Kabali (as administrators of the estate of the late wandyaka yusufu musembi and mukasa kajubi) v Kimera and 4 Others (Consolidated Civil Suit 2333 of 2015) [2022] UGHCLD 253 (12 December 2022)

Full Case Text

# IN THE HIGH COURT OF UGANDA AT KAMPALA

### **LAND DIVISION**

# **CONSOLIDATED CIVIL SUIT NO 2333 OF 2015**

## **ARISING FROM CIVIL SUITS NO. 33 & 333 OF 2015**

#### **KABALI TWAHA**

$\mathbf{S}$

(Admnistrator of the estate of the late Wandyaka yusuf musembi and mukasa kajubi......... PLAINTIFF

#### **VERSUS**

## 1. KIMERA TWAHA

2. NSAMBA BUKENYA FRED

3. SSENDAGALA CHARLSE

### 4. MWEBAZE EZRA

5. BARYARUHA LAWERENCE..................................

**BEFORE: HON. JUSTICE TADEO ASIIMWE**

JUDGMENT

#### Background.

The Plaintiff filed this suit against the defendants seeking for a declaration that he is the rightful owner of the suit property, order for cancellation of the defendant's names from the tittle comprised in block 197 plot 23, 541 and 583, a Permanent injunction, general damages, mesne profits and costs.

$\mathbf{1}$

**HARRY**

The Plaintiff s case is that he is an administrator and a beneficiary in the estate of the late Musa Kajubi who was the owner of the suit land formerly comprised in FC 14346 VOLUME 118, FOLIO 23. That the suit land originally belonged to to the late wandyaka yusufu Musembi who bequeathed it to his father as per kabaka's inventory. That the l't fraudulently surveyed offpart ofthe suit land using a forged succession O certificate.

On the other hand the I't defendant never filed a defence but the 2''d defendant in his written statement of defence stated that he acquired the suit land from the 1't defendant who was the registered proprietor in 2008 without any encumbrances or third party claims and took physical possession to date. The 3'd, 4'r' and 5thdefendants in their WSD contended that the suit land initially was owned by the late Yokana Kibirige the grandfather of the l't defendant who obtained a tittle in way back 1933.

### Representation

The plaintiff was represented by Counsel Pande Norman holding brief for Counsel Peter Kimaje Nsibambi while smith kayanja appeared for the defendants holding brief for Musa Kabega.

#### Issues

The following issues arise from the pleadings of both parties and the plaintiffs scheduling memorandum.

l. Whether or not the plaintiff is a lawful owner of the s tland.

- 2. Whether the defendants fraudulently acquired the suit land. - 3. What remedies are available to the parties.

On the 4th October 2022 whenthe matter came for hearing, both counsel were in court and the matter was adjourned interparty to 12th October for commencement of hearing. However on l2th the defendants counsel was absent the matter proceeded exparte where the plaintiff called one witness O who exhibited 7 documents and closed his case.

#### SUBMISSIONS.

The plaintiff s counsel filled written submissions which I shall consider in this Judgement. He submitted that the suit land measuring 30 acres originally belonged to the late wandyaka yusufu Musembi which he bequeathed to his son Musa Kajubi as evidenced by the kabaka inventory PE3 which was never challenged. That in 2007 the l. Idefendant disguised O himself as charles Bukenya and surveyed off part of the suit land using forged succession certificate without the plaintiffs knowledge and consent a fact which was denied by the said Charles Bukenya. That the l.t defendant wrongfully transferred the suit land to the names of the 2,d defendant. He relied on the case of Fredricu zaabwe vs orient Bank & others sccA No, 4 of 2006 arguing that the 3'd defendant disguising himself as the owner of the rand ilregally and fraudulently caused a subdivisions and registration of the suit land in the names of 4th and 5th defendants without the plaintifls knowledge and cons the 3'd, t. Fu

\ -J

4th and 5th defendants produced no proofofpurchase ofthe suit land as alleged in their pleadings so as to qualify to be bonafide purchasers since they failed to conduct a search on the suit land to establish the true owner, He invited court to find that the plaintiff is the lawful owner of the suit land being the administrator of the estate of the late Musa Kajubi, who inherited it from the original owner. He finally invited court tc grant all O ,t. remedies sought in the plaint.

### RESSOLUSSION OF ISSUES.

1. Whether or not the plaintiff is a lawful owner of the suit land.

2. Whether the defendants fraudulently acquired the suit land.

The general rule is that he or she who asserts must prove and the burden of proof therefore rests on the person who must fail if no evidence at all is given on either side. The standard of proof required to be met by either O puny seeking to discharge the legal burden of proof is on a balance of probabilities.

# In Miller V Minister of Pensions ll947l2 ALL E R372 Lord Denning stated:

"That the degree is well settled. It must caffy a reasonable degree of probability but not too high as is required in a criminal case. If the evidence is such that the tribunal can say, we think it more probable than not, the burden of proof is discharged but if the probabil ual, it \ is not." res are e

It is also the position of the Law that the evidential burden does not shift to the defendant unless there is cogent and credible evidence produced on the issue for determination.

