OMODO MORRIS

FIRM D1
INDIVIDUAL ASSESSMENT
FAMILY LAW PRACTICE

OMARA ALLAN
Legal Assistant
M/s Odida & Co. Advocates
Barya Plaza, Plot 20 Kampala Road
6TH /November/ 2020.

To:-
Mr. Onesmus Odida
M/s Odida & Co. Advocates
Barya Plaza, Plot 20 Kampala Road

RE:- A LEGAL OPINION IN REGARDS TO THE MATTER OF THE

ESTATE OF THE LATE ERASMUS SSIMBWA.

BRIEF FACTS
Erasmus Ssimbwa died on 20/02/2016 and had children though some had died
including his wife. He left several property which include (100) acres of land known
as Block 450 Plots 11 and 22 at Seeta Bukuya, Masakas District. It is valued at (500)
million Uganda Shillings.

However, Jane France and Yekoyasi Kimbugwe obtained letters of administration

from the High Court at Masaka vide High Court Probate and Administration Cause
No. 340/2019. In their application to Court, they stated that they were the only
surviving relatives of the Late Erasmus Ssimbwa and had sold ten acres out land.

And furthermore on investigation they had sell more of that land allegedly in order to
pay their lawyer’s fees as well as the surveyors’ fees.
Therefore, Maria Tereza Birabwa wants them to account for all the money they got
from the land that they sold and pay for all our expenses. They should stop selling this
land. Thus seeks legal advise.

LEGAL ISSUES
1. Whether Maria Tereza Birabwa has locus standi to bring the claim in court?
2. Whether there exists just cause of action for revocation of the grant of letters of
administration of the late Erasmus Ssimbwa’s estate to Jane France and Yekoyasi
Kimbugwe ?
3. What are the long term and short remedies available to Maria Tereza Birabwa?
4. What is the procedure for attaining the interim orders to protect Maria Tereza’s
late father’s estate (Erasmus Ssimbwa)?
5. What is the procedure, forum and necessary documents to pursue the suggested
remedy?
LAW APPLICABLE
1. The Constitution of the Republic of Uganda, 1995
2. The Succession Act, Cap 162
3. Small Estates(Special provisions) (Probate and Administration) Act,
Cap 156
4. Registration of Titles Act Cap 230
5. The Civil Procedure Act
6. The Civil Procedure Rules SI 71-1
7. The Judicature (Court fees) Rules
8. Case Law

RESOLUTION OF ISSUES
1. Whether Maria Tereza Birabwa has locus standi to bring the claim in court?
For a person to have locus to bring an application questioning the administration of an
estate, they have to have a beneficiary interest in the estate of the deceased. In the
case of Romario Samil Ogwang and Anor v Sunday Ottak HCCS No.20/2005; the
court defined a beneficiary as a person entitled to a share in the properties of a
deceased person. Children of the deceased are beneficiaries to the estate of the
deceased.
In Marko Kajubi v Kulanima Kabali (1944) EACA 34, court stated that all children
had a right to their deceased parent’s estate whether legitimate or illegitimate.
Therefore Maria Tereza has a right to apply for revocation of the letters of
administration granted to Jane France and Yekoyasi Kimbugwe.

