Lubega & 3 Others v Musoke (Civil Suit 33 of 2024) [2024] UGHC 334 (17 May 2024)

# **THE REPUBLIC OF UGANDA**

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

# **CIVIL SUIT NO. 33 OF 2024**

#### **1. LUBEGA FRANK**

**2. NDIBALEKERA OLIVIA**

# **3. NAKASITA ROSE**

**4. MUWONGE JUDE ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFFS**

#### **VERSUS**

**MARY NAMUYIGA MUSOKE :::::::::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANT**

*Before; Hon Justice Victoria Nakintu Nkwanga Katamba*

# **JUDGEMENT**.

# **BACKGROUND**

The Plaintiffs' claim is that the Defendant not being Administrator of the estate of the Late Yowana Ntambazi Lubega usurped the role of Administrator to his estate. That subsequent to the above impugned conduct, the Defendant got registered on the estate's certificates of title and has since mismanaged and intermeddled in the estate by way of selling the said properties without the consent of the beneficiaries. That the Defendant also omitted to file an inventory in the estate.

On the other hand, the Defendant pleaded that she is the biological daughter and Administrator of the estate of the of the Late Yowana Ntambazi Lubega. She further pleaded that she lawfully obtained Letters of Administration to the estate of the Late Yowana Ntambazi Lubega.

More also, the Defendant pleaded that she has administered the said estate diligently and as fair as possible without fraud and that all the issues of the Late Yowana Ntambazi got their shares in the estate. She also decried the several caveats on the estate's lands which she said had hindered her in the exercise of her duties.


In addition to the above, she stated that but for the above inhibiting caveats, she was willing to execute a transfer to the Plaintiffs in respect of their beneficial share in the estate of the Late Yowana Ntambazi Lubega.

In their pleadings and submissions, the Plaintiffs painted a picture of the historical struggle to bring the estate of the Late Yowana Ntambazi Lubega's estate in to administration. The same is highlighted below;

Upon the death of the said Yowana Ntambazi, his son John Ntambazi Ndawula, was granted letters of Administration vide Administration Cause No. 91 of 1987 but he later died in 1990 before distributing the estate.

Subsequent to the death of John Ntambazi Ndawula, Anthony Bukenya Kasozi and Josephine Nakanwagi, also children of the Late Yowana Lubega Ntambazi applied and obtained letters of Administration over the estate of the Late Yowana Ntambazi Lubega vide Administration Cause No. 114 of 1990. The aforesaid Administrators also died shortly thereafter in 1991 before distributing the estate of the Late Yowana Ntambazi Lubega.

Upon the demise of Bukenya Kasozi and Josephine Nakanwagi, the defendant applied and obtained letters of Administration over the estate of the Late Anthony Bukenya Kasozi and the Late Josephine Nakanwagi vide Masaka District Delegate Registry Administration Cause No. 55 of 1993.

It is the Defendant's case that she also obtained letter of Administration to the estate of the Late Yowana Ntambazi Lubega. Indeed, two grants were admitted as exhibits on the record of this court both arising from Administration Cause No. 55 of 1993. One of these is an appointment of the Defendant as Administrator of the estate of the Late Anthony Bukenya and Josephine Nakanwagi and the other of the Late Yowana Ntambazi Lubega.

Pursuant to obtaining the above letters of Administration vide Administration Cause No. 55 of 1993, the Defendant got registered on the titles of the estate of the Late Yowana Ntambazi Lubega.

The titles of the estate of the Late Yowana Ntambazi Lubega that were exhibited by the Plaintiffs on the record of this Honourable Court show that the Registrar of titles registered the


Administrators of the estate of Yowana Ntambazi Lubega as Administrators of his deceased children's estates.

A clear demonstration the misnomer of registration appears in exhibit PE4 (a title to the estate property) attached to the witness statement of Ms. Ndibalekera Olivia. On 01/11/1989 John Ntambazi Ndawula was registered as Administrator of the estate of the Late Yowana Ntambazi Lubega. On 24/06/1991, instead of registering Anthony Bukenya Kasozi and Josephine Nakanwagi as Administrators of the estate of the Late Yowana Ntambazi Lubega, they were instead registered as Administrator of the estate of his then also deceased son, John Ntambazi Ndawula. This might serve to somewhat explain why the Judicial officer who issued the grant in Administration Cause No. 55 of 1993, issued two grants, one in respect of the Late Yowana Ntambazi Lubega and another in the names of the Late Anthony Bukenya and Josephine Nakanwagi who despite being Administrators of the Late Yowana Ntambazi Lubega, had been erroneously registered as Administrators of the estate of their deceased brother, John Ntambazi Ndawula.

Against the above background, each of the parties prayed to this honourable court to resolve the issues for trial in their favor.

# **Representation:**

The Plaintiff/Counter defendant was represented by **M/s Stabit Advocates**

The Defendant/Counter claimant was represented by **M/s Jawass Associated Advocates** and **M/s Nabukenya, Mulalira & Co. Advocates**.

