Nakayiima and 3 Others v Nalumansi and 2 Others (Civil Appeal No. 111 of 2019) [2022] UGCA 245 (28 September 2022)

Full Case Text

# 5 THE REPUBLIC OF UGANDA,

# IN THE COURT OF APPEAL OF UGANDA AT KAMPAI. A

# (C0RAM: CHEBORI0N, MADRAMA AND MULYAGONJA, JJA)

# CIVIL APPEAL NO 1I1 OF 2019

1. NAKAYTMA JoYCE)

#### 2 NANGEND0 RoSEMARU

- 3 KTBUUKA RoBERT) - lt PARAD tSE PRoPERTY CoNSULTANTS) APPELLANT

### VERSUS

- 1. NALUMANSI KALULE} - 2 . SENGENDo WASHTNGToN) - 3 . KADDU EDWARD} RESPONDENT

(Appeal from the Judgment of the High Court of Uganda at Kampala (Land Division) in Civil Suit No. 2531 of 20/6 by Keitirima J dated Vh March 2010

## JUDGMENT OF CHRISTOPHER MADRAMA, JA

- 2o 25 This appeaI arises from the Judgment of the High Court in a suit fited by the respondents to this appeaL in which the respondents jointty and severat[y as chitdren and beneficrarres of the estate of the [ate Stanley Kizza (hereinafter referred to as the deceased) sued the current appetlants who were the defendants. The respondents sued the appell.ants for orders of protection of Land comprised in Kyadondo Maito Registry Votume 359 Fotio 23 at Nakyessanja Estate (hereinafter referred to as the suit property or the estate of the deceased). The ptarntiffs in the High Court who are now the respondents averred that the late Festo Sempa was the former owner of the suit property and had five chil.dren inclusive of the deceased. Upon the - 30 death of Festo Sempa, Stantey Kizza, the deceased, was appointed and instatled as customary heir and the tand was registered in his names. The first and second ptaintiffs are bio|.ogical. chitdren of the deceased and the suit property is stitL registered in the names of the deceased as proprietor.

- Upon the death of the registered proprietor, his son Edward Nvule was $\mathsf{S}$ appointed customary heir but took no steps to transfer the property into his names and the suit property remained a burial ground for the lineal descendants of Festo Sempa. The grievance of the plaintiffs was that the first, second and third defendants who are now the appellants had without - letters of administration or any colour of right illegally sold 5 acres of the 10 suit property to the fourth and fifth defendants without consent or approval of the beneficiaries. Thereafter the fourth and fifth defendants started erecting illegal permanent structures on the suit property well knowing that it belonged to the estate of the deceased. The plaintiffs contended that the suit property was at the material time of the sale, land reserved as a burial 15 ground for the family. They further stated that the sale of the suit property to the fourth and fifth defendants was fraudulent, illegal, irregular and ought - to be set aside.

The plaintiffs sought a declaration that the suit property still belongs to the estate of the deceased and ought to be preserved for the estate to be 20 administered by an administrator in trust for the beneficiaries. Secondly a permanent injunction should be issued restraining the defendants by themselves or through their authorised servants or agents from intermeddling, evicting or in any other manner interfering with the plaintiff's ownership, possession, use and occupation or enjoyment of the suit 25 property. Thirdly for declaration that the purported sale of the property by first, second, third and fourth defendants is unlawful, illegal, null and void and ought to be set aside. The plaintiffs also sought a declaration that the fourth and fifth defendants interest in the suit property was acquired fraudulently and was therefore null and void. They sought remedies of 30 general damages, costs as well as interest. The first and second defendants namely Nakayima Joyce and Nangendo Rosemary filed a joint defence denying the claim in the plaint and asserted that the plaintiffs suffered no loss or damage were not entitled to general damages.

Further, the fourth and fifth defendants also filed a joint defence and inter 35 alia averred that the first plaintiff and the first and second defendants who

- 5 were beneficiaries of the deceased approached the fourth defendant for the purchase of the suit property. They perused copies of minutes of the famity of the deceased who had consented therein to the transaction of sate. The fourth defendant bought the suit property in good faith and ought not to be deprived of his interest because of the division in the famity of the deceased. - ln any case the setters were authorised to set[ the suit property. He denied the at[egations in the ptaint The fifth defendant on the other hand averred that she is not a party to any sa[e transaction with the ptaintiff's and does not know them and would object to the suit for disctosing no cause of action against her. 10 - The iearned triat judge a[towed the suit and issued the foltowing orders: 15 - 1. The suit property betongs to the estate of the deceased and is to be administered by the Administrator GeneraI in trust for the benef iciaries. - 2 A permanent injunction was issued restraining the defendants by themsetves or their agents from intermeddting, evicting or in any other way interfering with the pl.aintiff's possession and use of the suit [and. 20 - 25 3 A dectaration was issued that the purported sate of the suit property by the first and second defendants to the third defendant is ittegai and therefore nut[ and void.

