Mutale v Kyewalabye (Civil Suit No. 430 of 2014) [2017] UGHC 10 (29 May 2017)

#### **THE REPUBLIC OF UGANDA I IN THE HIGH COURT OF UGANDA AT KAMPALA**

## **CIVIL SUIT NO. 430 OF 2014**

**AGNES MUTALE================"==================PLAINTIFF**

## **VERSUS**

**GEORGE WILLIAM KYEWALABYE===-~--================DEFENDANT**

### **BEFORE: HON. MR. JUSTICE GODFREY NAMUNDI**

# **JUDGMENT**

The Plaintiff filed this suit against the Defendant seeking from court;

- 1. A declaration that the Defendant sold 0.50 acres of land to the Plaintiff. <•. - 2. An order directing the Defendant to give a Certificate of Title for 0.25 acres of land on Kyadondo Block 218 Plot 585 to the Plaintiff. - 3. An order directing the Defendant to give to the Plaintiff the remaining 0.25 acres of land in the same place or pay her its current market value of Shs. 150 000,000/= .

**me. H COURT OF**

<sup>1</sup> ) <sup>1</sup>


#### 1- Costs of the suit.

The background of the matter was that the Plaintiff bought from the Defendant 0.50 acres of land. It is part of land comprised in Kyadondo Block 218 Plot 558 land at Najera. The Plaintiff took possession of 0.25 acres of the land and seeks to recover the remaining 0.25 acres. This land is part of the land comprised in the estate of the late Charles Kawuma. At the time the Plaintiff bought, the land was registered in the names of the administrators of the estate of said Charles Kawuma.

The Defendant was not one of the administrators of the estate at that <sup>1</sup> time but <sup>a</sup> beneficiary. At a later stage however, he was appointed an ' administrator penditlite by court when the then holders of the letters of administration were challenged, <sup>i</sup>

XjThe total purchase price was 22 million Uganda shillings. The Plaintiff •! paid 16 million and the balance of 6 million was to be paid upon receipt of her title to the land. The Defendant failed to provide the 0.50 acres of land he sold to the Plaintiff or even Certificate of Title. He claimed to I \* have sold his beneficial interest in the land but he was always frustrated by the sole surviving administrator of the estate, Samwiri Kyewalabye.

> . CcRTlFiH) T&'•'>: copy Of- Ttit Oftsu'NAC

The Plaintiff claims that the defendant sometime in September 2014 showed her only 0.25 acres and she took possession thereof but has never received the Certificate of Title to it. This fact is vehemently denied by the Defendant who claims that the Plaintiff came with security forces and forcefully fenced off 25 decimals.

The Defendant claimed to have no land that he could give the Plaintiff and sought to refund the Plaintiff's purchase price of 16 million with bank interest.

The agreed issues for court's determination were;

1. Whether the contract for sale of land entered on the $15<sup>th</sup>$ day of October 2003 between George William Kiwalabye and Agnes Mutale is lawful and enforceable in law?

2. What remedies are available to the parties?

At the hearing of the case, the Plaintiff together with two witnesses filed witness statements on which they were cross examined by counsel for the Defendant. The Defendant on the other hand also filed his witness statement on which he was cross examined by counsel for the Plaintiff.

**AND DIVISION**

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The Plaintiff, Agnes Mutale, (PW1) led evidence that in 2003 while in the USA she contacted her nephew George Luganda to buy her land. He \* contacted land brokers who identified for him land in Najera belonging to the Defendant measuring 0.50 acres which he was selling at 22 million. She instructed him to inspect the land and make a search in the land Registry. The Defendant informed her by telephone that the \* t Certificate of Title was still being processed in the land office. She paid I part of the purchase price and an agreement was signed. When she did not receive the land, she contacted the Defendant; who informed her that he was having problems with the administrator of the estate of their father who refused to give them their shares in their father's estate. *f.*I

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From the Plaintiff's evidence, she got to know of the disputes in the estate of the late Charles Kawuma and was even called to attend one of the family meetings. In September 2014, the Defendant handed over to her 0.25 acres of land and she took possession of the same. She asked **L** him to pay her 50 million Uganda shillings for the remaining 0.25 acres which he said he would consider but to date he had not given her an answer.

