Mulindwa v Mande (Civil Suit 13 of 2021) [2023] UGHC 422 (6 September 2023)

### **THE REPUBLIC OF UGANDA**

## **IN THE HIGHCOURT OF UGANDA AT MASAKA**

## **CIVIL SUIT NO. 13 OF 2021**

### **(ARISING OUT OF HC ADMIN CAUSE NO. 0087 OF 2008)**

# **MULINDWA BADRU :::::::::::::::::::::::::::::::: PLAINTIFF/COUNTER DEFENDANT (Legal representative of the estate of the Late Costa Nagawa)**

### **VERSUS**

**MANDE SSEKIZIYIVU ::::::::::::::::::::::::::::::: DEFENDANT/COUNTERCLAIMANT (Administrator of the estate of the Late Dominiko Sajjabi)**

*Before; Hon Justice Victoria Nakintu Nkwanga Katamba*

### **JUDGEMENT**.

### **BACKGROUND**

The Plaintiff instituted this suit against the defendant for revocation of Letters of Administration granted to the defendant in High Court Administration Cause No. 87 of 2008, a declaration that the Late Costa Nagawa (his mother) is a beneficiary in the estate of the Late Dominiko Sajjabi, a declaration that the estate of the Late Costa Nagawa is entitled to 120 acres of land given to her by the Late Dominiko Sajjabi among other reliefs.

The Plaintiffs facts are briefly that the Defendant/counterclaimant obtained the grant through fraud and misrepresentation by deliberately concealing from court the fact that the Late Nagawa Costa was a beneficiary in the estate. That moreover, the Defendant obtained the grant while there was a subsisting earlier grant of High Court that was given to the Administrator General in 1978.

The Plaintiff also complains that the defendant has not filed an inventory as required by law and has illegally transferred some of the estate properties into his personal names to deprive other beneficiaries of their beneficial interest in the estate.

The Defendant/counter claimant denied the Plaintiffs allegations and stated that the Plaintiffs claim of 120 acres of land is not maintainable at law. The Defendant also stated that his omission to file


an inventory was not deliberate but he had a suit for recovery of estate property from fraudsters he had to first deal with among other challenges.

The Defendant also stated that his non-disclosure of the Late Nagawa Costa as an issue of the Late Dominiko Sajjabi was an honest mistake in the petition because he was only disclosing the surviving issues of the Late Dominiko.

The Defendant also filed a counter claim against the Plaintiff and the estate of the Late Nagawa Costa for having illegally obtained registration on the estate's property comprised in Buddu Block 45 plot 13 land at Muchuncu. The Defendant counterclaims that the Plaintiff and his mother's registration was procured fraudulently without proof that the Administrator General as administrator of the estate had executed a transfer in their favor.

The Plaintiff/counter defendant denied the Defendant's counterclaim and stated that this court should find that it is arrested by the Limitation Act and that this court should find that it is the Administrator General who transferred Buddu Block 45 Plot 13 land at Muchunchu.

It is against the above background that each of the parties prayed to this honourable court to resolve the issues of trial in their favor.

### **Representation:**

The Plaintiff/Counter defendant was represented by **M/s Sebanja & Co. Advocates**

The Defendant/Counter claimant was represented by **M/s Kitimbo Associated Advocates**.

#### **ISSUES FOR TRIAL**.

At the scheduling the parties agreed to the issues 1, 2, 3 and 5. Issue 5 was categorized as a disputed issue. The parties, however, proceeded to make submissions on it. In the Plaintiff's/Counter defendant's submissions, his Advocates amended issue 2 to add the aspect of whether the Defendant/Counterclaimant's registration on Buddu Block 20 Plot No.2 into his names was fraudulent or unlawful.

*This court is not only well empowered to adopt issues agreed upon by the parties for trial but it also has a duty to frame issues to ensure that all matters in controversy as between the parties are settled in finality under Order 15 r5 of the Civil Procedure Rules*.


I will therefore adopt all the issues disclosed by the parties for resolution. The issues are as hereunder.

