registered title is impeached or to his or her agents (see Fredrick J. K Zaabwe v. Orient Bank and 5 others, S.C. Civil Appeal No. 4 of 2006 and Kampala Bottlers Ltd v. Damanico (U) Ltd., S.C. Civil Appeal No. 22of 1992). The burden of pleading and proving that fraud lies on the person alleging it and the standard of proof is beyond mere balance of probabilities required in ordinary civil cases though not beyond reasonable doubt as in criminal cases (see Sebuliba v. Cooperative bank Limited [1987] HCB 130 and M. Kibalya v. Kibalya [1994-95] HCB 80).

It is different when what is sought, as in the instant case, is correction of an error on account of a mistake in the register, where instead of the registration of co- ownership, it is sole ownership that was registered. By virtue of section 33 of The Judicature Act, this court may grant absolutely or on such terms and conditions as it thinks just, all such remedies as any of the parties to a cause or matter is entitled to in respect of any legal or equitable claim properly brought before it, so that as far as possible all matters in controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings concerning any of those matters avoided. Therefore, this court may make an order for the alteration of the register for the purpose of (a) correcting a mistake, (b) bringing the register up to date, or (c) giving effect to any estate, right or interest excepted from the effect of registration.

In NRAM Ltd v. Evans, [2017] WLR(D) 491; [2018] 1 WLR 1563, it was held that there will have been a mistake where the Registrar;- (i) makes an entry in the register that he or she would not have made; (ii) makes an entry in the register that he or she would not have made in the form in which it was made; (iii) fails to make an entry in the register which he or she would otherwise have made; or (iv) deletes an entry which he or she would not have deleted; had he or she known the true state of affairs at the time of the entry or deletion (see also Norwich and Peterborough Building Society v. Steed, [1993] Ch 116). The mistake may consist of a mistaken entry in the register or the mistaken omission of an entry which should have been made. Whether an entry in the register is mistaken depends upon its effect at the time of registration. In the instant case, the Registrar made an entry by which the respondent’s interest as co-owner with the deceased was not reflected on the title deed. This error was not necessarily caused by fraud.

ii. The number and particulars of beneficiaries.

According to section 27 of The Succession Act, entitlement to a share in an intestate’s property as a beneficiary depends on the classes of relatives that survive the deceased, as follows; (i) where the intestate is survived by a customary heir, a wife, a lineal descendant and a dependent relative; (ii) where the intestate is survived by a customary heir, a wife and a dependent relative but no lineal descendant; (iii) where the intestate is survived by a customary heir, a wife or a dependent relative but no lineal descendant; (iv) where the intestate leaves no person surviving him, other than a customary heir, capable of taking a proportion of his property under the previous three situations; (v) where no person takes any proportion of the property of the intestate under four previous situations; and (vi) where there is no customary heir of an intestate. That order of entitlement is the determinant of the beneficiaries who should be named in the petition.

Apart from herself as widow, in paragraph 4 of the petition for a grant of letters of administration to the estate of the late Benson Ocan filed in the court below on 8th December, 2015 as Administration Cause No. 464 of 2015, the respondent disclosed only two other beneficiaries; Lubangakene Emmanuel who at the time was a 9-year-old nephew of the deceased and Auma Nighty Flavia who at the time was a 16-year-old cousin of the deceased. By section 2 (g) of The Succession Act “dependent relative” is defined as including; - (i) a wife, a husband, a son or daughter under eighteen years of age or a son or daughter of or above eighteen years of age who is wholly or substantially dependent on the deceased; or (ii) a parent, a brother or sister, a grandparent or grandchild who, on the date of the deceased’s death, was wholly or substantially dependent on the deceased for the provision of the ordinary necessaries of life suitable to a person of his or her station.

