Nalumansi v Kasande (Civil Appeal 10 of 2015) [2017] UGSC 87 (10 July 2017)

THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA ICORAM: ARACH-AMOKO, NSHIM4E, O\IO_AWERI, MWONDHA, 7'I I}ATE M WA. E KI RIK I] B I N ZA. JJSC.] CIVTL APPEAL NO.OIO OF 2015 10 t I 15 BETWEEN ELIZABETH NALUMANSI WAMALA : : : : : : : : : : APPELLANT AND 20 7. JOLLY KASANDE 2. NABUKEERA ESTHER 3. RONNIE M. LUTAAYA JUDGM ENT O FHO N. JUS TICE PRO F. DR. LI LLIAN [App e al fro m the d e ci.s io n,! lh. ^? o:n of App e at ( Eg o nd. a_ N te nde, Kakuru & Kirgabwire, ,t t til tn ciuil Ap;;; No.o7o of 2014, dated. lBth June 2O1S.l Representation Mr. John Mary Muwaya appeared for the appellant while Mr' Byamugisga Guma appeared for the rst respondent and Mr' Mwanje Hakim appeared for the 2Dd ancl 3rd respondents. 25 30 TIBA?E MTVA- EKIRIK UBINZA. : : : : :: :: : : : : : : : ]: :RESPONDENTS 1 ! Introduction A::.i" a second appeai from the judgment of the High The appeal arises from a dispute as to who should administer the estate of the late Wilberforce Noah Wamala, who died intestate on 4th Febru ary, 2012. Brief Facts The background to the appeal is that the appellant and the deceased got married in the United Kingdom in 1992 and, obtained a marriage certificate. 1lhe couf,le begot one child but subsequentry the man returned to Uganda while the appcllant remained in the U.K. In 1999, the deceased entered into a ,,customary marriage,, with the 1"t respondent and four children *er. bo.n to the couple. The couple settled in Muyenga _ an affluent suburb of Kampala. 10 l5 t 20 Following a brief return of the a ppellzrnt to Uganda in 2O1O, the deccased and the appellant renewed their a 25 30 marnage vows at Namirembe Cathedral and were issued with a marriage certificate. Thereafter, the appellant went back to the UK and only returned after the death of the deceased. The appellant petitioned for Letters of Administration of the estate of the deceased on 13th March, 2012. However, the 1"t respondent, the 2,.,a respondent idaughter of the deceased) and the 3.d respondent (brother ofthe deceased) jointiy lodged caveats against the petition aleging that the appellant was not the right person to apply for the grant of Letters of Administration. On 1"t June 2072, the appellant instituted a suit against the respondents for orders that the caveats lodged by the 2 35 5 respondents be removed and Letters of Administration be granted to her as the widow. Issues of contention a t the His h Court Findi ngs ofH igh Court 10 1. Whether the plaintiff (now appellant) is entitted to jointtg admi.ni^s te r the estate. 2. Whether the caueats should be lifted 3. Auailable remedies At the hearing of the appeal, counsel for both parties adopted their written submissions duly filed in court. t I 15 20 The trial judge held that the inconsistencies and break ups in thc marriage of the plaintiff and the deceased did not qualify the appellant to be a fit and proper person to administer the estate solely. That there was a subsisting marriage between the deceased and the 1"t respondent by the time of the renewal of marriage vows between the appellant and the deceased. The court also noted that the marriage certificate of UK was neither registered nor notarized in Uganda. That given the animosity that had developed between the appellant and the Co-interim administrators (the respondents) of the estate, coupled with the fact that the appellant lived partly in uK, the appellant could not keep hands-on administration of the estate. Based on the above reasoning, the trial court on its own motion appointed the Administrator General as the Administrator of the estate and vacated the caveats lodged by the respondents to enable the Administrator General distribute the estate. 25 30 3 i L- 5 The trial court also ordercd that by virtue of the customary marriage between the deceased ..ra tn" 1"t respondcnt, the 1"t respondent and her children were cntitled to occupy the Muyenga property as part of their share. Dissatisfied with the High Court decision, the appellant appealed to the Court of Appeal on the following g.oura", 1. The learned trial jud.ge erred. in law and. fact when he wrongly granted. letters of ad.ministration to the Administrator General ? fhe barned- trial judge erred. in law and fact when he found that there was a customary marriage between the deceased and the lst respond"ent 3 The-learned trial judge erred. in law and fact when he wronglg failecl to eualuate the euidence on record. 1.rh: learned triat judge erred. in law and.fact when he dbtrtbuted the estate propertA 5.. The _learned trial judge erred. in law and fact in holding that the l"t respondent and her child.ren occupg the Muyenga propertg which b a commerctal entitg. t0 a 15 20 ]. Findin e s ofth e Cou rt of Ao peal 30 In.rejecting the appeal, the Justices of Appeal found,, tnter alia, that from the evidence on record, li *." clear that there existed cogent reasons that rendered the appellant unsuitable to administer the estate. These included the appellant's residence outside of Uganda which made her unavailable to deai with the day to day issues in the 4 V-.4 Court rejected the prayer for a paternity test by the appellant, finding that the deceasei never denied any of his children. ti administration of thc estate, the significant and substantial nature of the estate,'tfr. .rutrlr" of inventory, and the multiplicity of the U.rr.n"i".i." Irr"fuairg minor children who were not children "f th; ";;;nt. Thar, this necessitated a neutral person to U" aOtlio-_*. impartial decisicns in the matters of the estate fo. tt. benefit of all beneficiaries. In regard to the fact that the Administrator General was not heard before br . ortheAdmi,,",,;;'."A:X:."#T.I j::il:lllH:iT,l was a fundamental mishap by the trl.tSrag. but that such failure to comply with the i.tie. of tf.e j.i, *or,O not result in setting aside an order that *"" _;;;: as there was no miscarriage of justice. Further, that whether the appellant was a wife was not a matter to be resorved as an ag.eea ract. wrrettrer or not the appellant was entitled to sharc in the estate of the deceased and therefore entitled t. [it*. was dependent on whether or not she was a lawful spouse to the deceased. On the issue of the M notedthatevenir*."f,".*;JJ:'rll?'J*Tff :.i:T::; to be entitled to share in the estat" of tfr" deceased, as a natural guardian of her four minor children, it was logical to provide necessities of life to the *irro. children like accomrnodation out of the estate and this wouid be counted as part of their share in the estate oith. d.".u""d. 10 o 20 25 O 30 Aggrieved by the decision of the Court of Appeal, the appellant appealed to this Court on tfr" ioifo*irrg grounds: 1. The learnedjustices ofthe Court ofAppeal erred in law when they held that tfr" "pp"ff"nt was not 5 Lja 15 5 a wife and thus the lawful widow of the deceased thereby occasioning a miscarriag. ofjusti"". The learned justices of the Court ofAppeal erred l" l.* when they found ."*-;;;rexisted a l,,r"r:Tu* marriage between th; ;"..""ed and the l"t respondent without proof oi-urry "rr"f, marriage let alone it being'r"gi,l*o at the material time the appellant ""f.t.utua- marriage with the deceased. The learned justicer ,,,. .,.