Nabamba and 2 Others v Semakula Musoke and 6 Others (Civil Suit No. 385 of 2003) [2017] UGHCLD 371 (10 April 2017)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA **LAND DIVISION CIVIL SUIT NO. 385 OF 2003**

1. LAWRENCE NABAMBA 2. JOSEPH MULIIKA ................................... $\dots \textsf{PLAINTIFFS}$ 3. IMELDA NANTUME KIBUUKA AS

ADMINISTRATORS OF THE ESTATE OF THE LATE JOHN KIBUUKA)

## VERSUS

$\cup$

$15$

- 1. HERBERT SEMAKULA MUSOKE (AS ADMINISTRATORS OF THE - 2. NANTANDWE JUSTINE KIZITO ESTATE OF THE LATE E. NAGADYA) - 3. FLORENCE MIREMBE NAGADYA - 4. ROBERT SERUWAGI.............. ... DEFENDANTS - 5. HELLEN NASSUNA SERUWAGI - 6. ANKWASA BRIAN - 7. COMMISSIONER LAND REGISTRATION

BEFORE: HON. MR. JUSTICE GODFREY NAMUSBI

**AND DIVISION**

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### JUDGEMENT

This dispute arises out of a 3 acre piece of land. The Plaintiffs who are administrators of the estate of one John Kibuuka claim that the $\lambda$ said 3 acres of land belong to the estate they administer.

The $1^{\ensuremath{\text{st}}}$ and $2^{\ensuremath{\text{nd}}}$ Defendants are administrators of the estate of E-Nagadya who was the Registered Proprietor. The late Kibuuka John owned a kibaja interest in the said Nagadya's land. The rest of the

$16,0e$

Defendants are sued for either having participated in the wrongful alienation of the suit land or having unlawfully purchased part thereof.

The details of the claims and the orders sought are laid out in the Plaint. The first 2 Defendants deny the claim and state that the $-$ s property was willingly surveyed off and the same was sold to the 4th and 5th Defendants. The 3rd Defendant claims she was a beneficiary of the property of late Nagadya E. The $4^{th}$ and $5^{th}$ Defendants claim they bought their part from one Charles Mureeba as bonafide purchasers without notice of any defect in the title and accordingly— $10$ acquired good Title to their portions of the suit land.

A Joint Scheduling Memorandum was filed and adopted by the court on $26/5/2014$ . Therein the parties agreed on the following facts:

- 1) That the late John Kibuuka had a kibanja on land formerly comprised in Block 192 Plot 52 Kyadondo on land owned and \_\_ 15 registered in the names of E. Nagadya. - 2) In 2008, the $1^{st}$ and $2^{nd}$ Defendants were granted letters of Administration to the estate of the late E Nagadya and subdivided the land into 8 Plots namely 1157, 1158, 1159, 1160 D1161 $2c$ 1162, 1163, 1165 and 1166. 3) The 1st Defendants registered Plots 1158 and 1160 months names 4) The $1^{st}$ and $2^{nd}$ Defendants registered Plot 1162 into the 3rd Defendants names.

- 5) The $1^{st}$ and $2^{nd}$ Defendants registered Plots 1157, 1159 and 1163 into the names of John Kibuuka. - 6) In 2008, the $1^{\rm st}$ and $2^{\rm nd}$ Defendant sold Plot 1161 to one Charles Mureeba who also sold it to the $4^{th}$ and $5^{th}$ Defendants – now registered as proprietors. 5 - 7) In 2011, the $1^{st}$ Defendant sold to the $6^{th}$ Defendant land comprised in Plots 1165 and 1166 who is now registered as owner.

The Issues framed for adjudication were:

- $\overline{1}$ 1) Whether the late John Kibuuka's Kibanja measured (3) acres. $-$ - 2) Whether the Late John Kibuuka purchased the mailo interest in the said acres of land. - 3) Whether the subsequent sub-divisions and transfers by the 1st and 2nd Defendants were lawful. - 4) Whether the Defendants 1-6's transactions on the suit land were $\sim$ 1 4 fraudulent. - 5) Whether the $4^{th}$ , $5^{th}$ and $6^{th}$ Defendants are bonafide purchasers for value without Notice.