- An award of Uganda shittings 50,000,000/= was made in favour of the ptaintiffs as generaI damages. 4 - trJ The award 50,000,000 was to attract interest al 20% per annum from the date of the judgment til.l. payment in futt. - 3s 6. Last but not least, the surt was attowed wrth costs to the pl.aintiffs

- The defendants were aggrieved and Lodged an appeaI in this court on seven grounds namely: 5 - 1. The learned triat judge erred in law and fact when he hetd that the thrrd and fourth appetlants were trespassers on the suit land - 10 2. The learned triat judge erred in taw and fact when he fail'ed to estabLish that the respondents had no cause of action against the fourth appeltant.

- 3. The learned trial. judge erred in law and fact when he faited and ignored to visit the [ocus in quo. - 4 The [earned trial. judge erred in law and fact when he awarded the respondents Uganda shiltrngs 50,000,000/= as generaL damages. - 5. The trial. ludge erred in law and fact when he awarded an interest of 20% per annum on general damages. 20 - 6. The triat judge erred in law and fact when he ordered that the suit property be administered by the Administrator GeneraI in trust for the benef iciaries. - 7. The learned triat judge erred in law and fact when he issued a permanent injunction restraining the first and second appeltants from interferrng with the respondent's possession and use of the suit tand. - 30 The appel. Lants pray that the appeat be atl.owed and the Judgment of the Hrgh court be set aside with costs in the court of Appeat and in the High court.

when the appeat came for heanng learned counse[ Mr. FaisaL Umar Mularita appearing jointl.y with Learned counseI Ms Stel.l.a Namiiro represented the respondent. On the other hand, learned CounseI Mr' Jotty Mutumba represented the appel.l.ants. The second respondent died but the appeal

5 subsists against the others and concerns the same property. With leave of court, the court was addressed in written submissions.

### Ground 1.

# The trial judge erred in taw and fact when he hel,d that the third and fourth appettants were trespassers on the suit tand.

- The appetlants counsel submitted that the third and fourth appellants were not trespassers on the suit [and. Secondty, that the point to determine rs whether the third and fourth appeltant trespassed on the suit property as decided by the learned triaL .1udge. He retied on the definitron of trespass in Nyanzi Evaristo and 2 Others Vs Mukasa Sitver; Civit Appeat Number 55 of 2014 where the court quoted Mutenga JSC in Justine E. M Lutaaya Vs Stirting 10 15 - (Civil. Engineering Company Ltd); Civil. Appeat Number112002 that "trespass to land occurs when a person makes an unauthorised entry upon the [and and thereby interferes or pretends to interfere with another person's lawfuI possession of that Land." He further quoted Manyindo V-P in Sheikh - Mohammed Lubowa Vs Kitara Enterprises; Civit Appeat Number 4 of 1987 for the passage that: "in order to prove the al. Leged trespass, it was incumbent on the appel.tant to prove that the disputed [and betonged to him. That the respondent had entered upon the land and that entry was untawful in that it was made without his permissron and that the respondent had no claim of right or interest in the [and." 20 25

The appettant's counsel submitted that as far as the action against the third appeltant is concerned, he had a ctaim on the suit property which he bought from the first and second appeil.ants and this entry was authorised by the vendors. The appetl.ant's counseI submitted that the defence of justif ication, once avaitabl,e to the defendant, absotves him or her of tiabitity. Trespass consists of unjustif ied entry of the Land of another and therefore there is no trespass where the entry is authorised. Counsel further submitted that trespass was the fourth agreed issue in the joint scheduting memorandum which was whether the third and fourth defendants are bona f ide purchasers for vatue without notrce or trespassers on the suit [and.

The trial judge found that the doctrine of bona fide purchaser for value $\mathsf{S}$ without notice applies to a party holding a certificate of title of which the third defendant and the fourth defendant had none in their names. The defence of being bona fide purchasers is therefore not available to them. He found that the defendant knowingly dealt with the first and second defendants who had no letters of administration to the estate of the $10$ deceased and therefore had no title to pass. He concluded that they were trespassers on the suit land.

The appellant submitted that the appellant's right to enter the suit property was premised on the fact that he bought the suit property from the first and second appellant and evidence of the second appellant who testified as DW1 15 was to the effect that she was residing on the suit property and was not challenged during cross examination. The appellant's counsel further submitted that the issues of trespass and a bona fide purchaser for value without notice had to be dealt with separately by the learned trial judge. This is because his conclusion that the third appellant was a trespasser was not 20 backed or supported by law and evidence. Insofar as they concede that the third appellant was not a bona fide purchaser for value without notice, the appellant's counsel does not agree that the third appellant was a trespasser on the suit property.

