Bukenya and Another v Ddungu (Civil Suit 50 of 2017) [2025] UGHC 207 (16 April 2025)

#### **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA (ARISING FROM CIVIL SUIT NO. 50 OF 2017)**

| 1. | HAMIDU BUKENYA | |----|------------------------------------------------------------------------------------------------------| | 2. | SARAH BUKENYA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFFS | | | VERSUS | | | PETER DDUNGU:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANT |

### **BEFORE: HON. JUSTICE LAWRENCE TWEYANZE**

## **JUDGMENT**

# **Introduction**

1. This suit arises from a dispute over the lawful ownership and possession of land situated at Kasana Village, Mateete Sub-County, Sembabule District (hereinafter referred to as "the suit land"). The Plaintiffs, Hamidu Bukenya and Sarah Bukenya, instituted this action against the Defendant, Peter Ddungu, seeking a declaration that the Defendant's purported purchase of the suit land is null and void, an order for vacant possession, general damages, an eviction order, a permanent injunction, and costs of the suit. The matter was heard, and this Judgment is delivered following a thorough consideration of the pleadings, evidence, submissions, and a Court visit to the locus in quo.

## **The Plaintiffs' Case**

2. The Plaintiffs aver that they are the children of the late Abasi Bukenya, who died intestate in 1993, leaving them as minors. They claim that upon reaching adulthood, they discovered that their late Father owned a share of the suit land, as reflected in the Certificate of Title, but found the Defendant in possession and use of the same. The Plaintiffs allege that the Defendant's purchase of the suit land was fraudulent and unlawful, executed under unclear circumstances without their consent or the proper authority of the Estate's Administrators at the time of the transaction.

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### **The Defendant's Case**

3. The Defendant, in his Written Statement of defence, contends that the suit discloses no cause of action, is frivolous and vexatious, and should be dismissed. He asserts that he lawfully purchased the suit land from the beneficiaries of the late Abasi Bukenya's Estate, with the transaction validated by the Administrators of the Estate following the grant of Letters of Administration. The Defendant further argues that he conducted due diligence prior to the purchase and has been in undisturbed possession of the suit land since 2004.

#### **Representation and Proceedings**

4. The Plaintiffs were initially represented by M/s Lukaawa & Co. Advocates and later by M/s Malik Advocates. The Defendant was initially represented by M/s Mbeeta Kamya & Co. Advocates and subsequently by M/s Nuwagira, Tusiime Advocates. The Court conducted a visit to the locus in quo on 20th August 2024, attended by the parties and their Counsel. At the locus, the Court observed that the Defendant is in possession of the suit land, with a dam and a kraal constructed thereon, details of which are recorded in the Court file. The parties filed written submissions, which have been considered alongside the pleadings and evidence.

#### **Issues for Determination**

- 5. Pursuant to the Joint Scheduling Memorandum filed on 30th April 2019, the following issues were framed for the Court's determination: - *1. Whether the Defendant lawfully purchased the suit land.* - *2. Whether the Plaintiffs are entitled to the remedies sought.* - 6. The Defendant raised three preliminary objections in his submissions: (i) that the suit is time-barred; (ii) that it is barred by the doctrine of equitable estoppel; and (iii) that no evidence was adduced by the Plaintiffs. However, these objections, as correctly submitted by the Plaintiffs' Counsel, cannot be determined as preliminary points since they rely on contested facts requiring evaluation of the evidence on record. Furthermore, they were not pleaded in the defence but raised only in submissions, rendering them improper as preliminary objections. Nonetheless, being matters of law and

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facts, the Court will address these objections within the substantive determination of the issues.

### **Burden and Standard of Proof**

7. In civil proceedings, the burden of proof rests on the party asserting a fact, as provided under *Sections 101, 102, and 103 of the Evidence Act, Cap 6*. The standard of proof is on a balance of probabilities, meaning the evidence must be such that a reasonable tribunal would find it more probable than not that the alleged facts exist (see *Miller vs. Minister of Pensions* **[1947] 2 All ER 372**). Where fraud is alleged, as in this case, the burden is heightened beyond a mere balance of probabilities, requiring clear and cogent evidence, as held in *Kampala Bottlers Ltd vs. Domanico (U) Ltd* **(SCCA No. 22 of 1992**). The legal burden initially lies with the Plaintiff, shifting to the Defendant to rebut the claim once prima facie evidence is adduced (see *Asha Ali Suleman vs. Nassanga Aysha Salma* **[Civil Suit No. 338 of 2015).**

### **Consideration of the Issues**

## *ISSUE 1: Whether the Defendant Lawfully Purchased the Suit Land*

- 8. The Plaintiffs relied on a demand notice dated 5th June 2017, a reply dated 12th June 2017, and a copy of the Certificate of Title. The Defendant relied on the Certificate of Title (DEX1), a sale agreement dated 16th May 2004 (DEX2), Letters of Administration granted on 17th November 2004 (Administration Cause No. 39 of 2004), and a ratification of the sale by the Administrators dated 2nd October 2015 (DEX3). - 9. It is an undisputed fact that the suit land, part of Plot 6, Block 106, formerly belonged to the Estate of the late Abasi Bukenya, who died intestate in 1993. The Certificate of Title lists Abasi Bukenya as owning 16% of the land, alongside the Defendant and other Co-owners as tenants in common. At the time of the death of late Abasi Bukenya, the 1st Plaintiff was three years old, and the 2nd Plaintiff was approximately 13 years old, as inferred from the 1st Plaintiff's age of 32 years at the time of filing his Witness Statement on 18th March 2021. - 10. The Plaintiffs' case hinges on allegations of fraud, asserting that the Defendant purchased the suit land without authority, in collusion with

