Mukuye v Nsubuga (Civil Appeal No. 56 of 2020) [2022] UGHCLD 236 (13 December 2022)

## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA

#### (LAND DrurSrON)

## CrVIL APPEAL NO 0056 of 2O2O.

# (Artsing Jrom Cluil Suit JVo. 35O of 2OO9)

CHARLES MUKUYE. APPELLANT

#### VERSUS

JOHN NSUBUGA. RESPONDENT

D{Ote: !.q{S rj.astlcqt\_ 4,lexq.qd.ra Nkonoe Rugg{lg

## JUDGMENT

## Introduction:

This appcal ariscs from the judgment and decrcc of thc lcarncd Chief Magistrate Her Worship Prossy Katushabe in Clull Suit IVo. 35O of2OO9 datcd 28th Fcbruary, 2020 in which she entered judgment for the respondent, dismissing thc countcr claim with costs.

# 15 BacbgraUtC:

The background to this appeal is that the respondent Mr. John Nsubuga filed the suit in the Chief Magistratcs Court at Makindye against the appellant Mr. Charles Mukuye, claiming that the suit property comprising of houses located at Makindyc 7,one forms part of the estate of the late Spccioza Nakitlo; a declaration that he is the onc lcgally responsible for collecting rent and manage thc suit property; a pcrmancnt injunction rcstraining the appellant/defcndant from collecting rcnt or intcrfcring in thc managcmcnt of thc suit propcrty; an order of account of rent collected from the suit property by the defendant since 2007; general damages; costs of the suit and any other rclicf dccmed fit by court.

Nsubuga further claimed that his late mother, Specioza Nakitto owned a piece of land, located at Makindyc Mubarak Zonc which had becn bought for her by her late husband.

She had managed and paid ground rent for the suit property since 1970 l\11 2OO2 when she passed on. In 1998 prior to her demisc shc had sold part to the defendant Charles Mukuye and his wife.


Furthcrmore that following hcr dcath the clan lcadcrs had distributcd thc deceased's property and the plaintiff, Nsubuga had obtaincd letters of administration vide AC No, 317/2OO2 on l2th February, 2002.

5 He started collecting rent and paying ground rent betwcen 2OO2 and 2007 when Mukuye forcefully took up the management of thc suit property and started collecting rent without maling any remittance to Nsubuga, thus depriving him ofthc use ofthe suit propcrty as a result of which he suffcred damagcs and inconvcniencc.

The appellant, Mukuye however claimed that the land in issue which was a kibanja, consisted of 5 blocks of houses built by sevcn siblings including Teddy Nanfuka, his own mother. He refuted Nsubuga's claim that Nsumba the late husband to Specioza Nakitto had bought the land for her.

According to him the siblings had jointly and scverally bought the kibanja in 1967. Nanfuka, his late mother owned a block of 4 rooms which he had inherited while Nsubuga's mother on the other hand, Specioza Nakitto owned one block of 8 rooms and had sold to him part of her land

in 1998. Furthermore in 2007, his uncles and onc ofhis aunties had sold him part oftheir share containing 3 houses. 15

It was the appellant's claim that NakiLto did not own the cntire kibanja and. that Nsubuga's interest was limited to only what his mother had left behind after her demise, but not what belonged to Nakitto's siblings in respect to which she had only been authorized by her siblings to collect and remit rent, retaining somc for payment of ground rent.

That Nsubuga had out of dishonesty sold parts of what he claimed using the names of Kiyega John and Moses Nsubuga. In his countcrclaim thcrcfore hc asked court to declarc that the suit property rightfully belonged to him; a pcrmanent injunction rcstraining Nsubuga from interfering with the suit property; gcneral damagcs and costs.

- 25 Thc issues during thc trial were as follows: - 7) Whether the defendant lanofullg took ouer the rnanagement o.f sult propertg; - 2) Whether the dejendqnt is obltged to m.tke an lnventory of the ',,.onles collected. trom the sult propertg between 2OO7 and 2075.