(b) Whether the Plaintiffs are entitled to the remedies sought.

At the trial; the Plaintiffs' case was based on the evidence of one $\sim$ $\mathbb{Z}_{\mathcal{D}}$ witness - Lawrence Nabamba, while the Defendants called a total of ERTIFIED TRUE OF THE ORIGINAL 3 witnesses.

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## **Resolutions of the issues**

#### **Issue No. 1**

Whether the late **John Kibuuka's Kibanja measured (3) acres.** ,n Para8raPh 6(a) of the amended plaint, the Plaintiff claims the late John Kibuuka was holder of and in possession of'customary tenure —S' kibanja of 3 acres comprised in Block 192 plot 57 belonging to E Nagadya. That the 1st Defendant sold the mailo interest of the 3 acres to John Kibuuka at shs. 80,000/=.

All the statements of Defence by the Defendants have no specific denial as regards the size of the Kibanja although the 1st and 2nd — Defendants admit that the late Kibuuka had a kibanja oh E. Nagadya's land - Block 192 Plot 57.

#### **The evidence.**

was the area insisted that the kibanja used to pay Busuulu. — yefcgs.. . Division In the evidence of Lawrence Nabbamba, the only witness for the Plaintiffs, the witness said the Kibanja was measuring approximately s orrpc On cross-examination he stated that the land was 3 acres but John Kibuuka gave back one (1) acre to Herbert Musoke since it containing burial grounds for Endiga^clam He^also was approximately 3 a *date /*

Herbert of evidence is PEX3- a sale agreem'enUbetween^z and John Kibuka - for sale of an - The other piece Musoke Ssalongo

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**4**

unspecified size of land although it states it was for the area occupied by Salabwa and Nabaamba.

In the submissions for the Plaintiff, reference is made to sketch a map made when both parties visited the locus in quo. It was not exhibited although both parties decided to rely on it in lieu of visit to $\longrightarrow$ locus by the court. The said sketch map only indicates the occupants of the suit land and the 1 acre that was allegedly surrendered by John Kibuuka.

The submissions for Defendant 1 and 2 point to the fact that there was no concrete evidence that the suit land measured 3 acres. it is $-10$ my conclusion therefore that the available evidence on record does not confirm or determine the specific acreage of the suit land.

トイ

## Issue No. 2

# Whether the late John Kibuuka purchased the mailo interest in the said 3 acres of land. $\rightarrow$

The allegations that the late John Kibuuka purchased the Mailo interest are in paragraph 6 (c) (d) and (e) of the amended plaint. It is alleged the late John Kibuuka by an agreement of 19/10/1982, the 1st Defendant representing himself as owner of the land sold to Kibuuka the mailo interest at Shs. $80,000/$ =. $27$ The late John Kibuuka fully complied with the terms of the sale DATE agreement, but the $1^{\ensuremath{\text{st}}}$ Defendant refused to take the necessary steps to enable him obtain the Title for the 3 acres. In 2006, John Page 5 of 11

Kibuuka instituted a suit against the 1st Defendant in Kiira Urban Executive Committee for recovery of the said land.

The above allegations are denied by the 1st Defendant in paragraph 5 of the statement of Defence. In the same paragraph, the $1^{st}$ Defendant avers that the Plaintiff had and still occupies his entire $\mathrel{\mathop{\text{--}}\nolimits} \mathrel{\mathcal{S}}$ Kibanja. The allegations are also denied by Defendant No. 2.

## **The Evidence**

The Evidence of PW1 Nabbamba is that his father John Kibuuka bought the suit land (Kibanja) around 1962 from Eron Nagadya. He was not there when the agreement of sale was made. When she $\sim$ 10 died the land was passed on to her Nephew Herbert Musoke who continued collecting ground rent.

That around 1982, the said Herbert Musoke wrote to Jogn Kibuuka to convert his Kibanja into mailo interest. (letter not exhibited). The witness stated that Herbert Musoke acknowledged the money he $\mathcal{A}^{\mathcal{A}}$ received from John Kibuuka on a document which was witnessed by one Sebulu and Ssalongo Senkali (both deceased).