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On cross examination, the Plaintiff testified that she bought the Defendant <sup>s</sup> share in his father's estate and that she no longer wanted <sup>a</sup> refund of the initial deposit of 16 million.

PW2; Luganda George William in his evidence confirmed that he acted on the plaintiff's behalf at the time of purchase. He testified to facts similar to those of the pwl.

On cross examination, he testified that he never saw the Certificate of title but he confirmed that the land belonged to the Defendant. He went with the Defendant to the Registrar of lands, Mr. Nyombi, who J confirmed that he was processing the Defendant's title and the Defendant also showed him <sup>a</sup> photo when he was handed over the estate. He also took him to one of his brothers and introduced him as one who had interest in buying the land. He engaged lawyers, Ms. **I** Kiyemba Mutale and Mr. Matovu. Mr. Matovu told him he knew the family and he advised him to pay in installments so that the payments move hand in hand with the process of transfer. It was his evidence that he got confidence to buy the land in the steps he took to cross check ownership.

PW3; Hood Lutale led evidence that he came to deal with the Plaintiff when he was pursuing the issue of the land that he bought from the

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Defendant. He bought 0.25 acres of land while he was in the UK through his sister. It was his evidence that the Defendant told him and , the Plaintiff that his uncle Samwiri Kyewalabye who was the sole administrator of the estate of Charles Kawuma had refused to surrender the beneficial shares of the children of Charles Kawuma. And so he promised to them alternative pieces of land.

He testified to facts similar to thosb of PW1 and that the Defendant duly gave him his plot measuring 0.24 acres which he took possession of. The Defendant had however not given him <sup>a</sup> Certificate of Title. The Plaintiff was also given 0.25 acres out. of the 0.50 acres of land that she had paid for.

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The Defendant was the only witness in his case. In his evidence he **P|** stated that PW2 found him at Najera and asked him if he had land to ,\_./\sell to him. He informed him that it was still in the hands of the administrators of his late father and he asked him to help him with money so as to process the title. It was agreed that PW2 advances him 22 million for the process. He took him to the chambers of his lawyer and an agreement was drafted. He later came to know that it was <sup>a</sup> sales agreement. He went on that it was never his intention to sell to the Plaintiff but to seek funds in from the administrators. order to process his beneficial share

Further that the land was administered by Samwiri Kyewalabye, the sole surviving administrator of the estate. And when he tried to get his share from him, he always frustrated him and as <sup>a</sup> result he sued him in the family court so that he could get his share.

He had no land to give to the Plaintiff and he was willing to abide by the agreement and refund the Plaintiff's money according to the purchase agreement. He had never showed the Plaintiff any land in Najera. She forcefully in the company of soldiers fenced off 25 decimals.

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t On cross examination he testified that when he signed the agreement he knew he was selling land to get money to process titles to their father's estate. Further that they sold the land to get money to process titles for the land. They had not yet processed the titles but they had preached some understanding with .their uncle, Samuel Kyewabalye I together with the rest of the family on how to share the land. It was also his evidence that the Plaintiff sued him because she did not trust him.

Both counsel filed written submissions.

**Resolution of issues**

**Issue 1 {**

**1. Whether the contract for sale of land entered on the 15th day of October 2003 between George William Kiwalabye and Agnes Mutale is lawful and enforceable in law?**

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It was rightly submitted for thd? Defendant that it is only an administrator of an estate with authority and capacity to deal with estate property of a deceased person. A beneficiary though <sup>a</sup> customary heir cannot lawfully deal in the deceased estate without i letters of administration. <sup>j</sup> I

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However each case must be decided on its own peculiar facts. In the instant case, the suit property comprised in Block218 Plot 558 is ^ administered by Samwiri Kyewalabye, the sole surviving administrator of the estate. The Defendant sold part of the land comprised in his late father's estate to the Plaintiff. It was his evidence that he became heir of his brother who had been heir of their father.