3) What remedies qre (lvailable to the po'rties.

?

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$\sim$

## Decision b1l the tria.l court:

The trial court in its judgment dclivercd on the 28th day of [,'ebruary, 2020 declared as lollows

- 1) The 12 rooms on the suil kibanja at Mubaraka Makindye form part of the eslate of the late Nqkitto Specioza. - 2) The plaintiff is legallg responsible for collecting rent and management of the <sup>12</sup> rooms on the suit properlA and the defendanl is herebA restrained from collecting renl or interking in lhe monogement of the said suit properTV . - 3) The defendant must giue an qccount of whateuer moneq that he received between 2OO7 and September, 2O 1 <sup>5</sup>from the 12 rooms on the suit kibanja and pag the same to the plaintiff and this should be done afier eualualion of the rent for those gears; - 4) The plainttff is entitled to general damages of Ugx 3,OOO,OOO/=; - 5) The counterclaim fails and the counterclaimant is nol entitled to a perTnqnent injunction" costs of lhe counterclaim and atDard of damages; - 6) Whereas court knows thal costs follotD lhe euent, this is a matter that inuolues multiple relatiues and neighbours and in the circumslances court ho,s ordered thal each partg to bear its otan costs.

# Grounds of qppeql:

Eleing dissatisfied wilh the decision the defendant appealed to this court, raising the following grounds of appeal:

- 7. The led.rned. ChleJ Maglstr@te erred. both l^ la@ and lact when she lalled. to properlA evaluate the ertidelce on the court recotd hence reachlng a urto^g d.eclslon oJ e^terl^g fudgment ln tavour ol the plalntlff and dlsmlsslng the counterclalm. 25 - 2- The learned Chlel Maglstrate ened both ln la@ a^d. jdct @he^ she Iound. that thc propert! cldlmed bg the plalntllf /responde^t hereoJ belonged to the estate ol the ldte speclo'-a Nd.kltto uhen there uo's 4o euldence to thdt effect. - 3. The learned ChieJ Maglstrate ened both i^ lau and Jact when she dismlssed the counterclalm rrith costs nthen there o,te sult propertles whlch are contdlned ln the cou^terclalm la.,hich at the locus the pldtnttf/respondent dld. 'I.ot cla,,^ ot ^ershlp-

U tl'"8

4. fhe lear^ed Chlef Maglstrate erred both 7n lau and Iact urhe^ she Jound that the deJend.ant/a.ppellant hereof Jatled to adduce evldence thdt he bought the sult ProPertg.

# Oblectlon to qdmlsslblllts -oJlhe wlt4eEs4atg!4Cnts-14 lhe p\$hdrsu4 4!L

5 I-]y way of a brief introduction, Clu{l sult .iro. 222 of 2OO9: Experlto Klsambute & 2 others as Joht Nsubuga was initially lllcd in the High Court at Nakawa. I-ater on Clult sult No. 35O oJ 2OO9: John Nsubuga us Chcrles Mukuge, thc subjcct of this appeal was also filcd but stayed by court, pending the hearing of thc earlicr filcd suit.

On 17th Septembcr, 2014, Clull Suit No, 222 ol 2OO9 under which Kisambwe sought a declaration to revokc the letters of administration obtained by Nsubuga for his mother's estate, was dismisscd by court. Clult Su{t IVo. 35O of 2OO9 which is thc subjcct of this appeal and had also been dismissed was later rcinstated and heard by the trial court.

In 20l6, yet another suit; Ciuil Suit.llo. T2 of 20T6 was filed byJohn Nsubuga aBainst Mukuye Charles on 23'd May, 2016 in thc Chief Magistratc's Court at Makindyc. During the trial, Ciuil Sult IVo. 12 oJ 2016 was withdrawn with thc conscnt of both parties in this appeal, and the hcaring of Ciuil Suit jvo. 35O oJ 2OO9 proccedcd intcr partes.

