Bukenya and 7 Others v Nakawunde and Another (Civil Appeal No. 132 of 2016) [2023] UGCA 63 (23 February 2023)

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL NO. 132 OF 2016

**Coram of Justices: Hon. Justice Elizabeth Musoke, JA** Hon. Justice Catherine Bamugemereire, Hon. Justice Stephen Musota, JA

# 1. BUKENYA PAUL

- 2. BUULE JULIUS - 3. LUYIMBAZI TADEO - 4. BWETE ALOYSIOUS::::::::::::::::::::::::::::::::::: - 5. KIVIRI JOSEPH - 6. NAKAGWA WINFRED - 7. KIZZA GODFREY - 8. ASSALI AGNES

#### 15

$10$

$\mathsf{S}$

### **VERSUS**

# 1. MARY MARGARET NAKAWUNDE

2. LAWRENCE KANYIKE::::::::::::::::::::::::::::::::::::

(An Appeal from the decision of the High Court of Uganda (Nakawa) before $20$ *Wilson Masalu Musene, J arising from Originating Summons No. 2 of 2015* delivered on the $17$ <sup>th</sup> day of November 2015)

### JUDGMENT OF CATHERINE BAMUGEMEREIRE, JA

$25$ This is an appeal from the decision of Masalu Musene J, in which he allowed the Respondents' (formerly Applicants) application to have the boundaries of land comprised in Block 141 Plot 6 at Kanyike Mawokota belonging to the late Tanansi Musoke opened to ascertain it's size, neighborhood and encroachment and also granted orders to the respondents to distribute the land/estate belonging to the late Tanansi Musoke to the lineage/families and beneficiaries. 30

# B d

The facts as ascertained from the lower court record are that the respondents (formerly applicants) are daughter and son to Mikaili Kabonge and Nicholas Buwule who were sons of the late Tanansi

5 Musoke.

The late Tanansi Musoke appointed Mikaili Kabonge as his heir and upon his demise; Mikaili was installed as the customary heir, however, he never applied for letters of Administration. Later, Angello Kanyike son of Mikaili Kabonge applied for letters of administration before a Magistrate Grade II who granted the same vide Administration Cause No. 3 of 2001 in the Chief Magistrate's Court at Kamengo vide High Court Civil Suit No. 310 of 2003. The letters were revoked and annulled through a consent judgment on l{trr Q6lsber 2003.

- The direct beneficiaries of the estate of Tannasi Musoke; Mikaili Kabonge and Appolonia Natooro did not object to the grant of letters of administration in respect of the estate of the late Tanansi to the respondents. The direct beneficiaries wrote a letter to the effect that the respondents should be granted letters of Administration and pursuant to that consent, the respondents made the application 15 20 - without a certificate of no objection save the advertisement in papers as court required them.

The respondents contended that they made several efforts to organize the estate of the Late Tanansi Musoke but met severe resistance from the appellants who had resorted to activities that


included the damaging of the property on site and denial of access to parts of the land occupied by the appellants as tenants or squatters hence the application to have lawful orders to open up boundaries to ascertain the size and encroachment on the land and to distribute the

same to the rightful beneficiaries. Counsel for the appellants raised a $\mathsf{S}$ preliminary objection right from the start stating that the application was improperly brought under originating summons instead of an ordinary suit.

The trial judge subsequently dismissed the preliminary objection and the appellant's other claims and held in favour of the $10$ respondents. Being dissatisfied with the trial court's ruling, the appellants filed this appeal with the following grounds as per the Memorandum of Appeal:-

#### **Grounds of Appeal** $15$

$20$

1. That the learned Trial Judge erred in law and the trial became a farce when he proceeded to hear and determine an originating summons before leave was granted to the applicants to take out an originating summons under O. 37 r. 9 of the CPR and serve it on the applicants/respondents after registering it as a suit under the register of suits and court fees paid in respect of the suit.

