Mukiibi v Nakitende and 5 Others (Miscellaneous Cause No. 161 of 2022) [2023] UGHCLD 1 (16 January 2023)

Full Case Text

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KLAMPALA

### (LAND DIVISION)

#### **MISCELLANEOUS CAUSE NO.161 OF 2022**

$\mathsf{S}$ MUKIIBI GASUZA YAFEESI:::::::::::::::::::::::::::::::::::

### **VERSUS**

- 1. NAKITENDE OLIVIA - 10 2. MUTYABA ADRIANE - 3. SERUBIRI JAMES - 4. SERUNJONJI HENRY - 5. SERUNJONJI KAWAWULO - 6. COMMISSIONER LAND - 15 $\textbf{REGISTRATION}:\dots:\dots:\dots:\dots:\dots:\dots:\dots:\dots:\dots:\dots:\dots:\dots:\dots:\textbf{RESPONDENTS}$

Before: Lady Justice Alexandra Nkonge Rugadya

### Ruling.

### Introduction:

The applicant brought this application under the provisions of **Section 33 of the Judicature** Act cap.13, Section 98 of the Civil Procedure Act cap.71, Sections 140, (1) & (2), 142, 20 145, & 188 of the Registration of Titles Act cap.230 and Order 52 rules 1, 2 & 3 of the Civil Procedure Rules S. I 71-1 seeking orders that;

- 1. The $1^{st}$ $5^{th}$ respondents should show cause why the caveat vide instrument No.00319375 registered on the land comprised in Kyadondo Block 192 plot 3138 land at Buwate on 17th October 2022 should not be vacated and or removed; - 2. An order directing the $6th$ respondent to vacate and or remove the said caveat on the land;

- 3. The $1^{st}$ $5^{th}$ respondents pay compensation and or damages to the applicant for lodging the aforesaid caveat without lawful and/or reasonable cause; - 4. Costs of the application be provided for.

abbag

# Ground.s of the qpPlication.

Thc grounds in support of this application arc containcd in thc affidavit of support deponed by Mr. Mukiibt Gasuza Yafeesi, thc applicant hcrcin. Ilc statcd that he is thc registered proprietor of thc land compriscd in Kgadondo Block 792 plot 3738 la.nd, at Buutate on

5 7Vh October 2022 (hereinafter refened to as the 'suil land')having bccn registercd thcrcon on 18th October 2018 at 1:44pm undcr instrumcnt numbcr WAKOO794459 and that on the 1I th day of October 2022, he sold thc suit land to a onc Dianah Ycsiga Ahabwe.

That although prior to the said salc of the suit land, conducted at the land registry indicated that the same was encumbrancc frec, whcn counscl for thc said purchaser embarked on the transfer process, he discovcrcd that the lst,2nd,3rd,4th & 51h respondcnts had with no

reasonable cause whatsoever lodgcd a caveat on thc suit land with the motive to frustrate the applicant from rcalising the full consideration of thc Iand. 10

That upon reading the application and affidavit supporting thc application to Iodge the caveat, the applicant found that the samc is full of blatant lics and material falsehoods in so far as

- it states that the respondents claim a bcncficial interest in the land, to mislead the 6th respondent to lodge thc said cavcat, the existence of which has intcrfcred with the applicant's attemPts to realise full consideration from thc purchaser of the land thereby inconveniencing the applicant. 15 - That thc rcspondents will not suffcr any injustice nor will they bc prejudiccd if this application is granted thus it is just, fair, cquitable and in the interest of substantive justice that this court orders the 6th respondent to vacate thc caveat lodgcd by thc 1"t - 5rh respondents from the land. 20

# 7"r. 2"d. 3d. 4th, & srh resDond.ent's replu,

The 1 , 2\*1, 3r(1, 4th, & srh rcspondcnts opposed the application through thc affidavit in reply deponed by Mr. Serublrl Jalaee, the 3.r respondcnt on behalfofthc 1sr - srh respondents. He contended that the samc ought to bc struck out as it is an abuse of court process since it not only contains numerous falsehoods, but also lacks mcrit.

It was stated that the lst, 2nd, 3d, 4rh, & 51h respondents arc the bcneficiaries to the estate of the latc Jamcs Scmakula and arc equitable owners of the suit land comprised rn Kyadond.o

Block 792 Plot 3 738 land at Buuate which forms part of thc cstatc of thc 3',r respondent's father's estate. 30

That while the applicant, 1sr, 3rd & Sth respondents are the biological children of the late Scmakula James, the 2nd & 4th respondcnts are thc brothers to the late Ssemakula James and that the suit land was part of a largcr propcrty that initially bclongcd to the late Aron Semakula, the 2nd, 4th & the late Semakula James' fathcr.