It was argued by counsel for the respondent that the appellant never proved that apart from stating that Lubangakene Emmanuel and Auma Nighty Flavia were nephew and cousin respectively, of the deceased, their dependence upon the deceased at the time of his death was never proved. The question of dependence or no dependence, whole or partial, is a question of fact. Each case has to be considered in light of the individual circumstances. The economic link between the recipient and the deceased must be in the nature of support, which is not limited to financial provision to meet economic needs and contingencies, but includes the provision of sustenance, shelter and other necessaries, which support must be relied upon by the recipient. In addition to the existence of such payments or income there should be indications that the recipient was actually relying on those payments or that income to support themselves economically, either wholly or partly.

It is not sufficient that the deceased made sporadic gifts of money (or goods of value) that the recipient did not need for “support” or were of such an irregular nature that the recipient could not rely on those gifts for continuous sustenance. There has to be proof of regular payments by the deceased for the economic or other financial support of the recipient. It is not the mere fact of receipt of support but the dependence or reliance upon another to provide it that matters. Account though also needs to be taken of any income received from other sources by the person claiming to have been economically dependent. In the instant case, the issue of dependents of the two was never part of the issues for determination by the court below. In any event, by virtue of the fact that the respondent listed them, it was an admission on her part that they were dependants of the deceased. According to section 57 of The Evidence Act, no fact need be proved in any proceeding which by any rule of pleading in force at the time, the parties are deemed to have admitted by their pleadings. Order 8 rule 3 of The Civil Procedure Rules provides that allegations of fact in the mover’s pleading, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the opposite party, are taken as admitted. Thus proof of their dependency was not required since that fact was not traversed in the appellant’s pleadings.

In conclusion, it was not proved that in listing the beneficiaries of the estate, the respondent concealed from the court something material, or made an untrue allegation of a fact essential in point of law to justify the grant. The trial court came to the correct conclusion in that regard.

iii. Suitability and competence of the applicant.

In grounds one, two and five of the appeal, the trial Magistrate is criticised for having held that there was a valid marriage between the respondent and the deceased Ocan Benson, further that the respondent and the deceased had not separated at the time of Ocan Benson’s death and that granting the respondent letters of administration as a sole administratrix of the estate, was erroneous. It is trite that a person appointed as administrator of an estate of a deceased person must be one with the capacity and competence to do so, should be the best available choice in terms of priority and should otherwise be suitable. The law not only provides guidance as to the competencies and suitability but also as to the order of priority of persons who are entitled to be granted letters of administration.

a. Capacity and competencies.

According to section 190 of The Succession Act, Letters of administration may not be granted to any person who is a minor or is of unsound mind. There is nothing on the trial record to show that the respondent was lacking in any of these capacities.

b. Priority.

The choice of the most suitable person to be appointed administrator of an estate of a deceased person among several next-of-kin, follows certain laid down rules and preferences. For instance, lineal descendants rank before lineal ascendants, and the whole blood before half-blood. Where the next-of-kin are of equal ranking and their interest is almost equal, the Court has the power to accept one or more of them subject to suitability.

According to Regulation 11 of The Administration of Estates (Small Estates) (Special Provisions) (Probate and Administration) Rules SI 156-1, the ranking is as follows;- (i) the children of the deceased;(ii) the surviving spouse; (iii) the father or mother of the deceased; (iv) brothers and sisters of the whole blood, or the issue of any deceased brother or sister of the whole blood who had died during the lifetime of the deceased and any persons entitled by virtue of any enactment to be treated as if they were the children of the deceased; or (v) the issue of any such child of the deceased; (vi) siblings of the deceased of full blood and the children of such siblings who died in the lifetime of the deceased; (vii) siblings of half-blood of the deceased or the children of any such half brother or sister who died in the lifetime of the deceased; (viii) grandparent(s) of the deceased; (ix) uncles and / or aunts of the deceased of full blood or their children; (viii) creditors of the deceased; and where all the preceding fail, (x) the Administrator General. By that ranking, the surviving spouse and children of the deceased person take priority to administer the estate of the deceased.