2. That the learned Trial Judge grossly erred in law when he failed to dismiss the application because it raised serious questions of fraud and complex issues of fact which required serious, extensive and intricate inquiries and which therefore could not be fully, justly, effectually and finally determined without taking oral evidence and examining archaic public records on matters of succession from the defunct Kabaka's government and registers now lying in the office of the Administrator General.


- 3. That the names of the $3^{rd}$ to $8^{th}$ appellants were improperly added to the list of respondents (original respondents) without leave of court on its own volition or on the application of either party formally joining them as parties to the cause pursuant to Order 1 rule 10 of the CPR. - 4. That the learned Trial Judge misconstrued and misapplied the law and practices governing succession of estates of Africans in Buganda before the abolition of kingdoms in 1966 i.e when the Constitution of 1961 was still in force. - 5. That the learned Trial Judge manifested bias and great enthusiasm when he proceeded to deliver a ruling in the presence of only one applicant without notice to the rest of the parties and thereafter issuing a formal order without the input of the respondents' counsel falsely claiming that all the parties were in court when the ruling was delivered. - 6. The learned Trial Judge erred in law and fact when he failed to properly evaluate the evidence before him thereby reaching a wrong decision.

#### **Representation** $20$

$\mathsf{S}$

$10$

$25$

At the hearing of this appeal, the appellants were represented by Ms Rita Ssendege of M/ssr Ssendege & Co. Advocates while the respondents were represented by Mr Geoffrey Nsamba of M/s Kiwanuka, Kanyango & Co. Advocates. The parties agreed to proceed by way of written submissions, which I have considered while writing this judgment.

Before I proceed with the appeal, counsel for the respondents during the hearing of the appeal on 8<sup>th</sup> November 2021, submitted that he intended to raise a preliminary objection. We directed that it should be raised in his written submissions to which counsel for the appellants would respond in his rejoinder.


The preliminary objection was to the effect that the Notice of Appeal was filed out of time thus this appeal should be struck off the record. Counsel for the appellants had however filed an application (Civil application No. 415 of 201n to extend the time for filing their Notice 5 of Appeal and validation of the appeal on court record. This court, through the ruling of our brother Musota JA, heard and allowed the application, and ordered that the time for lodging the notice of appeal be enlarged and the Notice of appeal and appeal on record be validated. Basing on that, I find that this appeal is properly before 10 court and I shall proceed to determine the same on its merits. The preliminary objection therefore fails.

# Legal Arguments

Ground No. L: That the learned Trial ludge erred in laut and the trial became a farce uthen he proceeded to hear and determine an

originating summons before leaae was granted to the applicants to take out an originating summons under O. 37 r. 9 of the CPR and seft)e it on the applicants/respondents after registering it as a suit under the register of suits and court fees paid in respect of the suit.

Z5

Regarding Ground No. L, Counsel for the appellants submitted that the Trial Judge did not follow the correct procedure under O.37 r <sup>8</sup> (21 of the Civil Procedure Rules. He contended that the Trial |udge proceeded to determine an originating summons before leave was granted to the applicants to take out the originating summons and


serve them on the respondents (appellants) as required by law. It was counsel's submission that O. 37 r 8(2) required the applicants to present their summons ex parte to the ]udge to give directions for service. Counsel contended that if the Judge was satisfied that the

5 facts, as alleged, were sufficient and the case was rightfully brought under originating summons, the Judge would sign the summons and give directions for service. It was counsel's contention that instead the application was heard inter-party from beginning and proceeded as if the ex parte hearing had happened and summons issued 10 whereas they were not.

Counsel argued that the purpose for the ex parte hearing was to ensure that only matters fit and proper for trial on the basis of affidavits are allowed by court to proceed under originating summons which enables court to deal with straight forward matters 15 and not complex ones like the instant case. Counsel invited this court to allow ground 1,.