Further the appellants counsel submitted that the fourth appellant was not 25 a trespasser on the suit property and the learned trial judge erred to hold so. Counsel submitted that first and foremost, the joint written statement of defence of the third and fourth appellant shows that the fourth appellant pleaded that she was not a party to the sale transaction with the first and second appellant and she did not know them. Secondly the fourth appellant 30 also notified the court that she would object to the suit on the ground that the plaint discloses no cause of action against her. The appellant's counsel contends that pursuant to the pleading, the point of law had to be disposed of by the court regardless of whether counsel for the fourth appellant submitted on it or not. He contended that the respondent's counsel who 35

5 generated the joint scheduting memorandum dodged to frame the issue and raise the point of law as one of the issues framed out of the pteadings.

He submitted that the question of [aw is whether the court on appeal can entertarn the said point of [aw. He relied on Uganda Raitways Corporation versus Ekwaru D.0 and 5104 others; Court of AppeaL Civit Appeal. Number 185 of 2007 for the hotding that an appeltate court wit[ not atlow an ittegatity that escaped the scrutiny of the triaI court to cause undesirabte consequences. A trial. judge has a duty to use the judiciat microscope to see what is indicated that may not have been seen by the other eyes of the parties. The appettant's counsel submitted that on the issue of whether the plarnt discl.oses a cause of action agarnst the fourth appel.l.ant, had the learned triat judge considered it, he woutd not have conctuded that the fourth appeLtant was a trespasser because there is no proof of her invotvement in the contract of sate; that there was no proof of her entry upon the suit [and apart from the fact that the third defendant is a director

in the said company. 20

The appellant's counsel submitted that had the learned triat judge properl.y evaluated the evidence on record as wetL as the pteadings, he woutd not have hel.d that the fourth appel. Lant was a trespasser on the suit [and since she committed none. No act of the fourth appettant was proved by the respondents. He prayed that the court atlows ground one of the appeat.

ln repty, the respondent's counseI submitted that the appettant's counse[ conceded that the third appettant was not a bona fide purchaser for vatue without notice though he was not a trespasser. He submrtted that the trme has come for the Court of Appeat to hotd accountabte advocates who misadvise titigants and cause unnecessary backlog. Further, lawyers were causing unnecessary appeats that overwhetmed the court system in respect of clear facts. He invrted the court to treat the present case as one bef itting for condemning of the appettant's counse[ to costs.

Secondty, the respondent's counseI submitted that there was overwhetming evidence to support the decision of the learned tria[ .1udge when he rightty 35

- 5 found that the fourth appel.tant was a trespasser on the suit tand. lt was an agreed fact in the joint scheduting memorandum that after ittegatty purchasing the suit property in his personal names, the third appettant used the fourth appel.[ant as a company in which he hotds 80% majority sharehotding and as a director to sett, to market, subdivide, broker and offer - for sate the suit property to 3rd parties in a catcutated move to cheat the estate of its property and cheat the government of its revenues. Further, the respondents counseI submitted that the intention of the appettant was to use the fourth appel.tant company to create third parties who claim to be bona fide purchasers for vatue having bought from a third party. The intention was to defeat the c[aim of the estate and the triat judge was right to find that the third and fourth appettants were trespassers on the suit property. The suit property was soLd without letters of administration and the property betonged to the estate of the deceased. 10 15

20 Further the respondents counsel. submitted that the purported sate was conceded to by counseI for the appeLl.ant as an il'tegatity because it was a contract contrary to the statute and no one can deal in or transact in the estate of an intestate without grant of [etters of administration according to sections 25 and ,l91 of the succession Act. lt is to the effect that no rrght to an intestate's estate can be establ.ished in any court of law wlthout grant of letters of administration. He submitted that upon the cottapse of the purported sate agreement in which the third and fourth appticants found themselves, they automaticatl.y became trespassers on the suit [and according to the provisions of section 268 of the Succession Act.

CounseI further submitted that the transaction was itlegaI for intermeddting with the estate of the deceased without authority and it was a penaI offence to do so. An agreement entered into in contravention of the law is a nutl.ity and unenforceabte. The respondents counseI further retied on Kisugu Quarries Ltd Vs Administrator Generat; SCCA Number l0 of 1998 for the proposition that court shoul.d not condone or enforce an iLtegatity. He invited the court to f ind that no court woul.d be attowed to offer any credence of the 30 35

5 stightest right to parties that knowingty enter into contracts to commit a crime, tort or fraud on third parties.

