Kibirango v Nabatanzi & 2 Others (Miscellaneous Cause 144 of 2024) [2025] UGHCLD 16 (21 January 2025)

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [LAND DIVISION] MISCELLANEOUS CAUSE NO. 0144 OF 2024**

**KIBIRANGO STEPHEN ::::::::::::::::::::::::::::::::::::: APPLICANT**

## **VERSUS**

- **1. NABATANZI AMINA [Administrator of the estate of the late Katende Semakula Yakub]** - **2. SSEMAKULA HAMZA :::::::::::::::::::::::::::::::: RESPONDENTS** - **3. COMMISSIONER LAND REGISTRATION**

# **BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA RULING.**

## *Introduction:*

- 1. This is an application by Notice of motion brought under Section 33 of the Judicature Act, Section 98 of the Civil Procedure Act and and Order 52 rules 1 & 3 of the Civil Procedure Rules (CPR) for orders that: - i) A consequential order be made compelling the 1st Respondent to transfer the land comprised in Kyadondo Block 261 Plot 491 land at Lukuli to the Applicant. - ii) In the **ALTERNATIVE** and without prejudice to the foregoing, a consequential order be made directing the 3rd Respondent to register the Applicant on the register

for land comprised in Kyadondo Block 261 Plot 491 land at Lukuli measuring approximately 0.05 hectares.

*iii)* The Costs of this applicant be provided for.

#### *Background;*

- 2. The 1st first Respondent filed Civil Suit No. 183 of 2015 against the 2nd Respondent for revocation of his letters of Administration to the estate of the late Katende Ssemakula Yakub wherein the 1st Respondent obtained judgement in her favour. In the said judgement, Court preserved some of the transactions done by the 2nd Respondent in the capacity of an administrator to the estate of the late Katende Ssemakula Yakub before his grant was revoked. - 3. The Applicant claims to have purchased land comprised in Kyadondo Block 261 Plot 491 at Lukuli from the 2nd Respondent on 11th November 2011 and that the said transaction is among those that the judgement in Civil Suit No. 183 of 2015 saved. That the Applicant engaged the 1st Respondent to transfer the suit land in his favour but all efforts have proven futile thus this application.

#### *Applicants' Evidence;*

- 4. The grounds of the application are contained in the affidavit in support of the application deposed by **KIBIRANGO STEPHEN,** the Applicant and are briefly that: - i) That the judgement in Civil Suit No. 183 of 2015 did not nullify any transactions entered into by the 2nd Respondent in respect of the estate of the late Katende Ssemakula Yakub instead in the judgement Court held that:-

*The defendant shall restore the estate to the beneficiaries as it was at his own cost and inconvenience and shall pay the value of any portion of the estate that he disposed of/mismanaged.*

- ii) That the land comprised in Kyadondo Block 261 Plot 491 land at Lukuli measuring approximately 0.05 hectares was already sold by the 2nd Respondent to me on 11th November 2011 and I fully paid the purchase price and he signed the transfer forms in my favour. - iii) The transactions between me and the 2nd Respondent is among the transactions saved by the judgement in Civil Suit No. 183 of 2015. I have tried to engage the 1st

Respondent to transfer the suit land in my favor but all efforts are futile.

- iv) That I am advised by my Lawyers of JByamukama & Co. Advocates whose advise I verily believe to be true that to give effect to the judgement and or decision of Court, it is necessary that a consequential order be issued transferring the suit land to the Applicant since it is traceable and flows directly from the judgment and is consequent upon the reliefs claimed and decreed to the 1st Respondent. - v) That the apparent intention of the 1st Respondent is to defeat my interest in the suit land in contempt of a court order giving her a remedy of compensation from the 2nd Respondent and that the law permits me to bring the current application to the attention of Court for its consideration and decision.