In his submissions, counsel for the appellanl argucd that the respondent did not file witness statements for Clull Sult lIo 35O ol 2OO9 but instead relied on the statements filed in respect of Clrril Suit No. 12 of 2O16, which was nevcr disposed of and that court had been informed about this anomaly but chosc to ignorc it.

That td him implicd that thc respondent did not produce any evidence in chief before court which made Ord.er 77 Rule 4 oJ the Clall Procedure Rules applicable. That in such instance wherc plaintiff fails to adducc evidcncc, court notwithstanding the default, proceed to decide the suit immediately. 20

ln reply however, the counsel for the respondent argucd that it had been upon the prayers of counsel for the appellant on the 3Os of March, 2007 that the suit bc withdrawn. However that the witness statemcnts by PurI John Nsubuga and Pu2 Experito Kisambwe had been adopted by court as their respcctivc evidcncc in chief. 25

That cbunsel for the appellant who even wcnt ahead to cross examinc on thcm could not now turn to claim that the respondent had no evidcnce on record.

This court upon pcrusal of thc court proceedings could not find any of the arguments alluded to by the parties. The typed record of proccedings availcd to this court does not indicate how and when this matter had come up and how court came to thc conclusion that it did. 30

wfi

What is on rccord is a statemcnt by the plaintiffJohn Nsubuga who testified as PurI and another by his maternal uncle, Itxpcrito Kakande (Pu2| l3otl1 had been filed on 23'd May, 2016. In absence of any such notes for perusal by this court, onc would be correct to assume that these statements had been intended for the Clul! Sult lVo. 72 of 2076 which was later withdrawn as

- 5 there was already an earlier pending Clull Sult Ivo. 35O oJ 2OO9. But be that as it may, this case was between the same parties, and over the same suit property. This implies that the same evidence would have been used by the samc partics over the same subjcct matter. All that appellant nceded to do is satisfy court about the prejudice he suffered on account of that anomaly. - 'l'he triat court may havc faulted in adopting thc statcmcnts from thc withdrawn suit and failing to mal(e the necessary adjustments to rcflect Ciull Suit IVo. 35O oJ 2OO9 instcad of Ciuil Suit No. 72 oJ 2076. Bul this could not have becn fatal to thc casc sincc cssentially the only difference bctween the two suits wcrc thc dates on which cach was filed. 10

Given that the appellant did not show the injustice occasioned to him, in the view ofcourt such an errqr which is partly attributed to court could not be visited on the litigant. For those reasons, this objection is therefore dismissed. 15

# Analuels of the euidence at trlal:

# Grounds T.2 &4.

I1y virtuc of section 1O7 (1) of Euldence Act, Ccrp. 6, whocvcr dcsires court to give judgmcnt to any legal right or liability depcnding on the cxistcnce of any facts he/ shc asscrts must prove that thosc facts cxist./George Wllllam Kakomt u Attomeg General [2O7Ol HCB 7 qt Page 78). 20

'l'he burden of proof lics thcrcforc with the plaintiff who has thc duty to furnish cvidencc whose levcl of probity is such that a rcasonable man, might hold morc probablc the conclusion which the plaintiff contend, on a balancc of probabilities. /Sebullba vs Cooperatlue Bank Ltd. [7982] HCB 13O; Oketho. vs Attorneg General Clull Sult No. 0O69 of 2OO4.

The appellant Mukuye claimed that thc trial court had failed to properly evaluate the evidence on rccord when shc found that property claimcd by the rcspondent herself belongs to the estate of the late Specioza Nakitto when therc was no evidencc to that effect. That she came to the wrong finding that the appcllant had failed to adduce evidcnce that hc bought the suit property.