Last but not least the respondent's counsel submitted that the authorities on trespass re[ied on by the appettant's counsel were distinguishabte on the facts. ln the current matter, the transaction was an il.tegatity which is unenforceabte. He prayed that the court dismisses ground one of the appeal and maintains the hotding of the learned triat judge.

ln rejoinder on the questron of whether the court shoul.d hotd accountabte advocates who misadvise their ctients, cause unnecessary Litigation, backtog et cetera. He contended that the submission lacks any legaI sense and is not backed up by the [aw. The respondent's counset was expressing his personaI feetings in the case. The appetlant's counsel submitted that courts shoutd always try as much as possibl'e to remind advocates to avoid getting personat or personatty involved in cases handl.ed on behal.f of their ctients. Further on the ground addressed by the respondent's counsel on

- whether the third and fourth appettants were trespassers, the appettants counsel reiterated eartier submissions. He reiterated that the entry of the third appettant was justified and authorrsed by the first and second appetLants who were in actual possession of the land Further, the tort of trespass is committed against the person in possession of the tand. What rs 20 - material being that the third respondent was permitted to enter the suit property by vendors who were in possession thereof. 25

With regard to the fact which was agreed that the third appettant was usrng the fourth appellant company to market the suit land, counseI conceded that an agreed fact need not be proved. Further, the fact has to be evaluated with the rest of the evidence on record The third appettant testified that he is the one who bought the suit property from the first and second appeltant and that the fourth appeLtant was no longer operationat. He contended that this evrdence was not chaU.enged by the respondent. ln the premrses there was no proof of entry by the fourth appel.tant and if any was proved, the same 30

was based upon the third appel.tant's purchase and was therefore permitted 35

5 by the first and second appel.l.ants. CounseI prayed that the court atlows ground one of the appeal on the basis of the earlier submissions.

# Ground 2.

# The learned triat judge erred in law and in fact when he faited to estabtish that the respondents had no cause of action against the fourth appellant.

The appeLl.ants counsel abandoned ground two of the appea[. 10

In reply, the respondents counsel submitted that the abandonment was tactfut but the respondent nonethetess made submissions on this ground which have no basis since the ground had been abandoned.

# Ground 3.

#### The learned trial, judge erred in law and fact when he faited and ignored to visit the locus in quo. 15

ln his submissions, the appeLl.ants counseI retied on the Practice Direction Number 1 of 2007 and guideLine 3 thereof which provides that during the hearing of Land disputes, the court shoutd interest itseLf in visiting the locus in quo. ln Bongote and four others Vs Agnes Nakiwala; Civil' Appeat Number 00?6 of 2015, the court in that; "white the visit to the locus in quo is not a mandatory requirement, where the court deems it deserving, then it is bound to carry it out property The purpose is to find out whether the testimony given in respect of the impugned property rs in tandem with what 20

pertarns physical.ty on the ground." 25

> The appel.l'ant maintains that visiting the Locus in quo was necessary because the parties in the testimonres testif ied that the suit [and measured 10 acres white the first and second appetlants sotd 5 acres to the third appeLtant. Further that the suit had buria[ grounds and food crops betonging

to them that were destroyed during the time when the third appettant was ctearing the suit Land. 0n the other hand, the second respondent testified that she was the one staying on the suit property and cuttivating crops thereon. He submitted that the visit to the srte was necessary to determine 30 5 those factors and extent of the trespass or encroachment. He further found it unfortunate that the [earned triat judge not onty did not visit the [ocus in quo but atso ordered the appeLl.ants to pay the respondents Uganda shittings 50,000,000/= as generaI damages. He submitted that visiting the [ocus in quo enabtes the learned triat judge to make an assessment of the quantum of damages to be awarded and this woutd have been a [esser amount. He noted that the learned triat judge found that there was no vatuation of the damage to crops to guide the court in assessing the quantum of damages to be awarded. 10

0n the basis of the above, he contended that the learned triat judge erred rn law and fact when he did not conduct a locus in quo visit before writing the Judgment and the faiture occasioned a miscarriage of justice to the appeltant. He prayed that the court altows ground three of the appeal. 15

ln repty to ground three of the appeal., the respondents counsel submitted that it was a common practrce for courts to visit the locus in quo in land matters but not in every case is it a requirement. Further that the crux of the case was not a matter of trespass by adjourning neighbours or upon a dispute but the question of determination was whether the purported saLe between the f irst, second, and that appeltants was legaLl.y tenabte. The case revotved on the legatity of the sate agreement by persons without letters of administration or authority to deal in the estate of an intestate and creating third party interests. 20 25

The respondent's counsel. submitted that the critrcism levetLed at the tearned triat judge was basetess, unfounded and not supported by the facts and proceedings. The court proceeded on the basis of evrdence avaitabte which teft no doubt that the suit property betonged to the estate of the deceased and the l't and 2"d appettants soLd it without legaI authority as required by the Laws of Uganda.

