This Case Commentary is written by Daniellah Akampwera, a Second-Year law student of Islamic University in Uganda, Kampala Campus

Case No. : Civil Appeal No.10 of 2015

Court: Supreme Court of Uganda

Appellant: Elizabeth Nalumansi Wamala

Respondent: Jolly Kasande

Nabukeera Esther

Ronne M, Lutaaya

Judges: Katureebe, CJ.Arach-Amuko, Mwangusya, Buteera, JJSC, Nsiimye, AgJSC.

Decided on: 17th January, 2019

FACTS

In 1992, while in the United Kingdom, the late, Mr. Wilberforce Wamala got married to the appellant, Elizabeth Nalumansi Wamala. They had one child together, however, the deceased was deported from the United Kingdom in 1993. In 1999, the deceased married the first respondent, Joan Kasande through a customary marriage and they gave birth to four kids.

However, the appellant renewed her marriage vows with the deceased at Namirembe Cathedral after her return to Uganda in 2010. Later, she went back to the United Kingdom and she only returned after the death of Mr. Wilberforce Wamala. The deceased had died intestate and, therefore, both the appellant and the first respondent were claiming administrative rights over his estate.

ISSUES

1. Whether Elizabeth Nalumansi Wamala is a lawful widow.

2. Whether the alleged customary marriage between Jolly Kasande and the deceased was valid

3. Whether the appellant is not supposed to share and administer in the estate of her late husband on account of separation.

ARGUMENTS FROM THE APPELLANT SIDE

· The appellant’s counsel relied on rules 2(2) and 35 of the rules of this court to contend that the court of appeal had erred in law. Further, he relied on the principles in Orient Bank vs. Fredrick Zaabwe &anor (Civil Appeal No.17 of 2007), Fangmin vs. Dr.Kaijuka Mutabaazi Emmanuel (Civil Application No.006 of 2006), and Lakharmishi Brothers Ltd vs. R. Raja & sons (1966) EA 313.

· The appellant’s counsel argued that the court had errored in its judgment by Elizabeth Nalumansi to be a lawful widow yet it still denied her the right to administer the deceased’s estate.

· The appellant prayed that this court declare the customary marriage between the deceased and Jolly Kasade, the first respondent null and void abunitio. This is because it was never registered and the marriage between the appellant, Elizabeth Nalumansi, and the deceased was dissolved after the renewal of their marriage vows in 2010.

· Additionally, the counsel relied on the case of National Security Funds & anor vs. Alcon International Ltd (Civil Appeal No.015 of 2009) and submitted that the issue of separation had not been properly pleaded before it. Therefore, the appellant contended that the court erred in law by denying the appellant the right to administer the deceased’s estate based on the fact that she had separated from the deceased since she was living in the United Kingdom at the time of his death.

· Based on the above errors, the appellant prayed that the judgment be recalled and the errors amended to promote justice. Further, the appellant sought an order for the costs of the application.

AGRUMENTS FROM RESPONDENT

· The respondent’s counsel opposed the judgment and contended that there were neither clerical nor arithmetical errors in the court’s judgment.

· The counsel relied on the authority of Orient Bank Ltd vs. Fredrick Zaabwe &anor (Civil Appeal No.17 of 2007) and submitted that the court was correct when it held that although the appellant was the legal wife, she could not take an interest in the deceased’s estate nor could she appropriately administer it. This is because she and the deceased had separated and court based on the fact that the appellant had revealed that she had been living in the United Kingdom at the time of Mr. Wilberforce Wamala’s death and that she had a casual relationship with Kasumba with whom she sired a child.

·Therefore, the counsel prayed that the appellant’s application be dismissed with costs for the respondents.

JUDGEMENT

The Supreme Court emphasized that all the errors pointed out arose from the court’s interpretation of Section 30 of the Succession Act. Judge Katureebe explained Section 30(1) of the Succession Act as one that deals with cases where the deceased has not been living with his legal partner at the time of his or her death. Further, he noted that with regards to this section, it does not limit its application to legal separation resulting from a court order but also applies where the partner has not been living in the same household as the deceased. Therefore, the court held that given the fact that the appellant, Elizabeth Nalumansi Wamala was not living in the same household as the deceased at the time of his death, she was not entitled to any interest in the deceased’s estate. This is because she returned to the United Kingdom immediately after renewing her vows with the deceased in 2010.

Based on the above ground, the court was in agreement with the court of appeal’s decision and held that the appellant could not be granted letters of administration.

By relying on Article 31(1) and (2) of the constitution which provides for the protection of spouses, the Supreme Court held that the appellant, Elizabeth Nalumansi Wamala was the legal wife of the deceased as their marriage was dissolved when the renewed their vows in 2010. However, it confirmed that she still could not have any interest in the deceased’s estate. Furthermore, the court confirmed that the customary marriage between the first respondent, Jolly Kasade, and the deceased was valid as it had been held by the court of appeal.

The court then dismissed the claim and it ordered each party to bear their costs of this application.

CONCLUSION.

This case is a touchstone in determining the validity of marriages especially those conducted abroad in Ugandan law. It also plays a significant role in proving legal principles concerning succession and inheritance rights of widows and widowers, especially in situations where one of the partners has died intestate and when there are issues of separation. Therefore, this precedent is important in solving marriage, inheritance, and succession disputes in Uganda.

REFERENCES

The 1995 constitution of the Republic of Uganda

The Marriage Act

The succession Act

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