Miza Bhakit v Bruna Ososi (Civil Appeal 6 of 2021) [2023] UGHCFD 18 (15 June 2023)

The Republic of Uganda

In the High Court of Uganda Holden at Soroti

#### Civil Appeal No. 06 of 2021

# (Arising from the Chief Magistrate's Court of Kumi at Kumi Claim No. 14 of 2017)

Awol Grace Osele ................................... 10 (As an administrator of the estate of the late Osele Charles)

#### Versus

<table>

Oduan Henry Respondent

(Appeal from the judgement and orders of the Magistrate Grade 1 of the Chief Magistrate's Court of Kumi at Kumi delivered on 15<sup>th</sup> February 2021)

Before: Hon. Justice Dr Henry Peter Adonyo

#### Judgement

#### 1. Background:

This respondent/plaintiff instituted claim No. 14 of 2017 against the appellant/defendant in the Chief Magistrate's Court of Kumi at Kumi in trespass on suit land (Kanyum trading Centre, Mukongoro road, Kumi district), vacant possession, a permanent injunction, general damages, interest and costs of the suit.

The respondent's/plaintiff's case was that he is the son, beneficiary and administrator of the estate of the late Acam Grace, also known as Florence, who was a daughter of the late Silver Oduan Ekukuriat. The late Silver Oduan Ekukuriat

$\overline{5}$

- died, leaving a will. Anne Margaret, Hillary Olupot and Mike Oduan, who died in $\mathsf{S}$ September 2015, obtained letters of administration to the estate of the late Silver Oduan Ekukuriat. The administrators distributed the estate in accordance with the Will that the suit land was given to Acam Grace, the mother of the respondent, to which they filed an inventory. - After the distribution, the plaintiff (now respondent) and others took possession 10 of the suit land and the permanent house thereon.

The defendant (now appellant), around 2013 – 2014 without the consent of the plaintiff and other children of the late Acam Grace, demolished the permanent house.

The defendant (now appellant) denies the plaintiff's case contending that he is 15 and has at all material times been the lawful owner of the suit property having lawfully acquired the same. That the suit property belonged to the estate of the late Silver Oduan Ekukuriat, who upon death, three administrators were appointed to run the estate. That by an agreement dated 23<sup>rd</sup> November 2009, Oduan Michael, one of the administrators to that said estate, sold the suit 20 property to the defendant.

The defendant contends that he obtained a good title from the said Michael Oduan. The defendant contends that at that time, the administrator of the estate of the late Silver Oduan purported to distribute the said estate on the 12<sup>th</sup> August 2011, the suit land no longer formed part of that estate, the same having been 25 lawfully disposed of earlier in 2009, by the administrator and that the plaintiff acquired no interest in the suit property through his mother or any other person as alleged or at all as there was no interest to acquire and that he has been in lawful occupation of the suit land from the time of purchase till to date.

He prayed the suit be dismissed with costs to the defendant. $\mathsf{S}$

At trial, judgement was entered in favour of the plaintiff (now respondent) hence this appeal.

According to the memorandum of appeal, the appellant raised four grounds of appeal as follows;

- a) That the learned trial magistrate erred in law and fact when he failed to properly evaluate the evidence on court record, thereby arriving at a wrong decision and hence finding for the respondent. - b) That the trial magistrate erred in law and fact when he considered the respondent's evidence in isolation of that of the appellant. - c) The trial magistrate ignored the evidence of the appellant and his witnesses, which clearly indicated that the appellant was a bona fide purchaser of the suit land without notice of fraud. - d) The decision of the trial magistrate occasioned a miscarriage of justice.

#### 2. Duty of the first appellate court 20

This is the first appeal from the decision of the learned magistrate. The duty of the first appellate court is to scrutinize and re-evaluate all the evidence on record in order to arrive at a fair and just decision.

This duty was well laid down in the case of *Kifamunte Henry vs Uganda SCCA No.* 10/1997, where it was pointed out that; 25

> "The first appellate court has a duty to review the evidence of the case and to reconsider the material before the trial judge. The appellate court must

then make up its own mind, not disregarding the judgment appealed from but carefully weighing and considering it."

Furthermore, in the case Father Nanensio Begumisa and three others vs Eric Tiberaga SCCA 17 of 2000; [2004] KALR 236, the obligation of a first appellate court was pointed as being;

$\mathsf{S}$

"...under an obligation to re-hear the case by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny and reappraisal before coming to its own conclusion."

