Kabugo and 3 Others v Jjumba and Others (Miscellaneous Application 546 of 2023) [2023] UGHCLD 181 (30 June 2023)

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

#### I-AND DIVISION

#### MISC. APPLICATION NO. 546 OF 2023

# ARISING FROM CIVL SUIT NO. 802 OF <sup>2016</sup>

- 1. KABUGOJOHN - 2. LUKWAGOGODFREY - 3. ROSETTE MUSOKE - 4. I-ATIMAMUGERWA APPLICANTS

#### \. ERSUS

# 1, JJUMBA RONAID

2. JUSTINE MUYANJA KAFEERO (Administrator of latc Frcd Kafccro) RESPONDENTS

#### AND

- 3. TEOPHIL SEMUYINDE - 4. SUZAN NAMUDDU - 5. THE REGISTRAR OF TITLES RESPONDENTS.

# BEFORE HON. LADY JUSTICE FLA\'IA NASSUNA MATOVU

#### RULING

<sup>1</sup> This application was brought under thc provisions of S.98 of the Civil Irroccdure Act, and 0. 1 rt 1,3,10 and 13 of the Civil Procedurc llulcs. It was seeking fot otdcts that IJCCS. No. 802 of 2016 bc amended to add the applicants as defendants to the sult. Further that the 1" and 2'd Respondents

be directed to ser.ve thc applicants with the plaint and summons to Iile defense to enable them file their written statement of dcfense and that cosm of the applicatiofl be provided fot. It was brought by notice of motion which was supported by an affidavit swom by the 1"' aPplicant. -Ihe g-rounds of the application were laid in thc notice o[ motion and affidavit in support. Briefly the grounds were that;

- a) The applicants are sons and daughter of latc Ssczi Musoke who died in February 1999. - b) That the iate Ssezi Musoke died intestate in rcspect of the suit propcrty to wit land comprised in Kibuga Block 5 plots 1298 ar,d 1299 at I(alerwe and I(yaddondo Blo ck 222 plo r 221 . - c) The 3'd tespondent had illcgally and unlawfully transfcrred land comprised in Kibuga Block 5 plot 1298 into thc names of thc 1"'respondent. - d) The 1st and 2nd respondent filed IIIICS. No. 802 0f 201,6 against the 3'd and 5'h rcspondents claiming interest in the suit propcrties whercas they havc n()nc. - e) The applicants as sons and daughtcr havc an interest in the said property and the ordcrs sought by the 1"' and 2"d rcspondcnt in the main suit if granted will affect their interest in the said propcrty. - f) Atlowing thc amendment will hclp the court to determine rights and intcrests of all affected parties and it would not ptciudice the tcspondcnts in any way. - 2. 'fhe 3ra , {th and 5'h rcspondents did not filc any affidavit in reply to this application. Howevet, thc 1" and 2"d respondents filed an affidavit in reply which was sworfl by thc 2"d respondent by which they called upon this coutt to dismiss the application with costs. Briefly thcy maintaincd tlat; - a) They wcre widow and son to latc Fred I(afccro,who was son to late Ssezi Musokc.

- b) By wil dated 18/1.1/1995 the late Ssezi Musokc bcqucathcd the suit properties to the late Fred I(afccro and it is therefore not true that late Ssezi Musoke died intestate in relation to these ptoperties. - c) The said will was proved in court and one I(muli Christopher together with the 3'd respondent were granted probate to the estate of late Ssezi Musoke on 26'h August 2003. - d) By judgement dated 27/5/2014, in respect of HHCS. No.6 /2009, the 3'd respondent who was the surwiving administrator was ordered to file inventory and account of Ssezi Musoke's estate withifl thtee months from the date of judgment. - e) The 3'd respondcnt consequendy distributed thc estate amongst all the bcneficiaries in accordance vdth the will. - I The applicants have no interest in the suit property and should not be ioined as parties to the case.

## 3. Backgtound:

Sometime in Novcmbct, 2016, thc 1" and 2"d Rcspondcnts hlcd I{CCS No. 802 of 2016 against the 3'd, 4d' and 5'r' Rcspondents. Thc said suit was prcmised on trespass and ftauduicnt dealings in relation to land comprised in I(buga Block 5 Plots 1298 and 1,299 at Mulago - I(alerwc, and I(yadondo l\lock 222 Plot 2664 at Namugongo. This land formed part of thc cstatc of thc latc Ssczi Musokc Ssalongo who died in i 999. They institutcd thc suit as bencficiary and Administratot of the late Fred Kafeero who was a bencficiary in the estate of thc latc Ssezi Musoke Ssalongo.