In reply to Ground No. 1., counsel for the respondents submitted that O.37 r 1 (g) of the Civil Procedure Rules allows Administrators of the estates of the deceased to take out originating summons for determination of any questions arising directly out of the administration of the estate or trust. It was counsel's submission that O. 37 r 8 (1) and (2) of the CPR was not applicable to the respondents since they had a right to proceed under O.37. 20


It was counsel's contention that it was immaterial whether the pleadings had the word "O.5" since it was clear that they were registered as Originating Summons No. 2 of 201,5 and if the registrar never distinguished them with the phrase O. S, it did not make it an 5 ordinary suit and that the mistake was administrative and not the fault of the respondents.

Counsel for the respondent further submitted that there was no harm or injustice caused to the appellants being made parties to the suit after the case proceeded interparry. He added that the Trial Judge

- 10 exercised his discretion judiciously and the appellants were part and parcel of the proceedings, which they welcomed by filing affidavits in reply and submissions as well. In conclusion, counsel stated that the appellants cannot compel court to flout the proceedings where they fully participated claiming that they were supposed to be ex 15 parte proceedings. He prayed that Ground No. 1 fails. - In rejoinder, counsel for the appellants submitted that the gist of Ground No.1 is not about who is entitled to apply for originating summons but rather the mandatory procedure that must be followed by u person applying for the summons under O.37 r 8 of the CPR. - 20

Ground No. 2: That the learned Trial ludge grossly erred in law uthen he failed to dismiss the application because it raised serious questions of fraud and complex issues of fact which required serious, extensiae and intricate inquiries and which therefore could not be

2s fully, justly, effechrally and finally determined without taking oral


eaidence and examining archaic public records on matters ,f succession from the defunct Kabaka's goaernment and registers now lying in the office of the Administrator General.

- 5 Regarding Ground No. 2, counsel for the appellants submitted that the essence of originating summons is to allow simple and straight forward matters to be settled expeditiously by the court without bringing an action by way of ordinary plaint. He referenced Kulsumbhai Gulamhussein laffer Ramji & anor v Abdul )affer Mohammed Rahim & Ors V95n E. A 699 to that effect. 10 - Counsel contended that the issues raised by the appellants were not simple matters and one of the issues raised by the appellants at trial was that the certificate of no objection that was used by the respondents to obtain Letters of Administration was a forgery. He aclded that forgery is a form of fraud and cases involving fraud could 15 - not be determined in such an application thus the Trial Judge ought to have dismissed the application on that basis. Counsel cited E. Makabugo v Francis Drake Serunjogi [198L] HCB 58.

He prayed that Ground No. 2 succeeds.

ZO

Z5

In response, counsel for the respondent submitted that the appellants never raised any preliminary objection about the complexity of the case in the lower court thus cannot raise it now on appeal. He cited General Parts (u) Ltd & anor v Non Performing Assets Recovery Trust SCCA No. 9 of 2005.

 It was counsel's contention that there were only 3 questions raised by the appellants in the lower cour|

- i. Whether the applicants are the rightful administrators of the estate of the late Tanansi Musoke - ii. Whether as administrators they have a right to distribute the land and - iii. Whether as administrators they have a right to open up boundaries of land.

It was counsel's averment that these were simple and straightforward questions and court looked at the documents/statements presented by the respondents and held in the affirmative. 10

Counsel submitted that the appellants have never challenged the letters of Administration held by the respondents thus they remain valid as they have never been revoked or cancelled by a court of

- competent jurisdiction. Counsel added that boundary openings, subdivisions of the land were made by the respondents and certificates were processed in the names of the respondents and handed to the respective beneficiaries of the late Tanansi Musoke who in turn transferred to their names. 15 - It was counsel's contention that this appeal is a disguised plaint for revocation of Letters of Administration, which is unacceptable and unlawful. 20

Further, counsel submitted that the Letters of Administration were as a result of a consent judgment before court and the respondents never applied for a certificate of no objection as alleged by the


appellants. He added that this could not warrant the matter to be titled as contentious for reasons that there has never been a contest on Letters of Administration. Counsel further stated that in response to paragraph 5 of the appellant's submissions, the trial judge was

5 quoting the appellants submissions verbatim but it was not a finding of court thus its misleading. Counsel prayed that this ground also fails.