Court admitted the document as PEXH 3 (although the witness was $\frac{1}{2}$ ). not the author). The witness also testified that John Kibuuka wrote to Herbert Semakula demanding for the Title. A letter dated $\sim$ 20 2/5/1986 was admitted as PEX4. Where the The more comply, John Musoke took the matter to the LCIII court of Kira which decided the

Page 6 of 1 $^\prime$ matter against the $1^{\ensuremath{\text{st}}}$ Defendant. The ruling of the LCIII court was admitted as PEX 5.

On cross examination the witness stated that there remained a balance of Sh. 10,000/= on the purchase price. Regarding the letter demanding for the Title by John Kibuuka, the witness claimed he only — $\mathop{\mathcal{S}}$ got a copy of the letter in 2000 from his father who had by then gone blind. He did not witness the same being written.

He went ahead to identify the sale agreement by way of his father's signature. It is submitted that the $1st$ Defendant is bound by the agreement and there is no way he can deny it. $\longrightarrow$

DAPage 7 of 11

For the 1st Defendant, it is submitted that he was not the administrator of the estate of Nagadya at the time since he had not obtained letters of administration. The case of Steven Muteragaho Vs Esther Allen Natocho C/A 79/2012 was cited. Therein it was held that without letters of administration, one could not legitimately $\sim$ 15 deal in the property and this contravened Section 191 of the Secession Act.

$\mathbf{h}$ the instant case, the agreement PEXH 3 is to the effect that the land that was sold is the one where the son of John Kibuuka was occupying. There is evidence of demand by the late Kibuuka that the $-20$ 1st Defendant should hand over the Title to him. There is uncertainty as to whether such a letter/demand was ever common icated to the

**ALD CIVISION**

$\mathbf{1}^{\text{st}}$ Defendant. This comes out of the cross examination of PW1 who from his own testimony appears to be in possession of the original letter much as he says it is a copy.

He did not witness his father write it and he cannot for sure confirm that the letter was ever served on the 1st Defendant. It is also submitted for the $\mathbf{1}^{\text{st}}$ Defendant that the Judgement of the LCIII court that the Plaintiffs rely upon was a nullity as it was not signed by the fully constituted Executive Committee under Section 4 (i) of the **Executive Committees (judicial Powers) Act.**

$10$ The evidence on record is that at the time Herbert Musoke purported to sell the suit property, he was not authorised to do so as he had no letters of Administration for the estate of the late E. Nagadya (Ref: Steven Mulerangalo Vs Esther Allen (Supra). Since he is sued in his capacity as Administrator of the estate. The twist to this matter is that there is in existence a Judgement of the LC 3 court - 15 of Kira – which said Judgment is admitted by both parties. $\mathsf{It}$ is questionable why the Plaintiffs then chose to institute this suit rather than seek to enforce the said Judgement. I do not agree with the $1^{st}$ Defendant's arguments that the Judgment is a nullity.

It was admitted in court as an official record. It has not been set $-20$ aside by an Appellate court or on Revision. This in my conclusion would then make the instant case Res Judicate whole Limitation DATE Act.

DIVISION

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or Probate. my conclusion on this issue **that there could have been no sale** between John Kibuuka Musoke had and Herbert Musoke, as the said Herbert no capacity to sell for lack of Letters of Administration Further that the instant suit is incompetent, there being an existing Judgment over the same subject matter and between the —' same parties or successors in Title.

I would dismiss the suit on those 2 grounds alone.

**Issue** 3,4 **and,** 5

- **3. Whether the subsequent subdivisions and transfers by the 1st and 2nd Defendants were lawful** - **4. Whether the 1st, 2nd, 3rd, 4th, 5th& 6th Defendants transaction on the suit land were fraudulent** - **5. Whether the 4th, 5th& 6th Defendants are bonafide purchasers for value washout Notice.**

\ '. AND DIVISION **It** is submitted for the Plaintiffs that the Defendants have at all — (T material times been aware that the suit land was occupied by the " plaintiffs That the 4th, 5th& 6th defendants purchased fully aware of ^this fact **Nabanoba Desiranta & Anor Vs Kayiwa Joseph HCCS** 496/2005 was cited. **Kampala District Land Board Vs Nll-CC SCCA 2/2004** was also cited to the effect thatjegisiration of the suit ~ in disregard of the occupants unregis^ffi^^unts to I a 11U 11 *\*

