Kalema v Nakibuule and Another (Civil Suit No. 445 of 2011) [2022] UGHCLD 33 (25 March 2022)

Full Case Text

#### THE REPUBLIC OF UGANDA

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

#### {LAND DIVIAION)

## crvrl gurT No. 445 0F 2011

#### GETRUDE KALEMA : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : PLAII{?IFF

#### VERSUS

### 1. PRINCESS NAXIBUULE ANNET

2, THE REGISTRAR OF TITLES:::::: DEFENDANTS

#### JUDGME]|IT

# 10 Before: Ia Jttstice Alexdnd.rd. Ruqddua

## Introductlort.

The plaintiff filed this action secking for orders for the surrender and cancellation from the register book, and certificates of titles of land comprised in Blocrc 206, plot g7lg - gZ24 Oorrnerlg plot 261O); a declaration that the defendants dealt fraudulcntly with the matrimonial land; permanent

15 injunction restraining the defendants from dealing with the suit land; general damages; interest on general damages ; and costs of this suit.

The suit was filed in 2011. An exparle judgrnent was entered in favour of the plaintiff against the 1s and 2"d defendants. upon application by the 1" defendant, the said judgment was set aside and the suit was heard on its merits.

### 20 Re,resent.ltlo,t,:

The plaintiff was represented by M/s htrtro:r Adaocotes, whilc ttie 1"r defendant was represented by lhe fiIrn of M/s SebbnJa. & Co. Adtocoites. The 2"d defendant did not enter appearancc.

## tro.cts of the co'se:.

The plaintiff Mrs Gertrude Kalema is the widow and administrator of the estate of her late husband Kalema Fredrick Muwonge, and is currently is in possession of thc suit land. The late Kalema was the registered proprietor of r{gad.ond.o, Block 2o6, Plot 2670 where he lived with the plaintiff as a married couple. She claimed that upon realizing that her husband had become mentally incapacitated lodged a caveat on the 31i July, 2008.

30 A search that was conductcd latcr rcvcaled that the land was subdivided into several plots. The suit property comprised tn Kgadondo Block 206 plot 3779 was mutated off Elock 206 plot 2610 aod. thc 1i defendant, I)rincess Nakibuulc Annet bccamc thc rcgistcrcd proprictor thereof.

The 1st defendant on her part contended that the suit property had previously been owned by the late Fredrick Kalema who gifted her the suit land as his daughter which portion had ceased to be part of his estate. She therefore refuted the plaintiff's claim that the land was part of her matrimonial home.

## Agreed facts:

- $\mathsf{S}$ At the scheduling conference the agreed facts were therefore identified as follows: - a) The plaintiff is the widow and administrator of the estate of the late Fredrick Kalema. - b) The late Fredrick Kalema was the registered proprietor of the **Kyadondo Block 206 plot 2610** *where he lived with the plaintiff as a married couple.*

$10$

- c) The suit property comprised in **Kyadondo Block 206 plot 3719** was mutated off **Kyadondo Block 206 plot 2610** and the defendant is registered proprietor thereof. - d) The plaintiff lodged a caveat and was registered by the Registrar of Titles on the 31st day of July, 2008.

## Issues:

The four issues below were also agreed upon between the plaintiff and the 1st defendant:

- **1.** Whether the suit land was matrimonial property; - 20 - 2. Whether there was any fraud or illegality committed by the defendants in transferring the suit land into the $1^{st}$ defendant; - 3. Whether there is a just cause for revocation or annulment of the letters of administration granted to the plaintiff. - 25

### 4. What are the remedies to the parties?

# Issue No.3: Whether there is just cause for revocation or annulment of the letters of administration granted to the plaintiff.

In her counter claim, the 1st defendant sought the following orders/ declarations:

a). A declaration that the land comprised on Kyadondo Block No. 206, Plot No. 3719 at Mpererwe Kampala District belongs to the counter claimant.

