The High Court at Mbale clarifies principles on fraudulent procurement of Letters of Administration, reaffirms that unregistered Islamic marriages remain valid under the law.

Waboga David
Oct 1
8 min read

Introduction

Estate administration is ordinarily a straightforward process under Ugandan succession law. Once a person dies intestate, the immediate task is to identify the rightful administrator(s) of the estate. This process is not merely procedural; it requires the involvement of all close family members, including children, widows, and any other potential beneficiaries, so that no one with a legitimate interest is excluded. In particular, widows hold priority in administration under the Succession Act, and their role cannot be disregarded.

In the recent case of Mayamba Faizo & Others v. Aisha Cheboi & Others (Civil Suit No. 01 of 2023). The case involved disputes over fraudulent procurement of letters of administration, exclusion of a widow from family deliberations, and concealment of estate property.

Facts

The late Hajji Ali Cheboi, a resident of Bukhulo Sub-County, Sironko District, died intestate on June 19, 2021, survived by three widows (Hajjati Zulaika, Hajjati Hadijah, and Aisha Cheboi) married under Islamic rites, over 44 biological children, and 8 dependents.

His estate included multiple immovable properties, such as lands in Sironko District and Mbale City, complicated by its polygamous nature and prior court decrees confirming ownership of certain parcels (e.g., 500 acres from Land Suits Nos. 005 and 007 of 2012).

Following his death, family meetings were convened in June 2021 and November 2021 to select administrators. A meeting on November 13, 2021, purportedly attended by all widows, children, relatives, and local authorities (presided by the Senior Assistant Secretary of Bukhulo Sub-County), unanimously appointed the Plaintiffs, four biological children (Mayamba Faizo, Chebet Saida, Rashid Cheboi, and Bisiku Peace), as administrators. Relying on minutes and an attendance list from this meeting, the Plaintiffs obtained a certificate of no objection from the Administrator General and petitioned the High Court for letters of administration (Administration Cause No. 039 of 2022).

The Defendants, another widow (Aisha Cheboi) and 10 of her children, alleged exclusion from the process, fraud in the family minutes (including forged signatures), concealment of assets, and improper inclusion of non-estate properties. They lodged caveats on May 11, 2022, blocking the grant.

The Plaintiffs then filed this suit seeking removal of the caveats, a declaration of their suitability as administrators, and related reliefs. Evidence included witness testimonies from both sides, family minutes (DEX4), certificates of title (DEX6, DEX7), a sale agreement (DEX8) showing the 1st Plaintiff's unauthorized sale of estate land, and the petition (PEX1).

Notably, the attendance list (DEX4) listed Sabira Yasin (a son) as present and signed, despite his imprisonment; the 1st Defendant's name was absent despite claims of her attendance; and two other sons (Faisal Mayamba and Tabule) were abroad.

The 1st Defendant's family claimed representation via minor son Musiwa Yunus, rejected by the Administrator General.

Issues

The Court considered the following agreed and additional issues:

Whether the Plaintiffs fraudulently procured the certificate of no objection using forged family minutes.
Whether the caveats lodged by the Defendants forbidding the grant of letters of administration were malicious, baseless, and untenable.
Whether certain properties in Mbale City formed part of the estate of the deceased.
Whether the Plaintiffs were the most fit and suitable persons to administer the estate.
What remedies were available to the parties?

Legal Representation

Plaintiffs were Represented by Elias Habakurama of M/s Habakurama & Co. Advocates.
Defendants were jointly represented by Mutembuli Yusuf of M/s Mutembuli & Advocates and Ntuyo Shafik of M/s Sefu Advocates & Solicitors.

Submissions

Plaintiffs

Asserted unanimous family endorsement via the November 13, 2021, meeting (all widows and children present, signatures authentic); caveats were malicious as Defendants were represented (e.g., via Musiwa Yunus); they are suitable administrators as biological children; disputed properties belong to the estate; sought caveat removal, declarations of suitability, general damages, and costs.

