Mulira v Nababi & 2 Others (Miscellaneous Cause 17 of 2022) [2024] UGHC 297 (25 April 2024)

Full Case Text

# THE REPUBLIC OF UGANDA. IN THE HIGH COURT OF UGANDA AT MASAKA. **MISCELLANEOUS CAUSE NO. 17 OF 2022.**

**MARY ZAWEDDE MULIRA....................................** (Administrator of the Estate of the late Mulira Stephen Lwabulanga suing through her lawful Attorney Mulira Stephen).

#### **VERSUS**

- 1. NABABI ANNET - 2. NABUNJO SARAH - 3. COMMISSIONER LAND REGISTRATION

#### **Before: HON JUSTICE LAWRENCE TWEYANZE**

#### **RULING**

#### Introduction.

- 1. The Plot brought this Application under, Sections 140, 142, 145 and 188 of the Registration of Titles Act, Section 98 of the Civil Procedure Act, Section 33 of the Judicature Act and Order 52 rules 1&3 Civil Procedure Rules seeking for orders that; The caveat lodged on land comprised in Buddu Block 405 Plot 103 land situate at Fuwe Masaka District be removed, The Respondents pay compensation/damages to the Plot for lodging the caveat without reasonable cause, a consequential order issue directing the Registrar of titles to remove the caveat and effect changes in the Register Book and costs of the Application. - 2. The grounds of this Application are contained in both the Notice of Motion and the supporting affidavit of Mulira Stephen Lwabulanga but briefly are; That Plot is the widow and Administrator of the Estate of the late Mulira Stephen Lwabulanga.; That the said Mulira Stephen Lwabulanga was the registered proprietor of land comprised in Buddu Block 405 Plot 103 land situate at Fuwe, Masaka City on the 8th day of December 1956; That the Plot is registered on the said land as the Administrator on 2nd day of March 2020; The Plots have never entered into any contract or had any relationship with the Respondents in respect of the said land save for knowing that they have their residence on some land adjacent to the suit land lying on Buddu Block 405 but Plot 102; The Respondents without any colour of right lodged a caveat which has greatly affected the administration of the estate of the late Mulira Stephen Lwabulanga; That unless the said caveat is removed, the same shall continue to encumber the land and the Plot will be frustrated in having the land effectively administered; That the Plot has been inconvenienced and prejudiced by the caveat

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....... RESPONDENTS

lodged on the said land; That it is in the interest of justice that the Application is allowed and the orders sought are granted.

## **The Affidavits in Reply.**

- 3. The $1^{st}$ and $2^{nd}$ Respondent through an affidavit in reply deponed by Nababi Annet, the $1^{st}$ Respondent who also deponed on behalf of the $2^{nd}$ Respondent opposed the Application that she is a caveator on the suit land. That herself and the $2nd$ Respondent are daughters of the late Benard Male Mupakasi, a former Kibanja holder on the land of late Mpagi and the land of late Muliira Stephen Lwabulanga comprised in Buddu Block 405 Plot 103, the part on that Plot measuring about 3-4 acres. That the Kibanja of their late father is partly on the land of late Muliira Stephen Lwabulanga where their family house, burial grounds and banana plantation are. - 4. That Nababi Annet together with Nabunjo Sarah and Luganda Kenneth Male are holders of Letters of Administration of the Estate of their father of which the Kibanja forms part and as such they are legally bound to protect it. That the Plot at one time brought gunmen who attempted to throw them off the Kibanja by force of arms but they were only thwarted by Police intervention. That if the caveat is removed the Plot will take advantage of the vacuum to deprive the Estate and their inheritance. That in spite of their interest in the land which entitles them to have first option to buy the land comprised in the Kibanja the Plot has not given them that priority. - 5. That the Plot is subdividing their Kibanja and has attempted on numerous occasions to fence off their Kibanja, and they reported to Police complaining against his trespass and malicious damage reference Kirimya Police Post SD. Ref $04/17/04/021$ . That if the Plot wants to sell the land including their Kibanja, Court appoints a Government Valuer to value the Kibanja so that they buy it as titled land. - 6. In further reply, Nababi Annet filed a supplementary affidavit for herself and also on behalf of the $2^{nd}$ Respondent, that a Surveyor's report dated the $2^{8^{th}}/01/2023$ shows that the Kibanja sits on 3.13 Acres of the Plot's land on Buddu Block 405, Plot 103, and they attached a surveyor's report marked as annexure "E". That the reason for the caveat lodged on the Plot's land was that the Plot was selling the whole land including the Kibanja without giving her and the entire family an option to buy the reversionary interest. That the Plot has on several occasions tried to plant poles and barbed wires on the Kibanja with intentions of selling it without their consent. That they raise a preliminary objection against the Plot's authority, in this Application.

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### The 3rd Respondent's affidavit in reply.