*b). A declaration that the attempt by counter defendant to lodge a caveat on the suit land and/or* property without informing the counter claimant was illegal, null and void abnitio.

andaly

c). An order for revocation of letters of administration granted to the counter defendant vide High Court of Uganda Administration cause No. 260 of 2010 and the same be granted to the counterclaimant.

d) An order to surrender to court the grant of letters of administration granted to counter defendant.

e). An order to file a comprehensive true and counter statement of account of the counter defendant's dealings with the estate of the late Kalema Fredrick Muwanga using the said grant.

f). An order to pay reparation for the loss and damage negligently and willfully occasioned to the estate of the late Kalema Fredrick Muwanga by the counter defendant.

g). Mesne profits for loss of income, denying the counter claimant access to the suit land and/or property and to account for money delivered from the same by the counter defendant.

h). A declaration that the encroachment on the said land comprised on **Kyadondo Block No.** 206, Plot No. 3719 at Mpererwe Kampala District by the counter defendant amounts to trespass.

15 i). An order for a temporary injunction restraining the counter defendant, her agents, servants and/or workmen and any other person claiming under her from further interfering with the suit land and/or property until the counter claim/suit is heard and determined.

> *j).* An order for a permanent injunction restraining the counter defendant, her agents, servants and/or workmen and any other person claiming under her from further transfer or interfering *with the suit land/or property.*

*k) General damages for trespass inconveniences and embarrassment.*

l). Interest at a rate of 30% on item (k) from the date of filling the suit till payment in full.

The 1st defendant in the due course of the trial abandoned her prayer for an order for revocation under paragraph (c), and together with it also therefore went paragraph (d) of the counter claim wherein she had sought an order for the counter defendant to surrender the grant of letters of administration.

In agreement with counsel for the 1st defendant, this court finds that the other prayers made in the counter claim would still have to be considered.

## Issue No. 1: Whether or not therefore the suit land was matrimonial/family property:

The law:

$\, , \,$

$\mathsf{S}$

30 Section 38 of the Land Act, Cap 227 defines family land to mean, land: (a) on which is situated the ordinary residence of a family;

(b) on which is situated the ordinary residence of the family and from which the family derives sustenance;

(d) which is treated as family land according to the norms, culture, customs, traditions or religion of the family;

"ordinary residence" means the place where a person resides with some degree of continuity apart from accidental or temporary absences; and a person is ordinarily resident in a place when he or she intends to make that place his or her home for

"land from which a family derives sustenance" means—

(a) land which the family farms; or

(b) land which the family treats as the principal place which provides the livelihood of the family; or

(c) land which the family freely and voluntarily agrees, shall be treated as the family's principal place or source of income for food.

(5) For the avoidance of doubt, this section shall not apply to spouses who are legally separated.

20 Section 39 (1) of the Land Act gives restrictions on transfers to be made on any part of family land.

The said section stipulates that no person may enter into any transaction in respect to land, on which the person ordinarily resides with his or her spouse and from which they derive sustenance, except with the prior consent of the other spouse. A matrimonial home/property is by all means part of what would ordinarily constitute family land/property.

25 Particular reference is made to **section 39 (1) (c)** of the same section which I find relevant to the present case. It states clearly that a person shall not give away any family land intervivos, or enter into any other transaction in respect of family land, except with prior consent of the spouse.

In the instant case, the plaintiff claimed that the 1st defendant had illegally caused herself to be registered on the suit land/property which was matrimonial property, without her consent and/or permission as the widow and administrator of the estate of the late Kalema Muwanga Fred.

Au Lay

an indefinite period;

$\mathsf{S}$

That she fraudulently transferred the suit land lrom thc registered proprietor using forged signatures and instruments. Furthermore she failed to gct spousal consent from the plaintiff when dealing with the land; and connived with the 2"d defendant to dcny the plaintiff her legal interest in the suit land.

5 The 1", defendant however refuted the claim that this was matrimonial propcrty. According to her, the said land was originally occupied by one Mukasa his uncle who later relocatcd to Mukono District.