See also: Baguma Fred vs Uganda SCCA No. 7 of 2004.

### 3. Power of the Appellate Court:

Section 80 of the Civil Procedure Act, Cap 71, grants the High Court appellate 15 powers to determine a case to its finality.

The above legal position in regard to the duty and legal obligation of the first appellate court is considered while resolving this appeal.

## 4. Representation:

In this appeal, the appellant was represented by M/s Opio & Company Advocates, 20 while the respondent was represented by M/s Ilukor Advocates & Solicitors. Counsel representing the parties argued this appeal by way of written submissions. The submissions and the whole record of the lower court, including pleadings, proceedings and judgement and orders, are considered while resolving this appeal. 25

# 5. Determination of the Appeal:

Even though the appellant raised four grounds of appeal, counsel for the appellant chose to argue ground three first, then ground one and two concurrently and lastly, ground four. Upon perusal of the court record, I shall resolve the appeal in that order.

a. Ground Three: The trial magistrate ignored the evidence of the appellant 10 and his witnesses, which clearly indicated that the appellant was a bona fide purchaser of the suit land without notice of fraud.

According to the submissions of counsel for the appellant, two contentions are discerned by him, which the trial magistrate did not consider in light of this ground, thus;

Counsel for the appellant averred that the evidence on record reflects the position that the appellant is a bona fide purchaser of the suit land without notice of fraud, who bought the suit land from Oduan Michael, one of the coadministrators of the estate of the late Oduan Silver Ekukuriat on 23<sup>rd</sup> November

2009. 20

$\overline{5}$

Counsel for the appellant submitted that whereas the trial magistrate faulted the appellant for not obtaining consent from all the co-administrators of the estate of the late Oduan Silver before purchasing the suit land, the appellant avers that he conducted due diligence, among which he got a letter from the clan of Oduan Michael prior to the sale to ascertain consent of the clan and that the signature of Ann Margaret Oduan, one of the remaining two administrators is represented as a witness on the said clan letter and that she was also present during the transaction.

Furthermore, the appellant's counsel avers that upon purchase of the suit land, $\mathsf{S}$ the appellant took possession of it and remained undisturbed for eight years till when the respondent started disturbing him.

Counsel for the appellant also contends that the trial magistrate was wrong to base his judgement on the letter of administration of the estate of the late Silver Oduan Ekukuriat together with its inventory PEX 7, yet the proper document to rely on should have been the grant of probate since the late Oduan Silver Fkukuriat left a will.

On the other hand, counsel for the respondent in reply contends that the suit property formed part of the estate of the late Silver Ekukuriat Oduan before it was distributed amongst all the beneficiaries by the joint administrators (PEX6) 15 who thereafter, on the 12<sup>th</sup> August 2011, filed in the High Court of Uganda at Kampala, PEX7 – Inventory showing the distribution of the said property to the respective beneficiaries.

Counsel avers that in the said Inventory, the suit property in Kanyum Trading Centre was gifted to the Acam Grace (late), and that was corroborated by the 20 testimonies of PW2 and PW3. The suit land was received by the plaintiff for the mother as one of the sons.

Also in reply, counsel for the respondent contends that the credibility and authenticity of the said letters of administration (Ex. P.6) granted to the joint administrators of the estate of the late Silver Oduan Ekukuriat instead of letters 25 of probate premised on an alleged 'Will' of the late in the appellant's argument is not a ground or an issue or a subject of this instant appeal because those letters of administration in law are legal and valid irrespective of the appellant's contention hereof and for as long as the Administrators therein are still alive,

which is the case with the two surviving joint administrators i.e. Anne Margaret $\mathsf{S}$ Oduan – PW.2 and Olupot Hillary – PW3.

Counsel further observed that no 'Will' of the late Silver Oduan Ekukuriat was admitted in evidence during the trial because it was a mere written wish over his property upon his death and that in as much as the same did not meet the legal criteria and standard of a valid 'Will', the Joint Administrators of the late Silver 10 Oduan Ekukuriat's estate followed the said wishes when distributing the said estate property. However, the respondent's counsel noted that in light of PEX6 and PEX7, the said joint administrators acted in unison for the good and benefit of all beneficiaries to the estate of the late Silver Ekukuriat Oduan, to wit, the respondent and his family are beneficiaries in respect to the suit property by 15 giving it to Acam Grace.