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unauthorized beneficiaries, and to their detriment. Under *Order 6 Rule 3 of the Civil Procedure Rules* and the authority of *Kampala Bottlers Ltd vs. Domanico (U) Ltd (supra)*, particulars of fraud must be specifically pleaded and proved. The Plaintiffs averred that the sale was fraudulent due to: (i) the Defendant's knowledge that the land belonged to the Estate without an Administrator; (ii) purchase from persons without title; (iii) purchase from persons lacking capacity; (iv) retention of the land to deprive the Plaintiffs; (v) secret transactions without the Plaintiffs' consent; and (vi) failure to vacate after notice. However, the 1st Plaintiff (PW1) was the sole witness, and the 2nd Plaintiff neither testified nor appeared, rendering her claim unsubstantiated.

11. The Defendant (DW1) testified that he and six others, including the late Abasi Bukenya, owned the land as tenants in common, with Abasi Bukenya holding 16% and the Defendant 22%. Following Abasi Bukenya's death, the beneficiaries approached the Defendant to purchase the 16% share to fund Letters of Administration and family expenses. A sale agreement (DEX2) was executed on 16th May 2004, signed by 16 beneficiaries. Subsequently, the Administrators Katakabire Nsamba Habib, Matovu Yunus, and Mulindwa Swaibu, who were also signatories to the sale agreement, obtained Letters of Administration on 17th November 2004 and ratified the sale on 2nd October 2015 (DEX3). The Defendant has been in possession since 2004, unchallenged until the suit was filed in 2017.

## *Analysis*

12.*Section 187 of the Succession Act, Cap 268 (Revised Edition),* stipulates that no right to an intestate's property may be established without Letters of Administration, except as provided. However, *Section 188 of the same Act* is to the effect that actions by Administrators prior to the grant are validated retrospectively upon issuance of Letters of Administration, as if granted immediately after death (see *Ssewanyana James vs. Makanga Benjamin Civil Appeal No. 70 of 2010* ; *Nalule Hadijja vs. Yahya Doka Civil Appeal No. 2043 of 2016*. In *Joseph M. Nviri vs. Palma Joan Olwoc HCCS No. 926 of 1998]*, it was held that such validation applies unless the actions are detrimental to the Estate. The *Israel Kabwa vs. Martin Banoba Mugisha SCCA No. 52 of 1995* decision clarifies that detrimental acts are not validated.


13. In the instant case, the sale was executed by beneficiaries, including future Administrators, before the grant of Letters of Administration. The subsequent ratification by the Administrators in 2015, in the presence of the local LC1 Chairperson whose stamp appears on the same, validates the transaction retrospectively, without proof of any detriment to the entire Estate. The Plaintiffs' allegation of fraud lacks proof the particulars or evidence of dishonesty, as defined in *Jackson Fredrick Zaabwe vs. Orient Bank Ltd SCCA No. 4 of 2006,* where fraud requires intentional misrepresentation or concealment causing legal injury. The Plaintiffs' failure to challenge the Defendant's evidence by cross-examining him or adducing corroborative evidence to their case undermines their claim. (see *Christine Hope Kanyima v.s Mercantile Credit Bank Ltd Misc. Cause No. 0085 of 2021*.

# *Limitation of Action*

- 14.*Section 5 of the Limitation Act, Cap 290 (Revised Edition)*, prescribes a 12 year limitation period for actions to recover land, commencing when the right of action accrues or adverse possession begins (*See also Section 11(1)).* The Defendant's possession since 2004, confirmed at the locus, constitutes adverse possession. The Plaintiffs filed this suit in 2017, 13 years after the cause of action arose, without pleading any disability under *Order 18 Rule 13 of the Civil Procedure Rules* to justify the delay. As held in *Iga vs. Makerere University* **[1972] EA 65**, a time-barred suit must be dismissed where the Plaintiff does not demonstrate a valid reason to be exempted from the limitation. The Plaintiffs' delay and acquiescence further support this finding. - 15. The Plaintiffs failed to discharge the required burden of proving fraud. The Defendant's purchase, validated by the Administrators' ratification, was lawful. The suit is also time-barred. This issue is resolved in the affirmative.

#### *ISSUE 2: Whether the Plaintiffs are entitled to the remedies sought*

16. Given the finding that the Defendant lawfully purchased the suit land and the action is statute-barred, the Plaintiffs are not entitled to the remedies of declaration, vacant possession, damages, eviction, or injunction. Moreover *Section 261 of the Succession Act* further bars the Plaintiffs from suing individually post-grant of Letters of Administration, which remain unrevoked.

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17. All in all, this suit lacks merit and is hereby dismissed. In the interest of justice, considering the dispute involved Estate property, each party shall bear their own costs.

*Orders*

- a. The suit is dismissed. - b. Each party shall bear their own costs.

It is so ordered.

Judgment delivered electronically at Masaka this 16 th day of April 2025.