- *1. Whetherthere is a just cause for the revocation or annulment of letters of Administration granted to the Defendant?* - *2. Whether the Defendant obtained and procured letters of Administration through misrepresentation and fraud?* - *3. Whether the Late Costa Nagawa was donated to 120 Acres of land from Buddu Block No. 20, Plot 2.* - *4. Whether the change of proprietorship by the Plaintiff and the Late Costa Nagawa of land comprised in private Mailo Buddu Block 45 Plot 13 land at Muchunchu was done fraudulently?* - *5. Whether the Defendant/Counterclaimant's registration on Buddu Block 20 Plot No.2 into his names was fraudulent or unlawful?* - *6. What are the remedies available to the parties?*

Both parties filed written submissions as follows:

### **Plaintiff's/Counter Defendant's Submissions:**

**1. Issue One: Whether there is a just cause for the revocation or annulment of letters of Administration granted to the Defendant?**

The Plaintiff submitted that by the time the Defendant was granted Letters of Administration, there was already a subsisting grant of Letters of Administration to the Administrator General vide High Court A. C No. 374 of 1988 which was exhibited as PExh3.

The Plaintiff also submitted that the Defendant concealed existence of other beneficiaries in the estate of the Late Ssajjabi Dominiko like the Late Costa Nagawa and her children while petitioning court for the grant.


The Plaintiff also submitted that the Defendant had omitted to file an inventory as required by law under Administration Cause No. 87 of 2008, ten years since the grant was issued to him. In conclusion, the Plaintiff prayed that this court resolves this ground in the affirmative that there is a just cause for the annulment and revocation of letters of administration granted to the Defendant.

# **2. Issue Two: Whether the Defendant obtained and procured letters of Administration through misrepresentation and fraud.**

The Plaintiff submitted that the Defendant informed court in his petition that he is a biological son of the Late Dominiko Ssajjabi whereas not. That he also concealed existence of other beneficiaries, in particular, the plaintiff and other beneficiaries in the estate of the Late Costa Nagawa. He prayed that the issue be decided in the affirmative.

## *3.* **Issue Three: Whether 120 Acres of land from Buddu Block No. 20, Plot 2. Was donated to the Late Costa Nagawa.**

The Plaintiff submitted that the Late Nagawa Costa was granted a donation of 120 acres of land comprised in Buddu Block No. 20 Plot 2 at Mujunwa. PExh.8 dated 12th November 1972 with its English translation was tendered in evidence.

The Plaintiff also submitted that the assistant Administrator General testified that he knows about the gift but that the Defendant has stubbornly refused to transfer the donation to the estate of the Late Costa Nagawa. He invited this court to resolve the issue in the affirmative.

# **4. Whether the change of proprietorship by the Plaintiff and the Late Costa Nagawa of land comprised in private Mailo Buddu Block 45 Plot 13 land at Muchunchu was done fraudulently?**

It is the Plaintiff's submission that the Administrator General informed court that it was the Administrator General himself who transferred the land comprised in Buddu Block 45 Plot 13 at Muchunchu into the names of costa Nagawa. Further that this issue was never pleaded and the Defendant just smuggled it in his defence as a counter claim.


The Plaintiff submitted that under S.5 of the Limitation Act Cap. 80, No action is permitted to be brought by any person for recovery of land after expiration of 12 years from the date on which the right of action accrued to that person. The Plaintiff submitted that between 1989 and 2021 when the Defendant instituted his counter claim, 32 years have passed and as such the action is statute barred.

## **5. Issue 5: Whether the Defendant/Counterclaimant's registration on Buddu Block 20 Plot No.2 into his names was fraudulent or unlawful?**

The Plaintiff submitted that the Defendant's registration on Buddu Block 20 Plot 2 situate at Mujunwa into his names as administrator and again into his personal names as personal property without the knowledge and consent of the plaintiff and other beneficiaries was unlawful.

### **Issue 6: Remedies**

The Plaintiff prayed for general damages at 20% per annum which he estimated at UGX. 50,000,000 for physical inconvenience, loss of use and mental stress, costs of the suit and the declarations below;

- a) That Costa Nagawa was a beneficiary in the estate of the Late Dominiko Ssajjabi. - b) That the Late Costs Nagawa is entitled to 120 acres of land in Buddu Block 20 Plot No.2. - c) An order for cancellation of the defendant's name from the certificate of title comprised in Buddu Block 20 Plot No. 2 and that the same be registered in Dominiko Sajjabi or the Administrator General.