Her late father had prior to his death informcd hcr that he had inherited the land from his late father, Muwanga Francis Kisekka and upon inheritancc, he had engaged a surveyor and obtained a certificate of title into his names. He thereafter gifted to her and to her sister, Nakalema Angel, but who for somc unknown reason did not testify.

The plaintiff in her evidence while admitting that her husband had been registered owner of land at Mpererwe comprised in Block 206, Plot 2614 (measuring 0.853 hectarcs) which was obtained originally as a kibanja from the late Francis Kisckka in 1966, it became the matrimonial property which they jointly owned and developed as husband and wife.

15 The legal interest was purchased from Namasole, as per sale agreement, PE <h 3 (a) atd 3P). "lhe late Kalema signed the agreement as the purchaser of the legal interest. llis wife, the plaintiff and Prr3, Steven Semwanga had been witnesses to thc agreement dated l2th July, 2OO2; and the said agreement was not contested.

The plaintiff relied on hcr own evidencc, as PurI, that of Ms. Joycc Galabuzi, Pw2 and Mr. Stevcn Serwadda Pru3 hcr son, to provc that the propcrty was hcr matrimonial homc and therefore propcrty which could not have bccn transferred without spousal consent. 20

It was also not in dispute that she had solemnized her marriage with the late Fredrick Kalema Muwanga in 1985. This implies that the two got married after the deceased had acquired the disputed land from Kisekka.

For over forty years, thcy resided on the suit land comprised in 8locft 206 Plot 2670, together with their six children, and latcr in 20o6 jointly acquired the legal interest from Namasole Manjeri Lunkuse, the unchallenged holder of the lcgal interest, and suweyed off their portion. The plaintiff continued residing on that land, cvcn aftcr her husband's demise. 25

With her husband's knowledge and consent she also tilled the Iand and derived sustenance from it, carrying out different farming activities. This was also the same land whcre onc of their children had been buried. All that came out clearly from the plaintiffs unchallenged evidence. 30

The plaintiffs evidcnce on that score was also strengthened by that of Pur2, one of her neighbors who had resided on the neighboring plot, as conlirmed from the visit at locus. Her truthfulness as a witness was not questioned.

5 u

Other witnesses maintained that the late Kalema Muwanga first lived on this land with his brother Mukasa and their maternal aunt. However later Mukasa had shifted from the suit land and left it in occupation of the plaintiff, her husband and their children.

According to **Pw3**, both parents had been gainfully employed and were therefore able to pool their $\mathsf{S}$ resources together to buy the legal interest.

### Resolution of the issue:

$\overline{1}$

The concept of matrimonial land which is an aspect of family land, is a fusion between law and equity. It creates special tenure relations between the householder and the other spouse. With reference to registered land, the proprietary rights to the parcel of land are vested in the householder (the registered spouse) with rights of occupancy guaranteed and protected by the law, for the unregistered spouse, for their joint occupancy, use and enjoyment. It therefore creates an undivided and inalienable right in the land for the other spouse, enjoyed in common with the registered spouse.

The concept thus applies to land that is owned or leased by one spouse and occupied by the spouses as their family home; or occupied by the spouses as their family home while at the same time serving as their source of sustenance; or agreed to be used in either of the two prior modes; or according to the norms, culture, customs, traditions or religion of the family, is treated as family land.

This effectively creates two divisions in ownership of land to which it applies; the registered owner who has legal ownership while the unregistered spouse has a beneficiary or equitable interest of occupancy and user in the same property, such that one piece of land forms the subject of two

20 proprietary rights separately vested in both spouses, guaranteeing a mutual occupation and enjoyment of the land.

The concept in effect creates and elevates to the status of a legal right, what would otherwise have been an equitable interest of an unregistered spouse. The hitherto equitable interest is now enforceable as a right once the existence of the right is established.

25 It is also the settled principle is that matrimonial property to which each spouse should be entitled is that property which the parties choose to call home. (Muwanga Vs Muwanga H. C. C. S 135 of 1997 (unreported).

As also held in the case of Herbert Kolya Vs Ekiriya Mawemuko Kolya CS No. 150 of 2016 Article **31(1)** *of the Constitution* confers on men and women equal rights during marriage and it dissolution.