Being a first appcal, this court is undcr an obligation to rc-hear thc case by subjecting the evidence prcsented to the trial court to a fresh and exhaustivc scrutiny and re-appraisal before

tt"pru

coming to its own conclusion. l'hc duty is wcll cxplaincd in Father Narrenslo Begumlsa and 3 others vs Eric T'lberqgq: SCCA lIo. 17 ol2OOO [2OO4] KALR 236

It is also a well scttlcd principlc that court must makc duc allowancc for the fact that it has neither secn nor hcard the witncsscs, and ought to weigh the conflicting cvidence before drawing

5 its own inferencc and conclusionst Bithum us Adonge, Clull Appeal No. 20 ol 2017,

The plaintiff, Mr. John Nsubuga had only two witnesses. IIc himself testified as PurI and his maternal uncle, Experito Kisambwe who had filed an carlier suit against him testified as Pu2, in support of his claim. Nsubuga argucd that the Iand in dispute had been bought by Isaac Nsumba who was Nakitto's husband. It is not in dispute that lettcrs of administration wcre issued to him for the administration of his late mother's estate.

Hc admitted that he had not secn the sale agreement as proof that Nsumba had purchased the kibanja for his wife. As he himsclf stated, at the time whcn his mothcr put up the structures on that land he was still a child.

Nsubuga however relied on thc various reccipts issucd by KCC since 1970s in the names of Speciola Nsumba claiming that he had been residing with his mother since 1967 when the land was bought for her. 15

Mukuye in his response however sought to discredit the above evidence. He alluded to some contradictions betwecn what was stated by Pur-l and l}].al by Pw2. That while in paragraph 4 (d) of his plaint, ParI admitted that in 1998, his mother had sold a portion of the land to Mukuye and his wife, his own witness PtD2 in paragraph 6 of his statement claimed that his late sister

Nakitto Spccioza had never sold her propcrty to a third party or any relative for that matter.

The second contradiction was that while PurI claimed that it was Nsumba who bought the land for his mother, Pur2 on the othcr hand claimcd it was Nakitto herself who had purchased it. I,'or this court, since the question of how thc subjcct kibary'a was acquired/purchased by whom and for whom and how it was dcalt with were all at thc ccntrc of the controversy in this case, I will

deal with thosc qucstions lalcr.

Suffice to state however at this stage that Mukuyc's evidence on that point was the sale agreement dated 2oth June, 1998, |IrE IIr, between him and Nsubuga's mother Nakitto which Nsubuga did not challenge and which was duly acknowledged by him in his pleadings. Nakitto had sold off part of that land to Mukuye in 1998.

# Rullng by the LC II courtl

r,b% 6

By way of another preliminary objection, Charles Mukuye through his counsel contended in *paragraph 4* of the amended WSD/counterclaim that the matters sought to be adjudicated upon in the suit were heard and disposed of by the LCII court and that the decision passed in August, 2006 had been upheld by the Chief Magistrate's court.

$\mathsf{S}$ **Dw2**, Mr. Kyalwozi Lubega Tomasi as the sole witness for Mukuye tendered in court a copy of the said ruling, attached to his statement. (PES). He informed court that he had been at that time a member of the LC II court at Makindye in which **Pw2** Kisambwe had brought a case against Nsubuga.

Nsubuga never turned up in that court and the case proceeded against him in his absence. In

10 that case, Kisambwe Expedito vs John Nsubuga Case No. LPD/010/MBK/06 Pw2 had informed court that the *kibanja* had been jointly purchased by the siblings.