The alternative approach offered by section 202 of The Succession Act is that, subject to section 4 of The Administrator General’s Act, administration should be granted to the person entitled to the greatest proportion of the estate under section 27 of The Succession Act. Under that section, if the deceased person was married, the surviving spouse usually gets the largest share. If there are no children, the surviving spouse often receives all the property. More distant relatives inherit only if there is no surviving spouse and if there are no children. In the rare event that no relatives can be found, the state takes the assets.

However according to section 30 (1) of The Succession Act, no wife or husband of an intestate may take any interest in the estate of an intestate if, at the death of the intestate, he or she was “separated from the intestate as a member of the same household,” unless the court has, on application by or on behalf of such affected husband or wife, whether during the life or within six months after the death of the other party to the marriage, declared that the subsection is not to apply to the applicant (see Baguma v. SerufusaMatembe H. C. Civil suit No. 12 of 1985 and Mboijana James v. MboijanaProphine [1990-91] HCB 10).

That provision though was construed by the Supreme Court with such modifications, qualifications and exceptions as were necessary to bring it in conformity with the Constitution under Article 274 of The Constitution of the Republic of Uganda, 1995. The Supreme Court determined that “living apart, not as members of the same household,” does not amount to separation (see Elizabeth Nalumansi Wamala v. Jolly Kasande and three others, S. C. Civil Appeal No. 10 of 2015). The Court opined;

It seems to me what section 30 of The Succession Act does is to take away a surviving spouse's right to a share in the property on the simple ground that he or she was not literally staying in the same house­hold with the intestate deceased spouse. It disregards a surviving spouse's contribution which may have been monetary or indirect through provision of domestic services and provision of emotional support and comfort. Needless to say that this spousal contribution creates an interest in the property. This section therefore deprives a surviving spouse of his or her interest in the estate of the intestate without even providing for prompt payment of fair and adequate compensation, prior to the taking of possession or acquisition of property. I opine therefore, that this provision is not consistent with Article 26 of The

Constitution of the Republic of Uganda............... I would

conclude this matter by stating that the widow in this case, the appellant, has an interest in the estate of the deceased, to the extent of her contribution and is entitled to share the property accordingly.

The fact that at the time of his death, the deceased was no longer living with the respondent in the same house-hold did not affect her property rights in the “land 30 metres x 40 metres at Keyi “A” sub-ward” that subsequently was registered as FRV HQT 634 Folio 22 being 0.1380 hectares at Plot 43 Laliya Road, Keyi “A” (exhibit D. Ex.5).

Counsel for the appellant argued that the marriage between the respondent and the deceased was invalid for being incomplete because bride price was not paid in full. Under section 10 of The Magistrates Courts Act and section 15 of The Judicature Act, Courts are not to deprive any person of the benefit of, any existing custom, which is not repugnant to natural justice, equity and good conscience and not incompatible either directly or by necessary implication with any written law. This means that where there is an agreement to marry between two people of marriageable age, who expressly or by conduct intended to marry in accordance with custom, the courts will apply the customary marriage legal regime to the parties, whether or not they also intended to be bound by it.

By virtue of section 15 (1) of The Judicature Act, a customary practice forming part of customary law can only be recognised and applied to the extent that it is not repugnant to natural justice, equity and good conscience and not incompatible either directly or by necessary implication with any written law. “Repugnant” means; highly distasteful or offensive, opposed or contrary to nature.” Through the application of the test, courts contribute to the process of adapting customary usages to changing situations as there is no forum for repealing or amending customary laws, save through court’s recognition of the changed social circumstances.

Before promulgation of The Constitution of Uganda, 1995 it was the law that there was no valid customary marriage unless dowry was fully paid (see Uganda v. Eduku John [1975] HCB 372; Eburu S. v. Mikairi Ekwamu [1982] HCB 43; Jennifer Musamali v. Stephen Musamali, H. C. Civil Appeal No. 1 of 2001 and lyamuremye Samwiri v. Jovanis Nyirakamarande [1994-95] HCB 67). However, customs are dynamic and evolving as a result of which these decisions no longer reflect the living customary law. Customary law in this regard has since evolved.