2. Whether there exists just cause of action for revocation of the grant of letters
of administration of the late Erasmus Ssimbwa’s estate to Jane France and
Yekoyasi Kimbugwe ?
In Anecho v Twalib & 2 Ors (CIVIL SUIT No. 0009 OF 2008) it was held that it is
trite that a grant remains valid until revoked. It has been observed that even in cases
where grant has been obtained by fraud, so long as the grant remains unrevoked, the
grantee represents the estate of the deceased.
However, the Succession Act provides for revocation of letters of administration.
Section 234 (1) of the Succession Act Cap 162 provides that the grant of probate or
letters of administration may be revoked or annulled for just cause.
Just cause is defined under Section 234 (2) of the Act to mean;
a) That the proceedings to obtain the grant were defective in substance
b) That the grant was obtained fraudulently by making a false suggestion, or by
concealing from the court something material to the case
c) That the grant was obtained by means of an untrue allegation of a fact essential in
point of law to justify the grant, though the allegation was made in ignorance or
inadvertently
d) That the grant has become useless and inoperative through circumstances or
e) That the person to whom the grant was made has willfully and without reasonable
cause omitted to exhibit an inventory or account in accordance with Part XXXIV or
has exhibited under that part an inventory or account which is untrue in a material
respect.
In the case of Stella Maris Amabilis and Micheal Wandwasi v Esther Nabusakala
(HCT-00-FD-CS-0072-2007), Section 234 of the Succession Act provides for the
revocation of grants; 1) The grant of probate or letters of administration may be
revoked or annulled for just cause 2) In this section, ‘Just cause’ means a) That the
proceedings to obtain the grant were defective in substance b) That the grant was
obtained fraudulently by making a false suggestion or by concealing from the court
something material to the case c) That the grant was obtained by means of an untrue
allegation of a fact essential in point of law to justify the grant, though the allegation
was made in ignorance or inadvertently.
Both Jane France and Yekoyasi Kimbugwe concealed important facts such as the fact
that they were the only surviving relatives of the Late Erasmus Ssimbwa.
Therefore the letters of administration they obtained were obtained fraudulently and
under false or untrue allegations. This is ground enough for the letters of
administration to be revoked.
Failure to exhibit an inventory as just cause in the case of Nalubega Gladys & 3
Ors. v Sebuluguse Henry HCCS 44/2010 Court found that there exists a just cause
on grounds that the defendant has filed neither a full and true inventory nor a true
account of the properties of the estate of the late Tony Lutwama as he undertook in
the bond. This is in breach of the Administration Bond he signed, since it bound him
to administer the estate according to the law by filing true inventories and accounts
pertaining to the estate, in respect of which he was granted the letters of
administration.
In our current case Jane France and Yekoyasi Kimbugwe were granted the letters of
administration since January 2019 and they required him to file an inventory within 6
months. It is now November 2020 and the inventory hasn’t been filed it. This is a
ground for revocation of the letters of administration issued them. Failure to follow
procedure Section 234 above states that letters of administration can be revoked for
failure to follow procedure or where the proceedings to obtain the grant were
defective in substance. Its normal practice for an unmarried partner of the deceased to
invite all the members of the family of the deceased for a meeting.

3. What are the long term available to Maria Tereza Birabwa?

Maria Tereza therefore has the following long time remedies to move court to revoke
the grant of letters of administration and for the following prayers;
1. An order revoking and/or annulling the letters of administration granted to Jane
France and Yekoyasi Kimbugwe.
2. A citation against them directing that they surrender and deliver to the court the