* *h;,' ;;;"":*h:;"[."rj:ff ":;..T: Ietters of administration to the a?riinistrato, General, having found at the "u_.;r;; that the trial judge had not s.224 of the Sr""., followed the provisions of grant. ssion Act in making such a D 10 15 t 3 The learned justices of the Court of Appeal erred in law when they confirmed the gr.ri- "r the retters of administration to the Admini".r:;;;", at the same time d;-;^;:;:;',:-',,"1 *."neral, having found p rovisi o n s ". i. n r i j' ll :l: ff fl ,r; ]fl .11i::: ."1,i" o" ii, " -?:XT:t:; ffi:ffi:"t praved that reave be granted to amend Leave was granted. The appeliant prayed that costs. the appeal be aliowed with I 30 6 \'- L: The Appellant submitted that the fact that she was a rvife to the deceased was rhatthedigitar.".,J."J,:',Tfi :".Ti::H:T;::'r::*:: agreed upon by the respondent during the scheduling conference. That this meant that the respondent admitted the fact that the appellant,s marriagc *ltf, tn" deceased was a valid marriage. It was submitted further that the statement of the apperiant being a widow was an admittcd fact which needed no proof. In support of his arguments, appellant's counsel relied on Section SZ of the Evidence Act. The Section provides: I I 15 Facts ad m itted n eed not b e proved, 20 25 30 No fact need be proved in any proceeding which the parties to the proceeding or their agents agree to admit at the hearlrrg, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings; except that the court may, in its discretiorr, i"quire the facts admitted to be proved otherrrrise than by such admissions. Counsel concluded that arising from the above, the Justices of Appeal had no basis in law to disregard such an admjtted fact by finding that the marriage between the appellant and the deceased during his tifetime was not a 7 35 Appellant,s submission Ground L 10 matter that would be resolved between the parties. as an agreed upon fact Respondents, submission 10 The 1"t respondent submitted that there was no finding by the Court of Appeal that the appellant was not a widow. That what the learned Justices of Appeal found was that the issue of whether or not the appellant was a wife of the deceased was not a matter that could be resolved by admission of the parties. Counsel argued that in spite of the admission by both parties, it was pertinent for the Court of Appeal to investigate whether the appellant was a widow and thus entitled to administer the estate of the deceased Furthermore, counsel urged that the Court of Appeal found that in line with Section 30 of the Succession Act, the Appellant could not quali$r as an applicant for Letters of Administration because at the time of the death of the deceased she was not living with him. For the 2"d and 3'd rcspondents, it was submitted that since there was no order made by the court on the alieged admission, the issue of the status of the appellant as a widow remained to be investigated and determined by the court. Counsel relied on Order 12 rule I and,2 of the Civil Procedure Rules which provide that where parties reach an agreement, Orders shall immediately be made in accordance with Rules 6 and 7 of Order 15. Counsel further argued that illegalities once brought to the attention of court override ail questions of pleadings, including admissions. That during trial, evidence was 15 t a 20 35 /'-a L- \- 5 30 8 5 adduced that the appellant was not a wife of the deceased therefore an admission contrary to such evidence was an iliegality that court should not close its eyes to. Rejoinder by appellant In reply to the issue that the appellant was not an entifled beneficiary of the deceased,s estate because they had separated with the deceased, counsel submitted that there was no evidcnce on record that the appcllant was deliberately or intentionally not living with the deceased. That staying apart per se did not in any way connote separation in law. He thus urgcd that Section 30 of the Marriage Act was wrongly applied. In regard to the issue of proof of customary marriage between the 1"t respondent and the deceased, counsel srrbmitted that no custom was cver proved at the trial and that there was no counter-claim on the marriage between the appellant and the deceased as the marriage certificate was admitted without any objection. 10 15 a a 20 25 30 concerning the grant of the Letters of Administration to the Administrator General, counsel reiterated his earlier submission that the grant was unlawful as it was made in utter disregard of the provisions of the law. 9 35 In reply to the 2"d and 3.d respondents, written submissions, counsel pointed out that the 3d respondent being introduced as a brother to the deceased was false. He made reference to the High court proceedings on record wherein the 3'd respondent had testified during cross_ examination that he was not a blood brother of the deceased. 5 10 t a 15 20 25 It was argued for the appellant that during the trial, the issue of customary marriage was never raised nor adjudicated upon. The only evidence on the issue of customary marriage between the lst respondent and the dcceased was thc tcstimony of the respondent. Counsel for the appellant argued that since the issue of custornary marriage was not raised for trial, it was not proper for the Justices of Appeal to adjudicate upon it. Counsei for the appellant relied on the authority of M/S Fang Min vs. Belex Tours & Travel Ltd SCCA No.6 of 2O13 for the proposition that basing a court decision and relief on an un- pleaded matter or issue not properly placed before it for determination is an error of law. Further, counsel pointed out that the 2nd and 3d respondents wrongly applied Order l5 rule 6 (b) of the Civil Procedure Rules. IJe emphasized that the issue of the appellant being widow had been settled and no evidence was required to prove an issue that was agreed upon. That the action of the judge attempting to resolve a matter which had been resolved without giving an opportunity to the appellant to be heard on the matter amounted to being condemned without being heard. 35 Ground 2 Appellant's submission Respondents, submission It was the submission of the r"t respondent that the existence of a customary marriage between the l"t respondent and the deceased was a concurrent finding of both the High Court and the Court of Appeal. That as such the appellant,s appeal to the Supreme Court on this fact was in effect cailing upon this Court to re-evaluate the evidence on record. In support of the argument, counsel relied on the authority of Kifamunte Henry 10 5 v Uganda SCCA No.Ol O of l99T wherein Court held that, on a second appeal, the Court of Appeal is precluded from questioning thc findings of fact of the trial court, provided that there was evidence to support those findings, though it may think it possible, or ever probably, that it would not have itself 10 come to the same conclusion. Ground 3 Appellant,s submission 15 t 20 On this ground it was submitted that the learned Justices of Appeai having found that the procedure of grant of Letters of Administration to the Administrator Generar was contrary to the stipulated procedure in Section a (5) of the Administrator General's Act, court was obligated to llnd that the grant made to the AG was unlawful. Respondents' submission In regard to ground 3, the 1"t respondent submitted that the appellant's argument about court not foliowing the procedure stipulated in section 4 (s) of the Administrator General,s Act was a new ground not reflected in his Memorandum of Appeal which should be struck out in accordance with Rule OS lal of The Judicature Supreme Court Rules Directions. That ihe amendment of the ground was without the leave of court and thus should not be accepted. Further, counsel supported the finding of the Court ofAppeal that although the High Court flawed in the procedure oitf.. grant of the Letters of Administration, there was no miscarriage of justice. o 25 30 35 11 The submissions of the 2"a and 3d respondents on this issue were substantially the same as that of the l"t respondent. For the 2"d and 3.d respondents, it was submitted that the fact that the appellant was residing in the UK, there was no way she could administer the estate. That the trial judge had a"wide discretion under section 9g of the civil procedure Act to ensure that the ends ofjustice are met by appointing the Administrator Genelal as the administrator of the deceased,s estate. 