7. Nabuuma Janat from the Department of Land Registration, Ministry of Lands Housing and Urban Development, Masaka, deponed that the Respondents put a caveat as an encumbrance on the Certificate of Title belonging to the Plot on the 30th day of April 2021 as beneficiaries of the Estate of the late Mupakasi claiming to have a Kibanja interest on the Plot's land. That without prejudice to the rights and interest of the Respondents if any and determined by Court, the Plot being a land owner with a Certificate of Title on the land unchallenged, has rights to enjoy his/her interest in land without interference from Respondents or any third party. That it's the duty of the Respondents to prove that they do have a caveatable interest in the land and failure of which the office of the Commissioner Land Registration Masaka shall support that caveat be vacated.

#### The Affidavit in rejoinder.

- 8. That in rejoinder to paragraph 4 and 5 of the Respondent's affidavit, the late Mupakasi Bernard's Kibanja is strictly located on land of the late Mpagi comprised in Block 405 Plot 102 just neighboring their land in Block 405 Plot 103 and does not in any way cross to their land as the respondent claims. That the Respondent's family house, burial grounds, (old banana plantations are not situate on the Plot's land as claimed by the Respondent in paragraph 5 but all situate on late Mpagi's land comprised in Block 405 Plot 102. That the Plots land (suit land), is not developed with any permanent structures as the Respondent claims apart from the seasonal crops and new banana plantation which have just been planted by the Respondents. - 9. That the Plot has never used any form of intimidation and unlawful methods to redeem his land from the Respondents apart from the legal way which was to institute this Application. That the removal of the caveat will not deprive the Respondents of their inheritance since their Kibanja does not form part on any land of the Estate of the late Mulira Stephen Lwabulanga. - 10. That the late Mupakasi Bernard, never paid any Busulu to the Plot, the Landlords as a sign of their occupancy. - 11. That the Respondents or the person they are claiming through, have never and not presented any proof of ownership of the Kibanja on the Plot's land by way of Sales

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Agreement, including in their affidavit in reply which they are replying to. That neither the late Stephen Mulira nor his Estate gave the Respondents any authority to use or occupy or cultivate any part of the Plot's land. That the suit land is whole and not subdivided as falsely claimed by the Respondents and that the Plot only fenced off his land to protect his interest and because she is in possession of the same.

12. That the Respondents do not own any Kibanja interest in the suit land, therefore "not entitled to any notice of 1st option to buy" as they claim and that the Plot is not interested in selling his land and more over to the Respondents if so. That it is in the interest of justice that this Application and orders sought therein is granted and the caveat is vacated by the order of this Court.

## Representation.

13. The Plot was represented by Ardent Advocates & Solicitors while the 1st and 2nd Respondents were represented by $M/s$ Xander Advocates.

### **Submissions**

14. The parties were directed to file written submissions. Counsel for the Plots filed their submissions and as well as Counsel for the Respondents. I have read and appreciated the contents of the affidavit in support of the Application, the Respondents' affidavits in reply, and the submissions of the parties. I will refer to the submissions as and when I find it necessary since they majorly repeat the contents of the affidavits save for the cited authorities.

# **Preliminary Matters/Objections**

15. The Respondents raised two preliminary objections thus; that the Plot is an Administratrix of the Estate of the late Mulira Stephen Lwabulanga and cannot delegate her powers to Mulira Stephen. Secondly, that the Deponent's affidavit in support, rejoinder and the Powers of Attorney have differing signatures.

# That the Plot is an Administratrix of the Estate of the late Mulira Stephen Lwabulanga and cannot delegate her powers to Mulira Stephen.

16. In regard to the first preliminary objection, Counsel for the $1s$ and $2nd$ Respondents submitted that the Plot as an Administratrix of the Estate of the late Mulira Stephen Lwabulanga cannot delegate her powers/mandate to Mulira Stephen through the said Powers of Attorney. That the said Powers of Attorney are considered null and void. Counsel cited the case of Nakabuye Agnes Versus Martin Strokes & Another

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**Miscellaneous Cause No. 38 of 2021**, in that case, the 1st Respondent deponed an affidavit as the Attorney of the Administrators of the Estate of the late Charles Kasaja Strokes because he was holding Powers of Attorney donated to him by the Administrators of the said Estate. That Justice Henry Kawesa while faced with a similar situation cited the case of **Re Estate of Krishan Murti Maini (Deceased )2011 EKLR**, cited with approval by Justice Nkonge Lugadya in the case of **Kampala Financial Services Vs Commissioner for Land Registration Misc. Cause No. 149 of 2020,** that; "*an Administrator has no power to delegate his or her mandate.*" "I find no reason from departing from this position. The implication is that the Power of Attorney allegedly given to the $1st$ Respondent by the Administrators of the Estate of the late Charles Kasaja *Strokes is null and void."*