30 Courts have therefore over a period of time recognized each spouse's contribution to acquisition of property and this attribution may be direct, where the contribution is monetary or indirect, where a spouse offers domestic or other services. (Rwabinumi Vs. Bahimbisowe Civil Appeal No.1 10 of

6 Juliouf

$\bigcup$

$\tau = -\tau$

# 2OO9 ctttng ulth o.pproual thE outho"ltg ol Kqgga Vs Kaggd (Htgh Court Dluotce Co'use No 1l/Os).

At the locus visit, it was also confirmed that the first house that the couple lived in as their home was situated on the suit land. The visit also confirmed that there was a house that had been built by the plaintill herself in 1987 which she used as a shop and later she rented it out to a church owned by one Takererwa.

Court was also able to confirm that the land on which the homestead was situated had an ordinary residence, where the deceased and the plaintiff resided, with a degree of continuity. It had always been treated as their family land.

In line with the above principles and findings of court, prior consent of the spouse was not only mandatory under thc law as cited, but also an intcgral part of any transfer of any such property, and an act of due diligence demanded of any prospective buyer or transferee. 10

# Was there a oalld. ft, lnteflrlvos therefote enforceable aodlnst the platnttff?

15 A gift interuuos is characterized by a deed of transfcr. The known principle is that in equity a gift is only complete as soon as the donor has done eve4rthing that he/she ought to accomplish, necessary to complete the title.

Thus in sectioa 92 of the RTA the transfer of registcrcd land can only be effected by the transferor signing transfer forms in favour of the transfcree. The gift is completed upon the signing of the transfer forms and only becomes cffective upon execution or delivery ofthe transfer. It cannot be recalled after that, even though the donee has not been registercd as proprietor.

Thc donor must thercforc do all in his/hcr powcr to vcst the legal interest in thc propcrty to the donec and once the transfer is madc thc gift would not fail cvcn if something rcmaincd to be done by somc third pcrson. lNorah No.ssozl and qnor vs ceotge Wtlllorrl Ko.lulc HCIC,A NO. OS OF 2012).

ln determining whethcr the deceased created a \$ft interviws in respect of the disputed land, court has to ascertain, not only the intention of the donor but also whether formal requirements of the method of disposition which he/she attempted make have been satisfied. 25

In the present casc, the dced PExh 8: 'Agreement lo donate land', datcd l6'h November, 2OO8 and witnessed by nine people, read as follows:

I F-ted. ,<q.lem(I hatJ€ d.o,I,dted to mg doughters Nakibuule Annet aad N(rkolem(r Angel land ls on the upper slde of thc lence co^tl71;ul'rg up to thc roqd. to lfir. hfubln 's land. I h.dtE d.ofldted to tlwtn the uppet part of the easteflt sld.e of Mr. Nsereko's land.

[t b'A The land I have donated is part of the land I inherited from my father MUWANGA FRANCIS KISEKKA. I have authorized them to measure off the above described land and whatever decimals it covers is theirs.......

. . . . . . . . . . . . . . . . . . . .

$\mathsf{S}$

I have made this donation in life, with a sound mind in front of the village elders...and local council1 members. No one should ever take away this donation from them. I have also signed the transfer forms authorizing them to mutate off their portion of land.

The donor:

**Fred Kalema**

#### $10$ The Donees:

- 1. Nakibuule Annet - 2. Pri Nakalema Angel

The gift document was duly signed by the late Kalema Fredrick Muwanga as the donor; and both the 1st defendant and her sister Nakalema Angel as the donees. It had been witnessed by some of the LC

15 Executives Mpererwe Namere Zone Kawempe Division, for the upper part of the land comprised in what was originally **block 206, plot 2610.** These were originally two bibanja portions which however became part of a single title under the names of the deceased.

According to the 1st defendant, the upper part belonged to Mukasa, while their father Kalema, owned the lower part. That their late father had wished to give his daughters the portion which belonged to Mukasa. Other siblings were to get the lower part, without affecting the matrimonial home.