The LCII court had this to say:

### That the kibanja was jointly bought by the seven brothers and sisters as named below:

- $\boldsymbol{I}.$ Kisambwe Expedito; - $\boldsymbol{II}.$ Kalule Lawrence; - $I\!I\!I.$ Nanfuka Teddy - $IV.$ Kasule Henry; - Ssalongo Kibirige; $V$ . - VI. Nakitto Specioza; - VII. Nakabuye Constansia. - 1. Court saw the copy of joint kibanja purchase agreement for which the seven acquired the kibanja containing their names. - 25 2. Court found that there was no other legal and formal transfer of owners of the kibanja from the seven joint owners to Nakitto the mother of Nsubuga by her death time. - 3. Nsubuga and Kisambwe are relatives with Nsubuga being a maternal nephew to Kinsambwe. - 30

- 4. That Nsubuga John wrongly sold off a piece of kibanja before acquiring powers of attorney and before establishing which share of the whole estate belonged to his mother Specioza Nakitto. - 35 5. That Specioza Nakitto was the caretaker in management and collection of rent fees of the estate on behalf of the family owners.

Unloug

$\overline{a}$ - 6. That when Nakittio died, there were no wrangles of owners amongst the remaining relatives (owners). - 7. That after Nakitto's death, Nsubuga took over powers of administration of his mother's share not ownership of the kibanja and all houses thereon. - 8. That the powers of attorney acquired on 12<sup>th</sup> February, 2003 granted to Nsubuga John were to allow him manage his mother's property which was just part of the whole estate but did not include what was for Nakitto's co-owners. - 10

$\mathsf{S}$

9. That the letters of administration from the Administrator General issued on 12<sup>th</sup> February, 2003 renewable after six months or as the administrator General may decide had expired and no other renewal was presented, therefore no longer valid.

Furthermore, the LCII decided that the one block of 6 rooms be returned to Kisambwe Experito 15 (Pw2) and directed Nsubuga to stop collecting rent fees and relinquish all authority concerning the management of the house to Kisambwe Experito. It is not known to this court to what extent the orders above had been executed if at, all they were.

The details about who issued the powers of attorney, the nature and extent of those powers were not revealed. The LC court in its ruling also declared that any party dissatisfied with the judgment was free to appeal to a higher court within 14 days from 6<sup>th</sup> August, 2006.

Although other suits similar to the present suit had been filed the said orders of that court remained unchallenged. What court however did not pronounce itself on was determining under those circumstances, what Mukuye was actually entitled to as against Nsubuga. The reason was because Mukuye though one of the witnesses in that case, had not been party to that case.

- 25 Mukuye also besides had some unresolved disputes against his uncles and aunties concerning this kibanja. None of them were however added as counter claimants in this suit yet from his own evidence he had entered into a number of transactions after that ruling was made. Some of these transactions directly concerned Nakitto's estate, which Nsubuga during the trial sought to challenge. - 30 As provided under **section 7 of the Civil Procedure Act, Cap. 71**, no court is to try any suit or issue in which the matter directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title in a court competent to try the subsequent suit or the suit in which the issue has been subsequently raised, and has been heard and *finally* decided by that court.


The contention at the LCII court in this case rotated around property that Nsubuga sought to claim as part of his latc mother's estate. l'rom Expcrito Kakandc Kisambwe lPur2ls evidence, Nsubuga wanted to acquire cxclusive owncrship of thc suit prcmises, without taking into account the interests of the joint owners/ bencficiaries of this property.

5 Issues now more pertinent to this appeal thcrefore include how Mukuye had acquired a portion of what he himself acknowledged as a jointly owned cstatc, while some of the owners who were his own rclatives wcre still alive.

Related to that, court had to look into the capacity undcr which Nsubuga and Mukuye had each dealt d,rith the var:ied interests of their relatives on the suit premises, which they had been entrusted to manage, as per the findings in that ruling.

Pu2 d]urir,g the hearing by the LC II court relied on the agreement of sale, PE Twhich as noted by court had all the namcs of the purchasers of the kiDanTa all siblings of Nakitto. Nakitto herself had signed the agreement which was entercd on 241h July, 1967 with one Hajji Kakembo, the original owner. It was the vcry samc agrecmcnt which was prcscnted to the trial court by the

defendant, Mr. Mukuye. 15

> Nsumtia, Nakitto's husband was not party to that sale agreement. Such evidence led by the plaintiffs/respondent's sole witness rules out the possibility therefore that it was Nakitto's husband who had purchased tbe kibanja for Nsubuga's mother.