ln reloinder to the reply of the respondent on ground three of the appeat, the appettant's counsel submitted that the crux of the case was not trespass to the Land by adjourning neighbours to determine a boundary dispute but

- 5 rather to determine whether the purported sate between the first and second appel.l.ant and the third appetl'ant was tegat[y tenab[e. Further he reiterated eartier submissions that the respondents claim was one of protection of the suit Land that bel.onged to the estate of the deceased and the purported sate was just one of the issues that were framed for - determination by the court. 10

The appettant's counse[ submitted that the parties exhibited several photos which were annexed to the witness statements to prove physica[ features that were on the suit Land. The Learned triat judge therefore ought to have taken interest in visiting the [ocus in quo in orderto inspect the site features of the Land which woul.d have assisted him to assess the quantum of damages.

I note that grounds 4, 5, 6 and 7 are against the remedies granted by the triaI judge and I wiLI consider them after determination of grounds of 1 and 3 of the appeal.

## Consideration of the appea[. 20

I have carefutty considered the record of appeal', the grounds of appeal together with the written submissions of counsel for the Appetl.ants and the Respondent and the law and authorities cited by the advocates of the parties. The duty of this court as a first appe[[ate inctudes the duty where necessary to reappraise the evidence on record and to draw its own inferences of fact (See rute 30 ('l) (a) of the Judicature (Court of Appeat Rutes) Directions). ln Peters v Sunday Post Limited [1958] 1 EA tflL the East African court of Appeal. hetd that the duty of a first appettate court is to review the evidence in order to determine whether the conctusions drawn

by the triat court shoutd stand. ln reappraisal of evidence, the first appetLate court shoutd caution itsetf regarding the shortcoming of not having had the advantage of seeing and hearing the witnesses testrfy and shoutd defer to the observations of the trial. judge where issues of credibitity of witnesses 30 anses.

- 5 Ground l of the appeal. deats with a question of doctrine on issue of whether the learned trrat judge erred in law and fact when the 3'd and 4th appetl.ants were hetd to be trespassers on the suit land However, in the written submissions, it is clear that the question of whether the third and fourth appettants were trespassers on the suit land depended in the main finding of the learned triat judge that they bought the suit property from persons who do not have the reqursite authority to setl the property of an intestate. Secondty, in considering the question of whether the appeltants were trespassers on the suit property, it was a question of procedure whether it was necessary for the triat judge in the circumstances, to visit the Locus in quo. ln the premises, this question also retates to ground 3 which is the 15 10 - averment that the learned triat judge erred in law when he faited and ignored to visit the [ocus in quo. Because both grounds deat with the issue of trespass, I wil.l. consider them together.

I have carefutty considered the record. As far as pteadings are concerned, there rs no averment in the ptaint about the trespass of the defendants who are now the appeLLants. ln paragraph 5 the ptaintiffs averred that: 20

"The ptarntiffs bring this suit jointty and severatty as children and beneficiaries of the late Stanley Kizza for the protection of Land comprised in Kyadondo Mail'o Registry 369 fotio 23 at Nakyessanja estate which betonged to the estate of the deceased."

Thereafter, the pLaint gave the facts constituting the cause of action and atso aLteged particuLars of fraud of the fourth and frfth defendants. The particuLars of fraud are the fact that the appetlants namety the first, second and third defendants in the High Court soLd the property to the fourth and fifth defendants without any LegaI capacity to do so.

ln the prayers, there is ctearty a suit for declaration that the suit property betongs to the estate of the deceased persons and ought to be preserved for the estate to be administered by an admrnistrator in trust for the benef iciaries. Secondty for a permanent injunction to restrain the defendants from intermeddting, evicting or rn any other way interfering with

the ownership, possession and use and occupation or enjoyment of the suit $\mathsf{S}$ property by the plaintiffs. Thirdly there is a prayer for a declaration that the purported sale of the suit property to the first, second, third and fourth defendants is unlawful, illegal, null and void and ought to be set aside. Further that the acquisition of the interest title in the suit property was

$\mathbf{1} = \mathbf{1}$

through fraud and is null and void. Pursuant to the declaration sought, the 10 plaintiffs prayed for general damages, costs, interest on the awards and any other relief as the court may deem fit to grant.

In the joint scheduling memorandum endorsed by counsel the parties, the following are agreed facts namely:

a) The first plaintiff, the first and second defendants are children of the late 15 Stanley Kizza while the second and third beneficiaries of the suit land.

b) The late Stanley Kizza is still registered as the proprietor of the suit land.

c) The first and second defendants sold of five (5) acres from the ten (10) acres of the suit land to the defendant.

d) The third defendant was using his real estate Money being the first 20 defendant to market, sale and dispose of the disputed land.