letters of administration granted on him.
3. An order directing the defendant to make a just and true inventory or account of all
and singular
4. A declaration that Jane France and Yekoyasi Kimbugwe is in breach of the
administration bond that bound him to administer the estate according to the law.
5. Damages,it is trite law that damages are the direct probable consequence of the act
complained of. Such consequences may be loss of use, loss of profit, physical
inconvenience, mental distress, pain and suffering. In this case it is my opinion that
the defendants’ using the fraudulently obtained grant to sell off the property forming
part of the estate of the Late, prejudiced that estate as well as the beneficiaries to the
estate
6. Costs
4. What are the short time remedies and the the procedure for attaining the interim
orders to protect Maria Tereza’s late father’s estate (Erasmus Ssimbwa)?
1. Caveat:- it to mean a formal notice or warning given by a party interested against
the performance of certain acts with in his power and jurisdiction.
Caveats are provided for under Section 139 of the RTA, Cap 230 which gives power
to a person who is a beneficiary claiming interest in land to lodge a caveat with the
registrar/commissioner in accordance with the 15th Schedule of the Act. Section 139
and 140 of the RTA require that no dealing in land should be done where there is in
force a caveat forbidding the same. Land registered while there is a subsisting caveat
is considered to be fraudulently transferred. Simon therefore to be able to protect his
mother’s estate will have to lodge a caveat under the RTA. When a beneficiary
lodges a caveat, that caveat does not lapse until the interest of the beneficiary is
taken care of as provided in Section 141 and 144 of the Registration of Titles Act. If
it is to be removed the beneficiary’s consent must first be sought and he/she must
assent to it.
1. The first steps would therefore require Maria the beneficiary to have his
lawyer/advocate draft the caveat as laid down in the 15th Schedule.
2. Have the instrument witnessed in accordance with Section 147 of the Registration
of titles Act.
3. Payment of the requisite fees
4. Lodge the caveat. The caveat must be accompanied with a statutory declaration
giving reasons why the caveat is being lodged. The caveat must be lodged in
triplicate.
 2. Temporary injunctions
i) Apply to court using a Chamber summons which will be presented to court ii) The
chamber summons must be supported by an affidavit stating clearly the grounds the
applicant relies on for the grant of the injunction iii)When filing the chamber
summons , the requisite filing fees (UGX 1,800) must be paid in the bank and
evidence of payment attached to the application
iv)The applicant must then serve the respondents the application
v) Once the summons and accompanying documents have been served, the
applicant/his advocate shall be required to file an affidavit of service.
3. Administration Pendente Lite
Maria Tereza can as well apply for an Interim Administrator to be appointed by Court
to care-take the administration and preserve the estate of the deceased pending the
hearing of the main suit.
Section 218 Succession Act provides that the Court may, pending any suit for
revoking any grant of Letters of Administration, appoint an administrator of the estate
of the deceased person, who shall have all the rights and powers of a general
administrator other than a right of distributing the estate, and every such
administrator shall be subject to the immediate control of the Court, and shall act
under its direction.
In Wilson Tayebwa & 5 Ors v Mary Kyatwoha & 2 Ors (MA No. 60 of 2012), it
was stated that administration pendente lite is limited to the duration of the pendency
of the suit and more importantly it does not give authority to the administrator so
appointed to distribute the estate. However such an administrator may collect rent and
manage other general affairs of the estate
From the facts, this is an estate where an Administrator Pendente Lite should be
appointed to assume administration of the estate of the late Erasmus Ssimbwa until
Court disposes of the main suit for revocation of letters of administration.