10 t Rejoinder Ground I The pertinent issues arising from this ground are: whether or not the appellant was a wife of the deceased and counsei argued that the grant of Letters of Administration to the Administrator General was unlawful in utter disregard of the provision of law. In response to the 2na and 3d respondents, submission, it was submitted that the appellant being out of the "orrrtry p". ". does not disentitle a person from being Administrator of an estate. 15 20 Court Analysis and Findings Duty of second appellate Court In resolving the issues raised in this appeal, we are guided by the locus c/assrcus case of Kifamunte Henry vs. Uganda SCCA No. 1O of L99Z thatonasecond.appeal , a second appellate court i-s preclud.ed. from questioning the ftndings of fact of the triat court, prouid.ed. that there was eutdence to support those findings, though it mag thtntc it possible, or euen probably, that it u.tould. nlt houu itself come to the same conclusion ; it can only interfere where it considers that tltere u)as no euidence to support tlte find.ing of fact, this being a question of law. o 25 30 1,2 1^-. t- 5 whether or not she was entitled to a share in the estate of the deceased. It was the appellant,s argument that this issue was settled at the trial Court by the admission of both parties of the digital certificate of marriage tendered by the appellant to support the fact that she was married to the deceased. On the other hand, the respondent opposed the appellant,s argument by arguing that the fact of existence of a marriage was a legal issue that had to be determined by the court even though the issue was not raised for resolution by the parties. I notc that Rule 98 (a) of the Supreme Court Rules prohibits the raising of a ncw ground or argument on appeal save with leave of the Court. The Rule provides: At the hearing of an appeal_ 10 15 o 20 no party shall, without the leave of the court, argue that the decision ofthe Court of Appeal should be reversed or varied except on a ground specified in the memorandum of appeal or in a notice of cross-appeal, or support the d.ecision of the Court of Appeal on any ground not relied on by that court or specified in a notice given under rule gg of these Rules; 25 o 30 Although the rule is restrictive on the parties raising new grounds, this Court may on its own motion in exercise of its inherent powers in RuIe 2 (Zl of the Supreme Court Rules consider a legal issue not presented and agreed upon by the litigants. The Rule provides thus: Nothing in these Rules shall be taken to limit or otherwise affect the inherent 35 13 power of the court, and the Court of Appeal, to make such orders as may be necessary for achieving the ends ofjustice or to prevent abuse of the process of any such court, and that power shall extend to setting aside judgments which have been proved null and void after they have been passed, and shall be exercised to prevent an abuse of the caused by delay. process of any court 10 o o 15 20 25 30 35 In determining whether the appellant was a wife the Court of Appeal held: The issue of whether or not the appellant was a wtfe of the deceased was not i matter that could be resolued ds an agreedfact. Thb was ultimatelg a legal question whici could" onlg be resolued after establishment of the releuant facts. It is clear that on the plbadings of the 3drespondent, the legality of the unioibetween the appellant and the deceased. was called in question. Thi^s is a matter that could onlg be resolued bg the court though the parties could abandon the issue obuiating thi need. for a court decbion... The inquiry into whether there was subsisting mariage does not lose releuance because of the death of a party to it. To the contrary, it i_s important to esiabl[sh the legal relationship between the d.eceased and other people claiming a share in his estate as an entitlement, including the ight to apply for a.nd be granted Letters of Ad.ministraion. The right to share in the estate of a deceased. or to be granted Letters of Administration ordinarilg depends on the legal relationship between those persons and the deceased. 14 \r-^ 5 In spile of the finding by the triat jud.ge that the question of who was married- to[the- d.eceased.J was not important the trial judge then went on to hold that both the appellant and. the respondent no.l tuere entitled to share in the estate of the deceased os were att the deceased's children. The trial jud.ge in effect held that both the appellant and.-thirespon"d"ent were spouses of the deceased who would. be entitled to share in his estate. 10 15 t o 20 25 30 Having correctly pointed out that the question of the marital status of the appellant was a legal question that warranted determination by the court, the Court of Appeal had to go ahead and clearly state whether or not the appellant was a wife in law. In its judgment, the court stated as follows: The resolution of the nature of relationship that each of these persons enjoged with the deceased was keg to resoluing the matters in controuersy in thb suit. At some potnt the tial judge states that since the d.eceased. utas no longer aliue it was immaterial to d.etermine whether the appellant was married. to him or not. Howeuer, in the same breath, the court concludes that she was a beneficiary of the estate of the deceased. Thb was untenable. The relattonship had" to be d.etermined. before determining whether or not she was a benefi.ctary; I note that the Court of Appeal faulted the trial judge for not resolving the legality of the .,marriage,, to the deceased. 35 15 L-.(j 5 Nevertheless, the court did not itself make a finding on this matter. I therefore find that thc Court of Appeal failed in its duty as a I"t appellate court to re_evaiuate all the evidence and come to its own conclusions and findings. [See: Rule 30 (f) (a) of the Court of Appeal Rules, Kifamunte llenry vs. Uganda (supra) and FredrickZaabwev Orient Bank Ltd & Ors. SCCA No. 4 of 20Cl6l. I will therefore go ahead to determine whether the appellant was a wife in law. The record shows that the appeilant got married to the deceased in the UK in 1992 and.obtainea " *#i.g. certificate. However, the triar judge found this marriage to be invalid on ground that it was not proved in evidence. rne nnaing was based on the fact that the appe,ant had ncither registered nor notarized the certificate of marriage in Uganda. Ifo*",r"., the judge did not cite any law which obliges u p.r.on wl_rose marriage has been celebrated outside to have it registered or notarized as a prerequisite for its recognition as a varid union. I therefore find that the High Court,s finding, confirmed by the Court of Appeall that the appeliant,s marriage celebrated in the UK was invalid was an error. Lack of subsequent registration of the *r..i[" can oniy go to proof of the marriage and not its validity. I am fortified in my view by the provisioris of Section 2 (w) (ii| of the Succession Act which defines a wife as: ,,one mqrried to a deceased tn another bsansforeig,,.