2 0

That the suit land was later rcgistercd in the namc of Lakcri Nabukalu, a daughter of the late Aron Semakula Kikabi, and a sislcr to thc late Scmakula James, who subdivided the same to takc off her sharc, and that thc bcneficiaries togcther with thc applicant executed an agreemcnt for division of the propcrty whcre the applicant was given 6.9 acres, while the other bencficiaries agrecd to retain a rcsidue of 0.50 hcctares which is the suit land, under the estatc of the latc Semakula Jamcs and which also has the family house.

That whilc it was also agreed by all thc bcncficiaries that thc applicant was not to deal with the suit land in anyway without thc consent of thc bcncficiaries, thc said 0.50 acres were fraudulently transferred into thc applicant's name in total disrcgard of the lst - Sth respondents' intercsts and that they only found out upon the same in October 2022 upon which thcy lodged the caveat in issuc in their capacity as beneficiarics of the late James Semakula's estatc.

In addition, that thc applicant did not havc the solc intcrcst in the suit land since he was part of the benehciaries of thc estatc of thc latc Jamcs Scmakula, with no authority to deal with the land and yet he fraudulently, without the rcspondent's knowledge or title of the land engaged in the sale of the family land.

It was furthcr averred through affidavit cvidcnce that thc applicant's buyer did not conduct any duc diligence whcthcr by a scarch at the land rcgistry or thc area Iocal council to ascertain the ownership of thc suit Iand sincc the applicant did not adducc any documentary

evidencc to prove thc allcged search, and that bccausc thc suit land is family land, the applicant did not havc any intercst in the 0.50 acrcs cxcept his beneficial interest therein which he held jointly with all the othcr beneficiaries to thc cstate of the Iate Semakula James thus hc did not possess the sole titlc or right to pass thc samc onto a third party. 20

The dcponent further emphasizcd thc fact that thc 1"1 - 5th respondents had an equitable interest in the suit land as beneficiaries of the estate of the late Semakula James and that the applicant was fraudulcntly registercd on the suit land yct thc same was family land on which thcy were raised, meant for thc benefit of all the bcncficiaries of thc deceased's estate thereforc he is not entitlcd to benefit from his illegal actions including the sale of property which he doesn't own. 25

That thc l"r- sth rcspondcnts shall not only be prcjudiccd, but will also suffcr great injustice and irreparable damage if this application is grantcd bccausc the suit land does not bclong to the applicant and that granting this application will cnablc the applicant complete the land sale transaction which shall deprivc thc caveators of their property. 30

That it in the interest of justice, fair and equitable that this application is dismissed with costs. 35

### Applicant's r el oind e r.

The applicant also filed an affidavit in rejoinder to the averments in the affidavit in reply by the respondents, refuting their claim of cquitable intercst in the suit land. That he was bequeathed thc same by his late father in his will.

5 That it is truc that 1st, 3rir, & 4rb rcspondcnts and the applicant himself are all children ofthe late Semakula James, but sincc the 2nd & sth respondents are brothcrs to thc deceased they are not direct beneficiaries of the late Scmakula James'cstate as allcgcd.

Thc applicant furthcr cmphasizcd that thc respondcnts havc no bcnchcial interest in the suit land owing to the fact that the latc Scmakula Jamcs who dicd testatc left a will by which he

distributed his cstatc to the bcncficiarics and that the suit land stopped forming part of the deceased's cstatc at thc time of thc said bequcst. 10

Additionally, that Mr. Serubiri Jamcs the 3.d rcspondent conccdcs that the suit land measuring approximately 0.7O hcctares was the applicant's share as per the distribution list attached to his aflidavit in reply, and that the land that forms part of the family land with the

family house of the tatc Semakula Jamcs mcasures approximately 0.50 acres as indicated therein. 15

That the land alleged to be family land, and which the rcspondents describe as the suit land is clearly captured on page 3 of thc distribution list as measuring 0.50 acres as opposed to the suit land which measures 0.70 hectarcs.

That while thc 4th respondent is not entitlcd to any beneficial intercst in the suit land and the estatc of the late Jamcs Scmakula bccause hc was excludcd from bcnefitting thercfrom by the deccased, thc 3.d respondcnt's charactcr and intcgrity wcrc questioned by their Iatc fathcr as he has always been a controversial and conflict rootcd pcrson. 20

The applicant further cmphasiscd that bccause the suit land had been bequeathed to the intendcd bcneficiarics, it no longcr formcd part of the estatc of thc latc Jamcs Semakula and that it forms part ofhis duc sharc as his latc fathcr's heir to whom the same was bequeathed. 25

The applicant dcnied having sold the family land but admitted having sold thc land forming part of his due share out of thcir late fathcr's estatc mcasuring approximately 0.71 hectares that had becn bequeathcd to him.

ln rejoinder to respondent's avcrmcnts that the buyer of the suit land did not conduct any due diligence prior to purchasing thc land, thc applicant stated that the buyer indeed conducted a scarch at thc land rcgistry as wcll as a physical inspection of the suit land, consultcd the area local council and locals, all of whom confirmcd that thc land belonged to the applicant. 30

## BepLese\_!ati94:

Thc applicant was rcprcscntcd by IE/s Kaduho & Co. Ad.uocates whilc thc 1sr, 2nd, 3rd, 4rh, & 5rr' rcspondcnts wcrc rcprcscnlcd m/s Crimson Associated. Adoocates. Both counsel filcd written submissions in support of thcir rcspcctivc clicnts'cascs as dircctcd by this court.