She relied on the evidence of **Dw1**, Nakungu Oliva Muwanga, one of the witnesses to the gift deed. Dw1 had grown up in Namere, and became Vice Chairperson of the area in 2002 and in 2004, became LC Chairman, following the death of the LC Chairperson at the time. She was a witness to the deed transfer. Without any doubt therefore, she knew all about the area and the disputed transaction

25 affecting that land.

> She claimed that sometime in 2008, the deceased had called them as elders to give out his property to his children and grandchildren. The Executive had however advised him against the decision of subdividing his matrimonial home before securing the consent of his wife.

The meeting which was originally convened in the deceased's home in the presence of the plaintiff had 30 ended in disarray since the plaintiff had failed to agree with her husband's plan to give away part of the land.

Aubaby

Another meeting had however been convened at the home of the Secretary General of the area, one Antonio Nalubega; in the presence of the treasurer Kiyimba, and that is where the donation was made after the deccased had refused to heed the advice of the Executive.

Thus whereas the plaintifl's signature had been duly obtaincd at the time when the legal interest was acquired, (PBxh 3)), there was no similar endorsement by from her when the transfer was made thereafter by hcr late husband in relation to that same property, which the lo defendant and hcr sistcr now claim.

The donor in a sketch marked the spccific area /PExh aJ which he had gifted to the daughters. The sketch shows the neighbours on all sides, without however giving the specific size or measurements of the portion given to each or what was left as part of the matrimonial home leaving court with the impression that it was intcnded by thc deceased to remain undivided.

It would also appear from the reading of that document that it doubled as a gift deed and the trangfer instrument, and in that form failed to satisfy the requirements of secttott 92 oI the R?1, which under the Seventh Schedule thercof, grves the prescribed form for the transfer. Without the mutation and/or

transfer instruments, thc transaction between the late father and his two daughters had not therefore been completed. 15

As a matter of fact, the two portions of the kibanja as it were, had been merged into a single title registered in th(] names of the deceased, (PExh 4), after his brother Mukasa had left the area. , Before or even after Kalema had taken over that land as thc registered owner, no mcmber of Mukasa's family

or the administrator of his estate ever raised any issuc so as to make it distinct from the lower portion; and indeed none of them came to court to testify or claim any interest thcrcin. 20

The widow claimed thc entire portion rightly so, as property jointly owned between her and her late husband. This had been part of her home, from which the family derived sustenance. She may not have been the financial muscle behind the acquisition of the suit land and indeed, her contribution need not have becn financial, or equal to that of hcr husband to entitle hcr to any share.

In my view therefore even if the property had been an inheritance tor her father and uncle as the 1"' defendant wishes this court to believe, the plaintiff and his wife had lived together on that land for 40 years, with the knowledge and consent of the Mukasa's family, and Namasole as the former registered owner,

The two had enjoyed quiet and unintcrruptcd occupation. That alonc would havc made her an equitable owncr of an interest in that land to makc her qualify for protection as a bonarde occupant by virtue of sectlon 29 of thc Land Act, Cap.227. 30

It is also the view held by this court that the 1d defendant's claim that the upper part of the land initially belonged to her uncle's Mukasa was in itself setf-defcating as it implicd that hcr father never

9 '8

sought consent from his brothcr when he bought the legal intercst; and/or never sought the consent ofhis brother's family before transferring it under the decd. It implied in short that the deceased had gifted his two daughters with land that never belonged to him.

As per PExh f I, a referral lettcr dated 16th March, 2006, it is also clear to court that at that material time the deceased was disoriented, uith a Jlight of ideas q.nd diminished attention span. The said unchallenged evidence of the plaintiff was also supported by that of Pur3 who confirmed his father's state of mind around the time when the deed was signed.

All in all, th€ purported gift inlerL,ruos could not have been valid. It was null and void as it was made against matrimonial /family propcrty, and, contrary to sectlo'rs 3A and 39(7[c) of thp land Act, without consent of the plaintiff as the spousc.