In rejoinder, counsel for the appellants reiterated his earlier submissions.

- 10 Ground No. 3: That the names of the 3"t to Stt' appellants were improperly added to the list of respondents (original respondents) utithout leaae of court on its ou)n aolition or on the application of either party formally joining them as parties to the cause pursuant to Order 1- rule 10 of the CPR. - L5

Regarding ground 3, counsel for the appellants submitted that the original application filed by the respondents at the trial court, none of the appellants were named as respondents and that it was upon filing of the amended originating summons that the appellants were added zo as respondents. Counsel contended that contrary to the procedure stipulated by the Civil Procedure rules, there was no order by the court authorizing the addition of the appellants as parties to the application. He argued that the addition of the appellants as parties to the application without leave of court was fundamentally irregular zS and unacceptable. He prayed that this ground of appeal succeeds.


In response to Ground No. 3, counsel for the respondents submitted that the appellants never raised this issue as a preliminary objection in the trial court thus they cannot raise it on appeal. It was counsel's 5 submission that the matter proceeded interparty by way of affidavit evidence by both parties and no objection was raised by the appellants thus they conceded to the court's conduct of the matter. Counsel therefore prayed that this ground of appeal fails.

Counsel for the appellants reiterated his earlier submissions L0 regarding ground 3.

Ground No. 4: That the learned Trial ludge misconstrued and misapplied the lazo and practices gozterning succession of estates of Africans in Buganda before the abolition of kingdoms in 1966 i.e when the Constitution of 196L was still in force.

With regard to ground 4, counsel for the appellants submitted that the late Tanansi Musoke Senfuma died testate leaving a will, and his estate was dealt with in line with the said will and in accordance with the laws of Uganda governing succession of estates and practices in 20 Buganda kingdom at the time. He averred that the estate was distributed and the Kabaka sitting in Council pursuant to the prevailing law at the time approved the scheme of distribution. Counsel added that during that time the Kabaka was the ultimate customary authority in matters of succession in Buganda.


Further, counsel referred to paragraph 6 of the affidavit in reply deponed by Ms. Jackie Maziga Ssemakula confirming that according to the records in the office of the Administrator General, the scheme of distribution for the estate of the late Tanansi Musoke was entered

5 under serial No. 19/4547 in the succession register. It was counsel's contention that the said Jackie Maziga deponed that since the Kabaka confirmed the scheme of distributton in this matter, the distribution became final thus cannot be revised or reopened.

Counsel referred this court to the High Court decision of Paulo

10 Kawesa v Administrator General & Anor HCCS No. 9L8 of 1993, which held thaq " once an estate had been distributed and the said distribution confrmed by the Kabaka, tlrc Administrator General had no autlnrity to ndminister it."

Counsel for the appellants contended that the respondents in this

15 matter had no authority to administer what was already administered thus ground No.4 should succeed.

In reply to Ground No. 4, counsel for the respondents submitted that the ground is raised in abstract. Counsel contended that this ground

20 gives the appellants a case for argument by way of ordinary plaint than making it a ground of appeal. He thus prayed that it should be struck off.

Ground No. 5: That the learned Trial ludge manifested bias and great enthusiasm when he proceeded to deliaer a ruling in the presence of onty one applicant without notice to the rest of the


parties and thereafter issuing a formal order without the input of the respondents' counsel falsely claiming that all the parties were in court when the ruling was deliaered.

- 5 Regarding Ground No. 5, counsel for the appellants submitted that at the hearing of the application on 29th September 2015, the trial court notified the parties that the ruling would be delivered on 8th October 2015 at 11:00 am but on the said date, the parties were notified that the ruling would be delivered on notice. Counsel submitted that to 10 the appellants' surprise, judgment was delivered on 17th November - 2015 without any notice to them. He added that the extracted order shows that the appellants were present when the application was disposed of whereas not. - 15 In respect of ground No. 5, counsel for the respondents submitted that when the matter came up for hearing on 24th June 2015, counsel for both parties were present and court gave a ruling date of 25th August 2015. Counsel stated that on 29th September 201.5, both counsel and the 2"d applicant were present and the ruling was zo adjourned to 8tn October 2075 but it was not delivered on that duy, instead it was delivered on 17th November 2015 in the presence of the applicants and in absence of the respondents. It was counsel's argument that although the order extracted indicates that the appellants were present at the time of delivering the ruling whereas


not, it was an error, which does not change the contents of the order granted by court.

