Ahamed Yawe and Another v Kayemba Joseph and Others (Civil Appeal 25 of 2023) [2024] UGHC 1274 (11 December 2024)

## **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT LUWERO**

## **CIVIL APPEAL NO. HCT-17-LD-CA-0025-2023**

## **ARISING FROM LUWERO CHIEF MAGISTRATE'S COURT CIVIL SUIT NO. 089 OF 2016**

**AHAMED YAWE AND ANOTHER……………….. APPELLANTS**

**V**

- **1. KAYEMBA JOSEPH** - **2. KAGIMU SIMON** - **3. ATIDA TONY** - **4. BABIRY AGATHA** - **5. NAKANWAGI JANE** - **6. MULAMIRA JOSEPH** - **7. MAIMUNA NAKYONI** - **8. FRIENDS FOREVER ASSOCIATION(FREFA)…RESPONDENTS**

# **BEFORE LADY JUSTICE HENRIETTA WOLAYO JUDGMENT**

Introduction

1. By a memorandum of appeal lodged on 22.3.2022, the appellants Ahamed Yawe and Namukwaya Miriam appealed the judgment of Ajuna Doreen magistrate Grade one that was delivered on 9.3.2022, on four grounds of appeal to which I shall revert later in the judgment. On 13.1.2024, parties were given a schedule to file written submissions and judgment reserved for delivery on notice. I have carefully considered submissions of both counsel.

Background facts

- 2. The plaintiffs (Yawe and another) initially filed a plaint in the lower court on 15.7. 2016. The two plaintiffs then filed an amended plaint on 18.8.2016. The two plaintiffs subsequently filed another amended plaint on 9.11.2020. It is this latter plaint that I will deem to be the basis of their claim. In this plaint, the two plaintiffs sought the following orders: - a) A declaratory order that the first plaintiff Ahamad Yawe is the beneficiary to the suit land and a purchaser of Maimuna Nakyoni and Maliamu Namukwaya's interest Bulemezi Block 57 Plot 175; - b) An order of a permanent injunction against the defendants Kayemba and seven others from trespassing on the suit land; - c) An order of specific performance of the agreement dated 22.7.2015 as against the seventh defendant Mayimuna Nakyoni; - d) General damages with interest for inconvenience caused to the first plaintiff; and Costs of the suit. - 3. The plaintiffs' claim was that Kayemba and others bought Namukwaya's interest in the suit land but Kayemba and others claim to have bought the suit land from all beneficiaries, which claim Yawe disputes. The plaintiffs also claim that the Mayimuna Nakyoni (defendant No.7) had sold her interest to Yawe the first plaintiff on 27.7.2015 but later fraudulently resold to the first, second, third, fourth

and eight defendants, i.e, Kayemba; Kagimu; Atida Tony; Babirye Agatha , all members of Friends Forever Association Ltd (FREFA).

- 4. The defendants filed an amended written statement of defense on 28.8.2019 in which they denied the claims by Yawe and another. The first, second, third, and fourth defendants averred that they purchased the suit land under their umbrella association FREFA, from some of the beneficiaries of late Nakiwala Elizabeth. - 5. The seventh defendant Maimuna Nakyoni averred that she is a beneficiary in the estate of her late mother to the tune of 1.48acres and that she sold them to the first, second and third defendants under their umbrella association, FREFA, the eight defendant. - 6. In their reply to the written statement of defense, the plaintiffs claimed that the defendants are trespassers and that moreover, the suit property had not been distributed.

### Duty of the first appellate court

7. My duty as the first appellate court is to reappraise the evidence adduced in the lower court and arrived at my own conclusions on issues of fact and law bearing in mind that the trial court had an opportunity to listen first hand to the evidence and observe demeanor of witnesses. **Father Anarsensio Begumisa and three others v Eric Tibegaga** (often cited**).** I have reappraised the evidence and below are the emerging facts.

- 8. The following issues were tried in the lower court - a. Whether the first plaintiff bought the beneficial shares of the second plaintiff Namukwaya and the seventh defendant Maimuna Nakyoni. - b. Whether the defendants are trespassers on the suit land - c. Remedies - 9. After hearing from both parties, the learned magistrate entered judgment for the respondents Kayemba and others. The gist of the judgment is that the estate of late Mukasa Yozefu was distributed and the first appellant Yawe also got his share and so did other beneficiaries. Furthermore, that there was a valid sale between Nakyoni Maimuna seventh respondent and FREFA the eight respondent. Lastly, that the second plaintiff Namukwaya Miriam and the seventh respondent Nakyoni did not sell their beneficial interests to the first appellant Yawe but instead sold to the eight respondent. Dissatisfied with the judgment, the appellants lodged this appeal. I will now consider the grounds of appeal.