#### *Respondent's evidence;*

5. The application is opposed to by an affidavit in reply deposed by **NABATANZI AMINA,** the 1st Respondent and briefly states as below;

- i) That I am the Administrator to the estate of the late Yakubu Katende Semakula who was the owner and registered proprietor of the residential property/home on land comprised in Block 261 plots 468 and 491 at Lukuli where he was staying at the time of his death. - ii) That the agreement the Applicant seeks to rely on did not save his purported purchase agreement or transactions and this application is an abuse of Court process for the reasons below; - iii)That the late Yakub Katende Ssemakula died intestate and left two children and properties, 5 acres of land at Buddo Nakasozi comprised in Block 341 Plot 51 and a residential home at Makindye Lukuli on Block 261 Plot 268 Plot 491. - iv) That the 2nd Respondent a brother to the deceased fraudulently obtained letters of administration without the knowledge and consent of the two beneficiaries and deliberately refused to distribute the deceased's estate to the beneficiaries nor file an inventory. The 2nd Respondent sold a substantial

part of the 5 acres at Nakasozi to third parties who had taken possession of the same and processed certificates of title from him.

- v) That the family home at Makindye was sitting on two separate certificates of title and the 2nd respondent concealed this information. I lodged a caveat on one of the titles, Plot 458 which the 2nd respondent had transferred into his personal name and not as an administrator. - vi) That I filed Civil Suit No. 183 of 2015 in the High Court family Division for revocation of the said grant and at the time of filing the suit in 2015, the only property known to have been disposed of by the 2nd Respondent in the estate was a substantial part of the 5 acres at Nakasozi Block 341 Plot 51. - vii) That the 2nd Respondent filed a written statement of defence and denied all allegations cited against him in the plaint. Both parties led evidence in Civil Suit No. 183 of 2015 using witness statements which were made and filed in 2018, seven years after the purported sale to the Applicant and the

2nd Respondent in his witness statement told Court that he had never sold any part of the home in Lukuli but instead made developments to wit, a commercial structure which he rented out and proceeds deposited on my account.

- viii) That Plot 491 which the applicant seeks to be transferred into his names makes up the compound of the home, a shop and the gate which is the only entrance and exit to the entire property. - ix) That under paragraph 6 of the Applicant's sale agreement dated 11th November, 2011, the vendor (2nd Respondent) undertook to refund all the monies received from the buyer (Applicant) plus incidental costs with added interest at bank rate should the vendor's title be successfully challenged. - x) The Applicant has never been in possession nor have I ever received any communication from the 2nd respondent concerning the said transaction save for refusing to hand over the titles for the said land.

- xi) That this application should be dismissed with costs as it is an abuse of Court process and a connivance between the Applicant and the 2nd Respondent to further deplete the estate of the late Yakub Semakula Katende and the Applicant can be ably compensated with interest by the 2nd Respondent. - 6. The 1st Respondent's affidavit was collaborated by that of **NALUGO HAJARA** which briefly states as follows; - i) That I started renting on the premises in 2012 operating a pharmacy in the shop room just next to the gate of the premises and have been paying rent directly to Mr. Musoke Ahamed Uzairu and rent has been collecting from me by Musoke Uzairu since 2012 up to when Nabatanzi Amina took over possession of the same premises. - ii) That around 2023, I and other tenants were served with a letter from M/s Lukwago & Co. Advocates addressed to all tenants in the place introducing to us Nabatanzi Amina as the administrator and directing us to pay rent to her. Upon receipt of the letter I contacted Uzairu

Musoke and he assured me that he is responsible for collecting rent and since I had got the space from him so I continued paying him the rent directly right up to 5th June 2024.

iii)That around July 2024, the 1st Respondent took over possession from Uzairu of all the premises and all tenants were given one month to vacate the premises, however later after requesting she agreed to rent me the same shop and we signed a tenancy agreement.

## **Rejoinder**

- i) That the 2nd Respondent was sued as a necessary party in this Application for he vended the suit land to me. The 1st Respondent's affidavit is tinted with speculations and false allegations intended to misguide this Honourable Court in as far as the deponent alleges that she believes my purchase agreement is backdated and does not fall within the saved transactions. - ii) That the allegations in the 1st Respondent's affidavit in reply were already determined by the High Court in Civil Suit No. 183 of 2015 and are therefore resjudicata. That I asked the 2nd Respondent to construct a perimeter wall to enclose my land in Block 261 Plot 491 with the upper Plot 468 this was because I agreed to buy the entire property in the first place and I had further instructed the 2nd Respondent to keep maintaining my land and hence rent collection by his agent Uzairu Musoke.