*,::::I1n:l;:r::fi :";:1"":,3:;,:;:" I thus come to the conclusion that, ," torg as the marriage between the appellant and the deceased was recognized as a valid marriage in the UK where it was celebrated, that marriage is recognized as valid in Uganda. 10 o 15 20 o 30 16 /// 5 Ground 1 therefore succeeds. Ground 2 One of the parties has monogamous marriage whic H::;:,: Ltr;"j, agreed with the nndi.ns of the High court deceascd and 1"tr.,'"to*u' marriage subsisting u",.i"""",L argu e d th a t th i s "" ::.":ff :,: : :,',:[ :r:fff ; H:::::l,il: finding. It is a trite principle of law that where factual findings have been made by the trial court and affirmed b; il first appellate court, the second appellate court, like this one , must Ue careful not to interfere with those findings ,r1.", ,#."r., is satisfied that the findings were devoid ofsupport - ""rolr". on record or that ll.r. u.. so glaringly erroneous that thc findings by the trial court were Areet Sam vs. Uganda SCCA No. 20 of 2eol,offilrT;J:;; Godi vs. Uganda; Supreme Court Criminal Appeal No. S of 2o131. o 20 t Section 1l (S) of tfe Customary Marriages (Registration) Act provides for validity of u Cu"ioir"rfrn"..,"*e as follows.. 'tA customary marriage shalI be void if_ previously contracted h is still subsisting.l a I have already made a finding above tL existed betweJn il;;"j':-i'."J: -'n"t.." valid marriage record that the ","*;::'*trij':#X.jtrtj: 't*T: deceased was dissolved prior to th. ;;;, lj "ro T ".y m arri a ge wj th th e l,, * ";;; ;; ;."r",T.:n::?:ffl : that the deceased drd ":: n"r" ;;;";;;:ifr to enter a vaiid customary marriage with the Rr.t' .."pondent. In the 17 10 30 5 clrculnstanccs, I find that the High Court and thc Court of Appeal were erroneous in law. Thercfore, ground 2 succeeds. Ground 3 proceedings, the court may if it thinks fit , of its own motion or oth erwise. after having heard the 10 The major contention under this ground was the flawed procedure by which letters of Administration were granted to the Administrator General. Letters of Administration constitute a legal document issued by the Court, which allows the administr"ator(s) to _..r^g" uri distribute the deceased's assets. The purpose_ of a grant of Letters of Administration is to coilect the deceased's assets, pay any debts and thcn distribrti"JL. assets to the beneficiaries. Section 4 (5) of the Administrator General,s Act provides that - (a) when the peculiar circumstances of the case appear to the court so to require, for reasons recorded in its a o 15 20 25 30 Administrator General, of administration to th grant letters e Administrator General .., even though there are persons who, in the ordinary course, would be Iegally entitled to administer {the fstale;. (trmphasis added) The High court came to the conclusion that in the crrcumstances surrounding the estate of the deceased, the ends 35 18 5 of justice would be served if Letters issued to a neutral person. of Administration were 10 The appellant's contention is to the effect that the failure by thc High court to hear the Adminisr.u*-C"rr"ral before granting Letters of Administration "" ,tip"i"tJ rn Section 4 of the Administrator Genera.s Act was '. -"i*i"r defect which went to the root of the grant, warra"ti"g i""o."tion of the same. Section 2A4 $l of the Succession Act Cap 162 provides that the grant of Letters of Administration may be revoked or annulled for just cause. According to Section 254 l2l,,Just causc,, inter alia means: "that the proceedings to obtain the grant were defective in substance.', In addressing the consequences of the failure by the High court to hear from the Administrat". G;;;;;ilefore granting him letters of Administration, th" ";";;i;fpear nera as fo,ows: In re-evaluating the evidence on record, the Court of Appeal held that, therc existed "t.r. ^rJ- log.nt reasons when considered together that renderea the ap-pe,ant unsuitable to administer the estate of the decea""d. i;; Court found that a more neutral person like the Administrator General .,,"; ";ll;; 15 o 20 25 a 30 i9 It b desirable that the trial courts should follow the letter of the taw in all matters where the law lays d.own the procedure to be followed. before the exercise of some power. Where a step has been missed. it does notfollow that in euery case tlte failure to comply with the letter of the law will result in setting astde an ord. er that was made. The approach ought to be, in order, to ensure that litigatton ts not u prolonged., that Cl order to stand. (My emphasis) 40 5 for to be able to make impartial decisions for the benefit of all beneficiaries. On this pr"*i"", I "- ,_rrrutf. to fault tfr" i"Jmg ofthe Court ofAppcal. I am also unable to fault the learned Justices of Appeal for upholding the grant of Letters of Aiministration't. th. Administrator General on the basis ihat the pro..ar..i irregularity was not a material defect going to the root of the grant. I now proceed to discuss the law regarding the circumstances in which a person whose legal relatio?rshif with the deceased is that of spouse, can be dlsentitled f.orri Ue.r.nti"g i.L_-ifr" estate. In his lead judgment, Egonda Ntende JA herd that the fact that there was a separation.&l*-"9" ttre appeilant and the deceased, the appellant was precluded from urry'.rrtitr"*ent in the estate of the deceased in accordance with section 30 0f the Succession Act. Section 3O ofthe Succession Act provides: Separation of husband and wife. 10 15 o 20 1. a 30 35 2. This section shall not apply where such wife or husband has been absent on an approved course of study in an educational institution. 3. Notwithstanding subsection (1), a court may, on application by or on behalf of such husband or wife, whether during the Iife or within six months after the dJath of the other party to the marriage, declare that ^z /.2 25 Ng wife or husband of an intestate shall intestale !f,-etl_.th. d""th oi th. irrGiil". as a member of the =aroe hous.hold]- 20 5 (11 shall not apply to the My understanding of Section 3O is that it deals with cases where although the legal relationship between an intestate deceased and his/her partner was that of wife and husband at the time of death, the parti es were not livin as members of the same household I also opine that the section deals with separation as a factual issue and does not limit its application to legal scparation resulting from a court order i.e. judicial separation. Had the enactors of the law intended to limit the Section to parties living separately as a result of a court order, they would have specifically said so. I rnust also state that my interpretation of Section 30 is that subsection 1 creates a general rule that a spouse who is prima facte separated from the other as a member of the same household is not entitled to any interest in the estate in case the other spouse dies intestate. Subsections 2-3 create exceptions to the general rule in subsection 1 . The exceptions are: (i) If the spouse has been absent on approved course of study, [Section 30 (2)l (ii) If a court has on application by the spouse, declared that subsection 1 shall not apply. [Section 30 (3)]. It is on record that the appellant resided in the UK where she was employed as a psychiatric nltrse. She therefore does not fall under the first exception to the general rule. Furthermore, o 10 15 20 25 30 O 35 27 subsection applicant. 