During thc trial beforc the Chief Magistratc, Pur2 providcd anothcr version, differcnt from that which he had assertcd beforc thc t,cll court, maintaining instcad that it was his sistcr Nakitto who had bought the kibanja notably, land on which the rest of the siblings had claims. 20

Put2 who had 6 rooms which thc LCII declared as bclonging to him did not attempt to disown his owtr signature which appeared on the sale agreement, dated 24th July, 1967 prescnted by him as his evidcnce at the LCII court.

- Needless to say, forgery which is an element of fraud, has to bc plcadcd and proved. Thus on account of Nsubuga's failure to lead cvidence to prove that the signature of his mother had been forged, he therefore had no satisfactory evidencc to provc his claim that the salc had been fabricated. In any case as earlier noted, hc never took the trouble to challengc the findings and conclusions by the LCII court under that ruling. 25 - ln that agreemcnt, exhibited as PE,7, and as noted by court, the names ofthe purported vendors were all listed. 30


Although out of the seven family members, it was only the Iate Nakitto, mother to the respondent and Pw2, Dxpedito Kisambwe who had endorscd that agrcemcnt, the actions, conduct and developments on the kibanja thereafter indicate that it was acknowledged by the family for years as jointly owned premises.

<sup>5</sup> The third person who endorsed that samc sale agreement was Kibirigc Silvcster, a brother to Pro2, lhe latc Nanfuka arld thc late Nakitto. Hc was also a witncss in the LC court against Nsubuga. tle did not turn up as witness bcfore the Chicf Magistrate's court.

Each of the family members claimed different rooms/blocks on the kibanja implying that it was jointly acquired and therefore jointly owned, property over which no one could claim exclusive cntitlcment.

What this court found lacking was thc court's pronunciation on what Mukuye was entitled to. From the evidencc, Mukuye had bought a portion of that land in 1998, and that was not challenged by the respondent. In addition, his mother Teddy Nanfuka had 4 rooms on the ktbcnja which he claimed. Therefore whatever was put up by Mukuye on the land purchased by him

from Nakitto in 1998 (which the trial court did not clearly ascertain) belonged to him. 15

Ssalongo Kibirige Sebunya, aged 75 years, a sibling to both Pur2 and Nakitto in his unchallenged testimony before the LC l[ court confirmed that the kibanja was jointly owned by the seven siblings who had pulled resources together and jointly bought the kibanja in Mubarak zone in 1967 .

They slowly started developing it into a commercial estate. Kibirige told the I. C court that the seven siblings therefore had a share ofthe premises out of which they each earned renta.l income. Furthermore, it was his statement that Nakitto had supervised the work of building on that kibanja and collecting money from the rent. 20

That alter the death of Nal<itto, both parties in this appeal had been entrusted with the task of collecting money from the tenants. Nsubuga later turned against them and claimed ownership for all of the properties on that land-25

It was also brought to thc attention of court that Nsubuga's mothcr had given him one room rn 1999 wherc he had started a retail shop. It is not known whether or not the said room was part of, or different from, the 12 rooms which he claimed.

30 Under those circumstances, Nsubuga could neither maintain his claim that he or his mother Nakitto were exclusive owners o[the kfbanTa which had been bought from Hajji Kassim Kakembo together with a.ll the buildings that were later put up with her help.

Ground No. 3: The learned Chlef lfiasistrqte erred both ln lqut and fact uhen she dlsmissed the counterclalrn wlth costs lllherr there qre sult propertles lruhich are con ned ln the coun lain ndent dld not clalrn ounership.

5 It was the appellant's claim that the learned trial magistrate erred in law and fact when she dismissed the counter claim with costs on the basis that the defendant does not own the 12 rooms, yet at the locus the plaintiff did not claim ownership.