- 17. That the $1^{st}$ Respondent states under paragraph 9 of her supplementary affidavit that the Plot's authority in regards to the Administration of the Estate cannot be delegated. That the said Powers of Attorney donated to Mulira Stephen should be considered null and void. - 18. In reply, Counsel for the Plot submitted that the case of Nakabuye Agnes Vs Martin Strokes & Anor Misc Cause No.38 of 2021 solely upon which the Respondents premised this preliminary point of law is cited out of context. That in the said case the Court was considering whether a caveator was possessed with sufficient interest to lodge a caveat by virtue of a Power of Attorney to which it answered in the negative. Further, that His Lordship stated at page 8 paragraph three that: - "Further, in his affidavit attached to the caveat, the 1st Respondent averred that he is a beneficiary of the Estate of the late Charles Kasaja Strokes. It suffices to note that his evidence demonstrates no nexus between the suit land and the said Estate, to support his would-be beneficial interest in the suit land...." - 19. That the above decision was inspired by the failure to illustrate a nexus between the donee of Power of Attorney and the suit land. That contrary to the above, in the facts before this Honourable Court, the Plot clearly states that under paragraph 1 of the affidavit in rejoinder that he is a son to the donee. The Plot further states under paragraph 5 of the affidavit in support of the Application that the Respondents have their developments on a different land but unfortunately lodged a caveat on their land which is comprised in Block 405 Plot 103 in 2021 which has frustrated the administration and benefit of the Estate of the late Mulira Stephen Lwabulanga.

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- 20. Counsel for the Plot cited the case of Bazima & 2 Ors Vs Kamari (Civil Appeal No. 52 of 2008), that Justice J. W. Kwesiga faced with the similar facts concurred with the ruling of the trial Magistrate that; - "Both the Claimant and his Mother were both beneficiaries of the Estate of the late Gakwafu. Whether one of them had Letters of Administration or Powers of Attorney from one to the other they had interest in the Estate of the said Gakwafu and could sue in their individual capacity. - 21. Counsel invited Court to find that the preliminary point of law raised by the Respondents is devoid of any merit.

### **Decision on the first preliminary point.**

- 22. A Power of Attorney according to Osborn's Concise Law Dictionary 11th Edition, page 315, is a deed by which one person empowers another to represent or act in his stead either generally or for specified purposes. It is the position that a General Power of Attorney holder can appear, plead and act on behalf of a party he represents. In the Indian Supreme Court case of *Janki Vashdeo Bhojwani vs. IndusInd Bank Ltd* (2005) 2 SCC 217, Court held that the Power of Attorney holder can maintain a Plaint on behalf of the person he represents provided he has personal knowledge of the transaction in question. It was opined that the Power of Attorney holder or the legal representative should have knowledge about the transaction in question so as to bring on record the truth in relation to the grievance. - 23. However, as to whether a person holding Letters of Administration can delegate his or her powers by a Power of Attorney, in the Ugandan jurisprudence, it appears to me that the functions of a person holding Letters of Administration cannot be delegated to any other person without there being a specific clause permitting such delegation in the Letters of Administration/grant; meaning thereby ordinarily there cannot be any sub-delegation since an Administrator is a delegate of the Court and the Administrator General. - 24. The law does not allow any other person to usurp powers of an Administrator under the guise of Powers of Attorney as it appears to be the case in the instant case. Under **Sections.191 and 192 of the Succession Act, it is the Administrator who has a right to** initiate proceedings concerning Estates of deceased persons in courts of law. In the instant case, the Application was instituted as follows, "MARY ZAWEDDE MULIRA" (Administrator of the Estate of the late Mulira Stephen Lwabulanga, suing through *her lawful Attorney Mulira Stephen), as Plot (Emphasis added).*

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- 25. The affidavit in support of the Application is deponed by Mulira Stephen, who holds the said Power of Attorney, and the affidavit in rejoinder, and there is no any affidavit by the Administratrix to support the Application. She ought to have sworn a supporting affidavit as well. She had no power to delegate this responsibility. This position is at all fours with the case of *Namitala as Administrator of Estate of* Nantongo) vs Bakyengo and 3 Others (Miscellaneous Application No. 1535 of 2021) [2022] UGHCLD 191 (22 September 2022), in which Justice Nassuna Matovu cited the case of Nakabuye Agnes vs. Martin Strokes & Edward Kato Strokes Misc. Application No. 38 of 2021 Justice Henry Kaweesa while dismissing a claim brought by a beneficiary who had been given Powers of Attorney by an Administrator cited with approval the case of Re: Estate of Krishan Murti Maini (Deceased) 2011EALR wherein it was held that "An Administrator has no power to delegate his or her mandate." (emphasis mine). - 26. It is, therefore, settled in law that an Administrator to the Estate of a deceased person is therefore expected to perform his or her functions fully. He or she should not delegate this role to another person. I therefore find that Mulira Stephen who swore the affidavit in support of this Application in his capacity as a person holding Powers Attorney had no locus to do so. I am therefore in agreement with Counsel for the 1st and 2nd Respondents that the said Powers of Attorney donated to Mulira Stephen is null and void. The said affidavit is accordingly hereby struck off the record - 27. Having struck off the said affidavit in support of the Application as above, the Application remains with no supporting evidence and thus it is accordingly declared incompetent and accordingly it fails at this stage. - 28. That being the case, determining the other issues and merits becomes inconsequential. In the premises, I hereby dismiss this Application with costs to the $1st$ and $2nd$ Respondents. I so order.

Ruling signed and delivered by email this 25th day of April, 2024

LAWRENCE TWEYANZE

JUDGE. 25th April, 2024.

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