In this case the plaintiff led evidence of KABALI TWAHA, the plaintiff who testified as pw1 and closed his case. In his evidence contained in the witness statement which was admitted on record, pwl testified that he an administrator of his father (Musa kajubi) and his grandfather's (Wandyaka Yusuf Musembi) estates vide administration case no AC 263 OF 2009 & AC 052 OF 2012. That thee suit land was bequeathed to his father Musa Kajubi through a will as evidenced by an inventory to the Kabaka of bugand adated 4th September 1936 as per PE3. He further stated that the I't defendant fraudulently transferred the suit land in to his names from a one Charles Bukenya who he had fraudulently fronted and registered on the said land as the first owner who later distanced himself from the said transaction as a fraudulent as he has never owned the suit property. That on 2009 the lstdefendant transferred the suit property to the 2d defendant. That the 2nd defendant in 2010 also transferred the suit property to the 3'd defendant who immediately sub divided it in two plots and transferred it to the 4th and 5th defendants. That in 2018 he reported a criminal cases of trespass and forgery in respect to the suit property,

From the evidence on record the gist of the plaintiff s claim is that the suit land was bequeathed to his father a the late wandyaka Yusuf Musembi. one Musa Kajubi 0f, his gran

Before I cross over to the lane of succession, wish to note that both parties claim from different persons as original owners of the suit property. The plaintiff claims that the suit land originally belonged to his grandfather wandyaka Yusuf Musembi. He however did not lead evidence on how his grandfather acquired the suit property. However by effect of PE3 the plaintiffs claim is that his grandfather was given the suit land by the I fuUutu. However the said PE3 is a letter to the kabaka introducing successors ofthe subject ofthat letter and not a letter by the kabaka gifting or giving or confirming that the suit property was given to the said wandyaka Yusuf Musembi by the kabaka. Besides even the author of PE3/ or any one from the Buganda land Board did not testiff in court to at least highlight how and when if at all the suit land belonged to the kabaka and how it was given to the said wandyaka Yusuf Musembi. Reliance on kabaka's alleged inventory does not prove that the plaintiff s grandfather O owned the suit land. worse still the persons introduced to the kabaka in PE3 a one YUSUF SEWANYANA OMUSEMBI is different from the plaintiffs grandfather a one WANDYAKA YUSUF MUSEMBI. There is no evidence on record to show that the two persons are one and the same person. Unfortunately the only witness on record (pWl) never gave any explanation or clarification in regard to the difference in the names.

That notwithstanding, the law governing succession is very clear under the succession act. Administration where a will exists applicants will be issued with a probate. Whereas the plaintiffs claim stem ged from an al

\1t

will as per PE3, the record shows that the plaintiff was granted letters of administration as per PE1 and PE2. It also defeats logic as to why the head of the Nsenene clan had to write to the kabaka over property which had already been dealt with under a will.

This evidence is a clear indicator that there was no will at all and it no surprise that none was produced in court. All that the plaintiff relied on was pe3 which I have already stated that it was a letter by the Nsenene clan introducing the successors of the late YUSUF SEWANYANA OMUSEMBI to the kabaka. Although it made mention of will and the plaintiff s father, no other credible evidence was led to back the assertion on the existence of a will. The document PE3 in itself thus lacks validity as a will evidencing the bequeathing of the suit land to the Plaintiff s father. I therefore find no nexus between the plaintiff and the original owner of the land.

on the issue of fraud, the plaintiff s evidence is that the first defendant through a one Charles Bukenya fraudulently registered the suit land in his name using a forged certificate of succession. He further pleaded that the said Charles Bukenya through a statutory declaration disowned the ownership and dealing in the suit land.

Fraud was defined to mean the intentional perversion of the truth by a person for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or her or to surren ight. era legal

7 t \

It is a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations or concealment of that which deceives and it is intended to deceive another so that he or she shall act upon it to his or her legal injury. see Fredrick Zaabwe Vs Orient Bank & Others SCCA No, 4 of 2006,

In Kampala Bottlers Ltd vs Damanico (U) Ltd, SCCA No.22 of 1992, it was held that;

" fraud must be strictly proved, the burden being heavier than one on balance of probabilities generally applied in civil matters, it was further held that;

'The party must prove that the fraud was attributed to the transferee. It must be attributable either directly or by necessary implication, that is; the transferee must be guilty of some fraudulent act or must have known of such act by somebody else and taken advantage of such act."

In this case the allegedly forged certificate of succession was not tendered in evidence for court's inspection and no expert evidence led to prove the said forgery.

In addition, the said Bukenya Charles did not testify to own up the statutory declaration wherein he allegedly disowned dealings and ownership of property and the same was not tendered in evidence.

I therefore find that the plaintiff fell far short of the burden placed on him to prove the alleged fraud and forgery by the defendants.

In conclusion, the I't and2d issues are answered in the negative.

# Remedies available to the parties.

Having answered issues one and two in the negative, the plaintiff is not entitled to the remedies sought.

# COSTS

Ordinarily costs follow the event as per section2T of the civil procedure Act. The defendant's having failed to lead evidence in this case are not entitled to costs.

In conclusion this suit lacks merit and the same is here by dismissed without costs.

--4--"

TADEO ASIIMWE

JUDGE

t2/12/2022