## Ground No. 5: The learned Trial ludge erred in law and fact when he failed to properly eoaluate the eaiCence before him thereby reaching <sup>a</sup>

5 wrong decision.

Regarding Ground No. 6, counsel for the appellants submitted that the Trial Judge overlooked the overwhelming evidence adduced before him which proved that the administration of the estate of the late Tanansi Musoke had been finally dealt with by the Kabaka in 10 council and as such could never be revised and re-opened. Counsel further submitted that the trial judge ignored the evidence of fraud

by the respondents to the effect that they forged a certificate of no objection to obtain letters of administration.

- It was counsel's submission that the trial judge failed to properly 1s evaluate this evidence thereby reaching a wrong decision. Counsel prayed that the ruling in the lower court be set aside and another order be made in lieu thereof dismissing the originating summons with costs. - zo In response to Ground No. 6, counsel for the respondents submitted that the Trial Judge looked at all issues and documents presented to him by the applicants for determination of simple and straightforward issues and made a right decision. Counsel added that the questions in the originating summons were simple and straight Zs forward and the appellants made allegations in their affidavits in


reply without any evidence thus the Trial Judge properly evaluated the evidence before him thereby reaching a right decision that the respondents are lawful administrators of the estate of the late Tanansi Musoke as they hold valid letters of Administration from <sup>a</sup> 5 competent court. Counsel prayed that this ground of appeal fails and the appeal be dismissed with costs to the respondents.

## Consideration of the Grounds of Anoeal.

This being a first appeal, this court is required under r. 30 of the

<sup>t</sup>0 ]udicature (Court of Appeal rules) Directions to re-appraise the evidence of the trial court and come to its own conclusion. In Fr. Nanensio Begumisa & 3 Ors v Eric Tibebaga SCCA No. L7 of 2002 court held thau

"The legal obligation of the 1't appellate court to reappraise the euidence is

- 15 founded in the cotnmon laut rather than the rules of procedure. lt is a urellsettled principle that on a'L't appeal; the parties are entitled to obtain fro\* the appeal court its outn decision on issues of fact as utell as of lau,. Although in case of conflicting euidence, the appeal court has to make due nllou,ance for the fact that it has neither seen nor heard the utitnesses." - 20

The above principles will guide this court in the determination of the grounds of appeal.

Regarding Ground No. L, the Trial Judge is faulted for omitting to zs follow a procedural step in hearing the summons ex parte and


instead hearing them interparty thus flouting the procedure laid down by law.

The procedure laid down in **O. 37 r 8 (2)** of the **Civil Procedure Rules** is to the effect that the person entitled to apply for the summons shall present them ex parte to a judge sitting in chambers with an affidavit

- $\mathsf{S}$ setting forth concisely the facts upon which the right to the relief sought by the summons is founded. It is clear that Originating Summons are meant to be heard ex parte although in the instant case, they were not. - I have analyzed the record of appeal in this case and noted that the $10$ respondents (applicants) presented summons *ex parte* (without the appellants as parties) to the Trial Judge but they were never signed. Later, the respondents filed amended originating summons dated 11<sup>th</sup> March 2015 which were inter-party (with appellants added as - respondents) and these were endorsed and relied on by court in the $15$ trial process.

