Wakilii

Nalwanga v Musoke and Others (Civil Appeal No. 24 of 2009)

Court of Appeal · [2012] UGCA 65 · 2012 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court (Family Division) judgment revoking letters of administration
Decision
Appeal dismissed; High Court revocation of letters of administration and fresh grant to the 1st and 4th respondents upheld

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Court of Appeal dismissed an appeal against the revocation of letters of administration. The appellant had obtained the grant claiming the deceased died intestate, then administered the estate by reference to an alleged will she never produced for proof, excluding respondents she had long known and treated as the deceased's children. The court held this conduct was fraudulent and amounted to mismanagement. The unattested document failed to qualify as a valid will under the Succession Act and Evidence Act. The trial judge properly found the respondents were children of the deceased, properly revoked and re-granted the letters, properly found the inventory untrue, and was not biased. Costs to the respondents.

Facts

The late Erinest Yawe died in February 2002 at Mutundwe, Kampala, leaving land, a commercial building, a kibanja, cattle and poultry. In 2003 his daughter, the appellant, obtained letters of administration on the basis that he died intestate. The respondents, claiming to be his children, sued in the High Court (Family Division), alleging the appellant fraudulently obtained the grant and mismanaged the estate. The appellant relied on an alleged will dated 20 November 2001 said to exclude some respondents as not being the deceased's children, but never produced it for probate and herself doubted its validity. She had long known and treated the excluded respondents as the deceased's children at the funeral and funeral rites. She began selling estate property before obtaining the grant and filed her inventory and accounts years late. The trial judge revoked her grant, appointed the 1st and 4th respondents as administrators, ordered her to account, and awarded costs against her.

Issues

  1. Whether the trial judge erred in finding that the appellant obtained letters of administration fraudulently.
  2. Whether the trial judge erred in finding that the 2nd, 3rd and 4th respondents were children of the deceased.
  3. Whether the trial judge erred in finding that the appellant mismanaged the estate of the deceased.
  4. Whether the trial judge erred in holding that the final inventory was not a true and correct inventory.
  5. Whether the trial judge erred in revoking the letters of administration and granting them to the 1st and 4th respondents on the same day before the appeal period expired.
  6. Whether the trial judge erred in awarding costs against the appellant.
  7. Whether the trial judge erred in hurrying the hearing and denying the appellant the opportunity to call essential witnesses.
  8. Whether the trial judge erred in entering judgment for the 2nd and 3rd respondents who did not testify.
  9. Whether the trial judge was biased against the appellant.

Orders

  • Appeal dismissed.
  • The judgment and orders of the trial court upheld.
  • Costs of the appeal and of the court below awarded to the respondents against the appellant.

Key headnotes

Letters of Administration — Fraudulent Grant — Duty of Disclosure under Succession Act s.246
An administrator who applies for letters of administration on the basis that the deceased died intestate, while withholding from the court a document she relies on as a will and excluding known family members from the petition, obtains the grant fraudulently and contrary to the duty under section 246 of the Succession Act to disclose the family and relatives of the deceased.
Wills — Attestation — Proof of Execution under Evidence Act s.67 and Succession Act s.50
A document required by law to be attested cannot be relied upon as a valid will where no attesting witness testifies to prove its execution and the document does not on its face show it was signed by the testator and attested by two or more witnesses as required by section 50 of the Succession Act and section 67 of the Evidence Act.
Wills — Probative Value of Non-Will Document — Conclusiveness on Paternity
A document that lists the deceased's children but does not emphatically state that particular persons are not his children, and which inconsistently names persons not biologically related, cannot be treated as conclusive evidence that those omitted were not children of the deceased.
Administration — Mismanagement of Estate — Late Inventory and Accounts under Succession Act s.280
Filing an inventory and account of an estate years after the statutory periods under section 280 of the Succession Act, without prior application for extension, together with disposing of estate property before obtaining the grant and distributing contrary to law, constitutes mismanagement of the estate justifying revocation of letters of administration.
Illegality — Duty of Court to Pronounce on Illegality Apparent on the Record
Where an illegality is brought to the attention of the court in the course of the hearing, the court has a duty to pronounce upon it, and an issue need not have been specifically framed at scheduling for the court to address it.
Costs — Costs Follow the Event under Civil Procedure Act s.27
Under section 27 of the Civil Procedure Act costs follow the event unless the court for good reason orders otherwise, and a party who fails to make submissions on costs and whose conduct borders on fraud cannot fault an award of costs against her.
Parties — Judgment for a Party Who Did Not Testify
It is not a requirement that every party to a suit testify or be present throughout the hearing, and judgment may properly be entered in favour of co-parties who did not testify on the totality of the evidence adduced.

Legislation cited (6)

  • Succession Act, cap.162 s.246(b)
  • Succession Act s.50
  • Succession Act s.280
  • Succession (Amendment) Decree No.22 of 1972
  • Evidence Act s.67
  • Civil Procedure Act s.27

Cases cited (5)

  • Bogere Moses v Uganda (Criminal Appeal No. 1 of 1997)
  • Pandya v Republic [1957] EA 336
  • Prince J.D.C. Mpuga Rukidi v Prince Solomon Iguru and Others (Civil Appeal No. 18 of 1994)
  • Belvoir Finance Co Ltd v Harold G Cole & Co Ltd [1969] 2 All ER 904
  • Makula International Ltd v His Eminence Cardinal Nsubuga & Another [1982] HCB 11
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.