Following the promulgation of The Constitution of the Republic of Uganda, 1995 to hold that partial payment of bride price is a ground for nullification of a customary marriage would be repugnant to natural justice, equity and good conscience, in that it would connote that marriage gifts are a price paid for the bride, in a purchase-and-sale transaction, thus reducing customary marriages to an arrangement of wife purchase. The notions of justice and equality of spouses in marital relations, as dictated by the current legal system, especially under article 33 (6) of The Constitution of the Republic of Uganda, 1995 that prohibits customs or traditions which are against the dignity, welfare or interest of women or which undermine their status, militate against a result that elevates marriage gifts to a role that lowers the status of women within the institution of marriage, as a purchase of the groom

In Mifumi (U) Ltd and another v. Attorney General and another, S. C. Constitutional Appeal No. 02 of 2014, bride price was defined as “the voluntary exchange of gifts at marriage between the groom to be and his wife’s parents or relatives and vice versa.” Bride price is specified and later demanded as a condition precedent to formalisation of the union or to get the parents’ blessing. It is a token of appreciation for taking care of the woman being married. The additional declaration that the practice of refund of bride price at dissolution of a customary marriage is unconstitutional that was made in that case, diminished the significance of bride price as a determinant of the validity or the legality of customary marriages.

Whereas cohabitation alone is not sufficient to constitute a customary marriage, celebration and I or blessing of the union in a manner that treats it as a marriage by the customs of the respective families to which the parties belong, followed by cohabitation as a result of the blessing of that relationship, is sufficient evidence of the existence of a customary marriage. The customs of the families determine the formalities by which the woman is handed over to the man’s family, which handing over may include but not necessarily be accompanied by celebration (wedding). Financial constraints may sometimes result in such ceremonies being postponed or waived altogether. Where the parties belong to same tribe, the law of that tribe applies. Where they belong to different tribes it is the law the parties intended to govern their relationship that will govern (see Nassanga Allen v. Nanyonga M. [1977] HCB 319 and Massa Samwiri v. Rose Achen [1978] HCB 297). It was not shown that under either Acholi or Lango customary law, the validity of the marriage is dependent on full, payment of the brie price. Even if that were the case, the custom would be invalid for repugnancy.

In any event, the payment of bride price, dowry or marriage gifts known by any other name in kind or cash, important as it may be from a ceremonial and ritual point of view, can no longer be regarded as an essential legal requirement for a valid customary marriage, though it remains an element intrinsically linked to a customary marriage. Not being an essential requirement, as long as there is agreement that it will be paid, it need not be paid in full. Payment of that token of appreciation for the blessing of the union has only probative significance since it serves as additional proof of consent by the parties’ respective families given to the customary union. Consequently, part payment is sufficient to constitute a customary marriage and the non-payment of the balance is not decisive of the ultimate question, as to whether a valid customary marriage was negotiated or concluded and that in pursuance of such negotiations bride price was fixed.

In the instant case, the respondent’s union with the deceased met the essential requirements of a customary marriage, viz: both parties were of marriageable age, both parties consented to the marriage, the appointment of messenger(s) or spokespersons, the visit by the groom’s family to the bride’s family, the negotiation on the bride price to be paid, the payment of bride price or part of it, and the handing over of the bride. Their marriage was negotiated, celebrated and entered into in accordance with customary law. The trial court therefore came to the right conclusion when it found that she is a widow of the deceased.

By virtue of being the person entitled to the greatest proportion of the estate, as per section 202 of The Succession Act, the deceased not having been survived by any child, and being the highest ranked next-of-kin in the order of priority proffered by Regulation 11 of The Administration of Estates (Small Estates) (Special Provisions) (Probate and Administration) Rules, the appellant could not successfully challenge the respondent’s appointment as administrator on account of partial payment of bride price and having ceased cohabitation with the deceased at the time of the deceased’s death. There is no evidence to show that the he time of the death of the deceased, that marriage had been terminated. The respondent being widow of the deceased is ranked before the appellant as mother of the deceased, in the order of priority.

c. Suitability.