#### **Defendant's/Counter Claimant's Submissions:**

#### Preliminary objections:

The Defendant submitted that a point of law can be raised at any stage of proceedings by any party if it were pleaded or arises by clear implication out of the pleadings and if it may dispose of the suit. He referred this court to the authority of *Mukisa Biscuits Manufacturing Co. Ltd vs. West End Distributors Ltd (1969) EA and Order 6 rules 28, 29 and 30 of the Civil Procedure Rules.*


The Defendant submitted that the Plaintiff's claim of 120 acres of land in a donation is barred by limitation because the alleged donation remained unforced for 41 years since 1979 and that the Plaintiff had not pleaded grounds for exemption. The Defendant supported his submission with the case of *Gawubira Mankupias Versus Katwiita Stephen High Court Civil Appeal No. 130 of 2008 in which Hon. Lady Justice Eva K. Luswata* faced with similar facts held that;

*"as I have stated above, a litigant puts himself or herself within the limitation period by showing the grounds upon which he or she could claim exemption, failure of which the suit is time-barred***"**

That **Order 7 r. 6 of the Civil Procedure Rules S. I 71-1 also** expressly provides that where an action is brought after the expiration of the period prescribed by the law of limitation, the plaint shall show the grounds upon which exemption from that law is claimed. This means that exemption or disability must be specifically pleaded and evidence attached on the pleadings and it should be stated when the disability seized. The Plaintiff did not however plead exemption from limitation.

The Defendant also submitted that **Section 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…"*

*That the Plaintiff's claim is frivolous, does not disclose a cause of action against the Defendant and the Plaint offends order 7 rs 1 (b) and 11 (d) of the Civil Procedure Rules S. I 71*

The Defendant/Counterclaimant contends among others that because court held that part of the estate property be registered in his names as Administrator, this was a Judgment in rem, enforceable against the entire world. That because of this and other reasons the suit does not disclose a cause of action.

The Defendant also submitted that Order 7 r1(b) of the CPR provides that the plaint shall contain the name, description and place of residence of the Plaintiff and an address of service. The Defendant prayed that the suit should be dismissed for failure to disclose the place of service.

## **Issue One: Whether there is a just cause for the revocation or annulment of letters of administration granted to the Defendant?**

In rebuttal, the Defendant/counter-claimant submitted that he was at all material times never aware that the administrator general had applied and been granted letters of administration to the estate of the late Dominiko Sajjabi until the Plaintiff amended his pleadings to introduce this fact.

The Defendant submitted that he was shocked to learn that the Administrator General obtained a grant of the said letters of administration to the estate because he doesn't know the beneficiaries, has never administered the estate nor filed an inventory among other concerns.

The Defendant submitted that equity demands that the grant made to the Administrator General be deemed to be revoked because he neglected his duties as an administrator.

The Defendant admitted to have omitted to file an inventory but submitted that unlike the Administrator General, the delay was not willful/deliberate but was rather brought about by the unfortunate challenges he faced in the administration for example the protracted civil suit No. 34 of 2011 in a bid to recover land comprised in Buddu Block 20 plot 2 land at Mijunwa, the hiding of the Duplicate certificate of title and fraudulent transfer of land comprised in Buddu Block 45 plot 13 land at Micunchu by the late Costa Nagawa and the Plaintiff.

That revocation of letters of administration for none filing of an account and inventory under section 234 (e) of the Succession Act cap 162 only applies as per the express wording of the section where the failure to exhibit an account and inventory was willful and without reasonable cause.

**Issue two: Whether the Defendant obtained and procured the letters of administration through misrepresentation and fraud?**


Counsel brought it to the Court's attention that the issue agreed at the scheduling was as set out above and not what was resolved by the Plaintiff as issue two.

The Defendant prayed to this court to answer the issue in the negative argued that the Plaintiff had not proven any fraud on the part of the Defendant/Counbter-claimant in the application for revocation of letters of administration.

