Hadijah Ndagire and Anor v Mohammad Kasozi and 15 Others (Civil Suit No. 40 of 2014) [2021] UGHCLD 38 (8 February 2021)

# **THE REPUBLIC OF UGANDA**

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

# **(LAND DIVISION)**

# **CIVIL SUIT NO.40 0F 2014**

# **1. HADIJAH NDAGIRE**

# **2. HAJAT FARIDA NDAGIRE --------------------------------------------------------- PLAINTIFFS**

**V**

**1. MOHAMMAD KASOZI**

**2. AMINA NAKIYINGI**

**3. DIRISA KIWANUKA**

**4. MBATUDDE AMINA**

# 15 **5. ASHIRAF NKUGWA**

**6. FRED BUSUULWA**

**7. MASAJAALUMBWA KITAMIRIKE**

**8. KASOZI ISAAC**

**9. KALIBA BETTY ASIIMWE**

# 20 **10. MOHAMMED KANYIKE**

**11. TIMOTHY MUSILA**

# **12. KWESIGA AMBROSE**

# **13. EDWARD KALEMA**

# **14. COMMISSIONER LAND REGISTRATION**

# **15. JANE NAMUSOKE**

5 **16. ROBERT LUYIMBAZI-------------------------------------------------------------- DEFENDANTS**

# **Before**: **Hon. Lady Justice Olive Kazaarwe Mukwaya**

# 10 **JUDGMENT**

The Plaintiffs, Ms. Hadijah Ndagire and Ms. Hajat Farida brought this suit against the 16 Defendants seeking the following orders that;

- 1. A declaration that all the transactions on the disputed land were fraudulent, illegal, null and void. - 15 2. A declaration that all property comprised in Kyadondo Block 265, Plot 4176, 5355, 5356, 5357, 5358, 5174, 5775, 5176 and 5359 (formerly Plot 629) are still (form part) of the estate of the deceased and cancellation of all the titles created out of Plot 629. - 3. An order directing the 14th Defendant without any delay to transfer all the 20 disputed land to the Plaintiffs. - 4. A permanent injunction against all the Defendants except the 14th Defendant restricting them from any dealing on the disputed deceased's estate. - 5. General Damages

6. Costs of the suit.

Only the 13th and 16th Defendants filed Written Statements of Defence. There is also a counterclaim filed by the 13th Defendant to which there is no reply by the Plaintiffs.

- Efforts were made by this court to have the Defendants appear in Court for hearing of the suit but these proved futile. In particular, Counsel for the 13th and 16 5 th Defendants was served and he acknowledged receipt of service, but he did not appear in court nor give any explanation for his absence. The suit therefore proceeded ex parte against the 13th and 16th Defendants as well. The Plaintiffs were required to adduce evidence to formally prove their claim against all 16 Defendants on a balance of probabilities. - 10 Plaintiffs' facts.

The Plaintiffs father, Abdala Kibira Kaaya died in 1991 when they were both minors. Their elder brothers and sister acquired Letters of Administration to his estate which were later revoked owing to mismanagement of the estate. This revocation was agreed upon under a consent judgment dated 4th December 2006 vide Civil Suit No. 875 of 15 1993.

Subsequently, the Administrator General/Public Trustee was appointed Administrator pendent lit as the deceased's family awaited the conclusion of another Civil Suit No.256 of 1995. In the year 1997, one of the beneficiaries of the estate, Hanifah Namayanja was given a restricted power of Attorney by the Administrator General to collect rent

- 20 from the estate. However, the Defendants intermeddled with the estate and fraudulently subdivided the suit land into multiple plots which prompted the Administrator General and Hanifah Namayanja to caveat the suit land. The Administrator General further went on to institute Civil Suit No.37 of 2010 against the 16 Defendants seeking declaratory orders and cancellation of the suit land titles among others. - By consent of the family members, the 1 st 25 Plaintiff and Hanifah Namayanja were granted letters of administration by the High Court of Uganda on the 17th day of

February 2013 to administer the estate. They, as a result, took over the prosecution of this suit, the context of which, is a replica of Civil Suit No.37 of 2010.

# **Issues**

- **1. Whether the plaint discloses a cause of action against the Defendants?** - 5 **2. Whether the suit land described in formerly Kyadondo Block 265 Plot 629 of Bunamwaya forms part of the estate of the late Abdala Kibira Kaaya?** - **3. Whether the subdivisions of the suit land were legally done?** - **4. Whether the subsequent dealings /sale transactions by the Defendants were justifiable in the law?** - 10 **5. What remedies are available to the parties?**

# **RESOLUTION**

# **Issue 1**

# **Whether the plaint discloses a cause of action against the Defendants?**

Black's Law Dictionary defines cause of action as follows;