5. What is the procedure, forum and necessary documents to pursue the suggested
remedy ( revocation of grant of letters of administration) ?
PROCEDURE
Application for revocation of grants is a contentious matter as has already been
discussed in the authorities above.
The procedure is by way of plaint. Therefore for one to have an order revoking the
letters of administration the steps are;
1. Draft the plaint and all the accompanying documents such as the summary of
evidence, list of authorities, list witnesses, list of documents, summons (Order 5, 7 of
the Civil Procedure Rules), Mediation case summary (the Judicature Mediation
Rules)
1. Payment of court fees
2. File the documents at the court registry
3. Extract the summons and serve the defendants
4. File an affidavit of service.
FORUM
The High Court of Uganda at Masaka
DOCUMENTS
Plaint and summary of evidence
 THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MASAKA

CIVIL SUIT NO.123 OF 2012

(ARISING OUT OF Probate and Administration Cause No. 340/2019)

MARIA BIRABWA...............................................................PLAINTIFF

VERSUS
1. Jane Frances Nalwadda
2. Yekoyasi Kimbugwe ..................….............................................DEFENDANTS

PLAINT
(Under S.234(b) Succession Act Cap162, O.4 r.1 and O.6 r 3 Civil Procedure
Rules SI 71-1)

1. The plaintiff is male adult Ugandan of sound mind whereas whose address of
service for the purpose of this suit shall be c/o M/s Odida & Co. Advocates, found on
Barya Plaza, Plot 20 Kampala Road.
2. The first defendant is a female adult Ugandan presumed to be of sound mind.
3. The second defendant is a male adult Ugandan presumed to be also of sound mind.
4. The plaintiff’s Advocate undertake to effect service of the court process on the
defendant.
5. The plaintiffs’ claim is for;
a) An order for Revocation of letters of Administration in respect of the estate of late
Erasmus Ssimbwa.
b) An order compelling the defendants to surrender to this honorable court the letters
of Administration granted to him.
c) An order for comprehensive and true statement of account of all dealings with the
estate of the late Erasmus Ssimbwa.
d) A grant for letters of administration of the estate of the late Erasmus Ssimbwa to
the plaintiff.
e) A permanent injunction restraining the defendant from undertaking any further
dealings with the estate of the late Erasmus Ssimbwa.
f) Costs of the suit and interest thereof from the date of judgment till payment in full.
4. The facts constituting the plaintiffs’ cause of action against the defendant arose as
follows;
a. The plaintiff are biological child and the beneficiaries of the estate of the late
Erasmus Ssimbwa.
b. The deceased Erasmus Ssimbwa died on 20.02.2016 leaving land which was
(100) acres of land known as Block 450 Plots 11 and 22 at Seeta Bukuya, Masaka
District. It is valued at (500) million Uganda Shillings.
c. The defendants applied and were granted letters of administration by the High
Court on the 19th January 2019. (Attached is a copy of grant of letter of
Administration to the defendant and marked annexure “A”).
d. The defendants made false declarations and concealed important information from
the court in his application for the letters of administration thus misleading this
Honorable court.
PARTICULARS OF FRAUD.
i. Stating that the defendants, Jane Frances Nalwadda and Yekoyasi Kimbugwe (his
biological children) were the only relatives of the late Erasmus Ssimbwa.
ii. Failure to mention that the deceased was survived by four children though Farasko
Mbalire and Yoaniana Najjuuko are deceased thus leaving only the defendants and I
as the actual beneficiaries of his estate.
e. The Defendants have sold and still wants to sell the deceased’s property to the
detriment of the beneficiaries.
5. The plaintiff asserts that if the defendants are not restrained from managing the
estate of the late Erasmus Ssimbwa, the said estate will go to a total waste to the
detriment of the plaintiff and other beneficiaries.
6. The plaintiff is the fit and proper person to administer the estate of the late Erasmus
Ssimbwa.
7. This Honorable court is vested with jurisdiction to hear and determine this matter.
WHEREFORE the plaintiffs pray for judgment against the defendant for;
a) An order revoking the defendant’s letter of administration.
b) An order that the letters of administration be granted to the plaintiff.
c) A permanent injunction restraining the defendants from further dealings with the
estate of the deceased Erasmus Ssimbwa.
d) An order that the defendant surrender the letters of administration granted to her
and files a comprehensive, true and correct inventory.
e) General damages
f) Costs of this suit.
DATED at Kampala this 6th day of November 2020.

……………………………………..

COUNSEL FOR THE PLAINTIFF

Drawn & Filed by:-

M/s Odida & Co. Advocates,
Barya Plaza, Plot 20 Kampala Road.
P. O Box7117, Kampala Uganda
 THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MASAKA

CIVIL SUIT NO.123 OF 2012

(ARISING OUT OF Probate and Administration Cause No. 340/2019)

MARIA BIRABWA...............................................................PLAINTIFF

VERSUS
3. Jane Frances Nalwadda
Yekoyasi Kimbugwe ..................….............................................DEFENDANTS

SUMMARY OF EVIDENCE
The Plaintiff shall adduce evidence to the effect that the deceased died in 2019,
Letters of Administration were granted to Jane Frances Nalwadda nd Yekoyasi
Kimbugwe who made false declarations and concealed important information from
this Honourable Court.

LIST OF WITNESSES
1. Plaintiff
2. Others with leave of court
LIST OF DOCUMENTS
1. Letters of administration granted Vide High Court Probate and Administration
Cause No. 340/2019.
2. Bukedde News Paper in which their notice was published.
3. Others with leave of Court
LIST OF AUTHORITIES
1. Constitution of the Republic of Uganda, 1995 as amended.
2. Succession Act, Cap 162
3. Civil Procedure Act, Cap. 71
4. Evidence Act Cap. 6
5. Civil procedure Rules S.I 71-1 as amended
6. Case law
7. Others with leave of Court
DATED at Kampala this 6th day of November 2020.
……………………………………..
COUNSEL FOR THE PLAINTIFF
Drawn & Filed by:-
M/s Odida & Co. Advocates,
Barya Plaza, Plot 20 Kampala Road.
Q. O Box7117, Kampala Uganda
PART 2

BRIEF FACTS

Assuming Jane Frances and Yekoyasi Kimbugwe obtained letters of administration

from the Chief Magistrates Court at Masaka vide Chief magistrates Court Probate and
Administration Cause No. 145/2019. Their father’s estate was within the court’s
monetary and territorial jurisdiction. They stated in their application that they are the
only surviving relatives of the deceased.

LEGAL ISSUES

1. Whether the Grant of letters of administration by Chief Magistrates Court at

Masaka vide Masaka Chief Magistrates Court Probate and Administration Cause No.
145/2019 to Jane Frances and Yekoyasi was lawful?
1. the grant of letters of administration by the chief magistrate’s court to Jane and
Yekoyasi is lawful?