It is trite that a bona fide purchaser is one who buys property for value without notice of another's claim to the property and without actual or constructive notice of any defects in or infirmities, claims, or equities against the seller's title; one who has in good faith paid valuable consideration for the property without

notice of prior adverse claims.

A bona fide purchaser does all that is reasonably possible and necessary in his or her power to find out about all material facts pertaining to property before he or she could commit him or herself to purchase the same. To be a bona fide purchaser, one must have done due diligence and exercised caution before 25 entering into a transaction of the nature that would ultimately be binding upon him or her. If the purchaser is guilty of fraud or sharp practice, that person ceases to be innocent and therefore loses the protection.

- The trial magistrate faulted the defendant (now appellant) for buying the suit $\mathsf{S}$ land from one administrator without the consent or approval of the administrators yet he and all his witnesses were aware that the land belonged to the estate of the late Oduan Silver Ekukuriat and that there were three joint administrators to that estate. - According to PW1, after the death of Silver Oduan Ekukuriat, Anne Margaret 10 Oduan and Pw.3 - Hillary Olupot and Oduan Michael obtained letters of administration to administer the estate of the late Silver Oduan Ekukuriat. The appellant bought from one of the administrators, Oduan Michael and alleges that while the clan letter bears the signature of one of the surviving coadministrators, Anne Margaret Oduan, she did not sign the land sale agreement 15 between the appellant and the late Oduan Michael. One administrator, Hillary Olupot is evidently missing in the testimony of PW1 regarding the transaction.

According to PW1, the respondent, the suit land was given to his mother (the late Achan Grace) by the administrators, which statement is corroborated by the testimonies of PW2, Mary Ann Oduan and Olupot Hillary, PW3, the surviving joint 20 administrators who added that they have never signed any sale agreement in respect of the suit land.

PW1, in his testimony, noted that there was a semi-permanent house(PEX3) on the suit land. It was the testimony of DW2, PAG Okiria Stephen, a relative of the respondent who drafted the sale agreement that at the time of DW1's purchase 25 of the suit land, "having knowledge about the plot, I disagreed to the sale. That the prior knowledge that the clan of the plaintiff should clarify whether the person selling the house was the owner. I wanted Oduan Michael to get a letter from the clan." During cross-examination, DW2 testified that he was told that the suit property $\mathsf{S}$ belonged to Oduan Michael but he doubted because there was no document to that effect. DW2 and DW3 all testified that the suit land belonged to the late Silver Ekukuriat Oduan

It is trite that, administrators hold property in trust for beneficiaries; administration of the estate does not confer legal or equitable interest of property of the deceased to the administrator. Upon any sale, consent must be obtained from the other administrators in case of a joint administration, such as in this case or from each of the beneficiaries.

- The appellant contended that he conducted due diligence; however, as per the testimonies of DW2 and DW3, they both knew that the property belonged to the 15 late Silver Ekukuriat Oduan and it was not him selling but Michael Oduan. DW2 expressed his misgiving on the ownership of the suit land, which is why he requested that the clan letter be obtained. - The appellant alleges that the trial magistrate did not refer to the clan letter, I for one, do not find anything that was necessary to refer to it as both DW2 and DW3 20 already knew that the suit land belonged to the late Silver Ekukuriat Oduan, who was not the one selling at that time. - Be that as it may, the common ground is that all the property of the deceased, Silver Ekukuriat Oduan was by virtue of letters of administration held by Anne Margaret Oduan and Pw.3 – Hillary Olupot and Oduan Michael in trust for the 25 beneficiaries.

It is thus evident that the other co-administrators did not take part and parcel in the transaction, and yet the law requires that they should have or even ratified the transaction, which did not happen. It is my finding that if the appellant had

done due diligence, certainly, this information would have come to light, $\mathsf{S}$ considering that his own witness testified that they knew something about the ownership of the suit land.

I am reminded of the case of John Bagaire Vs Ausi Matovu CA No. 7 of 1996 (C. A), which emphasizes the requirement of due diligence in land transactions; it was held that;

"Lands are not vegetables that are bought from unknown sellers. Lands are very valuable properties, and buyers are expected to make thorough investigations relating to not only the land but also the seller before purchase."