Paragraph 1 of the agreed facts it is clear enough. The problem is that the latter part of the paragraph does not indicate who the second and third beneficiaries.

The above notwithstanding, there is not much factual controversy about the 25 fact of sale of the suit property. The facts which are accepted by the learned trial judge were that the family of the deceased held several meetings to settle estate issues. Before the issues could be resolved and without letters of administration, the first and second defendants as intending administrators of the estate of the deceased, sold off 5 acres out of 10 acres 30 to the third defendant. The third defendant thereafter took possession and used the 5 acres. The plaintiffs then filed a suit contesting the sale of the suit property.

5 The triat judge found that the suit property was part of the estate of the late Stantey Kizza (the deceased) and answer the f irst issue in the affirmative.

The second issue was whether the first and second defendants tegatty sotd the 5 acres of the suit Land to the third defendant. He found that it was an agreed fact that the first and second defendants, are both chitdren and benef iciaries of the estate of the late Stantey Kizza and they sol.d 5 acres of the suit land to the defendant without having acquired letters of administration to the estate of their [ate father. The third defendant bought the suit property from the first and second defendants while knowing that they had no letters of administration but were intending administrators according to the sa[e agreement dated 3 January 2013 and paragraph 5 thereof. I have considered paragraph 5 of the agreement between the first appeltant and Rose Nangendo Nalongo one Kibuuka Robert. Paragraph 5 of the sate agreement which is dated 3 January 2013 according to the dating by the advocate who witnessed the agreement provides that: 10 15

(a) shitLings 10,000,000/= (ten miLLion shiLtings onLy) as paid by the purchaser to the Vendors in cash today the 3'd day of January 2013 to cater for the processing of Letters of Administration leaving a baLance of Uganda shittings 50,000,000/= (fifty mittion, shitLings) shaL[ be paid as and when the need and demand from the se[[ers arises. The setters undertake to use part of the money for construction of the famrLy house at Nakyesanja. 20 25

The court considered the issues and that there was a meeting of the famiLy which was conceded to in that the famity did not have money to appl.y for letters of registration. ln deating with the controversy on the tegatity of the sal'e, the court considered sections 191 of the Succession Act and section 25 of the Succession Act and found that the provisions prectude any deatings in an intestate's property without letters of administratron granted by a competent court. The learned triat judge came to the conctusion that the intending administrators of the estate of Stanl.ey Kizza were not yet administrators of the estate of the deceased and it was speculative to assume that there wou[d be as that is determined by a court seized with competent jurisdiction. He found that it was [ike specul.ating the outcome of 30 35

- 5 the Judgment which has not yet been read. He held that an agreement cannot be based on specutatron that one would be granted letters of adminrstration. He further considered section 130 of the Registration of Tittes Act which attows an executor or administrator appointed by court to be registered as proprietor in that capacity. ln the premises, the learned triaI judge found that the evidence on record revealed that the first and second defendants had not been registered on the titl'e of the suit property as administrators because they had never obtained letters of administration and as such the transaction coutd not bind the estate of the deceased. Fol,towing that finding, the tearned triat ludge hel'd that no one can legatl'y deal, in the estate of a deceased person without letters of administration and transactions without such letters are nu[[ and void. He found that the 10 15 - defendant was itLegat. 0n the third issue the Learned triat judge considered the issue of whether the agreement for sate/purchase between the first, second and third defendants can be enforced against the estate of the I'ate StanLey Kizza. He found that the issue had been resolved in the second issue that the court cannot sanction an il.tegaLity according to the authorities cited and therefore an itLegat transaction cannot be enforced against the estate of the deceased. 20

sate of the suit property by the first and second defendants to the third

Further, the Learned triat judge deatt with the fourth issue of whether the third and fourth defendants are bona fide purchasers for vatue without notice or are trespassers on the suit [and. 25

The tearned trial. judge found that the doctrine of bona fide purchaser appties to a defendant who hol.ds a certificate of titte in his names and the fourth defendants did not have titl.e in its names and the defence was not avail,abl.e to them in the circumstances. Further that the thrrd defendant knowingty deatt with the first and second defendants who not have letters of administration to the estate of the deceased and had no titte to the suit Land and so cannot ptead being bona fide purchasers for value without notice. ln a short paragraph he found that they are therefore trespassers on the suit tand. 30

5 I have carefuLty considered the short sentence in which the learned triaI judge hetd lhat "they are therefore trespassers on the suit land".