He referred this court to the definition of fraud in the much celebrated case of FREDRICK. J. K ZABWE V ORIENT BANK & 5 ORS SCCA NO. 4 OF 2006 (at page 28 of the lead judgment) by Justice Katurebe JSC, relying on the Black's law dictionary, (6th Ed) page 660 to define fraud as

*"the intentional perversion of the truth for purposes of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. It comprises all acts, omissions and concealments involving a breach of a legal or equitable duty and resulting in damage to another.."*

The defendant asserted that he is a biological son to the late Dominiko Sajjabi who even lived harmoniously with his brothers and sisters who unfortunately demised and the Plaintiff now uses that as an opportunity to put up baseless allegations that the Defendant is not a biological son to the late Dominiko Sajjabi. The Defendant also submitted that the Plaintiff had not adduced any evidence to the contrary.

The Defendant also submitted that in the petition, his decision to only name himself and Leonard Mugerwa as the surviving children, was honest and not fraudulent as he meant the children of the late Dominiko Sajjabi who were alive in 2008 when he applied for the letters of administration and there was no any ill motive whatsoever.

**Issue 3**: **Whether the Estate of the late Costa Nagawa is entitled to 120 acres from Buddu Block No. 20 Plot 2?**


.

The Defendant submitted that the estate is not at all entitled to 120 acres of land from Buddu Block No. 20 Plot 2 as alleged and the said claim is inspired by the plaintiff's sheer greed. The Defendant also submitted that the land at Mucuncu only measures about 33 acres and that the Administrator General was just fed with information about the said donation. In conclusion, he prayed that the issue be answered in the negative.

**Issue 4: Whether the change of proprietorship by the plaintiff and the late Costa Nagawa of land comprised in private Mailo Buddu Block 45, Plot 13 land at Muchunchu was done fraudulently?**

The Defendant submitted that at the time of his demise on 1st day of January 1980 Ssajjabi Dominiko (deceased) was the registered proprietor of land comprised Buddu Block 45 Plot 13 land at Mucunchu.

That Nagawa Costa never obtained letters of administration but only got registered as the proprietor of the said land in 1989 (9) years after the demise of the late Dominiko Sajjabi.

The Defendant submitted further that the said transfer was without the knowledge or consent of the beneficiaries of the estate of the late Dominiko Sajjabi. No transfer forms were tendered on court record, the Administrator General has never been registered on the land as to be able to execute a transfer for Nagawa Costa.

As regards to the Plaintiff's claim that the counterclaim is barred by limitation, the Defendant submitted that he was only shocked to learn of the impugned transfers when the Plaintiff opened up a case of criminal trespass against him vide criminal case No. 29 of 2020.

The Defendant cited the case of *PATRICK Lyamulemye V STEPHEN Kwiringi & 3 ORS HCS NO.0118 OF 2019 in which Hon Justice Henry Kawesa faced with similar facts held that;*

 *"the period of limitation is hinged on the time when the Plaintiff discovers the fraud or mistake. I did not find any avenue to showing that the Plaintiff went to sleep before 2015, yet aware of the Defendants interests. In the result I terminate this issue negatively".*

**Issue 5:** *Whether the Defendant/Counterclaimant's registration on Buddu Block 20 Plot No.2 into his names was fraudulent or unlawful?*

The Defendant submitted that the land was vested in him by a court order and as such it was rightly registered in his personal names. That there is nothing unlawful with an Administrator transferring land in his names.

### **Issue 6: What remedies are available to the Parties?**

The Defendant prayed that this court be pleased to allow the preliminary points of law raised and dismiss the suit with costs to the Defendant/Counter-claimant and the counter-claim be allowed.

#### **Determination of the suit:**

As stated before, the parties in this suit filed written submissions the same have been carefully considered as well as the evidence on the record and the pleadings.

Preliminary objections:

On the cause of action; a cause of action was defined in *Auto Garage vs Motokov (No.3) (1971) EA at 519 to mean;*

- *a) That the plaintiff enjoyed a right* - *b) That the right has been infringed* - c) *That the defendat is liable*.