# Issne .lvo. 2:. llnether there @as the U'gnsfeti4g the sult lond lrtto the 7a defenddrtt:

## I!t-c.lspj

The allegations against the 2.'i dcfendant werc that the said suit property which had been caveated had becn illegally subdivided; and one of the plots irregularly registered in the namcs of the 1"r defendant and entcred into the register book, without notice to the plaintiff as widow and caveator. 15

The plaintiff claimed that there had been failure to follow the right procedure when registering the matrimonial property and failure on the part of the 2"d defendant to recall the certificates for the illegally subdivided plots. 20

On her part, the l defendant counter claimcd that the plaintiff dealt with the suit land well aware that it belonged to her; lodged a caveat thereon and obtaincd letters of administration through misrepresentation and fraud; and intermeddlcd with the estatc of the late Kalema, thus depriving the ln defendant of her interest in thc suit land.

"Fraud" as delrncd in FJ I< Zao.hue vs. Orlen;t Bc,rlJt & 5 O'rs SCC.al lvo, 4 oJ 2006 (qt page 2q is an intentional perversion of truth for purposcs of inducing another to part with some valuable thing belonging to him/her, or to surrender a legal right.

It is also defined as a false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations or by concealment of that which deceives and is intended to deceive another so that he shall act upon it to his legal injury.

Thus anything calculated to deceive, whether by a single act of combination or by suppression of truth or suggestion of what is false, whether it is by direct falsehood or innuendo by speech or silence, word of mouth or look or gesture amounts to fraud.

$\mathsf{S}$ It is such a grotesque monster that courts should hound it wherever it rears its head and wherever it seeks to take cover behind any legislation. It unravels everything and vitiates all transactions. (Fam International Ltd and Ahmad Farah vs Mohamed El Fith [1994]KARL 307]. It must therefore be specifically pleaded and proved.

The burden of proof therefore lies with the plaintiff who has the duty to furnish evidence whose level 10 of probity is such that a reasonable man, might hold more probable the conclusion which the plaintiff contend, on a balance of probabilities. (Sebuliba vs Cooperative Bank Ltd. [1982] HCB 130; Oketha vs Attorney General Civil Suit No. 0069 of 2004.

For an allegation of fraud to hold, the standard becomes heavier than on a mere balance of probabilities as generally applied in civil matters. (Kampala Bottlers Ltd. Vs Damaniaco (U) Ltd **(supra)**. It places a burden on that party who wishes to rely on it to specifically plead and strictly prove that fraud had been committed.

The 1st defendant in this suit claimed that she discovered that sometime between 2008 and 2010 the plaintiff had lodged a caveat on the suit land comprised in **Kyadondo Block No. 2006, plot No. 3719** at Mpererwe Kampala District, without her knowledge and consent. That the said caveat upon occupation had lapsed and had been removed from the suit land.

The plaintiff's explanation on that point was that she had lodged the caveat, *PExh5* on 31st July, 2008 (under KLA 384933), around the time when the late Kalema had become very sick as she harbored the fear that the titles would be lost and property stolen.

- Indeed after his demise in 2010, she failed to trace the titles. When she carried out a search on 1st 25 day of June, 2010 the caveat was still lodged on the register (See PExh. 6). A subsequent search made on the 29th June, 2011 revealed that the caveat had been dislodged; and that the 1st defendant had become the registered owner of **plot No. 3719, Block 206 at Mpererwe**, after the subdivision of the land into several plots. - **Section 139 of the RTA** allows a beneficiary or other person claiming an interest in the land to lodge 30 a caveat with the commissioner, forbidding the registration of any person as transferee or proprietor of land until after notice is issued of the intended registrations given to the caveator.

### Section 140 (1) of the RTA provides that:-

(1) Upon receipt of such caveat the Commissioner shall notify receipt to the ... proprietor against whose title... or interest the caveat has been lodged, and the

autore

## proprTetot...rndg su''t,m,ort the caueator to @ttend to show couse u)hg the caoeqt sho'lld not be /enotEd.,,.,

From the unchallenged testimonies of the plaintiffs witnesses, such notice was never issued to her by the 2"d defendant.