There was no issue of whether the defendants were trespassers on the suit Land pteadings. The observations of the learned triaI judge were consequential. to the main finding that the transaction was iLLegaI and the 3'd and 4th defendants were in possession of the suit property. lt was not a decision on a controversy arising from pteadings for resolution of the suit. It did not arise from the pl.eadings because there was no cause of action atteging trespass.

The triaL judge onty deal,t with the issue of whether the transactions was a [ega[ transaction and secondly whether the impugned sate agreement was enforceabte against the estate of the deceased. He inter alia relied on paragraph 5 of the sate agreement that I have quoted above. 15

It f ol.tows that ground one of the appeal. has no basis in [aw. The observations of the learned trrat judge were not a ruting in terms of Order 2l rute 4 of the Civil Procedure Rules which provides that:

Judgments in defended suits sha[[ contain a concise statement of the case, the points for determination, the decision in the case and the reasons for the decision.

Further, in 0rder 2l ru[e 5 the Civit Procedure Rutes it is provided as fottows

5 Court to state its decision on each issue.

ln suits in which rssues have been framed, the court shatl state its f inding or decisron, with the reasons for the finding or decision, upon each separate issue, unLess the finding upon any one or more of the issues is sufficient for the decision of the suit.

The above rutes supptement 0rder15 the Cjvit Procedure Rutes which dea[s with the framing of issues and provides inter atia that issues are framed when a materral proposition of law or fact is affirmed by one party and denied by the other. Particul.arLy in 0rder 15 ruLe 1 (5) of the CPR it is provided that at the hearrng of the suit, the court shat[, 30

> after reading the pteadings, if any. and after such examination of the parties or their advocates as may appear necessary, ascertain upon what materiaI

5 proposition of law or fact the parties are at variance, and shaL[ thereupon proceed to frame and record the issues on which the right decision of the case appears to depend

The learned triaL judge proceeded as stiputated in the rutes and framed the issues which were agreed upon in the joint scheduling memorandum. The issue as to whether the third and fourth defendants were trespassers on the suit property was framed as a consequence of findrng that the sale or purchase of the suit property was a nuttity.

ln addition, the court framed issue 5 which is:

whether the third and fourth defendant's actions of destroying the ptaintiff's crops, cutting down the trees, uprooting of bananas and coffee pLantations in a portion of the property sol.d to the Defendant was lawfu[.

The court retied on the evidence of the ptaintiffs that the defendant destroyed famil.y ptantations, gardens and trees. Found that the 3rd and 4th defendants had been shown by way of documentary evidence and oral 20 testimony to have destroyed and razed down ptantations the ptaintiffs and trees. There was uncontested photographic evidence admitted by both parties. The third and fourth defendants erected and constructed various routes in the suit l,and with some connectrng to the buriaI grounds of the pl.aintiffs. No valuation of the damaged crops was adduced in evidence. The Learned triat judge proceeded to enter judgment and awarded Uganda shil. Lings 50,000,000/= as generaI damages on the basis of the evidence before the court. 25

It as much as there was evidence to prove that the defendants had entered the suit property as purchasers, the issue framed to determine whether they were trespassers was framed as a consequentiaI issue and foLl'owing the finding of il.tegatity since the fact of possession was not disputed For emphasis the issue framed rn the joint schedul.ing memorandum by counse[ of the parties was: (d) Llhether the 7 and 4th Defendant is a bonafide purchaser for value without notice or a trespasser on the suit land. Further 30

what was determined was that they had destroyed some property of the 35

5 pl.aintiffs. Moreover, it is uncontested by the defendants that they were in possession of the property and therefore the question before the court rs whether the obtained the property tawfutty and whether the ptaintiffs suffered damage if the court answered the issue in the negative.

Thrrdty, the question of trespass is retated to the ground three of the appeaI trial. ludge erred in law and fact not to vrsit the Locus in quo. I f ind no merit on thrs ground of appeaL because atl parties described the land as registered property which was not in dispute and the issue of whether there were buitdings on the land after the defendants took possession of it, was proved by oraL and photographic evidence. As agreed by both counset, the visiting of the locus in quo is not a mandatory requirement but at the discretion of the trial. judge. ln any case, the suit revotved on the question 10 15

of tegatity of the transactron since the fact that the defendant's possession of 5 acres rs not in dispute and there was no need to prove it. ln any case, the appeltant's appeal seems to revotve on the question of quantum of damages and orders issued by the learned triat judge which may be taken as consequentiaI orders. 20

For the above reasons, trespass was a consequentiaI issue which foLl.owed determination by the court of the question of whether the transaction was a nul.l.ity or void for itl.egatity. The learned triat judge according[y onty made a passing reference to trespass in answer to the rssue as framed. The questron was answered in resotving the question of whether the sa[e of the suit property without authority of letters of administration to the third and fourth defendants was ittegat and a nuttity. The triaI judge rn determination of the issue found that the defendants were not entitted to take possession of the suit property. This court cannot sanction a right to possession based on what has been declared an itlegality and which has not been appeated, I would disattow grounds one and three of the appeal. 30

Ground 4 and 5 of the appeat deat with the award of damages in that the learned triat judge awarded Uganda shittings 50,000,000/= as general damages which is the subject matter of ground 4 of the appeat. 0n the other hand, ground 5 of the appeal is the award of 20% interest on general

damages awarded by the court from the date of judgment till payment in $\overline{5}$ full.