Defendants

Alleged fraud in family minutes (forged signatures, e.g., Sabira Yasin's while imprisoned; exclusion of 1st Defendant); unauthorized sale by 1st Plaintiff; concealment of 500 acres and improper inclusion of joint tenancy properties; caveats justified to protect interests; 1st Defendant (a widow) and co-widows preferred as administrators under Succession Act, s. 199; sought caveat validation, suit dismissal, and costs.

The Court noted deviations in cross-examination (e.g., PW2 admitting not all children attended) undermined Plaintiffs' claims.

Court's Findings

The Court established that the Plaintiffs fraudulently obtained the certificate from the Administrator General by relying on forged and misrepresented family minutes from the November 13, 2021, meeting.

The Court observed;

"I find that the act of including the name of Sabira Yasin and the presence of his signature on the attendance list of the said family meeting in which the Plaintiffs were appointed as the administrators of the estate of the late Hajji Ali Cheboi well knowing that the said person was in prison at the time constitutes a clear case of fraud."

Further linking this to fraud as "an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right," drawing from Zaabwe v Orient Bank Ltd and 5 Others [2007] UGSC 21.

The Court annulled the certificate, noting the absence of the 1st Defendant's name on the attendance list (DEX4) despite claims of her presence, and the unexplained signature of the imprisoned Sabira Yasin.

Justification for the Defendants' Caveats

The Court established that the caveats lodged by the Defendants were not malicious but were grounded in legitimate concerns, including the fraud, exclusion of the 1st Defendant's family, and the 1st Plaintiff's unauthorized sale of estate land.

As stated;

"In sum, I am convinced that Defendants put forward sufficient reasons necessitating them to lodge the caveats forbidding the Plaintiffs from being granted the letters of administration in respect of the estate of the late Hajji Ali Cheboi."

This was evidenced by the sale agreement (DEX8), where the 1st Plaintiff purported to sell an access road as "the heir," violating Sections 22 and 188 of the Succession Act, Cap. 268.

Inclusion of Specific Properties in the Estate

The Court established that certain properties were erroneously listed in the Plaintiffs' petition (PEX1). For Plot 38B Wanale Road (FRV MBA69 Folio 7), it was not part of the estate due to joint tenancy survivorship.

"Therefore, including it among the estate property of the late Haji Ali Cheboi would be erroneous because upon his death, the entire interest in that property passed onto the surviving joint owners, that is, Aisha Cheboi and Musiwa Yunusu."

Conversely, for Plot 3, Central Road Lwakhakha Cell (FRV MBA 72 Folio 17), the estate's entitlement was limited to the deceased's 50% share under tenancy in common.

Suitability of Administrators

The Court noted that the Plaintiffs, as biological children, were not the most fit persons, prioritizing the widows instead. It ordered:

"In the best interests of the estate of the late Hajji Ali Cheboi and its beneficiaries, this Court hereby declares the three widows of the deceased to be the most fit and proper persons to jointly administer the estate. Accordingly, they shall jointly apply for letters of administration together with a selected number of representatives from among the children of the deceased whose mothers are not among the three legally recognized widows."

On Family Minute Meetings;

The Court observed deviations in witness testimonies during cross-examination that exposed flaws in the Plaintiffs' narrative.

For instance:

"In the cross-examination of PW2, he deviated from the information he gave the court in his evidence in chief. He stated that during the meeting on 13th November 2021, not all the children of the deceased attended, but only those who mattered. He also hesitantly told the court that he does not recall whether one of the children of the late Hajji Ali Cheboi, called Sabira Yasin, attended that meeting."

Further, PW3, PW4, and PW5 confirmed Sabira Yasin's imprisonment and the absence of Faisal Mayamba and Tabule abroad, rendering the attendance list (DEX4) unreliable.

Exclusion of Beneficiaries

The Court further observed a systemic failure to include all family branches, particularly the 1st Defendant's lineage.

"It is therefore evident from the above facts that the 1st Defendant and her children were not represented in the process of procuring the letters of administration of her husband's estate. To me, this is a sound reason for the 1st Defendant to oppose the Plaintiffs' cause of obtaining the letters of administration."

It noted the rejection of Musiwa Yunus (a minor) as a representative without substitution.