2. What remedies are available to Mria Tereza?

3. What is the procedure, forum and documents ?

LAW APPLICABLE

1) Constitution of the Republic of Uganda, 1995 as amended.

2) Succession Act Cap 162

3) Small estates (special provisions) (probate and administration) Act, Cap. 156

4) Civil procedure Act Cap71

5) Judicature Act Cap 13

6) Small estates (special provision) (probate and administration) rules S.1 156-1

7) Civil Procedure Rules. S.1 7-1

8) Relevant Case Laws

RESOLUTION OF ISSUES
2. Whether the Grant of letters of administration by Chief Magistrates Court at
Masaka vide Masaka Chief Magistrates Court Probate and Administration Cause No.
145/2019 to Jane Frances and Yekoyasi was lawful?
Section 2 (1) of the Act amended by the Administration of the Estates (small estates)
(special provision) (amendment of jurisdiction of Magistrates courts) Order, 2009 S.I
20 of 2009 under Rule 1, the jurisdiction of Magistrates courts under small Estates
(special provision) ( probate and administration) Act Cap 156 in the case of the Grant
of probate or letters of administration in respect of small Estates was amended as
follows:-
- Grade 1 Magistrate's court, not more than 20 millions.
- Chief Magistrate's court, not more than 50 million.
According to our facts, the Estate of the deceased Erasmus was valued at UGX
500,000,000 thus making the Estate outside the monetary jurisdiction of the Chief
Magistrate.
In the case of Yozefu Maria Sserwanga V Richard Mubiru and Farasica
Namubiri H.C.C.S no 27 of 2004, the grant of letters of administration to the
plaintiff in respect of the deceased’s Estates which was stated to be shillings
3,000,000/= was nullified on the basis of being outside of the monetary jurisdiction of
the Magistrate's Grade II Court.
Thus it follows from the above that the Grant to Jane and Yekoyasi of letters of
administration by the Chief Magistrate's Court of Masaka was a nullity as the estate of
the deceased at the time the Grant was made was worth 500 million making the Estate
outside the monetary jurisdiction of the Chief Magistrate's Court.

3. What remedies are available for Maria Tereza?

Section 234(1) of the succession Act provides that the Grant of probate or letters of
Administration shall be revoked by just cause. According to sub section (2)" just
cause" means inter alia, that the proceedings to obtain were defective in substance
(S.234(2) (a)).

Jane and Yekoyasi obtained a Grant from the Chief Magistrate's Court which lacked
the correct monetary jurisdiction. Thus rendering, the proceedings of defective as per
S 234 (2)(a) of the succession Act Cap 162.
According to section 33 of the judicature Act, the court is empowered to grant such
remedies on such terms and conditions it thinks just, as any of the parties is entitled to
on respect of any legal or equitable claim so that matters in dispute may be
completely or finally disposed of and multiplicities of legal proceedings are avoided.
This is in addition to section 98 of the civil procedure Act Cap. 71 which gives the
court inherent powers that make such orders as may be necessary for the ends of
justice or prevent abuse of court process.
Therefore Maria Tereza has a remedy to file a suit for an order anulling the grant to
Jane and Yekoyasi. The suit will contain the following prayers:-
a). A declaration that the Grant of letters of administration to Jane and Yekoyasi is
null and void.
b). An order revoking and / or an annulling the letters of Administration granted to
Jane and Yekoyasi to the estate of Erasmus (deceased).
c. An order to appoint Maria Tereza as the new administrator to the estate of the Late
Erasmus Ssimbwa.
3. What is the procedure, Forum and Documents?
Procedure:-According to section 265 the as succession Act, in any case before the
high Court in which there is contention, the proceedings shall take as nearly as may be
the form of a regular suit according to the provisions of the law relating to Civil
procedure. Order 52 of the Rules
Thus Maria Tereza could file an ordinary plaint in the High Court against the current
administrator annulling the Grant to Jane and Yekoyasi however, to get a quick
remedy, Maria Tereza can proceed by way of Notice of Motion accompanied by an
affidavit.
Forum :- High Court of Uganda at Masaka

Documents:- Notice of Motion and accompanied by Affidavit in support.