### **Ground one**

*The learned trial magistrate erred in law and in fact when she failed to annul the sale transactions of the suit property since it was still registered in the names of the late Yosefu.*

### **Ground four**

*The learned trial magistrate erred in law and fact when she held that the eighth respondent FREFA lawfully purchased the suit land and thereby arrived at a wrong conclusion.*

- 10. The thrust of the submissions of counsel for the appellants is that the Nakyoni did not have legal authority to sell since she did not have letters of administration . Worthy of note is that this issue was not raised in the trial court at all and it was not canvassed by counsel for both parties in their submissions to the learned trial magistrate. - 11. The above finding notwithstanding, counsel for the respondents submitted that the sales were made at a time when there was an administrator of the estate to late Mukasa which grant was cancelled by consent on 16.10.2019 after the sale to the eight respondent FREFA. Counsel for the respondents further submitted that all beneficiaries shared in the estate by consent including the first appellant Yawe and that therefore, it was surprising he was now challenging the distribution. - *12.* Counsel for the appellant further submitted that Nakyoni could not sell what was not hers, citing the *maxim, nemo dat quod non habet* as the suit land was not registered in the names of Nakyoni or Namukwaya from whom the respondents purchased. It was counsel's submission that the two intermeddled in the estate of the deceased Mukasa Yosefu.

#### *The evidence*

- 13. It is not disputed that the appellants ; Maimuna Nakyoni the seventh respondent; and one Cyiro Nantamu are children of late Elizabeth Nakiwala , the only child of late Mukasa Yosefu, the first registered proprietor of the suit property Bulemezi Block 57 Plot 175 which measures 2.45 hectares. From the land title, he was first registered on 21.4.1961 and subsequently reinstated on 4.7.2018. - 14. In paragraph 5 of his witness statement, Yawe the first appellant concedes that as children of the late Nakiwala, they all agreed to share her estate and leave land for burial. Accordingly, they split the land as follows: Yawe; Nakyoni; Cayro Nantamu; Miriam Namukwaya shared two acres so each got half an acre. Two acres went to Filomera Namusisi who was Nakiwala's half-sister; one acre went to the heir Annet Nassunje and one acre for burial grounds. Yawe relied upon minutes of a meeting held on 26.6.2015. - 15. The respondents adduced minutes with similar contents except the date of the meeting is indicated as 25.6.2015. What is material is that Yawe concedes in his witness statement that the meeting took place and each beneficiary was given a share in the estate of their late mother. It is therefore surprising that counsel for the appellants submits that Yawe did not participate in the family meeting when he attested to this in his witness statement. - 16. It was also not disputed that letters of administration that had been given to Annet Nassunje on 2.9.2014 in Luwero Administration Cause

No. 165 of 2014 were cancelled by Luwero Chief Magistrate's Court. in Civil Suit No. 116 of 2017 between Yawe Ahamed and Nassunje on 16.10.2019.

- 17. The appellant Yawe who was PW1 claimed that he bought the interests of Maimuna Nakyoni the second respondent and Namukwaya Mariam at 2,000,000/ and therefore the eight defendant could not have bought what was not there. He relied upon two documents: a sale agreement between Namukwaya and himself dated 27.6.2015 for 1.35 acres at 2,000,000/ (P. EXH.1A). The second agreement (P. EXH. 1B) is dated 22.7.2025 between Nakyoni and Yawe for 1.35 acres but the sale price is not indicated. - 18. While Namukwaya in her witness statement supports Yawe that she sold her share it him, she does not disclose the sum of money received as payment, a fact that raises a red flag as to whether this sale took place at all. If indeed the 2,000,000/ Yawe said he paid was for the shares of both Namukwaya and Nakyoni, there would have been one sale agreement but instead there are two sale agreements. - 19. Furthermore, Nakyoni who testified as DW 1 and was aged 70 years at the time of making her witness statement, affirmed she sold her interest to FREFA and later, Yawe went to her alleging to have given her 2,000,000/ for the land whereas not. - 20. The learned trial magistrate rightly disbelieved Namukwaya because it is evident that no sale took place between her and Yawe especially

when the sale agreement itself is silent on the amount of money allegedly paid.