4. Section 38(5) shall apply mutatts mutandis to an application made under subsection (3) in determining whether a declaration under this section should be made. 5 she did not apply to court for a declaration that she be exempted from the consequences of not living in the same household with the husband at the time of his death. Consequently, by virtue of the provisions of Section 3O of the Succession Act, I am in agreement with the Court of Appeal decision that the appellant cannot take any interest in the estate ofher deceased husband. Having made a finding that thc appellant cannot take interest in the estate ofthe deceased, I hold that she cannot be granted Letters of Administration. I now turn to address the issue of distribution of the estate. As rightly held by the Court of Appeal, the power to distribute the estate is left to the personal representative(s) of a person who dies intestate. A personal representative is defined in Section 2 ltl of the Succession Act as the person appointed by law to administcr the estate of a deceased person. This includes the Administrator General. The bone of contention in the distribution of the deceased,s estate was a Muyenga buiiding that was occupied by the l"t respondent and her children. The appellant contended that the building was not a residential house but a commercial building and thus the 1"t respondent had no right to stay in the premises. In resolving the aspect of the Muyenga property the Court of Appeal referred to the trial court's order that the property be occupied by the lst respondent and her four minor children who she had with the deceased and that the property would be part of their share of the estate. The appeal court then held as follows: 10 o o 15 20 30 )) 25 5 "Euen { tlrc respond.ent no.l was not to be entitled to share in the estate of the deceased, as the natural guardian of the four minor children of the d-eceased who was responsible for their necessaries it would be logicat .. . to allow her and. the child.ren accommodation out of the estate and this would. be counted as part of their share in the estate of the d.eceased.. It is the d"utg of the personal representatiue to make final distribution of'thl estate and ang dissatisfied partg woutd. be free to contest the same in courts of law. The order of the trial court was subject to the ftnal dbtributton bg the personal representatiue." It is to be noted that the Court of Appeal,s decision dealt with two separate issues: the right of occupancy and the right of the children to share in and therefore own property of their deceased father. I will first deal with the right of occupancy. I observe that the decision of the High Court which in effect was upheld by the Court of Appeal regarding occupancy of the Muyenga propertJr was based on section 26 of the succession Act cap 162 which deart with devolution of residential holdings of an intestate,s property as follows: 10 o 15 20 o 25 The residential holding norrnally occupied by a person dying intestate prior to his or her death as his or her principal residence or owned by him or her as a principal residential holding, including the house chattels therein, shall be held by his or her personal representative upon trust for his or her legal heir subject to the rights of occupation and terms and conditions set out in the Second Schedule to this Act. I however note that in Law & Advocaey for Women in Uganda vs. AG, Constitutional petitions No. L3 of 2OOS and No.S of 2o06, the Constitutionai Court declared null and void, 30 35 5 Section 26 as well as Rules 1, 7, B and 9 of the second schedule to the Succession Act for contravening the Constitutional principle of equality between men and *o..r.rr. I therefore fault the courts for citing a provision which no longer has legal effect. Be that as it may, I note that Rule 3 was not incruded in the court's declaration. The Rule provides as follows: Where a child or children are entiiled to occupation under paragraph 1 of this Schedule and in fact occupy a residential holding, the person legally entitled to the custody of the child or of the majority of the children shall either himself or freisef occupy or appoint some other suitable adult person or persons to occupy the residential holding for so long as any such child or any of such children continue to do so and the person so occupying shall be subject to the duties and liabilities of an occupier hereunder; except that in default of occupation by the person entitled to custody or his or her appointee, a magistrate may, on application of the personal representative or any person interested or on his or her own motion, appoint a person or persons to occupy as aforesaid. o o' 20 5 30 It may be argued that none of the Rules in the second schedule can stand on its own because the Rules derive their existence from Section 26 and that it would follorv that all the Rules (including Rule 3) are no longer on the statute book. However, a reading of Rule 3 shows that the provision does not 24 ( 35 10 15 dilfcrcntiate between rights accruing to male and female childrcn. It does not discriminate againsi ttre children of an intestate deceased merely on the basl of sex. I therefore come to the conclusion that the Constitutional Court deliberately left out Rule 3 in the provisions it declared unconstitutional. The decision to leave the rule on the statute books is in line with Articles (2) and Article 224 of the Constitution. Article (2) (2) provides: If any other law or any custom is inconsistent with any of the provisions of this Constitution, the Constitution shall prevail, and that la (trmphasis mine) 10 o o Article 274 lLl provides 20 S,ubject to the provisions of this article, the operation of the existing law after the coming into force of this Constitution shall not be affected by the coming into force of this Constitution but the exlsting Iaw shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with tfri" Constitution. 30 The essence of Article (21 and Article 224 ot the constitution is to enable a court faced r.vith a partiaily unconstitutional law to sever and excise the unconstitutionaiprovisions so that the remainder which complies with the bonstitution can be enforced. 