Under the law, the administrator’s fiduciary duties are primarily owed to the beneficiaries of the estate. It is the duty of an administrator to: (i) gather in the assets of the deceased; and (ii) pay all outstanding liabilities that may be due. Once this is complete, it is the duty of the administrator to divide the assets of the estate in accordance with the provisions of the law of intestacy, striving at all time to achieve fairness in distribution of the estate and meeting social expectations of estate distribution.

The beneficiaries of an estate are entitled to have a person appointed administrator who will administer the estate fairly and impartially; no person should be so appointed whose personal interests conflict with and are adverse to those of the estate. An intending administrator of an estate should not be in a position where his or her personal interest conflicts or possibly may conflict with the interests of the beneficiaries. A conflicted applicant is undesirable because such person when placed under temptation will allow selfishness to prevail over the duty to benefit the beneficiaries. The onus is on the caveator to prove on the balance of probabilities that the applicant is affected by a conflict between personal and fiduciary interests, such that the grant will provide him or her with opportunity to cheat or to exploit the beneficiaries’ vulnerability, and as such he or she is incapable of advancing the best interest of the beneficiaries. Bearing in mind that some overlaps of interest are either harmless or positively value enhancing for all affected interests, the caveator must show that it is not possible for the applicant to act fairly in the management of the estate on behalf of himself or herself and in the interest of the beneficiaries.

Some conflicts of interest, such as in this case where the applicant is co-owner of some of the estate property, may harbour incentives to preserve rather than waste the property. Where the nature of the conflict of interest is one that can be successfully managed; prohibition of the applicant is not always the optimal solution to such overlaps. The advantages of appointing the applicant in the instant case thus far outweighed the risk of harm. It was not demonstrated that the applicant was incapable of pursuing her interest in the property with due regard to the interests of the beneficiaries. She could be trusted to act in accord with the fiduciary duties of loyalty and prudence even though conflicted since the fiduciary duties of loyalty, honesty, good faith and impartiality in themselves control her discretion in the sense of removing temptations to gain unauthorised benefits. The option is always preserved, where the need arises, for any mistrustful or aggrieved beneficiary to have management of the estate removed from the applicant and placed under judicial supervision.

According to section 268 of The Succession Act, a person who intermeddles with the estate of the deceased or does any other act which belongs to the office of executor, while there is no rightful executor or administrator in existence, thereby makes himself or herself an executor of his or her own wrong. One who intermeddles with the affairs of an estate becomes its executor de son tort. An executor de son tort is a person who wrongfully interferes with the administration of a deceased person’s estate. This person may be a stranger or they simply might be someone who was not given proper authority to do so by a court.

Section 269 of The Succession Act renders such a person answerable to the rightful administrator to the extent of the assets which may have come to his or her hands, less any proper payments he or she has made. An executor de son tort has all of the duties but none of the rights of a real executor or administrator (see Carmichael v. Carmichael, 2 Phill. C. C. 102 at 103). Thus if one makes himself or herself an executor de son tort, he or she subjects himself or herself to the liabilities thereby accruing regardless of his or her innocence or mistake.

It is a strict duty of the administrator of an estate of a deceased person to keep and render a full and accurate record and accounting of his or management of the estate to the beneficiaries of the estate, and the duty is strictly enforced by the courts. The slightest interference with the goods or property of the deceased by an executor de son tort, indicative of an intention to usurp the functions or authority of an administrator, is sufficient to create such liability. Accounting entails an obligation to show how the estate money has been invested and how income and capital from estate assets have been used.

In the instant case, without first obtaining a grant of letters of administration, the respondent took possession of the house and let it out to a tenant. The trial magistrate made the right decision when he made the order directing the respondent to account.

Order:

 In the final result, I find there is no merit in the appeal and it is accordingly dismissed with costs to the respondent.

Delivered electronically this 28th day of September, 2020............................

Stephen Mubiru Resident Judge, Gulu Appearances

For the appellant : M/s Latigo and Co. Advocates.

For the respondent : M/s Acan and Co. Advocates.