Administrator General v Akello Joyce Otti, Donato Otti (Civil Appeal-1993/15) [1996] UGSC 9 (03 March 1996);
THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA AT MENGO
(CORAM: MANYINDO, D.C.J., ODOKI, J.S.C., TSEKOOKO, J.S.C.)
CIVIL APPEAL NO. 15 OF 1993
BETWEEN
ADMINISTRATOR GENERAL……………………………………………APPELLANT
AND
1.
AKELLO JOYCE OTTI)
2. . DONATO OTTI )…………………………………………………… RESPONDENT
(Appeal from the decision of the H/C of Uganda at Kampala delivered on the 9th March, 1992 by Hon. Ag. Justice H.E. Okalebo J., Administration Cause No. 128 of 1990).
JUDGEMNET OF MANYINDO D.C.J.
(a) an order vacating the caveat
(b) an order granting Letters of Administration to him
(c) an order distributing the estate to the persons entitled
(d) any other relief the Court might deem fit
(e) Costs of the suit.
The second reason for the appellant’s interest in the matter was that he thought that the respondents were not well qualified to manage the huge Estate left behind by the deceased who owned several houses, a cattle farm, and several companies in Uganda and Kenya. He also had assets in Sudan, Germany and France.
The respondent’s case was that they were experienced in business administration and management; that they were managing the estate well; that thy had regularly paid money to Sarah Linda Apio for the up keep of her child and that since there was no serious dispute in the family of the deceased regarding the management of his estate, there was no need for the appellant’s involvement in the matter.
The appellant’s answer to this last point was that the Administrator-General in law takes priority in the Administration a an intestate s estate over the next of kin of the deceased except for good cause shown and otherwise ordered by Court. At the trial seven issues fell for determination namely:-
1.
2. Whether the withholding of the certificate of no objection was justified.
3. Whether Sarah (PWI) was widow of the deceased and therefore had an interest in the estate.
4. Whether the document uttered by PW1 Sarah was a valid Will of the deceased.
5. Whether that document was a forgery,
6. Who was entitled to the Letters of Administration.
7. What remedies if any were the parties entitled to under the plaint and the counter-claim.
(i)
(ii) That Letters of Administration be granted to the claimants.
(b) as against the second respondent to the counter-claim
(i) Declaration that the 2nd respondent to the counterclaim i.e. (Sarah (PWI) is not a widow of the deceased.
(ii) That the 2nd respondent to the counter-claim be restrained from holding out to be a widow of the deceased.
(iii) That the 2nd respondent to the counter-claim be restrained from further attempts to inter-meddle in the deceased’s estate.
(c) as against both respondents to the counter-claim
(i) Any other or further relief this Honourable Court deems fit
(ii) Both respondents pay the costs of this and the counter-claim.
Accordingly the Judge declined to make the grant in favour of the appellant. He dismissed the suit with costs. He also allowed the counter-claim and granted an order restraining Sarah from “interfering, inter-meddling in the affairs of the Estate whatsoever either by herself directly or through any other person or party acting on her behalf”.
In his Memorandum of appeal the appellant does not challenge the Judge’s holding in (a) (b) (c) (d) and (f) above. The appeal is against the holding in (e) only. It is contended that the Judge erred in law in holding that the relatives of an intestate take priority over the Administrator-General. According to the appellant, the Administrator-General has “unfettered” discretion in the choice of Estates to administer where there is no Will.
He argues that Section 6 of the Administrator-General’s Act which exempts a widow or widower from obtaining the consent of the Administrator-General before petitioning Court for Letters of Administration should be regarded as having been amended (by implication) by Section 201 of the Succession Act as amended by the Succession Amendment Decree 1972, which subjects entitled persons to the right of the Administrator-General to apply for Letters of Administration under Section 5(3) of the Administrator-General’s Act, as the Succession Act is a later Act to the Administrator- General’s Act.
Now under Section 5(3) of the Administrator Act the Administrator-General may, where a person dies intestate, apply for Letters of Administration of his or her Estate and the Court shall, except for good cause shown, grant the Letters of Administration to her or him. Under that same provision, the Administrator-General shall be deemed to have a right to Letters of Administration, other than letters pendente lite (while litigation is pending), in preference to :-
(a) a creditor or
(b) a legatee, other than a univeral legatee; or
(c) a friend of the deceased.
But the proviso to that Section allows the Court in its wide discretion, to grant the Letters of Administration to a person other than the Administrator-General.