- 21. As for Nakyoni, the learned trial magistrate rightly accepted her testimony that no sale between her and Yawe took place at all. - 22. Turning to the defense case, Kagimu Simon DW4 the second respondent, aged 38 years, resident of Manyangwa Gayaza attested to the existence of their association FREFA that was registered in 2011. It is not disputed that FREFA purchased 6 acres less 1.15 acres for burial grounds from Maimuna Nkayoni, Annet Nansunje; Namukwaya Miram and Joweriya Nantamu all women. The sale took place on 12.7.2015 for a consideration of 27,000,000/ of which the FREFA paid 15,000,000/ leaving a balance of 12,000,000/. - 23. This balance was to be paid after getting the title which was with Ahamed Yawe who declined to release it for mutation of the purchased interest. - 24. Kagimu was supported by Atida Tony a member of FREFA who confirmed that they bought 4.5 acres from the four women. - 25. Apart from Namukwaya, all the other parties to the same agreement with FREFA, i.e, Anne Nassanje DW3; Nantamu Jowelia DW1; Nakyoni Maimuna DW1 confirmed they sold their portions to FREFA and their balance is still outstanding because of Yawe's challenge to the sale. 26. From the foregoing analysis, it is evident that the learned trial magistrate rightly rejected the appellant's claim that he purchased the shares of Nakiwala and Nakyoni. Furthermore, the trial magistrate rightly found that FREFA acquired a valid interest in the suit land having entered into a valid sale agreement whose full performance has not been achieved because of Yawe's challenge to the purchase.

*Whether the estate was under intestate administration when respondents purchased suit land*

- 27. Counsel for the appellants submitted that the eight respondent purchased from Nakyoni who did not hold letters of administration. While it is true that no one holds letters of administration at the moment, by 2015 when the respondent No.8 purchased the suit land, Nassunje Annet held letters of administration from Luwero Chief Magistrate's Court which had been issued on 2.12.2024 in **Administration Cause No. 165 of 2014.** - 28. The same Nassunje testified as DW3 and confirmed she participated in the meeting that distributed the estate in June 2015. She was heir to Nakiwala, mother of Yawe, Namukwaya, and Nakyoni, some of the parties to this appeal. This grant was revoked by consent **in Luwero Chief Magistrate's Court Civil Suit No. 116 of 2017 Ahamad Yawe V Nasunje(** *Nassunje***) Annet** on 16.10. 2019 notably after Yawe had commenced Civil Suit No. 165 of 2016 against the current respondents and from which this appeal arises.

- 29. A few facts about **Civil Suit No. 116 of 2017** are relevant. I accessed the court record in exercise of my powers under **Order 14 rule 6 of the Civil Procedure Rules** to call for records from any other court for inspection. Yawe had sued Nassunje Annet for revocation of letters of administration for the reason that she was not entitled to get the grant for the estate of Yosefu Mukasa and instead, it was him, Yawe, who was entitled. - 30. Yawe further alleged in that plaint that Nassunje had sold her the estate property to FREFA. Nasunje denied the claims in her written statement of defense and averred she was the heir of Nakiwala Zabeti the only child of late Mukasa Yosefu and that she had sought consent of all four children of Nakiwala to apply for the grant, to wit, Yawe Ahamad; Namukwaya Miriam; Nantamu Joweria; and Nakyoni Maimuna. On 16.10. 2019, Nasunjje agreed with Yawe in a consent judgment that the grant should be revoked. - 31. There is therefore no merit in the lengthy submissions of counsel for the appellants on the point of law that the sale between Nakyoni and the other respondents amounted to intermeddling when in fact the grant was valid as at 12.7. 2015 when FREFA purchased the interests of his sisters: Nantamu Joweria; Namukwaya Miriam and Nakyoni Maimuna along with that of their aunt Nassunje Annet who was the administrator of the estate of Mukasa Yosefu, father of Nakiwala Zabeti from whom the beneficiaries derive title.

#### *Doctrine of estoppel*

- 32. Additionally, I find that Yawe is estopped from denying the distribution of the estate of Mukasa Yosefu having admitted to getting half an acre from it and having admitted to participating in the meeting that distributed the land among the children of late Nakiwala. I am fortified in this finding by the recent Court of Appeal decision of **Kanzira v Natukunda Rwachwende and another ( Civil Appeal 81 of 2020) 2023 UGCA 286 ( 2 November 2023)** which is on all fours with the present dispute. In that case, the appellant Kanzira purchased land from the second respondent Robert Rwachwende with the knowledge of the first respondent Herbert Rwachwende the administrator of the estate who was also consulted by the appellant Dr. Kanzira. - 33. The first respondent Herbert Rwachwende sued the appellant Dr. Kanzira for unlawfully buying the land of his brother who was of unsound mind and without the consent of the said Herbert Rwachwende. The Court of Appeal found that Herbert Rwachwende was estopped from challenging the sale when he was consulted on the same and he did not express any objection. Similarly in the instant appeal, Yawe is estopped from challenging the sale to FREFA by his sisters when he too acquired half an acre from the same estate arising from a family meeting as which the siblings agreed to share the estate. - 34. Having found that the first appellant is estopped from denying the distribution by consensus of all concerned, and having found that at the time the administrator of the estate Nassunje also participated in the meeting, I find that the eighth respondent lawfully purchased 4.5 acres, the beneficial interests of the three sisters Nakyoni Maimuna,

Namukwaya Miriam (second appellant) and Nantamu Joweria, and their aunt Nassunje Annet. Ground one therefore fails.