I find that apart from a few limbs complained against by the Defendant as will be resolved in the issues, the Plaint on the whole discloses a cause of action because the Plaintiff is claiming as a beneficiary who has not received a beneficial share in the estate of the Late Ssajjabi Dominiko. He claims that the Defendant petitioned court to administer the estate and omitted to disclose his mother as a beneficiary of the estate and proceeded to register estate properties in his names


without distributing among other beneficiaries by omitting to file an inventory. It is not disputed that the Plaintiff is a beneficiary of Sajjabi's estate.

I do not find merit in the claim that the suit should be dismissed merely because the Plaintiff's address was not disclosed. He is clearly using the address of his Advocates for purposes of service of court process. The Defendant cannot claim to be prejudiced in anyway by the said conduct or omission as alleged.

I will deliberate on whether the Plaintiff's claim of 120 acres is time barred later as I resolve the issue on the claim.

I will determine issues 1 and 2 jointly.

**Issue 1:** *Whether there is a just cause for the revocation or annulment of letters of Administration granted to the Defendant?*

**ISSUE 2**: *Whether the Defendant obtained and procured letters of Administration through misrepresentation and fraud?*

The Plaintiff has vehemently submitted that the grant of Letters of Administration to the Defendant was obtained through fraud and misrepresentation for the omission to disclose that the Late Nagawa Costa is a beneficiary in the estate of the Late Sajjabi Dominiko in the petition. The Plaintiff has also submitted that the grant was issued in the subsistence of an earlier grant made to the Administrator General in 1978 and that moreover the Defendant omitted to file an inventory.

The Defendant submitted in reply that the omission to disclose that the Late Nagawa Costa is a beneficiary in the estate of the Late Sajjabi Dominiko was an honest mistake because he simply reported on the surviving issues of the deceased. That he honestly omitted to disclose her as a beneficiary because she was deceased at the time of the grant.

As regards obtaining a grant before revocation of the earlier grant to the Administrator General, the Defendant submitted that he was not aware that the Administrator General was Administrator of the estate of the Late Sajjabi Dominiko.

On the omission to file an inventory, he submitted that he was caught up in a suit trying to recover estate property that had been fraudulently transferred into the names of strangers.


According to PEX4, which is the petition for Letters of Administration, the petitioner/Defendant in his wisdom and not being a stated expert in law and English, he simply stated under paragraph 2, that the late Dominic Ssajjabi is survived by:

- 1. Mande Ssekiziyuvu son - 2. Mugera Leonald son

The undisputed evidence adduced on the record of this court shows that the Late Sajjabi Dominic is survived by more individuals than the above two individuals. It shows that he had a daughter, Costa Nagawa, whose adult son is now the Administrator of her estate.

I am inclined to agree with the Plaintiff that all beneficiaries ought to have been disclosed in the petition. The Defendant's his omission to disclose other beneficiaries amounts to acting in bad faith. This omission also implies that contrary to the practice of this court, the consent of other adult members of the family of the Late Sajjabi Dominiko, on the Plaintiff's appointment as Administrator to the estate was not obtained.

It is not surprising, therefore, that the Defendant plainly admitted that he did not know that the estate of the late Dominiko Sajjabi was already under the administration of the learned Administrator General of Uganda.

Regarding the Defendant's conduct of obtaining a grant of Letters of Administration, yet there was an earlier grant made in favor of the Administrator General, the Defendant claimed that he was issued with a Certificate of No objection to petition court from the Administrator General's office. He also indicated that he had attached it to his witness statement filed on the record of this court on 19th September 2022 as annexure "E." Whereas this witness statement was admitted as the Defendant's evidence in chief, it does not bear a copy of the said Certificate of No Objection. I have perused the entire record and there is no Certificate of No Ojection made to the Defendant/Counter Claimant by the Administrator General.

Had the Defendant adduced the said Certificate of No objection, this court would have had opportunity to satisfy itself as to its genuineness and proof of its existence would have confirmed to this court that the Administrator General indeed surrendered his grant in favor of the Defendant obtaining Letters of Administration to the said estate.


In the absence of the said Certificate of No Objection, this court finds that the Administrator General has never surrendered his administration authority over the estate of the Late Sajjabi Dominiko.

I agree with the Plaintiff that it is undesirable that an estate should be administered under two different grants. One grant has to first be revoked or surrendered before another individual can petition court for another grant of Letters of Administration or probate unless of course other satisfactory circumstances which are not present in this case are established.