The findings at the locus revealed that the kibanJa had a total offive (5) blocks and that Nsubuga identilied one housc with 12 rooms. That hc did not lay any claim onto the othcr blocks. However it was Mukuye's contcntion that out ofthose l2 rooms, 4 ofthem belonged to his (Mukuye's) late

mother, Teddy Nalfuka.

That 4 rooms belongcd to Sylvester Kibirige; and the other 4 to Lawrence Kalule. However gathcred from the ruling, Nakitto was sharing hers not with Mukuye's mother but with Constantincia Nakabuye, anothcr of their sistcrs. (Pqge 4 of the LCII ruling). ln paragraph 5 of his witness statement it was Nsubuga's claim that hc was given the suit propcrty and 12 rooms.

In light of the above, the issue becomes how many rooms the late Nakitto was entitled to which were passed onto Nsubuga by the clan as claimed in paragraph 4 of Put2's statement. Mukuye admitted in fact that the 12 rooms belonged to thc estate of the late Nakitto but that they had been sold to him by Pu2, a claillr. which Pur2 however rcfuted.

- Pur2 as one of the purported signatorics of the 1967 sale agreement had this to say in his statement: 20 - 1) Thdt I dtn an uncle to Jolvr Nsubuga and e biological brolher to the late Speciozd Ndkitto - 2) That Specioza Nakitto bought the suit propettA Jrom a one hajji jaJfali kakembo on the 24th JulA, 1967. - 3) Tlat afiet buAing that propertA, she deueloped it by constnrcting houses uhich htuses h.aue existed since then. - 4) That. . . . . . . . . . .as a clan ue sa,t in the familg meeting and her properlg was distributed among the benefciaries. - l, That pad of lEr properla was a 12 roomed house uhich was qiuen to John <sup>N</sup>subugo. k',npllesis nlirc)

uJdt 11

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6) That my late sister had never sold her property to any third party neither did any of her relatives sell after she died.

Despite the fact that **Pw2** was of advanced age of 93 years, as indicated on page 10 of the record of proceedings he was able to recall with clarity his siblings' names and those who had since passed on and a number of things vital to this case.

His evidence that 12 rooms was part of the estate of the late Nakitto which was given to Nsubuga by the clan was therefore believable. Mukuye knew about this or was in position to find out, from the time the clan allegedly handed over the properties to Nsubuga following his mother's death. The question however still lingers, whether or not that property was validly sold to Mukuye.

10 A small portion of the record of proceedings at the *locus* was unedited and difficult to understand. However court was able to establish that Mukuye had purportedly bought from **Pw2** some properties including what originally belonged to Nsubuga's mother, and what belonged to **Pw2.**

**DE2** is an agreement dated $22^{nd}$ April, 2007, based on which Mukuye made the claim that he had purchased the property in issue from his uncles and aunties. However as duly noted by the trial court, he did not bring any of them or those who were witnesses to those transactions to testify during the trial.

In his submissions, counsel for the respondent referred to the case of J. K. Patel vs Spear Motors Ltd 1993 VI KALR 85 cited in HCCS No. 0011 of 2005 Katwe Butego Division Local Government Council vs Masaka Municipal Local Government Council, where court stated that failure to call a material witness in a case where that witness is available and no

explanation is given for the failure leads court to draw an adverse inference against the party so failing.

The above authority applies specifically to **DE 3**, An agreement for compensation of a plot and 4 roomed house in military barracks zone', dated 4<sup>th</sup> February, 2015; and **DE8** dated 26<sup>th</sup> January, 2008: 'Agreement for compensation'.

In respect of **DE8**, Mukuye who was not a party to that transaction needed to go further and prove his claim that Nsubuga had used different names in the different transactions where he allegedly sold off the *kibanja* property and therefore committed fraud.