### **Ground two**

*The learned trial magistrate erred in fact an in law when she held that no fraud was committed by the respondents.*

35. I have reappraised the evidence and found no proof of fraud as the sisters and their aunt lawfully sold their share in the estate of their late grandfather. This ground of appeal fails.

## **Ground three**

*The learned trial magistrate erred in fact and in law when she held that the respondents are not trespassers on the suit land.*

- 36. Having found that the three sisters and their aunt had been assigned their shares, they were not trespassers and so are their successor in title, the eight respondent. Ground three of appeal fails. - *37.* Before I take leave of this appeal, it is evident that the appellant falsely claimed he bought from his sisters Namukwaya and Nakyoni their shared in the estate. Yawe's attitude of entitlement speaks to the negative cultural practice that the girl child should not own property. In other words, either Yawe controls and owns the entire estate or, his siblings get nothing. This cultural practice which is against the right of the girl child to inherit property from her parents, is prohibited by **Article**

**32(2) of the Uganda Constitution** as a culture *that is against the dignity, welfare and interest of women…'*

- 38. Furthermore, Article 21(2) of **the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa** confers on women and men the right to inherit in equitable shares, their parents' properties. - 39. I find that the learned trial magistrate rightly found that Namukwaya the second appellant sold her share to the eight respondent and not to Ahamad Yawe and that Nakyoni the seventh respondent sold her share to FREFA and not to Yawe. A permanent injunction shall issue restraining Yawe from interfering with the quiet possession of successors in title of his sisters and his aunt and from making any claims to the suit land. - 40. In the result, as the appeal has failed on all four grounds, it is dismissed. The judgment of the lower court is varied as follows:

#### Orders

- a) The first appellant Namukwaya Miram sold her share in the suit land to Kalema Joseph; Kagimu Simon; Atida Tony; and Babirye Agatha( first, second, third and fourth respondents) under their umbrella association FREFA, the eighth respondent. - b) The seventh respondent Nakyoni Mayimuna lawfully sold her share in the suit land to the same respondents as in (a) under their umbrella association FREFA.

- c) The first, second, third and fourth respondents (Kalema, Kagimu, Atida and Babirye) will complete payment of the purchase price to the sellers: Nakyoni Maimuna; Nantamu Joweria; Namukwaya Miriam and Nassunje Annet within 21 days from the date of this judgment and avail proof of payment to the deputy registrar of this court. - d) Thereafter, the said respondents will survey the 4.5 acres of land purchased from the four women. - e) On completion of the survey, the said respondents will present the deeds to the Registrar of Titles who shall cause the certificate of title comprised in Bulemezi Block 57 plot 175 to be mutated so as to create a title for the eighth respondent represented by its representatives or members. - f) The first appellant Ahamad Yawe is hereby directed to present the duplicate certificate of title for Bulemezi Block 57 plot 175 to the Deputy registrar of this court within seven days from the date of this judgment. - g) Thereafter, the deputy registrar shall hand over the said duplicate certificate of title to the first, second, third and fourth respondents to facilitate the mutation. - h) In the event of failure to cooperate, the Registrar of Titles is directed to cause a mutation regardless of the non-cooperation by Yawe and implement the orders herein. - i) A permanent injunction shall issue restraining Yawe Ahamad and his agents or successors in title from interfering with the quiet possession of the successors in title of Nakyoni and Namukwaya or from making any further claims to the suit land. For the

avoidance of doubt, the successors in title are the first, second, third and fourth respondents under their umbrella association FREFA.

The first appellant Ahamad Yawe shall pay the first, second, third , fourth, fifth, sixth and seventh respondents,( Kayemba Joseph, Kagimu Simon; Atida Tony; Babirye;Nakanwagi Jane; Mulamira Joseph; Maimuna Nakyoni) the costs of this appeal and the trial court.

# **DATED AT LUWERO THIS 11TH DAY OF DECEMBER 2024.**

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## **LADY JUSTICE HENRIETTA WOLAYO**

Legal representation

Barungi, Baingana & Co. Advocates for the appellants

Lipton Advocates for the respondents