The addition of the appellants on the originating summons was a procedural error under O. 37 rule 8. Here is what it stipulates:

**8. Practice upon application for summons.**

(1) An originating summons shall be in Form 13 of Appendix $B$ $20$ to these Rules, and shall specify the relief sought. $(2)$ The person entitled to apply shall present it ex parte to a judge sitting in chambers with an affidavit setting forth concisely the facts upon which the right to the relief sought by the summons is founded, and the judge, if satisfied that $25$ the facts as alleged are sufficient and the case is a proper one to be dealt with on an originating summons, shall sign the summons and give such directions for service

 upon persons or classes of persons and upon other matters as may then appear necessary. g. Summons to be filed and registered

- 5 In this case the matter is only filed after the Trial Judge has given directions on the questions to be answered. A matter should not be filed and then taken to the Trial ]udge. That type of matter would not be an Originating Summons. This particular case was not just <sup>a</sup> question of omitting the phrase "O. S" while registering the matter in the registry. This matter was about the whole pretext of hearing <sup>a</sup> family matter under the guise of what looked like an originating summons whereas not. It is not too much to ask courts to be careful and follow through processes to avoid glaring procedural irregularity. I would allow Ground No. 1. 10 - 15

Considering Ground No. 2, the trial Judge is faulted for not dismissing the application since it raised serious questions of fraud and complex issues, which could not be determined under originating summons.

I noted from the court record that the respondent raised <sup>a</sup> preliminary objection to the effect that the application was improperly brought under originating summons instead of an ordinary suit. The Trial Judge went ahead to analyze the respondents' issues which included, alleged existence of a will and trust, majority of beneficiaries not being parry to the suit, the alleged 20 25

fraud involving the forged certificate of no objection among others.


He found that the suit was properly brought under originating summons and dismissed the appellants' claims.

In the case of **General Parts (u) Ltd & Ors v Non- performing Assets**

#### Recovery Trust SCCA No. 9 of 2005, Mulenga J. S. C noted that; $\mathsf{S}$

*"Originating summons is best suited for cases where the contention between* the parties do not involve disputed complex facts...where the judge is of opinion that the dispute cannot best be disposed of on originating summons, he may either adjourn it into court for taking oral evidence or refer the *parties to a suit in the ordinary course..."*

The law on originating summons was well articulated in **Kulumbai**

# Gulamhussein Jaffer Ramji & Anor v Abdulhussein Jaffer Mohammed Rahim, & Ors [1957] 1 EA 699 (HCZ) wherein court

stated that; 15

$10$

"... In essence, such procedure was intended to enable simple matters to be settled by the court without the expense of bringing actions in the usual way and not to enable court to determine matters which involve a serious *question."*

In Kibutiri v. Kibutiri [1983] KLR 62, The Court of Appeal of Kenya 20 quoting [Re Giles (2) [1890] 43 Ch. D.391]. [Law, JA at p.64] went on to state:

*"...the scope of an inquiry which could be made on an originating summons* and the ability to deal with a contested case was very limited. When it becomes obvious that the issues raise complex and contentious questions of 25 fact and law, a judge should dismiss the summons and leave the parties to pursue their claims by ordinary suit."

Suits by Originating Summons are intended for simple and straightforward non-contentious matters in which the summons set out the questions which the court is being asked to settle. Originating summons normally do not include disputed facts. They are matters in


which a court, through a set of questions or issues, is only required to interprete the law or documents. Purporting to hear an originating summons inter-party clearly shows that the matters were too contentious to be heard ex parte. When a matter entails as much 5 disputed issues as this one did, the Trial Judge ought to dismiss the originating summons and ask the parties to proceed by ordinary suit. In the instant case, the respondents filed their application in the Trial Court apparently seeking orders to have the boundaries of land comprised in Block 741 Plot 6 at Kanyike Mawokota belonging to the

- 10 late Tanansi Musoke opened to ascertain its srze, neighborhood and encroachment and also orders that they distribute the land/estate belonging to the late Tanansi Musoke to the lineage/families and beneficiaries. It is arguable whether applications for boundaries are necessarily matters which can be handled under O.37 rrL and 2 of the - 15 CPR. A boundary dispute is mostly a question of fact. Indeed, I noted that there were adverse claims of fraud in the manner in which the Letters of Administration were obtained by the respondents and issues of existence of the Will of the late Tanansi Musoke.