- iii)That the 1st Respondent only obtained possession of the suit land from Uzairu Musoke through forceful means by among others deploying private security guards on the land who have since then threatened me and my agents from accessing the property. - iv) That the 2nd Respondent has already committed himself in the execution Court on compensating the value of the suit land to the estate and I know that the said clause 6 of my purchase agreement cannot be invoked as my transaction was saved by the very judgement that challenged the 2nd Respondent's title. - v) That the 2nd Respondent has not failed to give me a good title but rather it's the 1st Respondent deliberately frustrating the process, despite having an assured compensation for the same from the 2nd Respondent.

vi) That the said frustration is being calculated by the 1st Respondent in a ploy of benefiting twice in the same transaction that is to say by recovering the value of the suit land from the 2nd Respondent in the execution Court by accusing him of having unlawfully disposed it off and on the other end, frustrating and or defeating my efforts of utilizing the suit land and therefore grabbing it.

### *Representation;*

7. The applicant was represented by Counsel Jamil Mugalula of JB Byamukama & Co. Advocates whereas the 1st respondent was represented by Counsel Julian Nakirija of M/S Lukwago & Co. Advocates and the 2nd respondent was represented by Counsel Ahmed Kalule Mukasa of M/S Crane Advocates.

### *Issues for determination;*

- **i) Whether this application is proper for the grant of consequential orders?** - **ii) Whether the Applicant is entitled to the reliefs and prayers sought.**

#### *Resolution and determination of the issues;*

# **Whether the Application is proper for the grant of consequential orders?**

- 8. Counsel for the Applicant in his submissions relied on the authority of **Pentecostal Assemblies of God Limited v Joel Mukalu & Another HCMA No. 0290 of 2022** to define a consequential order to mean an order following in terms of consistency and giving effect to the main judgement. It is incidental to the principal order by giving it effect. It is an off shoot of the main judgment and it gives it meaning and must be traceable to the main judgement. It is an offshoot of the main claim and it owes its existence to the main claim, it gives effect to the judgment already given. **(Eze v Gov. Abia state 2014)** - 9. Counsel further relied on the case of Musiime James & Another v Mubezi James and others HCMA No. 0290 of 2022 where Court held that the term consequential orders denote an order of Court giving effect to the judgment or decision to which it is consequential or resultant therefrom. Such an order is normally traceable flowing from a decision duly prayed for or granted by court.

10. That Court in Civil Suit No. 183 of 2015 after revoking the letters of administration granted to the 2nd Respondent saved all purchasers' transactions. Court instead ordered a compensation of the value of any portion of the estate that were disposed of/ mismanaged by the 2nd Respondent. That the 1st Respondent has intentionally refused to let the Applicant utilize his land and to transfer the same to him despite possibly being compensated by the 2nd Respondent as ordered by Court.

### *Analysis of Court*

- 11. The rule of the thumb has always been that consequential orders are issued by Court to give effect to a judgement and this position was buttressed in **Davanti Union Limited v Kipoi Nsubuga & 2 others (2020).** It is ancillary or supplemental to the main decision to ensure that the same is practically enforceable. - 12. The Applicant seeks for a consequential order compelling the 1st Respondent who was the plaintiff in Civil Suit No. 183 of 2015 to execute transfer forms for him in respect of land comprised in Kyadondo Block 261 Plot 491 land at Lukuli claiming to have purchased the same from the 2nd Respondent

when he was still Administrator to the estate of the late Yakubu Katende Ssemakula.