- 15 '*Matter for which an action may be brought. The ground on which an action may be sustained. The right to bring a suit. Cause of action is properly the ground on which an action can be maintained…But the phrase is often used to signify the matter of the complaint or claim on which a given action is in fact grounded, whether or not legally maintainable. It sometimes means a person having a right of action.'* - 20 In the instant suit, the Plaintiffs seek to recover immoveable property, land, which they claim, comprises part of the estate of the late Abdala Kibira Kaaya, (the deceased). According to the facts, the deceased died intestate. And since his death in 1991, there have been a series of administrators appointed by court to manage his estate. The duty of these administrators is contained in the wording of the grant as contained in section - 25 259 of the Succession Act Cap 162 as follows;

'*259. Grant of letters of administration to be under seal of court.*

*Where it appears to a judge of the High Court or a district delegate that letters of administration to the estate of a person deceased, with or without a copy of the will annexed, should be granted, he or she shall grant the letters of administration under* 5 *the seal of his or her court in the following manner—*

*"I \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_, judge of the High Court (or district delegate) appointed for granting probate or letters of administration in \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_, (here insert the limits of the delegate's jurisdiction) make known that on the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_, letters of administration (with or without the will annexed,* 10 *as the case may be) of the property and credits of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_, late of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_, deceased, were granted to \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_, the father (or as the case may be) of the deceased, he (or she) having undertaken to administer the property and credits, and to make a full and true inventory of them, and to exhibit it in this court within six months* 15 *from the date of this grant, or within such further time as the court may from time to time appoint, and also to render to this court a true account of the property and credits within one year from the samedate, or within such further time as the court may from time to time appoint'(emphasis mine)*

In my view, the time period within which to file an inventory under the grant is 20 mandatory under section 278(1) of the Succession Act and must be adhered to strictly. It provides as follows;

*'278. Inventory and account.*

*(1) An executor or administrator shall, within six months from the grant of probate or letters of administration, or within such further time as the court which granted the*

25 *probate or letters may from time to time appoint, exhibit in that court an inventory containing a full and true estimate of all the property in possession, and all the credits,* *and also all the debts owing by any person to which the executor or administrator is entitled in that character; and shall in like manner within one year from the grant, or within such further time as the court may from time to time appoint, exhibit an account of the estate, showing the assets which have come to his or her hands, and the manner*

5 *in which they have been applied or disposed of.'*

For clarity, Black's law dictionary defines an inventory as follows;

*'A detailed list of articles of property; a list or schedule of property, containing a designation or description of each specific article; an itemized list of the various articles constituting a collection, estate, stock in trade, etc., with their estimated or*

10 *actual values. In law, the term is particularly applied to such a list made by an executor, administrator, or assignee in bankruptcy.'*

The prescribed period for filing an inventory is six months. If the administrator finds herself unable to file the inventory within the prescribed time, she is duty bound to apply to the court which issued the grant for extension of time, stating the reasons for

15 her inability to perform the required task within the 6 - month period. The court, if persuaded by the administrator's grounds for extension of time, may grant the application. This in my opinion ought to be the correct procedure under section 278(1) of the Succession Act.

I find that it was therefore premature for the Plaintiffs to file this suit without an 20 inventory to the deceased's estate. There could be no cause of action to recover land under a deceased's estate in the absence of an official inventory to his estate duly filed with the court that issued the grant to administer the estate. This was the only valid foundation upon which the administrator to the estate or could make a claim on the Defendants. The filing of an inventory is a crucial and mandatory part of the succession 25 process which has for the most part been disregarded by holders of letters of administration and grants of probate.

The consequences of this laxity, which has been fuelled by the failure by the courts to enforce the law on filing inventories strictly, are demonstrated in the mismanagement of estates of testate and intestate persons in this country.

- Ms. Hadijah Ndagire, the 1st Plaintiff is one of the administrators to the estate of the 5 deceased in the instant suit. She testified that she was unable to file an inventory to the deceased's estate because of the Defendants' actions. I find that this may well have been the case. She was appointed administrator in 2013 and this suit was filed in 2014. But it did not explain the absence of an inventory from 1993 to 2014 when the Administrator General and other parties were the administrators of the deceased's estate. Ms. Ndagire - 10 herself ought to have applied to the court, which issued the grant for extension of time within which to file an inventory, after the six months' period had elapsed. This was not done.

**Without a cause of action, I reject the Plaint under Order 7 rule 11 of the Civil Procedure Rules S. I 71-1 and order as follows;**

- 15 **1. The Plaint is rejected for failure to disclose a cause of action on grounds that there is no inventory to the estate of the late Abdala Kibira Kaaya on the court record.** - **2. The absence of the inventory to the estate of late Abdala Kibira Kaaya that has been under legal administration since 1993 makes it impossible for this** 20 **court to ascertain whether the suit land is part of his estate or not and by extension the rights of the Plaintiffs thereunder.** - **3. Suit is dismissed and the Plaintiffs are at liberty to file a fresh suit.** - **4. Costs shall be borne by the Plaintiffs.**

**-----------------------------------**

**Olive Kazaarwe Mukwaya**

**JUDGE**

**8 th February 2021**

**Delivered by email to Counsel for the Plaintiffs.**

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