The Applicants filcd this application secking to bc addcd as defendants to I ICCS. No. 802 of 2016 basing on the fact that they atc also bcncficiaries in the cstatc of the late Ssezi Musokc Ssalongo which cstatc had not been rcprescnted in the said <sup>s</sup>ul1

The applicants contended that the suit property formcd pat of the estate of thc late Ssezi Musoke Ssalongo and they as bcncficiaries had an intere st in thc samc and that a dupl.icity of suits will arise if thcy are not added as partics to the suit.

- 4. The issues to be decided by court arc; - a) Whether thc applicants havc any interest in the suit proPerty and if so whethcr they should be added as partics (defcndants) to Civil Suit No. 802 of 2076 - b) \Xlhat are the remedies available to the parties?

### 5. Submissions of Counscl:

Both parties filed writtcn submissions which I havc carcfu1ly studied togcther with pleadings and thc entirc record o[ procecdings.

Briefly counsel for the applicants submitted that the 1" and 2'd Respondents do not havc an interest in thc suit land. That court should bc guided by Section 92 of the Succession Act which provides that if a legatcc does not survive thc tcstator, then the property should revert back to the cstatc. 'Ihat Ordet i rule 10 of the Civil Procedure Rules allows Court to add parties to a suit at any stage of the ptoceedings if the party's presence is neccssary for court to effectually adiudicatc or sctde any qucstions in a suit before it.

Counscl also citcd thc case of Lenard Pricc v. Andrcw Muwonge & Anor; Misc. App. No. 5l of 2020 wherc it was hcld that lor court to add a party to a suit, it should bc convinccd that the orders sought by the patics will legally affect the interest of the person and that it is dcsirable for the pctson to be lcgally joined to avoid a multiplicity of suits. 'fhat thc Applicants havc an intcrcst in thc cstatc of thc late Ssezi Musoke and that the outcomc of Civil Suit No. tl02 ol 201' 6 will have <sup>a</sup> beating on their iflterests.

Counsel for the 1st afld 2!rd Rcspondcnts on thc othcr hand submittcd that thc appl-icants had no intetcst in thc suit propertics and should not bc ioincd as parties to thc case. Ilc cited the case case of Samson Scmpasa v. P. K Sengendo High Court Misc. App. No. 577 of 2013 where it was hcld "ft is a fundamental consideration that befote a person can be joined as a party, it must be established that the pany has high interest in the casc". -fhat all thc beneficiaries of thc latc Ssezi Musoke got thcir share as pcr the will savc for the share that was meant for the late Fred I(afeero, and thctcfotc, thc applicants havc no interest in thc suit propcrty.

That the codicil being rcLicd upon by the applicants to infer thc bequcst that was madc to Fred I(afeero reverted back to the estate of thc late Ssezi Musoke vzas invalidated in Civil Suit No. 532of 2001. That S. 92of the Succession Act, contains an exception whereby a provision in a tcstator's will can confer the deccascd legatee's bequest to any other person as the will may allow. 'fhat thc will of thc late Sezi Musoke on page 8 provided an exception wherc a dcccascd lcgatee lcft behind <sup>a</sup> child. I'{e tcfcrrcd court to S. 96 of thc Succcssion Act which allows for a lineal descendant or child of the deccascd legatee to take on his/het bequest.

In rcjoinder, Counsel fot thc,,\pplicants submitted that thc latc Ssczi Musoke madc a codicil to his will rcvoking thc bequest he madc to thc latc Irred l(afe ero and giving it all to one John I(abugo. It is further submittcd that although the codicil was invalidated, the ptoperty teverted back to the estate of the late Ssezi Musoke as pet the iudgment ofJustice l(ibuuka Musoke in Civil Suit No . 532 of 2001. and there fore ought to bc distributed to the surviving childrcn of thc latc Ssczi Musokc. Counsel futther submittcd that on thc ptemisc of Section 24 of the Succession Act, the late Ssezi Musokc died intestate in regard to thc suit properq/.

## 6. Resolution:

Whether the applicants havc any intctcst in thc suit propcrty and if so whcthe r thcy should bc addcd as partics (dcfcndants) to Civil Suit No. 802 of 2016.