The appellants in their affidavits in reply stated that the Certificate of 20 no Objection, which the respondents used in applying for Letters of Administration, was a forgery. To in confirm this, in a letter dated 21't December 201. L, Jackie Maziga Ssemakula the Assistant Administrator General, she stated that on 16th January 2004, the respondents forged a Certificate of no Objection, No. 9605 in respect 25 of Administrator General's Cause No. 3583 /2003.


This was clearly a contentious matter and no amount of affidavits could cure it or make it a matter resolvable by originating summons unless the parties had all accepted to proceed in this manner. It seems to me that this was clearly a matter best suited for a normal civil suit

- 5 and proceeding as the Trial Judge did was not an end or handmaid to justice under 126 of the Constitution but rather was an abuse of process. See Mercury Communications Ltd v Director General of Telecommunications and Others L995 UKHL 12. There is no amount of effort that could place this matter in the four walls of a suit by 10 Originating Summons. This grounds succeeds and resolves this - appeal as a whole.

Without going into the merits of the remaining grounds of appeal, I would allow this appeal. Consequently, I would strike out the originating summons with costs in this court and in the court below.

Dated at Kampala this.. . day of .2023

Hon. Lady ]ustice Catherine Bamugemereire |ustice of the Court of APPeal

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA **CIVIL APPEAL NO. 0132 OF 2016**

- 1. BUKENYA PAUL - 2. BUULE JULIUS - 3. LUYIMBAZI TADEO - 4. BWETE ALOYSIOUS - 5. KIVIRI JOSEPH - 6. NAKAGWA WINFRED - 7. KIZZA GODFREY - 8. NASSALI AGNES::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### 1. MARY MARGARET NAKAWUNDE

# 2. LAWRENCE KANYIKE::::::::::::::::::::::::::::::::::::

(Appeal from the decision of the High Court of Uganda at Nakawa before Musene, J dated 17<sup>th</sup> November, 2015 in Originating Summons No. 2 of 2015)

#### HON. LADY JUSTICE ELIZABETH MUSOKE, JA CORAM: HON. LADY JUSTICE CATHERINE BAMUGEMEREIRE, JA HON. MR. JUSTICE STEPHEN MUSOTA, JA

### <u>JUDGMENT OF ELIZABETH MUSOKE, JA</u>

I have had the advantage of reading in draft the judgment prepared by my sister Bamugemereire, JA. For the reasons which she gives I would allow the appeal and make the orders she proposes.

As Musota JA also agrees, the Court unanimously allows the appeal and makes the orders proposed in the judgment of Bamugemereire, JA.

#### It is so ordered.

Dated at Kampala this day of 2023.

a

Elizabeth Musoke

Justice of Appeal

# THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CIVIL APPEAL NO. 132 OF 2016

(Arising from the decision of Justice Masalu Musene, J in Originating Summons No. 2 of 2015 delivered on 17<sup>th</sup> November 2015)

#### 1. BUKENYA PAUL

2. BUULE JULIUS

3. LUYIMBAZI TADEO

**.....................................**

4. BWETE ALOYSIOUS

5. KIVIRI JOSEPH

- 6. NAKAGWA WINFRED - 7. KIZZA GODFREY - **8. ASSALI AGNES**

#### **VERSUS**

#### 1. MARY MARGARET NAKAWUNDE

2. LAWRENCE KANYIKE ::::::::::::::::::::::::::::::::::::

CORAM: HON. JUSTICE ELIZABETH MUSOKE, JA HON. JUSTICE CATHERINE BAMUGEMEREIRE, JA HON. JUSTICE STEPHEN MUSOTA, JA

### JUDGMENT OF HON. JUSTICE STEPHEN MUSOTA, JA

I have had the benefit of reading in draft the judgment by my sister Hon. Justice Catherine Bamugemereire, JA.

I agree with her analysis, conclusions and the orders she has proposed.

Dated this $\overline{\mathcal{D}}$ day of \_\_\_\_\_ 2023 Hum hu

**Stephen Musota JUSTICE OF APPEAL**