5 The 1d defendant had knowledge of the existence of the caveat at the time she got registered on the title and caused its removal. She also had full and prior knowledge of the plaintil?s unalienated interest in the suit land, as a spouse.

PExh 4 was the certificate for plot 2610, block 206 the matrimonial property, which originally had an area of 0.853 ,.ectares. It is not disputed that it was through the l{ defendant's efforts and actions that thc subdivisions wcre madc and titles created, including plot. No. 37I9 in respect of which she had obtained rcgistration.

This had been done fraudulently, and with the knowledge and connivance of the 2"d defendant, all achieved without the plaintiffs knowledge and consent as a beneficiary and administrator of the estate.

Thc 1i defcndant was also fully awarc that the plaintiff had sccurcd letters of administration, PExh 2, on 7'h Septcmber, 201O: vidc lligh Court Ad''a,l'r. No.260 ot2O7O, which the l't defcndant never challenged, at lcast not until thc suit was filed against hcr. 15

Sccl,o,t 180 ol thE Szcccsslon Act, provides that an administrator of the estate of a deccased person is his or her legal representative for all purposes, and as such all thc property of the deceased person vcsts in him or her. Thus in sectlon 25 all propcrty in an intcstate devolves upon the personal representative of the deceased, as trustcc for all thc pcrsons entitled to the property.

According to the l defendant, the plaintiff had irrcgularly and fraudulently obtained letters of administration, since she had them secured without the knowlcdge, consent and participation of the beneficiaries; and had tumed the estate into personal property, preventing other beneficiaries, from accessing their late father's home. As noted earlier, she however later abandoned the prayer for

revocation of the said grant.

In contravention of the above provisions as cited, the 2"d defendant allowed the subdivision of the land, removed the caveat without notifying the plaintiff; and causcd the registration of the illegally created titles into narnes of other people, without thc participation and consent of the plaintiff as the

administrator of the estate. 30

Sectton 26(3) of the Su,ccesslon Act, Cdrr. -162 is to bc read togcther with sectlorr 3a oI fi@ Iand Act, It rcfcrs to rcsidcntial holdings normally occupicd by a pcrson dying intcstate, prior to his/hcr

"0'\*u&

death. It is recognized as his/her principal residential holding and upon death is hetd by the personal representative, upon trust for the legal heir, subject of coursc to the rights of occupation.

Sectlon 26 [3,f thereof stipulates that any dispute as to the exact area of any portion of land to be occupied by any beneficiary is to be settled by the personal representative, who in this case is the plaintiff; and any person aggrieved by the decision ofthe personal representative can appeal from that decision.

The above provisions reinforce the legal requirements for consultations with an administrator of the estate who also happens to be the spouse when dealing with a residential holding or any part of it, and in line with sections 38 o;n,d 39 oJ t'he latd Act.

The 1't defendant in overlooking those critical legal requirements acted with impunity and reckless abandon to deprive the plaintiff of her interest in the estate. It was the 1.1 defendant, and not the plaintiff who having had no authority to deal with any part of the estate intermeddled with the estate of the deceased, in contravention of sectlon 268 ol the Succession Act 10

Sectio'o 27 oIt v Succession Aca exempts the matrimonial property/principal residential holding from distribution, The section therefore takes into account the occupation rights of the spouse. 15

As per the decision in Herber-t. I<olgs. Vs Eklriga lqa,la.",/,1uko l<olga CS JVo. I5O 012016 it would be unlawful lor a spouse to give away or bequeath such property to any other person w.ithout his/her partner's concesion.

Given all the above, and as noted earlier the 2.d defendant looked on while all the transactions were taking place in its office; failed to take any action in execution of its mandate under the RTA an d L{rnd Act, so as to correct the illegalities in relation to this case. 20

As per PExh IO dated 8th July, 2008 the lawyers for the plaintiff had requested for the recall of the certilicates of title for ,l,lots 3779-3724 fravdulentty subdivided out of block 2670, plot 2610. .