*S.234(1) of the Succession Act Cap. 162 provides that the grant of probate or letters of administration may be revoked or annulled for just cause.*

*Subsection two of this provision sets out the particulars of just cause and for this case, the ones of interest are (2)b and c*

*S.234(2) b Just cause means that the grant was obtained fraudulently by making a false suggestion, or by concealing from the court something material to the case.*

*S.234(2)c, Just cause also means that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though the allegation was made in ignorance or inadvertently.*

In the instant case, the fact that the Late Sajjabi Dominik was survived by his grandchildren, the descendants of his daughter, Costa Nagawa was concealed from court. This fact is exacerbated by the Defendant's omission to distribute the estate and file an inventory within the time permitted at law. It is the actual distribution to Nagawa Costa's estate and eventual filing of an inventory that could have demonstrated good will and lack of bad intention to deprive the said beneficiaries of their shares in the estate. This has never been done, and it is therefore construed against the Defendant.

The grant was also obtained by means of an untrue allegation essential in point of law that the estate was not under administration. It has emerged that the estate is actually under administration by the Administrator General vide High Court Administration Cause No. 374 of 1988. Letters of Administration to the estate that were issued to the Administrator general on 22nd June 1989 were


tendered in evidence as PEX3. The Defendant's ignorance of this fact is immaterial under **S.234(2) c of the Succession Act Cap. 162.**

In conclusion this court hereby resolves issues 1and 2 in the affirmative.

### **Issue 3:** *Whether the Late Costa Nagawa was donated to 120 Acres of land from Buddu Block No. 20, Plot 2.*

The Plaintiff claims that the estate of the Late Costa Nagawa is entitled to 120 acres which he claims the Late Sajjabi Dominik donated to his mother in his lifetime in 1979. To support his claim, the Plaintiff tendered in evidence PEX8 which is a donation agreement whose English translation bears the date of execution as 13th November 1972.

The Defendant raised a preliminary objection against this claim that it is barred by the Limitation Act. The Defendant argues that this claim which is 41 years old is not maintainable at law.

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.

This court has noted that the Plaintiff adduced evidence through the Administrator General who testified that he is aware that the Late Dominiko Sajjabi donated 120 acres of land from Buddu Block No. 20 Plot 2 at Mujunwa to his biological daughter Costa Nagawa. This court has also noted that the Late Costa Nagawa transferred Buddu Block 45 plot 13 into her names allegedly under the superintendence of the Administrator General.

The above facts demonstrate that Nagawa Costa's right to claim for her alleged donation of 120 acres of land arose as early as 1989 when the Administrator General obtained a grant to administer the Late Dominiko Ssajjabi's estate but she sat on her rights during her lifetime. The claim has only been brought after 32 years without pleading any grounds of exemption.

It is clear that the Late Nagawa Costa was aware of her alleged donation as far back as 1972 and yet she still did not assert her claim 17 years later when the Administrator General was granted Letters of Administration over the estate in 1989.


In light of the fact that part of this land is now under the occupation of the Defendant who is on record as a biological son of the Late Dominico Ssajjabi, this claim of a donation of 120 acres to the estate of the Late Costa Nagawa is barred in law and cannot be enforced against the estate. It is immaterial that the Assistant Administrator General, Mr. Robert Ali Bogere, testified that he knows about the gift. The Administrator General's failure to act in time by way of executing a transfer in favor of Nagawa Costa's estate over the years negates this alleged knowledge of the gift and confirms the claimant's indolence.

# **Issue no. 4***: Whether the change of proprietorship by the Plaintiff and the Late Costa Nagawa of land comprised in private Mailo Buddu Block 45 Plot 13 land at Muchunchu was done fraudulently?*

The Plaintiff argued that the Defendant's counterclaim over this land is barred by Limitation. The Plaintiff also relied on S. 20 of the |Limitation Act cited earlier in resolution of issue No. 3.

The Defendant, however, submitted that as per his testimony on record, he only got to know of the Plaintiff's and the Late Costa Nagawa's fraudulent transfers in 2020 when the Plaintiff opened up a case of criminal trespass against him vide criminal case No. 29 of 2020.