25 15 t,-' c 5 It must also be stated that inherent in Rule 3 is the principle of "the best interest of the child and her/his welfare.,, This universally accepted principle is to the effect that the best interest of the child shall be a primary consideration in all decisions taken by courts of law. It is this same principie which I must follow in resolving the issue of the Muyenga property. I would therefore uphold the decision of the Court olAppeai to the effect that, even if the 1"t respondent was not entitled to share in the estate ofthe deceased, as the natural guardian of the four minor children of the deceased who was iesponsible for their necessaries, it would be logical in order to provide necessaries of iife to the minor children to ailow her and the children accommodation out of the estate as this was a necessity of life for the minor children. 10 o 15 O 20 25 30 I now move on to the court,s order that the Muyenga propert5r be taken as the children,s share in their deceased fatheris estate. The Court of Appeal upheld the decision of the High Court that the Muyenga property would be counted as part of the children's share in the estate of the deceased. The court of Appeal however went on to state that the order of the trial court was subject to the final distribution by the personal representative. In resolving this issue, I have found it pertinent to refer to Section 25 of the Succession Act which provides that: .All property in an intestate estate devolves upon the personal representative of the deceased upon trust for those persons entitled to the property under this Act.,, Consequently, the final decision regarding devolution of the said property will be determined by the personal represcntative, who in this case is the Administrator General, at the time of distribution of the estate. 35 26 1 r( 5 In the result, I find that ground 3 fails. Arising from the above, I would make the following orders: 1. The grant of the Letters of Administration to the Administrator of the estate of the late Wilberforce Noah Wamala Sendeeba is maintained. 2. The minor of children of the 1"t respondent together with their mother are to continue occupying the Muyenga property. 3. The Administrator General is to file an inventory in the High Court within six (6) months from the order of the Court given herein. 4. The appellant having partially succeeded in this appeal, I would order that costs of the same bc borne out of the estate ofthe deceased. Dated at Kampala this tffi day of. 2017. o O 10 20 PROF. DR. LILLIAN TIBATEMWA-EKTRIKUBINZA. JUSTICE OF THE SUPREME COURT 27 15 25 't^_ -+" =.-[e-^r... * 1.._ .... i. r.... r... r r..... .,.... ). -.:,-J..-;.;.. . O THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA (Coram: Arach-Amoko, Nshimye, Opio-Aweri, Faith lVlwondha,Tibatemwa, JJSC) CIVIL APPEAL NO. 1O OF 2015 BETWEEN ELIZABETH NALUMANSI WAMALA APPELLANT AND 1. JOLLYKASANDE 2. NABUKERA ESTHER 3. RONNIE .IV. LUTAYA RESPONDENT (Arising from Courl of Appeat, Civit Appeat No. O7O of 2014) (Arising from High court (Nakawa) civil suit No. 133 of 2012 also arising out of probate and Administration Cause No. Z1S ot 2O1Z) JUDGMENT OF OPIO-AWERI , JSC I have had the benefit of reading the judgment of Hon. Lady Justice prof. Lillian Tibatemwa-Ekirikubinza, JSC. I agree with her reasoning and conclusion that this appeal should partially succeed. So be it. o Dated at Kampala this day of ....2017 . JUSTICE -AWERI JUSTICE OF THE SUPREME COURT 04- THE REPUBI.IC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA (CORAM: ARACH-AMOKO, NSH|M[E, MWAN}US{A, OptO-AWERt MWONDHA, & TIBATEMWA- EKIRIKUBINZA, JJ.S.C.) CIVIT APPEAL NO.IO OF 20I5. [Arising from Court of Appeol Civil Appeot No.070 ot 2014] [Arising from High court (Nokowo) civirsuit No.l33 of 2or2olso orising out of Probole ond Adminislrolion Couse No.2l5 of 20.12 o BETWEEN EI.IZABETH NAI.UMANSI WAMAI.A ::::::APPELI.ANI AND . JOttY KASANDE . NABUKERA ESTHER RESPONDENIS . RONNIE M, LUTAYA o I hove hod the benefit of reoding the reod judgment of Hon Lody Justice Prof L. Tibotemwo Ekirikubinzo JSC. I 2 3 I ogree wilh her reosoning ond conclusion. r orso ogree with l she hos proposed ond lhe oword of 2/3 costs to the oppellont. Doted ot Kompolo, thi, ----d- doy of , NSHIMYE he orders 2017. JUSIICE OF SUPREME COURI ilil.] R[]l,t[il.t C OF U(;ANDA lN 't'ilt. st I 1,til.\il,t ('o titt I'o F I]GANI)A z\.l'liANIPr\1. o Iilt'l'\\,ut.t\ I'.l,lZ,^llli'l'll NALIilt,\NSt::::::::::::::::::::::::::::::::::::::::,\t,PIit.t.,,\N.t. ANI) 1.,IOLI,Y KASITNDtr 2. NAITTJKEITA ESTHEIT 3.ITONNIII M. LUTAAYA o I have had the benefit of reading in draft, the Judgment of my learned sister Hon- Justice. prof. Lillian Tibatemwa-Ekirikubinza, JSC. I agree with her that this Appeal should partially succeed. I also agree with the Orders she has proposed. As the majority of the members on the Coram agree, this Appeal is hereby partially allowed by a majori ty of 4 to 1 on the terms as proposed by the learned Justice. Dated at Kampala this o M.S. AI{ACI{-AMOKO JUSI'ICE OF TIIE SUI'IIEME COURT 20t7 (COltl1lI : Aruch-Annko, Ns h in11,e, Opio_Au.,eri, M x,on dltn, Tihatcnwa - Dkirikubinzo; .IJSC) CIVIL APPtrAL NO. IO OI' 2015 : : :: :: :: : : : :: : :: ::: :: : : : : : : : : : : :: : : : ITIiSPONDENTS {Appcol from rhc decision of rhe courr of Appeat ar l{otnpora (Egonda- Ntende, Kakuru, Kiryobn,irc JJA). Dilett lg,t, Juttc, 2015 in Civil Appctrt No. 70 of 201 4) I nJF Y..a.y o TIIE ITEPUBI,IC OF UGANDA INTIIE SUPREME COURT OF UGANDA ICORAM: STELLA-AMOKo, AUGUSTINE NSI{IMYE, oPIo AvvERL FAITH MWONDHA,'I'IBATEMWA EKIRIKUBINZA, IJSCJ CIVIL APPEAL NO.OIO OF 2015 ARISING FROM COURT OF APPEAL CIVIL APPEAL N O.O7O OF 2074 ARISING IROM ITIGI{ COURI' (NAKAWA) CIVII, SUIT NO.133 OF 2012 AND ALSO ARISING OUT OF PROBATE AND ADMINISTRATION CAUSE NO.2I5 OF 2012 Illr'l'W}]lrN IILIZABETIINAI,UMANSIWAMAI,A...,...,,,..............APPEI-LAIVI- AND UDCM liNl'()F MWONDIIA s I{ESPONI )IJNTS I have had the opportunity of reading in draft the judgment of my learned s.ister Ekirikubinza Tibatemwa fsC, I agree with her decision on grouncrs 1 & 2. However on I ground 3 specifically about the application of section 30 of the succession Act I differ as hereunder:- Ground 3 as amended by counsel for the appellant states: d "The learned fustices of the court of Appeal erred in raw when they confirmed the grant of letters of administration to the Administrator Generar, having found at the same time that the hiar judge had not forowed the provisions of sectiJn 4(s) of the Adminiskator GeneraI,s Act ,, I wi start with the compraint against the Court of Appear confirming the grant of Ietters of administration to the Administrator General having found thatke trial judge had not followed the provisions above stated of the Administrator General,s Act. 7 1. IOLLY KASANDE 2. NABUKEERAESTHER 3. RONNIE M. LUTAAYA.. o o THE REPUBLIC OF UGANDA IN THE SUPREME COURT O[ UGANDA [COIIAM: STELLA-AMOKO, AUGUSTINE NSIIIMYE, OPIO At [ItL FAIT.H MWONDHA, TIBATEMWN EKIRIKUBINZN, JISC] CIVIL APPEAL NO.OIO OI] 2015 ARISING ITROM COURT OF APPEAL CIVIL APPEAL NO.O7O OF 2074 ARISING FROM IIIGI{ COURT (NAKAWA) CIVIL SUIT NO,133 OF 2O72AND ALSO ARISING OUT OF PROBATE AND ADMINISTRATION CAUSE NO,215 OF 201,2 Illi'Il.rl:N tt.l.lT.AltIit ll NALUMAN.SI Wn Mnt.A....... .................Apt,t,t.t,AN.1. ANI) 1. IOLLY KASANDE 2. NABUKEERAESTHER 3. RONNIE M. LUTAAYA.,.... ILlisl( )Nt)tiN t s IU I) ( lt\{ [ N'I' O[ MWONDHA ISC I have had the opportunity of reading in draft the judgment of my rearned sister Ekirikubinza Tibatemwa JSC, I agree with her decision on grounds 1 & 2. However on ground 3 specifically about the application of section 30 of the Succession Act I