A reminder was sent to that office on 261h August, 2011: (PExh IO bi. As per their subsequent response, PExh lo(c), dated 28th September, 21ll, 1l years later, the office is still carrying out investigations on this mattei. 25

The 2'd defendant did not file a defence and by implication therefore admitted the irregular acts in subdividing, creating titles and effecting transfers of the various titles, in perpetration of the fraud.

Issues 7,2,3 are each therefore declared in favour of the plaintiff.

13 Xuk.\*t

### Issue No.4: What are the remedies to the parties?

The plaintiff sought for orders for the surrender of the certificate of title of land comprised in **Block 206, Plot 3719;** an order registering the plaintiff as the rightful proprietor thereon a permanent injunction; general damages, interest and costs of this suit.

#### $\mathsf{S}$ General damages:

Its trite law that, that damages are direct and probable consequence of the act complained of, also noted in the case of Kampala District Land Board and George Mitala Vs Venansio Bamweyana **CA No. 2 of 2007.** Such may be loss of profit, physical inconvenience, mental distress, pain and suffering, (See also Assit (U) Vs Italian Asphault & Haulage & Anor HCCS No. 1291 of 1999 at page $5$ ).

It is also a settled position of the law that the award of general damages is in the discretion of court and is always as the law will presume to be the natural consequence of the defendant's act or omission.

The object of an award of damages is to give the plaintiff compensation for the damage, loss or injury he or she has suffered. (See: Fredrick Nsubuga Vs Attorney General S. C. C. A. No. 8 of 1999).

Therefore, in the circumstances of the quantum of damages courts are mainly guided by the value of the subject matter, the economic inconvenience that the party was put through at the instance of the opposite party and the nature and event of the breach.

A plaintiff who suffers damage due to the wrongful act of the defendant must be put in the position 20 he or she would have been in had he or she not suffered the wrong. He or she ought to lead evidence or give an indication what damages should be awarded on inquiry as the quantum. (Ongom Vs. AG (1979) HCB 267, cited by court in Kamugira Vs National Housing & Construction Co. CS. No. 127 of 2009)

The determination of damages was left to court.

25 From the evidence, the plaintiff was denied by the 1st defendant of her right to quiet enjoyment of the land for over a period of ten years, attributable to both defendants. She incurred expenses to recover the land.

She has been twice in this court. The first round was when the defendants failed to turn up. Judgment had been made in her favour but later set aside to give the 1st defendant a hearing in defence of her

30 claim. The award of damages of *Ugx 150,000,000/=* is in the circumstances of this case therefore justified as against both defendants.

14 Unloug

Section 177 of the RTA gives this court power to direct the Commissioner to cancel any certificate of title, instrument or entry in the register relating to the land and substitute the certificate or entry as circumstances of the case would require.

Accordingly, the counterclaim is accordingly dismissed with costs and the following orders are hereby granted:

- 1) All titles fraudulently created out of Kyadondo Block 206, plot 2610 (land at Mpererwe, are hereby cancelled. - 10

$5$

- 2) The said land shall revert back to its original Block 206, plot 2610 (land at Mpererwe, and into the names of Gertrude Kalema, as the administrator of the estate of the late Kalema Muwanga Fred. - 3) A permanent injunction issues against both defendants and their agents preventing them from interfering with the quiet enjoyment and possession of the land by the plaintiff. - 4) General damages of Ugx 150,000,000/= shall be paid jointly by the defendants, with interest at 15% payable per annum, from the date of delivering this judgment, till payment is made in full. - 20 - 5) The plaintiff is to file an inventory and an account showing the distribution of the estate, within a period of six months from the date of this judgment. - 6) Costs of this suit by the $1^{st}$ defendant.

Alexandra N ugadya

Arbory

$\begin{array}{c}\n\text{Judge} \\ \text{Q}\n\end{array}$ 21st March, 2022.

Deliverd via $\frac{1}{2}$ Mail Anhong $\frac{1}{2}$ $\frac{1}{2}$ $\frac{2}{3}$ $\frac{1}{2022}$