0.1 rulc 10 of thc Clivil Proccdurc Rulcs undcr which this application was btought provides: "The court may at any stage of the proceedings cithet uPon ot without the application of either party, and on such terms as may appear to the court to be /ust, order that the name of any party imptopetly ioined, whether as plaintiff or defendant, be stntck out, and that the name of any percon who ought to havc been foined, whcther as plaintiff or dcfendant, ot whose prcsence beforc thc court may be necessary in order to enable the coutt cffectually and completely to adf udicate upon and scttle all questionsinvolved in the suit, be addcd."

-Ihis rule was considered in thc casc of Departed Asians Property Custodian Board v. Jaffer Brothers Ltd [1999] 1 E. A 55 whcrc thc supreme court guided that in an application of this nature 'it is necessary to show either that the orders sought would legally affect the interest of that person and that it is desirable to have that person added as a party to avoid a multiplicity of suits, or that the defendant could not set up a desircd defense unless that person was /oined or an order made that would bind that other petson,'

At this stagc thc court is not expected to look at thc mcrits of the case, but to determine whethcr therc is an intcrest of the applicants that will bc affcctcd if they are not joincd as parties.

'fhetefore in thc instant case, thc applicants have to show on a balance o[ probabilitics that they have an interest in thc suit properties and that any otdets issued shall affect their intcrest in thc propcrry.

Aftcr catcfully studying the pleadings, thc cntirc rccord of procccdings and submission of both partics I notcd as follows:

- a) The suit property is land comprised in I(buga Block 5 Plots 1298 and 1299 at Mulago - Kalcrwe, and Kyadondo Block 222 Plot 2664 at Namugongo. - b) \X{hercas this land forme d patt of the cstate of late Ssezi Musoke, by will dated 1,8/1,1 /95, the said property was bequeathed to Fted I(afeero who apparendy died before latc Ssezi Musoke. The said will was proved in court and ptobate was granted to 3'd Respondent and one I(imuli. (See judgment of court in HCCS. No. 532 of 2001 dated 29 /7 /2003 and grant of probate dated 26'h August 2003. - c) The codicil dated 19/9/1996, that putportcd to remove the said properties from late I(afeero to 1"'Applicant was declared invalid was found not to form part of t1le deceased's will . (see page 6 of the iudgment). f'here was no appeal against this judgment. - d) The cstate of late Ssezi Musoke was distributed in accordance with thc said will. Indeed on 14/8/2013 one of the suit propetrics i.c. Block 5 Plot 1298 was transfcrred to 1"'Respondent who is son to late Fred I(afeero. 'Ihe cause of action in IICCS. No. 802 of 2016 is thercfore premised on trespass to the said land and fraudulent dealings in the other parccls of land by the 3'd and 4'h Respondent. - e) Applicants claim that since Fred I(afeero their brother died before Ssezi Musoke, then his share in the wi-Il should tevert to them as the beneficiaries but not to his son the <sup>1</sup> -' Applic ar,t or 2"d rcspondent as w'idow and administrator. - f) However a clear perusal of the will specifically page 8 of the translated wi-ll stated thus; " If there is any child who will die but who has a share in this will, but without leaving any child that share should be distributed to you by the executors". This statement was directed to the children o[ Ssezi Musoke among whom are the applicants. f'his clause implied that if the deceased legatee left behind any child the propcrty would not revert to the estate. Apparendy, the children of Ssezi Musoke could only get the suit property that

were bequeathcd to late Fred I(afeero if he had dicd without leaving behind a child.

g) Since I(afecro lcft bchind a chi1d, thc childrcn of Ssczi Musoke, (the applicants) cannot claim this propctty under the will because this was not the intention of the testator. Ilis intention was that it only tevcrts to them if there is no surwiving child. S.92 of the Succession Act provides

"If a legatee does not survive the testator, the legacy cannot take effect, but shall lapse and form part of the residue of the testator's propertyr unless it appears by will that the testatot intended that it should go to some other person". The intcntion of the testator in this casc was ve ry clear as elaborated above. I Ie only intended the ptopetty in issuc to revert back to the estatc if thc late I(afeero had not lcft any children bchind. Since late I(afcro left a child behind the applicants cannot claim this properry.

The applicants have therefore failed to show that they havc intetest in the suit propcrty and for that reason they cannot be joined as partics to IICCS. No. 802 of 201.6.

This application thercfore hereby fails and is accordingly dismisscd with costs to 1" and 2'd Respondent.

DATED at Kampala this day of A+-^-,^ 2023

HO Y JUSTICE FLAVIA NASSUNA MATOVU.