# 5 Consideratfg4gJlhe sppltgqlig&,

I have carefully read and considercd the pleadings, evidcnce, and submissions of both counscl, the details of which are on the court record, and which I have taken into account in determining whcthcr or not this application merits the praycrs sought.

It is now scttled law that for cavcat to bc valid, thc cavcator musl havc a protectable intercst,

lcgal or equitable, otherwisc thc cavcat would bc invalid. /See.. Sentongo Produce V Colfee Farrners Lbnited. & Anor us Rose Nakafuma Mugllsa HCMC 690/99, Kiglngt paul Bannada & others us Rose JVcbusso.. Mlscellaneous Co.use No.763 ol 2O2 7) 10

The caveat which is thc subject of this application was lodgcd undcr thc provisions of sectlon 739 of the Reglstratlon of Titles Act by thc lsr - sth rcspondcnts who claim to be thc bcncficiarics of thc cstatc of thc latc Aron Scmakula.

lt is not in disputc that the latc Scmakula Jamcs dicd tcstatc, and that the will adduced in evidence was madc by him. Ncither the applicant nor the 1.1, 2nd, 3rd, 4rh & Srh respondents have since challenged the samc, cither through formal court proccss, or informally.

A will by its naturc is ambulatory. In Beatrice Asiire Mallnga as Jon(rthq;'tr Obukungang

20 Mallnga Clull Sult No.73 of 2013, thc court observcd that a will cstablishcs thc wishes of the tcstator at thc timc of his dcath and courl is inclincd not to intcrfcrc with the tcstator's wishcs unless in circumstanccs whcrc cquity and justicc rcquires.

The respondents in their affidavit in rcply contcnd that thc beneficiaries of the estate of the late Semakula James cxccutcd an agrecment dividing the deceascd's property and that by

25 virtue ofthc said agreemcnt, the applicant was given 6.9 acrcs ofland, whilc thc benehciarics rctained thc residue of 0.50 acrcs which comprised the family house owned by the entire family.

It is settled law that a will can only be altcred or revokcd by its maker at any time when he or shc is competcnt to disposc of his or hcr property by will. (Rej.er to Section 48 ol the

30 Successlon Actf' According to thc will of the latc Jamcs Semakula attached to the affidavit in reply, thc family housc which had stores was bcqucathcd to the Iate James Semakula,s widow. Thc will also statcs that upon thc demisc of thc widow, thc said house would revert to thc heir.

Sectlon 788 of the Succession Act, Co.p. 762 providt:s

5 0

# No right as executor or legatee shall be established unless a court of competent jurisdiction within Uganda has granted probate of the will under which the right is claimed...

There is nothing on record to show in this present application that the probate was granted $\mathsf{S}$ to the persons named in the will as executors of the deceased's will. With all due respect a will does not operate in the same way as a gift intervivos which upon issuance would take immediate effect. It thereupon ceases to constitute part of the estate of the giver and unlike a bequest made in a will, the transfer is complete when the deceased is still alive.

Furthermore, the testator in very clear terms stated on page 2 of the translated version of his will, that no child of his should ever divide up or claim ownership of his land except as 10 tenants.

It therefore struck this court as odd that in a meeting held on 15th December, 2000, the children, in collusion with some clan members and a handful of executors who knew or ought to have known the contents of that will; and without the authority of court had gone ahead

15 to divid up the estate, under a distribution scheme agreement.

The said decisions and actions were of no effect as they were in contravention of both the law and wishes of the deceased.

Section 268 of the Succession Act takes any person who intermeddles with the estate of the deceased or does such act which belongs to the estate of the executor while there is no 20 rightful executor in existence, as a mere executor in his/her own wrong.

## In conclusion and in light of the above:

The following are the orders of court:

- 1. Any dealing with the estate of the late James Semakula without the grant of probate was unlawful. It amounted to intermeddling with the estate. - 25 - 2. The distribution scheme carried out contrary to the wishes of the deceased on 15th December, 2000 was irregular and therefore of no consequence.

3. Accordingly, the caveat lodged by the respondents shall remain in force until after the due process of law is followed in obtaining the grant of probate from court for the proper and effective administration of the estate, and distribution is made in accordance with the wishes of the deceased; or until further orders are made by court.

The application must therefore fail since the applicant did not come to court with clean hands.

35 Each party to meet its own costs.

Unkerg

$\ensuremath{\mathsf{I}}$ so order. $\ldots$ $\ell$ $\ell$ ha h . . . . . Alexandra Nkonge Bugadya ${\it Judge}$

$\mathsf{S}$

16th January, 2023.

Delivered by email Delivered by email 16/1/2023