<.......rEsISTRAR

^--'Page 9 of 11

U I \* t is also submitted that the 3rd defendant failed to monstrate that she was a beneficiary of the estate of Nagadya. It is submitted for the 1st and 2nd Defendants that according to the evidence of PW1, the subdivisions were conducted with the full knowledge of John Kibuuka, who was still alive. —

According to the evidence of DW1, the transfer forms were even signed by John Kibuuka. By then the 1st land 2nd Defendants had obtained letters of Administration and were registered proprietors of the suit property/

(vS be. Musoke CA 12/1985. I have also looked at the plaint which alleges fraud on the part of — [ O Defendants NO.l and 2. Apart from the plaint, there is no evidence adduced by PW1 the sole witness for the plaintiff establishing fraud on the part of the said Defendants. The evidence on record shows that John Kibuuka the Kibanja holder had full knowledge of the subdivisions. This is according to the evidence of DW1 and even PW1 It is trite law that fraud must be strictly proved and that the standard required is very high. Secondly that the transferees must hown to be guilty of such fraud. Ref: David Sejjak^p^icca COPY OF THE: ORIGINAL S. /

It is my submissions submissions. The conclusion on the on the above issues thatvthis.v;rhatter is riclpin \_ 2 law but lacking on evidence to support the plaintiffs have failed to prove the fraud alleged or

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not bonafide purchasers for that the 5 and 6th Defendants are value without Notice.

issue 6

It follows that the Plaintiffs are not entitled to the remedies they seek in this suit. I accordingly find no merits in this suit and it is- dismissed accordingly with costs. It is ordered that the Plaintiffs should receive the Certificate of Title that belonged to John Kibuuka as a result of the subdivisions that took place with his full knowledge.

It is so ordered.

**GODFREY NAMUNDI JUDGE 10/04/2017**

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## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA [LAND DIVISION]

CIVIL SUIT No. 385 OF 2008

- 1. LAWRENCE NABAMBA 2. JOSEPH MULIKA - 3. IMELDA NANTUME KIBUUKA -----------------------------------(As Administrators of the estate of the late JOHN KIBUUKA)

## **VERSUS**

- 1. MUSOKE HERBERT - 2. NANTANDWE JUSTINE KIZITO (As Administrators of the estate of the late E. NAGADYA) - 3. FLORENCE MIREMBE NAGADYA ----------------------------------- - ROBERT SERUWAGI - 5. HELLEN NASSUNA SERUWAGI - 6. ANKWASA BRIAN - 7. COMMISSIONER LAND REGISTRATION

## DECREE

This matter coming for final disposal this 10th day of April 2017 before His Lordship Hon. Justice Godfrey Namundi having read the submissions of both Counsel for the Plaintiffs and the Defendants and having found no merit in the suit;

## IT IS DECREED as follows:

- 1. That the suit be dismissed with costs. - 2. That the Plaintiffs do receive the certificate of title that belonged to John Kibuuka as a result of the subdivision that took place with his full knowledge.

| IT IS SO ORDERED. We approve. | John Paul Baingan OCATELNOTARY PUBLIC P. O. BOX 28597 KAMPALA | BIRL | P. O. Bu. KAMPALA UGANDA | |----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|-----------------------------------------------------------------------------|---------------------------------------------------------|--------------------------------------| | M/s IUMWESIGYE BAINGANA & Co. ADVOCATES | Hukunda Smith ADVOCATE | M/s BIRUNGI &amp; COMPANY ADVOCATES | | | M/s KIBEDDI & Co. ADVOCATES | M/s LUMONYA, BUSHARA ADVOCA | M/s MUKIIBĪ, SENTAMU & Co. ADVOCATES JOANITA BUSHARA | nmissloner @infacom.co.u ព | | Entered this | day of $\mathcal{M}$ ay | | 2017 | | EXTRACTED BY: M/S TUMWESIGYE, BAINGANA & Co. ADVOCATES. AFRICA HOUSE (OPP: EITY SQ., 3 RD FLOOR SUITE: 2 D PLOT: 42, P. O. BOX 28597. KAMPALA H DAIL | | DEP | 'REGISTRAR |