$\mathsf{S}$

Indeed where no witnesses are called, the validity of those documents alleged to have been signed or witnessed by them, and such like as **D** Id.1 to **D** id.5 (for identification) would have no evidential value attached to them, since they were never tested at the trial.


Even if one were to believc Mukuye's asscrtion that Pu2 had sold thc 12 rooms to him, P!r2 as the trial court rightly observed, was neither an authoriscd agent, caretaker or trustee of the family interests or administrator of Nakitto's or any of their deceased siblings' estates.

- 5 Mukuye as a family member was fully aware of thc history and background to the ownership of the premises. He was aware ofwhat each family owned. Ilc could not therefore have been a Dona fide purchaser for value without notice of the property that Nsubuga claimcd as a beneficiary from his mother's estate. The purported transaction bctween him and Pur2 jointly with any other siblings could not therefore have been va-lid sincc ncither Nsubuga nor the rest of the beneficiaries had consented to that salc. - Mukuyc all in all, failed to makc thc appropriate distinction betwcen on the one hand what was acquired by him including the kiban-7b that he had purchascd from Nakitto in 1998 and the other hand that to which he was entitled to as a bencficiary under his mother's estate. As noted by court, hc had no letters of administration over his mother's estate. 10 - More importantly, in respcct ofwhat he allegcdly bought from Prrr2, he had to seek prior consent or authority from those who owncd the property and that includes Nsubuga who had obtained letters of administration (PEI) over his mother's estate. It also therefore goes without saying that Nsubuga had no right to dispose of any part of his mother's cstate in his individual capacity but rather in his capacity as thc administrator and thcrefore as the trustee of thc estate. 15 - Thus without the participation and consent of the bencficiaries or the holder of letters of administration, and with specific reference to Nakitto, Mukuye could not claim to have legally bought from Pu2 t}re 12 rooms which he himself had duly acknowledged to be part of Na.kitto's estate. 20

Mukuye seemed to havc done what he was accusing Nsubuga of doing, claiming possession and ownership of a substantial portion of the suit premises that had not been rightfully acquired by him or evcn belong to his mother's estate,

The trial Magistrate on page 4 of thc judgment had this to say

"the deJendant (cou'tterclqi,n(l t) dtd not proae on q. balqnce oJ probdbtltties on hotD the ounershlp oJ the land uos passed onto hirlr Jrom the orlginal otoners, In his evldence durlng cross exo.mination, he stated thqt tn 2OO7 uhen he was buglng, he did not knollo exactlg who he had bought lrorn and thus bq.slrn.g on thls there ls lack of suffictent evidence to shotD hou he acquired this propertg and Jrom whozn he had actuallg acquired lt from- ThereJore premlsed on the prlaclples in the doctrine ol Nerno dat quod. non habet, that Jor one to po'ss on good title, he

\ ,-MW

must have a better title court finds that the defendant unlawfully took over management of the suit property without legal basis"

Mukuye from the above finding indeed failed to prove how **Pw2** could have sold to Mukuye what did not belong to him.

$\mathsf{S}$ As also rightly pointed out by counsel for the respondent, $Pw2$ who is alleged to have sold the jointly owned property denied knowledge about the sale, as per **DE2**. That evidence was never discredited.

I could not agree more therefore that the trial court came to the right decision. I therefore have no basis upon which I could reverse its orders. The trial court was justified in its conclusion that the 12 rooms were part of the estate of the late Specioza Nakitto.

Nsubuga did not lead any evidence to prove that he owned any other property on the suit land other than the 12 rooms which he and other beneficiaries were entitled to under Nakitto's estate. Accordingly, the letters of administration which were issued to him were exclusively for the administration of that estate over which he but not Mukuye, had lawful management and control.

15 This appeal is accordingly dismissed with costs to the respondent, in respect of this appeal.

$\Lambda$

Alexandra Nkonge Rugadya

**Judge**

13<sup>th</sup> December, 2022

Delivered by mail ambalg

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