- The effect e holding above is that during the purchase of land, the buyer has a 15 duty to satisfy him/herself that the transaction is legitimate. The law does not treat a purchaser who for one reason or another ignores the need to conduct due diligence as bona fide purchaser for valuable consideration without any notice of fraud. - A purchaser of unregistered land who does not undertake the otherwise 20 expected investigation of title, which will often ordinarily involve him in quite elaborate inquiries, is bound by equities relating to that land of which he had actual or constructive notice (see Williams and Glyn's Bank Ltd v Boland, [1981] AC 487). - When a purchaser has actual knowledge of facts and circumstances that would 25 impel a reasonably cautious person to make such inquiry or when the purchaser has knowledge of a defect or the lack of title in the vendor or of sufficient facts to induce a reasonably prudent person to inquire into the status of the title of the property in litigation, his or her mere refusal to believe that such defect exists,

- $\mathsf{S}$ or his or her willful closing of his or her eyes to the possibility of the existence of a defect in the vendor's title will not make the purchaser an innocent purchaser for value if it later develops that the title was, in fact, defective, and it appears that he or she would have had such notice of the defect had he or she acted with that measure of precaution which may reasonably be required of a prudent - person in a like situation. 10

Constructive notice applies if a purchaser knows facts which made "*it imperative* to seek an explanation, because in the absence of an explanation it was obvious that the transaction was probably improper".

(see Macmillan v. Bishopsgate Investment Trust (No. 3) [1995] 1 WLR 978).

When it is proved that such a purchaser acquired knowledge of circumstances 15 which would put an honest and reasonable man on inquiry.

In this matter the purchaser seems to have not undertaken the necessary inquires and so cannot claim to have bought in good faith.

The ascertainment of good faith, or lack of it, and the determination of whether due diligence and prudence were exercised or not, are questions of fact which 20 require evidence. The burden of proof to establish the status of a purchaser in good faith lies upon the one who asserts it.

This onus probably cannot be discharged by mere invocation of the legal presumption of good faith. (Obina & 6 Ors v Okumu & Ors (Civil Appeal No. 42 of

*2018) [2018] UGHCLD 73 (6 December 2018)* 25

> I am therefore in agreement with counsel for the respondent that at the time the said Mike Oduan as a co-administrator, purportedly dealt with the suit property while it was still part and parcel of the estate of the late Silver Ekukuriat Oduan

for which the mandate to sell it ought to have been exercised by the joint $\mathsf{S}$ administrators.

And I also associate myself with the decisions cited by the trial magistrate of Miza s/o Beki (Miza Bhakit) -Vs- Bruna Ososi Civil Appeal N.0026 of 2016 and Silver Byaruhanga –Vs- Emmanuel Ruvugwaho & Rudeja SCCA No.09 of 2014 whose principles I have already cited above.

Arising from the above, I would therefore find that the appellant was not a bona fide purchaser for value without notice as he had prior constructive knowledge of the existence of joint administrators to the estate of the late Silver Oduan Ekukuriat and he failed to exercise due diligence while buying the unregistered suit land, failed to ensure that the co-administrators attend to witness and sign the land sale/purchase agreement with the late Mike Oduan.

Counsel for the appellant also contends that the trial magistrate was wrong to base his judgement on the letter of administration of the estate of the late Silver Oduan Ekukuriat (PEX6) together with its inventory PEX 7, yet the proper document to rely on should have been the grant of probate since the late Oduan

Silver Ekukuriat left a will.

$25$

It is my finding that the letters of administration exhibited as PEX6 with the inventory, PEX7, was not in issue in the main suit and neither were they raised as a ground of appeal. It is trite that parties are bound by their pleadings. Ground three thus fails.

b. Grounds One: That the learned trial magistrate erred in law and fact when he failed to properly evaluate the evidence on the court record properly, thereby arriving at a wrong decision and hence finding for the respondent.

Grounds Two: That the trial magistrate erred in law and fact when he considered the respondent's evidence in isolation of that of the appellant.

The resolution of ground three has a direct impact on grounds; 1, 2 and 4, 10 nevertheless, I will consider them nonetheless.

Counsel for the appellant argued that whereas the appellant adduced evidence to prove he purchased the suit land as evidenced by and also went ahead to adduce the oral testimonies of DW2 Okiria Stephen and DW3 Okedi Alex, who also confirmed that the appellant bought from Oduan Michael, the appellant contends that it was wrong for the trial magistrate who challenged the legality of the transaction in his judgement arguing that it was illegal for one Administrator to sale the suit land without the consent of the rest of the administrators.