# **ISSUES FOR TRIAL**.

At scheduling the parties agreed to five issues for resolution by this Honourable Court, the issues are;

- *1. Whether or not the Defendant was appointed and is the Administrator of the estate of the Late Yowana Lubega Ntambazi?* - *2. Whether the Defendant properly and legally obtained letters of Administration for the estate of the Late Yowana Ntambazi Lubega?*


- *3. Whether the Defendant properly and legally got registered on the Certificate of title for the land belonging to the estate of the Late Yowana Ntambazi Lubega.* - *4. Whether the Defendant has properly and faithfully administered the estate of the Late Yowana Ntambazi Lubega?* - 5. *What are the remedies available to the parties?*

# *DETERMINATION OF THE SUIT.*

The parties in this suit filed written submissions whose details are on record. The said submisions have been carefully considered as well as the evidence on the record and the pleadings.

- *1. Whether or not the Defendant was appointed and is the Administrator of the estate of the Late Yowana Lubega Ntambazi?* - *2. Whether the Defendant properly and legally obtained letters of Administration for the estate of the Late Yowana Ntambazi Lubega?*

I will resolve the above two issues, jointly.

It was argued for the Plaintiff that the Defendant is not the Administrator of the Late Yowana Ntambazi Lubega but that she just usurped those powers. That this is in tandem with the Plaintiffs' witnesses' testimony.

The Plaintiffs acknowledged that the Plaintiff tendered on the Court record two grants arising out of the same petition. One grant demonstrates that she is Administrator of the estate of the Late Yowana Ntambazi Lubega and the other for the Late Anthony Bukenya and Josephine Nakanwagi. The Plaintiffs dispute that the said grants conferred lawful authority upon the Defendant to administer the estate of the Late Yowana Ntambazi Lubega.

They invited this Court to resolve these issues in the negative.

It was submitted for the Defendant that she testified that prior to obtaining the grant she convened a family meeting through which she was chosen by the family to go to court and petition for letters of Administration. That pursuant to the above, she was appointed by Court as Administrator of the estate of the Late Yowana Ntambazi Lubega. The Defendants's Advocates submitted that this evidence was never challenged in cross examination.



They invited this Court to answer this issue in the affirmative.

The Defendant's evidence on record shows that she was appointed Administrator of the estate of the Late Yowana Ntambazi Lubega. A certified copy of the grant from the District Delegate was exhibited on the record of this Honourable Court as defence exhibit, DEX8. A certified copy of the proceedings and Ruling that led to the above grant was also admitted in evidence as Defendant's exhibit, DEX7.

The fact that two grants were issued in Administration Cause No. 55 of 1993 is explained on the fact that the earlier Registrars' of titles had erroneously registered the earlier Administrators of the estate of the Late Yowana Ntambazi Lubega as Administrators of his children's estate. The evidence in PE7 shows that Yowana Lubega Ntambazi was the first registered proprietor. When he died, his son John Ntambazi Ndaula of Lyantonde was appointed administrator of the estate of Yowana Ntambazi. When John Ntambazi Ndaula died, instead of Anthony Bukenya Kasozi and Josephine Nakanwagi being appointed adminsitrators of their father Yowana Ntambazi Lubega's estate, they were appointed administrators of John Ntambazi Ndaula's estate. This was an error and it explains why the Defendant subsequently moved court to issue two grants to correct the misnomer of registration of earlier Administrators of the estate of the Late Yowana Ntambazi Lubega. I am therefore unable to visit the mistakes made in the earlier applications for the administration of Yowana Ntambazi's estate on the Defendant. Her siblings, Anthony Bukenya Kasozi and Josephine Nakanwagi originated the error and most likely unknowingly that they were proceeding in error when they applied to administer John Ntambazi Ndaula's estate instead of their father's Yowana Lubega Ntambazi.

I hereby resolve the above two issues in the affirmative.

# 3. *Whether the Defendant properly and legally got registered on the Certificate of title for the land belonging to the estate of the Late Yowana Ntambazi Lubega.*

In their written submissions, the Plaintiffs maintained that the Defendant has never been the Administrator of the estate of the Late Yowana Ntambazi Lubega. Owing to this, they argued that she registered herself unlawfully and that this Court should find as much and resolve this issue in the negative.


It was submitted for the Defendant that *under S. 180 of the Succession Act, that the Administrator of a deceased person is his or her legal representative for all purposes and all the property of the deceased person vests in him/her as much.*

Counsel for the Defendant submitted that this Court should find that she got registered on the suit land lawfully as Administrator of the estate of the Late Yowana Ntambazi Lubega.

I have found in issues, 1 and 2 that the Defendant is the Administrator of the estate of the Late Yowana Ntambazi Lubega.

*S.192 of the Succession Act Cap. 162 provides that Letters of administration entitle the Administrator to all rights belonging to the intestate as effectually as if the administration has been granted at the moment after his or her death. This includes the right to be registered as proprietor to the deceased's lands, emphasis mine.*

Since Letters of Administration entitle the Administrator to all rights belonging the intestate, I find that as Administrator of the estate of the Late Yowana Ntambazi Lubega, the Defendant was entitled to be registered on the suit estate properties as she did in her capacity as Administrator.

This issue is also answered in the affirmative.