differ as hereunder:- Ground 3 as amended by counsel for the appellant states: "The Iearned Justices of the Court of Appear erred in Iaw when they confirmcd the grant of letters of administration to the Administrator General, having found at the same time that the trial judge had not followed the provisions of section 4(5) of the Administrator General's Act " I will start with the compraint against the Court of Appear confirming the grant of Ietters of administration to the Administrator Generar having found that the triar yudge had not followed the provisions above stated of the Admi.istrator Generals Act. .l) e6 1 a I while I agree that the lcarned Justices of Appear cannot be faurted for upholding the grant of letters of administration to the Adn-rinistrator Generar on the basis that the procedural irregurarity was not a material defect going to the root of the grant, I am persuaded by the High Court decision which in my vrew was good position. The case of Gladys EIIa Ferster omela vs Nicholas Etieng& anor (L994) KALR 98. It was herd that: "while the widow of the intestate is the proper person who shourd appry for letters of administration to the estate of her deceased husband, in the instant case there were other ch dren of the deceased not begotten from the appricant wives. This fact causes doubt as to whether the estate may be preserved for the benefit of a, concerned, particularly the children begotten from other women. Therefore, a cran erder would be joined to co-administer the estate with appricants." r wourd amend it by stating that the widow can be co-administrator jointly with the Administrator General. The principle I draw from this decision is that where there are chirdren mothered by other women, it is prudent to give Ietters of administration to the widow and the Administrator General. So in this case, I would grant the letters of administration to the appellant and Administrator General jointly. On the issue of application of section 30 of the Succession Act Section 30 of the Succession Act provides: Separation of husband and wife (1) No wife or husband of an intestate sha, 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 nrember of the same household. (2) This section shall not apply where such wife or husband has been abscnt on an approvcd course of study in an educational institution. (3) Notwithstan,ing subsection (1), a court may, on application by or on behalf of such husband or wife, whether during the life or within six montrrs after the death of the other party to the marriage, declare that subsection (1) shall not apply to the applicant. (4) Section 38(5) shall apply mutatis mutandis to an application made under subsection (3) in deternrining whether a declaration under this section should be made. i{') d-_> 2 a Scction 2(w) of the Succession Act defines wifc in the following ter.ms; Wife mcans a person who at tlre time of the intestate,s death was_ (i) Validly married. to the deceasedaccording to the laws of Uganda; or (ii) Married to trre deceased in another coun t y by amarriage recognized as varid by any foreign Iaw under which the marriage was celebiated Section 2 (k) defines a husband in the same terms. These provisions of the succession Act were enacted in 1906 waybefore the coming into force of the 1gg5 Constitution as amended. Their apprication therefore, can onry go as far as they conform to the dictates of the Constitution which is the supreme law of the Iand' For this provision ( section 30 of the succession Act) to apply therefore, must be construed with such rnodifications, quarifications and exceptions as may be necessary to bring it in conformity rvith the Constitution tnder Article 274. Atticle 224 states: Existing Iaw (1) subject to the provisions of this article, the operation of the existing law after the coming into force of this constitution sha, not be affected by the coming into force of this constitution but the existing Iaw sharl be construed with such modifications, adaptations, quarifications an"d exceptions as may be necessary to bring it into conformi$r with this constitution (2) f or the purposes of tlris article, the expression ,,existing law,, means the written and unwritten law-of Uganda o, any part of it as existed immediatery before the coming into force of tni" Constitution, inctuding ""f-i"* .f Parriament or statute or statutory inshument enacted or made before tha which is to come into force on or after that date. t date *g section 30 0f the Succession Act takes away a widow or widower,s right to a share in t'he property of the intestate deceased ,pour, *u shourd therefore be mindfur of the constitutional dictates under Article 26 of ilteconstitution also. Article 26 provides:- Protection from deprivation of property (1) Every person has a right to own property either individually or in association with others. I 3 a (2) No person shall be con ::f :,T,::I.. ;il ;T;":::::1,;,*::::,:'-i:Till ffiY,#':::i ffl (a) the taking of possession or acquisition is nccessary for pubric use or in the ;::ffi::::r"ence, pubric safety. pubric ",i*1, our,,," moraliry or pubric (b) the compulsory taking of possession or acquisition of property is made under a Iaw which makes provision for _ (i) fromnt fafr:r,:r;,".;, "r; and. adequate compensarion, prior to the taking and acquisition of the property; (ii) a right of access to a court csf raw by any person who has an interest or right over the property. It is now settled law that at the termination of mar . extent or his or her conrriburion. to a "hu." i. il#.?:d:ffij: ixlj#;L Tl Hope Bahimbisomwe Civil Appeal No.10 of ZOOO ' yxTf,T:T"|'#,Xil1il::"eitrrer through divorce, regar or vor,ntary separation Definitely' section 30 0f the succession Act is not about defacto separation. If the Iegislators wanted it to be defacto separauor,, tt. Iaw wourd have provided so expressly which is not the case unde. section 30 of the Succession Act. I I am aware of the case of Baguma vs serufosa Matembe Civir suit No.12 0f 1gg5 and Mboijana James vs Mboiiana-prophi"" (19;;-;i ,iu ,, which appried section 30 of the succession Act peddling the intention "r,r," i"gii"r"n which was enacted in 7906. At that time' the Iegislature was addressing the issrue oI not letting a separatea spouse benefit from his or her intestate spouse,s estate. These questions or fact not taw. For r.easons r wilr give ,r_"" ,;';i;:::0ff:"',:oJration ro be i#;:il'l;'ff::":;ff the same view which is not the case. those cases are not of rhe 1995 constitution u, ullffil^r, _ (1) They were adjudicated before the enrctment "",r"il'Il'ffi:ffiT1"* whether de-facto or otherwise in the instant case. The renewed their marriage ;fiT'J *IHIr*X;:",1,*:,T:,,"ff:,**ti ,.},? =r1 4 t irreconcilable marital differcnces which is the othcr implied intention of sectio. 