In paragraph 6 of his witness statement, the Defendant mentioned that his intention was never to sell land to Luganda but to seek funds in order to process his beneficial share from the administrators. He in fact averred that he later came to know that what he had signed was <sup>a</sup> sales agreement. On cross examination he said;

*'When I signed the agreement I knew I was selling land to get money* !• *to process titles to ourfather's estate.'*

The sale agreement that was admitted in evidence read;'

- *1. The vendor is to be registered as proprietor of land located on Block 218 Plot 558 at Najjera measuring 2.01 hectares.* - *2. The certificate of title to the land is still being processed in land office Kampala.* 16

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*3. The vendor desires to sell and the purchaser to buy part of the land at Block 218 Plot 558 measuring 0.50 acres.'*

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There is already contradiction in the evidence of the Defendant; at one point he says he had no intention to sell and yet at another he sold the land.

In paragraph 9 of his witness statement, he averred that he tried to get his beneficial share from the admihistrator but he had always been frustrated and as a result sued Samwiri Kyewalabye in the family court so that he could get his share. This evidence is corroborated by PW1 and PW3 who testified to the fact.th-at George William Kyewalabye

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COA<sup>y</sup> OF <sup>i</sup> He. O Gum At.

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informed them that the sole surviving administrator of the estate had refused to surrender the beneficial shares of the children of Charles Kawuma. <sup>w</sup>

Both PW1 and PW3 produced in evidence a copy of <sup>a</sup> court ruling in the family division of this court, that is, Miscellaneous Cause No. 254 of 2014. <sup>I</sup> have looked at the ruling. The Defendant together with Patrick Male was granted interim letters of administration to the estate of their father. It is evident from the ruling that the beneficiaries of the estate of the late filed <sup>a</sup> civil suit in the family division against the sole living administrator of the estate, SamwirrKyewalabye.

The fact that they were appointed interim administrators in that matter • > is not disputed by the Defendant either in his pleadings or evidence.

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The defendant further went on during cross examination to testify that; **^vve** *sold the land to get money to process titles for the land. We have* I i *not yet processed the titles. We have reached some understanding with our uncle Samuel Kyewabalye together with the rest of the <sup>&</sup>gt; family on how to share the land.'*

PW2 for the Plaintiff testified that at the time of purchase, the Defendant showed him the area |hat he was going to sell to the Plaintiff. When he requested far documents to show that he legally owned the land, he took him to the land registry office of Kampala along parliamentary avenue to <sup>a</sup> Registrar of Titles at the time called Robert Nyombi who assured him that he was in the process of processing Certificates of Titles on that land where the Defendant had <sup>a</sup> share and he had also bought from the administrators of the estate.

In <sup>a</sup> further search, PW2 was assured by counsel Matovu of M/S Mukiibi, Semakula, Kiyemba Mutale & Co. Advocates that he knew the family of the late Charles Kawuma dnd the land at Najjera and advised him to buy pending the family's finalization of the paper work in the land registry. This evidence was undisputed by the defendant.

From the time of allocating the land, payment and search, the defendant was involved. The Plaintiff was honestly made to believe I that the Defendant had capacity and land to sell to her.

' The fact that he did not possess letters of administration in this case cannot save the Defendant because from the evidence on record, the estate of the late appears to have been at <sup>a</sup> dead lock. And that I explains the reason why the Defendant filed a suit against the administrator seeking an account of the estate property. It also explains the reason why the Defendant was eventually granted an interim order for administration of the estate. \_

/ <sup>I</sup>

COPY Of- iHt UhitiiftAi <sup>11</sup>

For all intents and purposes, the Defendant as of now possesses the powers to deal in the land and cannot turn around and claim he had nothing to sell. From the above evidence on record, <sup>I</sup> find that the Defendant who is a beneficiary in the estate lawfully sold 0.50 acres of land to the Plaintiff. The Defendant has explained the purpose as to why he sold and therefore he cannot turn around and claim that he has no land to give to the Plaintiff. ■■

PW3 who also bought land from the Defendant testified that the Defendant handed to him the land that he bought. Equally the Plaintiff testified that she was given 0.25 acr;es of the land she bought from the Defendant. <sup>I</sup> doubt the Defendant's testimony that he never gave any land to the Plaintiff and that she forcefully took possession of the 0.25 acres. The Defendant earlier on in his witness statement led evidence that his intention was never to sell the land and yet still contradicted by V <sup>I</sup> testifying at cross examination that he sold to get money to process titles to the estate of their father. For that reason <sup>I</sup> do not believe the Defendant when he says that the Plaintiff forcefully took possession of the 0.25 acres he sold to her.