It is clear from the above provision that a widow or widower can apply for and obtain Letters of Administration of her or his deceased espouses Estate without reference to the Administrator-General. An authorised Attorney and an Executor of the Will is in the same position. All other persons must serve the Administrator-General with notice of their intention to apply for Letters of Administration within the prescribed time. As the trial Judge pointed out, the widow (Joyce) did not have to seek the consent of the Administrator-General. The consent sought was in respect of Donato, the second respondent. The appellant’s claim that he has unfettered discretion to veto widows and widowers is therefore untenable in law. The holding by the trial Judge that the Administrator-General has no absolute rights under the Administrator General’s Act to obtain Letters of Administration to every deceased’s Estate is correct. Section 6 above has not bean amended, not even by implication, by the Succession Act in my view.
The Administrator-General can always apply for letters of Administration under circumstances listed in Section 5(3) of the Administrator-General’s Act, but even then the court may refuse to make the grant to him. Again under S.5 (3)(d) the Administrator General may administer a deceased persons estate by applying for Letters of Administration if probate or Letters of Administration have not been earlier on obtained within 2 months from the death of the testator.
Sarah was an outsider whose intention was motivated purely by greed. The appellant Should never nave intervened On her behalf or at all.
I am satisfied that he decision of the trial Judge was correct both on the appellant s claim and on the respondent s counter claim. I would therefore dismiss the appeal with costs to the respondents. As Odoki, J,S.C,, and Tsekooko, J.S.C., agree, it is so ordered.
Dated at Mengo this 4th day of March 1996.
S.T. MANYINDO,
DEPUTY CHIEF JUSTICE
I CERTIFY THAT THIS IS A
TRUE COPY OF THE ORIGINAL
W.MASALU-MUSENE
REGISTAR, SUPREME COURT
JUDGMENT OF ODOKI, J.S.C.
I have had the benefit of reading in draft the judgment Manyindo, D.C.J. , and I agree with it and the orders he has proposed.
Delivered at Mengo this 4th day of March 1996.
B.J. ODOKI, JUSTICE OF THE SUPREME COURT.
I CERTIFY THAT THIS IS A
TRUE COPY OF THE ORIGINAL
W. MASALU-MUSENE REGISTRAR, SUPREME COURT.
JUDGEMENT OF TSEKOOKO. J.S.C.
The facts of the case are fully set out by the learned Deputy Chief Justice, It is clear to me that without the intervention of Sarah Linda Apio P.W.1 in all probability these proceedings would never have become contentious.
The seven issues for decision of the trial Judge were:-
1.
2. Whether the withholding of the Certificate of no objection was justified.
3. Whether Sarah Linda Apio is a widow and has any interest in the Estate.
4. Whether the document uttered by Sarah Linda Apio is a valid Will.
5. Whether that document is a forgery.
6. Who is entitled to Letters of Administration?
7. The remedies the parties are entitled under the plaint and the counter-claim,
The learned trial Judge answered all the issues in favour of the respondents and dismissed the appellant’s contentions. He directed that Letters of Administration be granted to the respondents. Hence the appeal.
Five grounds of appeal form the objections against the judgment of the Court below. But the prayer in the Memorandum of appeal seeks for orders whose nature is interesting. The appellant by the Memorandum prays for a declaratory judgment that:-
(b) The Succession (Amendment) Decree 22 of 1972 Section 201 thereof implied by amended part of Section 6 of the Administrator-General’s Act Cap. 140 Laws of Uganda. Therefore all have to seek the consent of the Administrator-General except executors named in the valid Will of a testator.
(c) Since the promulgation of the Succession Amendment Decree 22 of 1972 the decision in RE: KIBIEGO (1972) E.A. p. 179 about priority of a spouse to Letters of Administration is no longer good law in Uganda except in particular cases where such spouse of an intestate takes priority under S. 201 of the Decree by Virtue of her percentage in the distribution of an intestate’s estate.
(d) Section 28 of the Succession Amendment Decree does not determine
the entitlement to Letters of Administration of the Administrator-General are governed by the Administrator-General’s Act Cap. 140 Laws of Uganda”.
(b) must represent the prayers in the Memorandum of appeal”.
the written submissions for the appellant are a result of inexperience on the para of appellant’s Counsel I need not stress. But certainly we have not been asked in either of the two documents to set aside the judgment of the trial Court. At any rate that is what the two documents convey to me.
Rule 84(1)_of the Rules of the Court requires that:-
I would dismiss this appeal for the above reason apart from those given by the learned Deputy Chief Justice.
In my opinion this appeal has got no merit whatsoever and I agree that it ought to be dismissed with costs to the respondents.
Delivered at Mengo this 4th day of March 1996.
J.W. N. TSEKOOKO,
JUSTICE OF THE SUPREME COURT.
I CERTIFY THAT THIS IS A
TRUE COPY OF THE ORIGINAL
W. MASALU-MUSENE REGISTRAR, SUPREME COURT.
.