Challenges in Large Polygamous Estates

The Court observed the practical difficulties in convening all beneficiaries but stressed the need for plausible explanations for absences:

"I am aware that at times it may not be possible to get all the beneficiaries, probably at the same time, to sit and agree on the preferred person(s) to administer the deceased's estate... As long as a significant number of beneficiaries have agreed to a specific position in the best interest of the estate, and a viable explanation has been given for the absence of the other beneficiaries, the court or even the Administrator General can base on the available information to take a decision."

On remedies, the Court observed no basis for general damages to the Plaintiffs, as "the Plaintiffs' case substantially fails," and exercised discretion on costs to foster reconciliation: "The parties to this suit are family members. For purposes of promoting harmony and reconciliation between them, each party shall bear its own costs."

Scope of Fraud in Administrative Processes

Clarifying the expansive nature of fraud, the Court stated: "The meaning of fraud in the context of the definition offered by the Supreme Court in the case of Zaabwe v Orient Bank Ltd and 5 Others (supra) extends to any 'false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which deceives and is intended to deceive another so that he shall act upon it to his legal injury'." This applied directly to the misrepresented attendance, vitiating the family consent required under Section 5(1) of the Administrator General's Act, Cap. 264.

Criteria for Lodging Caveats

The Court clarified that while Section 249 of the Succession Act does not prescribe explicit criteria, caveats require "sufficient reasons in the supporting affidavit," which the Defendants satisfied through evidence of fraud, exclusion, and asset dealings. Quoting: "From a reading of Section 249 of the Succession Act (supra), the law does not expressly prescribe the criteria for lodging a caveat against the grant of letters of administration. However, any person lodging such a caveat must provide sufficient reasons in the supporting affidavit."

Treatment of Co-Owned Properties

"Through the right of survivorship, the interest of a co-owner in a joint tenancy will pass equally to all of the other co-owners upon his or her death... Upon the death of a co-owner in a tenancy in common, the deceased's interest in the property passes to his or her estate," per Olum v Bongomin & 4 Ors [2019] UGHCCD 84 and Section 56 of the Registration of Titles Act, Cap. 230.

Priority in Administration for Polygamous Islamic Marriages

The Court clarified that unregistered Islamic marriages remain valid under Section 17(a) of the Marriage and Divorce of Mohammedans Act, Cap. 147, preserving widows' preference under Section 199(1) of the Succession Act:

"Therefore, the marriages of Hajjati Zulaika and Hajjati Hadijah to the late Hajji Ali Cheboi cannot be invalidated merely on the basis that they were not registered and that no marriage certificates were issued... In cases where registration of a marriage is not a mandatory legal requirement, an affidavit may suffice in lieu of a marriage certificate."

Reaffirming the practice under the Administrator General's Act, the Court upheld: "It is a requirement that all the beneficiaries of a deceased's estate must give consent to the person(s) that the family chooses to lead the process of obtaining letters of administration... It is prudent that during the family meeting, the deceased's known beneficiaries, assets, liabilities, members' attendance, and the deliberations should be recorded on a piece of paper."

Further reaffirming Amina Rose Nakaye v Haji Juma Achikule [1994] UGHC 118, the Court declared:

"A widow is the most suitable person to obtain a representation of her deceased husband's estate. In the normal case of events, she is the person who would rightfully, properly, and honestly safeguard the assets of the estate for herself and her children."

Given their fraudulent conduct and unilateral dealings with estate property, the Court found the Plaintiffs unsuitable to administer the estate.

Holding

The Plaintiffs fraudulently procured the certificate of no objection using forged minutes.
The caveats lodged by the Defendants were valid and justified.
The Plaintiffs were not the most suitable persons to administer the estate of the late Hajji Ali Cheboi.
The Court dismissed the Plaintiffs’ suit and upheld the caveats, effectively barring them from obtaining letters of administration.

Key Takeaways

Any misrepresentation in family minutes or attendance lists amounts to fraud, invalidating the process.
Beneficiaries have a wide right to lodge caveats under Section 249 of the Succession Act to protect their interests.
Courts will not appoint persons tainted with fraud, concealment, or unauthorized dealings as administrators.
All beneficiaries, especially widows, must be involved or properly represented in decisions regarding the administration of estates.

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