*If* The rules of justice and equity which this court is empowered to administer will not permit the Defendant to lure people into contracts for the sale of land for his own benefit and in the guise of processing

es for the estate of his late father and then afterwards hide behind he law and use it as <sup>a</sup> sword to deny innocent unknowing buyers of land. I

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## **Ref. Section 14 (1) (c) of the Judicature Act.**

The Plaintiff bought the suit land in 2003. Till today about 14 years later she is still struggling to take possession of the land she bought. A contract was entered into by the parties at free will. It is binding on the parties.

It is evident that the Defendant entered into an agreement for the sale of part of the estate property for the benefit of the estate. The actions of the Defendant who was <sup>a</sup> beneficiary in the estate of his late father **f** at the time of the sale and eventually was granted letters of **f** administration pende lite are binding on the estate.

-V <sup>I</sup> accordingly find that the contract for sale of land entered on the 15 day of October <sup>2003</sup> between George William Kiwalabye and Agnes <sup>I</sup> Mutale is lawful and enforceable in law.

## **Issue 2**

## **What remedies are available to the parties?**

The Plaintiff sought orders from this,court for; ~~

- $\bigcirc$ $\mathbb{I}$ - 1. A declaration that the Defendant sold $0.50$ acres of land to the Plaintiff. - 2. An order directing the Defendant to give a Certificate of Title for 0.25 acres of land on Kyadondo Block 218 Plot 585 to the Plaintiff. - 3. An order directing the Defendant to give to the Plaintiff the remaining 0.25 acres of land in the same place or pay her its current market value of Shs. $150,000,000/=$ . - 4. Costs of the suit.

Having found that the Defendant lawfully sold 0.50 acres of land to the Plaintiff, this court therefore declares that the Plaintiff is entitled to the 0.50 acres of land comprised in Kyadondo Block 218 Plot 558 land at Najjera.

It was the Plaintiff's evidence that the Defendant handed over to her only 0.25 acres of land and she took possession of the same. It is the finding of this court that the Plaintiff is entitled to the remaining 0.25 acres which the Defendant must handle over to her together with the relevant transfer documents and Certificate of Title. Failure to do that, the Defendant should pay the Plaintiff the current market value for a plot in the same area. In the plaint, it was pleaded that the value is 150,000,000 shillings. The Plaintiff in her evidence however claims the $14$


value is shillings 50 million. No valuation was made although counsel claims there was a valuation report submitted. The record however shows otherwise. This court will accordingly go with the value claimed by the Plaintiff in her evidence.

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The Plaintiff shall upon acquiring the relevant documentation to enable her transfer her interest, pay to the Defendant the remaining balance on the purchase price as was agreed by the parties.

The Plaintiff prayed for general damages for breach of contract. This prayer was not reflected in the pleadings. It only came up in the submissions of counsel and her witness statement. With due respect, a party is bound by their pleadings and not evidence from the bar by counsel. This claim is accordingly disallowed.

Judgment is accordingly entered in favor of the Plaintiff in the following terms:

- 1. The Defendant is ordered to provide the Plaintiff with the necessary relevant transfer documents and Certificate of Title so as to process title to the 0.25 acres of land she is in possession of. - 2. The Defendant is ordered to provide the Plaintiff the remaining 0.25 acres of land she purchased from the estate comprised in Kyadondo Block 218 Plot 558 land at Najjera or in the alternative **CERTIFIED TRUE**

LIVISION

COPY OF THE ORIGINAL

pay to the plaintiff 50 million shillings as the current value of the land less the balance that she was owing on the purchase price.

- 3. If the Defendant provides the Cl.25 acres as ordered in (2) above then he shall; § - (a) Provide the necessary relevant transfer documents and Certificate of Title to the Plaintiff so as to process her title to the land. - (b) The Plaintiff shall upon<sup>j</sup> receipt of the relevant transfer I documents complete and pay the remaining balance on the purchase price as was agreed between the parties at the time of purchase.

4. The Plaintiff is awarded costs of the suit.

**GODFREY NAiVHJNDI**

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