This court agrees with the Defendant that the period of limitation is hinged on the time when the Plaintiff/in this case counter claimant, discovered the fraud or mistake. *See the Hon. Lady Justice Percy Night Tuhaise in RoseMary Kabataizibwa Lwemamu vs. Francis Sembuya & 2 Ors HCCS No. 226 of 2005, Land Division.*

*S. 92(1) of the Registration of Titles Act Cap. 230 empowers the proprietor of land or of a lease or mortgage or of any estate, right or interest to transfer the same under one of the forms in the Seventh's schedule to the Act.*

The meaning of the Act is that before a person transferring a given piece of land, s/he must have a transferrable interest. The registered transferrable interests disclosed in S. 92 (1) of the RTA are the proprietor of land or of a lease or of mortgage or of an estate, the other interests should be disclosed.

*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*.

In this case, the Late Costa Nagawa was neither the registered proprietor nor the Administrator of Buddu Block 45 Plot 13. The only way she could get herself registered is by having a transfer from one of the specifically named categories of registrable entities.

In a nutshell, I agree with the Defendant that the Administrator General had to first get registered on the estate land before he could be competent to execute a transfer in favor of the Late Costa Nagawa. In the absence of proof of the aforesaid, this court is disinclined to believe that a transfer was ever executed in favor of the Late Nagawa Costa.

I therefore find the Late Nagawa Costa and the Plaintiff/Counter Defendant were illegally and fraudulently registered on Buddu Block 45 Plot 13.

This issue is answered in the affirmative.

## **Issue 5**: *Whether the Defendant/Counterclaimant's registration on Buddu Block 20 Plot No.2 into his names was fraudulent or unlawful?*

Whereas the Defendant was legally registered on Buddu Block 20 Plot No. 2 in his capacity as Administrator of the Late Sajjabi Dominiko pursuant to the Decree of this court, I agree with the Plaintiff that the Defendant's later registration in his names was fraudulent.

The Defendant could not transfer the land into his names before distributing the estate property amongst all the beneficiaries and filing an inventory. He had to first distribute to all beneficiaries, including himself. It is then that he could transfer what he would have distributed to himself into his names.

In conclusion, I agree with the Plaintiff that the Defendant's registration on Buddu Block 20 Plot No. 2 was unlawful because it preceded distribution and filing of an inventory. The issue is answered in the affirmative.

### **Issue 6:** *What remedies are available to the parties?*

Section 177 of the Registration of Titles Act Cap. 230 empowers this court to cancel titles whose registration was procured through fraud. Having found that both the Plaintiff and Defendant procured their registrations on lands forming part of the estate of the Late Ssajjabi Dominiko before distribution amongst all beneficiaries and filing of inventories, I hereby cancel such registrations.

Both the main suit and counterclaim partly succeed with the orders below and because of this, I make no order as to general damages. Each party will also bear its own costs of the suit for the same reason, above.

Orders:

- *1. Both suit and counterclaim partly succeed.* - *2. The grant of Letters of Administration to Mande Ssekiziyivu dated 28th August 2008 is hereby revoked.* - *3. The Defendant/Counterclaimant's registration on Buddu Block 20 Plot No.2 into his names is hereby cancelled with the effect that it reverts into the names of Ssajjabi Dominiko.* - *4. The Plaintiff and the Late Costa Nagawa's registration on private Mailo Buddu Block 45 Plot 13 land at Muchunchu is also cancelled.* - *5. The Administrator General is still the Administrator of the estate of the Late Dominiko Sajjabi.* - *6. None of the properties forming part of the estate of the Late Sajjabi Dominiko have passed/been transferred to any of the beneficiaries.* - *7. The Administrator General, by himself, or through his Assistant not being Mr. Robert Ali Bogere, who testified for the Plaintiff, shall within two months from the date of delivery of this Judgment, organize a family meeting of all the beneficiaries of the estate of the Late Dominiko Sajjabi and fully distribute the estate properties amongst the beneficiaries and file an inventory in this court.* - *8. Each party shall bear its costs of the suit.*

### *I so order.*

Dated and delivered at Masaka this 6 th day of September, 2023.


*\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_*

*Victoria Nakintu Nkwanga Katamba, Judge.*