30 of the succession Act. rt would be a gross mis-direction for one to concrude defacto separation between the couple. It has to be noted that section 30 of the succession Act has to be understood within the context of the period in which the same was enacted. It was passed at the beginning of the 19e century witrr many underrying assumptions basecl on inequarity in gender because of cultural beriefs and customs. These curturar beriefs and customs favoured men to a very rarge extent. And it was men (husbands) who used to own property not women or wives (see Articre in the yare Human Rights and Deveropment journar 4(I) : 177 "187 (2014) women own less than 20% of the land registered in Uganda by /acqueline Asiimwe, making women,s rights a reality in Uga.,ar; edvocac] for Co_ ownership by spouses. It is not by accident that under Articre 32(2) of the 7995 constitution, Iaws, curtures, customs and traditions which are against the dignity, werfare or interest of women, undermines their status are prohibited by the Constitution. This is partry why Constitutional court petitions No.13 of 2005 and 05 of 2006 decrared sections 26 & 2z n,les 1,7,8,9 0f the second schedure of thc succession Act inconsistent with and in contravention of Articles 21(1X2)(3) and 31 of the Constitution. I hasten to add that the fact that section 30 of the succession Act was not declared null and void doesn't in the Ieast mean that it is not unconstifutional. According to the Black's [-aw Dictionary gth Edn. at page 14g7, separation enta s an agreement whereby a husband and wife rive apart from each other wh e remaining married either by mutuar consent( often in a written agreement or by judiciar decree. I also find it a contradiction that one can be wife or husband legaly and at the same timeregarded separated rega,y unless if there is a regar separation recognized in r; which you cease to be a wife or husband or where the-.e is a separation agreement lw ln jR So strictly speaking the facts surrounding this case can,t be construed to mean that the deceased was no longer husband to the appellant and vice versa As already pointed out herein above, at trre termination of a marriage, a spouse is entitled, to the extent of his or her contribution to a share in the estate. However, as for terminafion of marriage by- death, the issue of property is treated differently by the Succession Act There is a da.ger in property l0rntiy acquired but registered in one o o party's name beronging in its entirety to the estate of that person in whose name it is registered without regard to the other party especiary wrren they are staying in different househoids at the time of death. secuon 30 of the succession Act underpins this problem It seems to me what section 30 0f the succession Act does is to take away a surviving spouse's right to a share in the property on the simpre ground that he or she was not literally staying in the same houseJrold with the intestate deccased spouse.lt disregards a surviving spouse's contribution which may have been monetary or indirect through provision of domestic services and provision of emotionar support and comfort. Needless to Say that this spousal contribution creates an interest in the property. This section therefore d the intestate without epnves a surviving spouse of his or her interest in the estate of compensarion,o.,"._.TJ,:;;;':ir, j,";ffIill#fiil:".:iH;:.1:i".rrT: therefore, that this provision i, not.o.rrist"nt with Articre 26 0f the Constitution of the Republic of Uganda. It is no wonder trrerefore that the promurgators of the constitution e,acted Articre 31(2) of the Constitution. It provides: (2) parriament sha' make appropriate raws for the protection of the rights of ;;:ilil::"Lffi T"': ;:i::[,T;::"o *o or th eir d ecea sed s pou s es and to Parliament is yet to make that law. This 1g06 succession Act is c,earry unprotective of the rights of widows and widowers to inherit the property of their deceased spouses. It actually takes them away on grounds of house-hord sepafation. Going by the Ietter and g! spirit of Articre 31(2) of the Constitution, parriament is to make raws with , ,;:;;; "- purpose of protecting the rights of widows and widowers to i,herit the proo.rr, , their deceased spouses. Irowever' as we wait for that time, I fhd Article 26 sufficient refuge for widows and widowers who may suffer being compursoriry deprived of property "by Iaw (succession Act) without prompt payment of fair and adeqrute "ompensation. The constitution of Uganda is the supreme Iaw, and any Iaw that is inconsistent with i! is void to the extent of the inconsistency vide Article 2 of the Constitution. Article 2 provides:- O 6 I Supremacy of the constitution. (1) This Constitution is thc supreme Iaw of Uganda and shal have binding force on all authorities and persons throughout Uganda (2) l( any other law or any custom is inconsistent witrr any of the provisions of this constitution, the Constitution shall prevail, and tlrat other law or custom shall, to tl-re extent of the inconsistency, be void. It is very clear to me that section 30 of the succession Act is inconsistent with the constitution and is null and void. it is against the spirit of Article 26 and Article 31(1) of the Constitution about family rights. In Osolraco Vs Attorney General HCCS No. 13g0 of 19g6, while clarifying o. Article 137(5) and 274 of the Consritution, High Court presided over by the Honourable Justice FMS Egonda Ntende as he then was stated; "Iam aware that undcr article 137(5) of the constitution if any question arises as to the interpretation of the Co,stitution in a court of raw, (which incrudes trris Court), the court may, if it is of the opinion that the question involves a substantial question of ra* refer the questi.n to the Constitutionar Court for decision in accordance with clause (1) of articre 137. It is the constitutionar court to determine any question with regard to interpretation of the constitution. But where the question is simply the construing of existing Iaw with such modifications, adaptations, quarifications and exceptions as io bring such Iaw into conformity with the constitution, in my view, this may be deteimined by the Court before which such question arises,, ' Jg 'I'iris reasoni.g was approved by the Court of Appear in Attorney Generar vs osotraco Ltd Civil Appeal No. 32 of 2002. I equafly concur with this reasoning. The questions before Court are whether the appelant can or cannot take any interest in the estate of her deceased husband and whether the existing law, in terms of trre proviso to section 30 of the succession Act, is irr conformity with trre Constitution of Uganda and if not, r'r'hether it may be construed in such a manner as to br.ing it in conformity with the Constitution of Uganda. As in the osotraco case (supra), the task before us is not to interpret the Constitution but to subject the 1g06 succession Act to the Constitution, and if necessary comply with Articre 224 of the Constitution and construe trre succession o 7 a Act with such modifications, adaptations, quarificahons and exceptions, so as to bring it into conformity with the Constitution. As hi-lighted herein above, section 30 of the succession Act apparently negates a surviving spouse's interest in the deceased's property and this is inconsistent with Article 31 (l) of the Constitution. I would therefore construe it in such a manner and declare it null and void. I would conclude this matter by stating that the widow in this case, the appelrant, has an interest in the estate of the deceased, to the extent of her contribution and is entitled to share the property accordingly. I would allow the appeal and the letters of administratio. granted to the appelant and the Administrator General jointly. Datedthis. lffi ..o^r",.. .!*$ ......... 2017 gA MWONDHA JUSTICE OF THE SUPREME COURT o I t tu"-,Qu-l