- 13. A clear scrutiny of the judgement in Civil Suit No. 183 of 2015, Page 11, paragraph 34, its clearly states that the 2nd respondent obtained the grant of letter of Administration based on deception and Court held that the defendant (now 2nd Respondent) fraudulently obtained letters of administration vide Administration Cause No. 2108 of 2008. - 14. Among the prayers in Civil Suit No. 183 of 2015 was "a declaration that all transactions entered into without the authority, consent or approval from the beneficiaries of the estate of the late Yakubu Katende Ssemakula are null and void". - 15. The transactions encompassed were in regards to the estate land at Nakasozi which were explicitly listed in the judgement to wit, 50 decimals to Mulindwa Frank, 12 decimals to Atebeireriwa, 1 acre and 23 decimals to Ramathan Yiga and 1 acre to Bwize and the respective consideration was set out in the judgement therein. The Applicant's purported transaction is not reflected anywhere in the said judgement nor did the same ever come in trial.

16. The Applicant relies on paragraph 63 of the judgement which states;

"Having found that the defendant fraudulently acquired letters of administration and mismanaged the estate of the late Yakubu, he is liable to restoring the estate to the beneficiaries as it was, at his own cost and inconvenience or compensate the beneficiaries; or pay the value of any portion of the estate that the defendant may have disposed of/ mismanaged and is *unrecoverable*" *emphasis mine*

- 17. The suit land is clearly still under the estate of the late Yakubu Katende Ssemakula despite the fact that the applicant claims to have purchased the same from the 2nd Respondent and that his transaction was among those saved by the judgement in Civil Suit No. 183 of 2015. This does not seem to be the position in the said judgement. - 18. That notwithstanding, if indeed the Applicant purchased the property in question, the same is or was recovered by the estate owing to the fact that the applicant has never been in possession thereof. Paragraph 63 of the judgement only envisaged compensation for land that was unrecoverable.

- 19. Be that as it may, the 2nd Respondent sold the suit property in the capacity of an Administrator to the estate of the Late Yakubu Katende Ssemakula. The judgement which the applicant relies on clearly states that the applicant relies on the said letters of administration which were fraudulently obtained which makes the transaction between the applicant and the 2nd respondent illegal and void ab initio. - 20. It is a settled principle of law that Court cannot enforce a contract based on an illegality, the 2nd Respondent did not only lack the capacity to contract on the estate property but also could not pass good title into the estate land to the applicant more so where the beneficiaries had not consented to the same. - 21. Further still, paragraph 6 of the sale agreement executed between the Applicant and the 2nd respondent states; *"6. The vendor undertakes to refund all the monies received from the buyer plus all incidental costs with added interest at bank rate should the vendor's title be successfully challenged by a third party or should the land be encumbered by a third party to an extent that it becomes impossible for the buyer to utilize and transfer the same as desired."*

- 22. I am inclined to believe that this situation, was foreseen by the parties to the agreement and provided a remedy of refund of all consideration and all incidental costs. - 23. Consequential order denotes an order following naturally in terms of consistency and giving effect to the main judgement. Therefore, it is an order following from the judgement. It is essentially one which makes the principal order effective and effectual or which necessarily as being incidental to the principal order in the matter. *(See; Registered Trustees of*

### *Apostolic Church v Okorolemi (1990)6 NWLR)*

- 24. Granting this application would in turn deprive the estate and the beneficiaries of the late Yakubu Katende Ssemakula their rightful entitlement. The 1st Respondent further stated that on the suit land there is comprised a residential home thus granting this application would amount to an eviction order thus dealing with the residential property in a manner contrary to the law that governs the same and contempt of the orders of court in Civil Suit No. 183 of 2015. - 25. Court in **Mugerwa John Bosco & Anor v Mss Xsabo Power Ltd HCMA No. 273 of 2018** also noted that a consequential


order must not be granted if it amounts to a fresh and unclaimed or unproved relief. Clearly the Applicant seeks to enforce a transaction alien to the estate of the late Yakubu Katende Ssemakula.

26. For the foregoing reasons, this application is hereby dismissed with costs awarded to the 1st respondent.

**I SO ORDER.**

**…………………………..**

**NALUZZE AISHA BATALA**

**JUDGE**

**21th/01/2025**

## **Delivered Electronically via ECCMIS this 21st day of January 2025.**