- Counsel for the appellant reiterated that the appellant did all he could to have knowledge of the land before buying, as evidenced by the testimony that he 20 engaged the clan of the vendor – Oduan Michael, who issued a letter authorizing the vendor to sell the land and more so, one of the co-administrators also signed on the clan letter. Counsel argues that the trial magistrate did not make any reference to the clan letter. - On the other hand, counsel for the respondent in reply contended that; 25 - a) "on Ground.1, the Trial Magistrate properly evaluated the evidence on record and properly found that the appellant was not a bona fide purchaser for value without notice of involvement of other administrators,

$\mathsf{S}$

that the suit property formed part of the estate of the late Silver Oduan Ekukuriat, that it had been bequeathed or distributed to the late Acham Grace, that the said sale transaction between the Appellant and the late Mike Oduan was void and illegal in law

b) on Ground.2, the Trial court, in as much as the appellant didn't file formal written submissions-in-reply by 11<sup>th</sup> December 2020 as agreed and scheduled in court at locus visit, the Trial court was alive to all the evidence the Appellant and his witnesses had adduced thereof, before arriving at the contested judgment of 15<sup>th</sup> February, 2021.

In the case of *Miza s/o Beki (Miza Bhakit –Vs- Bruna Ososi Civil Appeal No.0026 of*

*2016,* it was held that 15

> "the standard of due diligence imposed on a purchaser of unregistered land is much higher than that expected of a purchaser of registered land. A purchaser of unregistered land who does not undertake the otherwise expected lengthy and often technical investigation of title, which will often ordinarily involve her in quite elaborate inquiries, is bound by equities relating to that land of which she had actual or constructive notice. Constructive notice is the knowledge that the courts impute to a person upon presumption so strong of the existence of the knowledge that it cannot be allowed to be rebutted, either from him knowing something which ought to have put him on further enquiry or from willfully abstaining from inquiry to avoid notice.".

Also see: Hunt-Vs-Luck [1901] 1 Ch.45.

$\mathsf{S}$

It is my finding that by the action of Oduan Michael himself selling the suit land $\mathsf{S}$ to the appellant without involving the co-administrators' consent and ratification, the transaction is illegal, null and void.

The trial magistrate thus actually evaluated the evidence properly and arrived at the correct decision. In making this conclusion, I am fortified by the case of *Silver*

- Byaruhanga versus Fr. Emmanuel Ruvugwaho and Rudeja Supreme Court Civil 10 Appeal No. 09 of 2014, where it was held among others by Lady Justice Stella Arach Amoko JSC that, where letters of administration are given to more than one administrators, it is illegal for one single administrator to act without the consent or knowledge of the other co-administrators. - Regarding the clan letter, I have already commented on it in my resolution of 15 ground three.

My conclusion thus here is that the suit property still forms part of the estate of the late Silver Oduan Ekukuriat, which he bought. Therefore, in agreement with the counsel for the respondent, I find and resolve grounds one and two that the

- sale of the suit land by a single administrator Oduan Michael without involving $20$ the other co-administrators, was illegal. Since the trial magistrate arrived at a similar finding, grounds 1 and 2 fail. - c. <u>Ground four: The decision of the trial magistrate occasioned a miscarriage</u> of justice. - Since grounds 1, 2 and 3 have failed, the trial magistrate's decision did not 25 occasion a miscarriage of justice. This ground equally fails.

Counsel for the respondent prayed that the court disallow/reject this appeal with costs as under Sec.27 of the Civil Procedure Act - Costs follow the event.


Thus, in the case of *Primchand Raichand Ltd & Another vs. Quarry Services of East* $\mathsf{S}$ Africa & 6 Others [1972] EA 162 court held that,

> "a successful litigant ought to be fairly reimbursed for costs he had incurred $\mathcal{W}$

As this instant appeal fails on al I grounds, I find no reason why the respondent should not be awarded costs as he was made to follow up this matter to this court 10 and certainly must have incurred costs. Accordingly, costs are awarded to the respondent.

- 6. Orders: - The appeal is dismissed. - The judgment and orders of the trial magistrate vide Claim No. 14 of 2017 $\overline{\phantom{a}}$ Chief Magistrate's Court of Kumi at Kumi delivered on 15<sup>th</sup> February 2021 is upheld. - The cost of this appeal and the court below are awarded to the respondent. - I so order. 20

Hon. Justice Dr Henry Peter Adonyo

Judge

15<sup>th</sup> June 2023

25