# 4. *Whether the Defendant has properly and faithfully administered the estate of the Late Yowana Ntambazi Lubega?*

The Plaintiffs argued that the Defendant not being Administrator of the estate of the Late Yowana Ntambazi Lubega, holds out as Administrator of the estate when she subdivides the estate property.

Counsel for the Plaintiff further argued that the Defendant's conduct amounts to intermeddling in the estate of the Late Yowana Ntambazi Lubega contrary to S. 268 of the Succession Act.

*S. 268 of the Succession Act provides that any person, not being the Administrator, who intermeddles with the estate of a deceased person, makes, himself/herself Administrator of her/his own wrong.*

The Plaintiff also argued that the Defendant omitted to file an inventory in the estate.

On the other hand, it was argued for the Defendant that but for the many challenges like caveats on the estate lands and some civil suits like No. 103 of 2016 in the Chief Magistrates Court of


Lyantonde and the instant suit, she has faithfully administered the estate. That she has even distributed estate properties among the beneficiaries.

It was also submitted that in the suit at Lyantonde, the 1st Plaintiff was found to have sold estate property and yet, the above notwithstanding, he has continued to interfere with the Defendant's Administration of the estate.

The Defendant denied being an intermeddler in the estate and that instead she is the lawful Administrator of the estate.

This issue brings out the real intention of the Plaintiffs in instituting the instant suit. That is, to challenge the Defendant's authority as Administrator of the estate for alleged errors and omissions arising from her tenure as Administrator for the last 30 years.

In instituting this claim and the attendant accusations against the Defendant, the Plaintiffs are also seeking to unravel whatever has been done by her for the last 30 years while she is in the office of Administrator of the estate.

# **The Law on Limitations of Actions**.

*S. 20 of the Limitation Act Cap. 80 provides that no action in respect of any claim to the personal estate of a deceased person or to any share or interest in such estate, whether under a will or intestacy shall be brought after the expiration of twelve years from the date when the right to receive the share or interest accrued*.

The grant in Administration Cause No. 55 of 1993 was intended to be acted on within 6months by ensuring a distribution of the estate properties amongst the beneficiaries. This means that the cause of action for enforcement of beneficial shares out of the estate property arose nearly thirty years ago.

The instant suit was filed in 2014, after expiration of 21 years.

A litigant puts himself or herself within the limitation period by showing the grounds upon which s/he could claim exemption, failure of which the suit is time barred, the court cannot grant the remedy sought and must reject the claim. *(See Iga vs. Makerere University [1972] EA 65). This disability must be pleaded as required by Order 18 rule 13 of the Civil Procedure Rules, which*


*was not done in the instant suit. It is trite that a plaint that does not plead such disability where the Cause of action is barred by limitation, is bad in law*.

Having found that the Defendant was appointed by Court as Administrator of the estate of the Late Yowana Ntambazi Lubega, over 30 years ago, I find that this suit which was brought outside the limitation period for recovery of intestate beneficial shares was improperly brought before this Court. This court had no duty to interrogate the Plaintiffs' complaints over the Defendant's errors and omissions. Accordingly, the invitation of this Court to make a finding on the alleged errors and omissions of the Defendant is rejected.

Issue 4 is rejected.

I also noted that in the Plaintiffs filed submissions in rejoinder through which they introduced entirely new facts which were neither pleaded nor traversed in their submissions in chief. This clearly denied the Defendant an opportunity to rebut the same and for this reason the said rejoinder has not been considered.

#### **Issue 5:** *What remedies are available to the parties?*

Whereas, I have found that the Plaintiffs' complaints on how the estate has been administered over the last 30 years are outside the limitation period, I noted that the Defendant stated on the record of this Honourable Court that she is willing to distribute and execute beneficial transfers in the estate to the Plaintiffs.

I hereby direct the Defendant to distribute and execute transfers in respect to the said beneficial shares in the estate to the Plaintiffs and to all other beneficiaries of the estate of the Late Yowana Ntambazi Lubega.

The defendant shall file an inventory in this Honourable Court demonstrating how each of the beneficiaries of the estate of the Late Yowana Ntambazi Lubega benefitted in the said estate within six months from the date of delivery of this Ruling.

*S.27 of the Civil Procedure Act Cap. 71 confers a discretion to this Honourable to award costs to the successful party in the suit*.


In interest of promotion of reconciliation between the parties who are all family members of the Late Yowana Ntambazi Lubega, and as required by *Article 126 (2) d of the Constitution of Uganda 1995 as amended,* I hereby dismiss the suit with no award as to costs

Orders:

- *1. The Defendant shall distribute lands and execute transfers to the Plaintiffs and to all other beneficiaries of the estate of the Late Yowana Ntambazi Lubega.* - *2. The defendant shall file an inventory within 6 months from the date of delivery of this Judgment in this Honourable Court demonstrating how each of the beneficiaries of the estate of the Late Yowana Ntambazi Lubega benefitted in the said estate.* - *3. Each party shall bear its costs of the suit.*

*I so order.*

Dated at Masaka this 17th day of May, 2024.


*Victoria Nakintu Nkwanga Katamba, Judge.*