The appellant's counsel submitted that the award of general damages was erroneous and excessive in the circumstances. He submitted that the court ought to have considered the evidence, the nature of the harm, the value of the subject matter and economic inconvenience of the injured party. He submitted that this court can interfere with the award which was inordinately high.

Most importantly, the appellant's counsel submitted that after nullification of the sale, the suit land reverted back to the estate of the deceased for the benefit of the beneficiaries which include the respondents as well as the 15 first and second appellants who are also beneficiaries. In any case, the court did not take into account factors such as the fact that the first and second appellants evidence was that the proceeds of the sale was supposed to be put to the construction of a new family house which enhanced to the value of the suit land and the 5 acres do not comprise burial 20 grounds. He submitted that in the circumstances, sum of Uganda shillings 50,000,000/= awarded as general damages appear to be a punishment of the appellant and not compensation which is based on restitutio in integrum.

- In the ground that 5, the appellant's counsel submitted that the award of 25 interest of 20% per annum was unreasonable given the circumstances of the particular case. Firstly, the learned trial judge had already awarded the sum of Uganda shillings 50,000,000/= to the respondents as general damages. He submitted that the respondent's suit was granted on the ground of trespass on the suit property which was a tort the court ought to - 30 have awarded reasonable interest is held in ECTA (U) Ltd Vs Geraldine S. Namirimu; Civil Appeal No 29 of 1994 where the court made a distinction between awards of interest in commercial or business transactions which attract higher awards and awards which are mainly compensatory. He - proposed that the interest be reduced to 8% per annum. 35 5 ln reply, the respondent's counsel supported the Judgment of the learned triat judge and the reasons for the awards in that the third defendant through the estate company, namety the fourth defendant destroyed famity ptantations, erased gardens and trees and this was proved through documentary evidence. They erected and constructed various roads in the suit land teading up to the graveyard. ln the premises counsel submitted that there was an ittegaI transactjon which caused untotd suffering, emotionaI distress and rnconvenience to the famil'y of the deceased. 10

As far as ground five of the appeat is concerned, the respondent's counsel submitted that the interest of 20% was informed by the pteading of the parties and the court was reasonabte in the award foltowing the tengthy, tedious, exhaustive and [ong protracted Legal. suit. lt was founded not on a tort but on the ittegaI commerciaI transaction by way of the ittegal. sale set aside by the court. 15

I have carefutty considered the issue of breach of statutory law which forbids deal.ing in an estate property without authority. The iLtegatity is not in dispute and I do not have to dwe[[ on it since there was no appeal against the finding of the learned triat judge that the impugned sa[e agreement was iltegat, nut[ and void. The learned trial. judge found that the transaction breached sections 191 of the Succession Act, section 25 of the Succession Act and section 4 of the Administrator General Act. The sum total of these 20 25

- sections amount to the propositron that estate property of the estate of an intestate cannot be sotd without authority of Ietters of admrnistration. Letters of administration are granted by the courts seized with jurisdiction and are preceded by advertisements which attow creditors of the deceased - to put in their ctaims or any interested party who wishes to object to any particul'ar appticant for letters of Administration from obtaining letters of Administration to have the matter of objection resotved in a suit between the objector and the appIicant. lt fo[l.ows that, the due process cannot be circumvented by setl.ing off the property and not giving a chance to 30

ctaimants such as creditors or other peop[e cl.aiming the right to the estate 35

from being heard before the grant is made and before the distribution of the $\mathsf{S}$ estate.

$\mathcal{L}$

The trite law is that what is done in contravention of a provisions of an Act of Parliament such as acts under a contract prohibited by statute is illegal (See Phoenix General Insurance Co of Greece SA v Administratia Asigurarilor de Stat [1987] 2 All ER 152 where the Court of Appeal of England 10 per Kerr LJ held that any contract prohibited by statute, either expressly or by implication is illegal and void. In Mistry Amar Singh v. Serwano Wofunira Kulubya [1963] E. A 408 at pg. 414, the Privy Council applied the doctrine in Scott v. Brown, Doering, McNab & Co (3) [1892] 2 Q. B. 724 at 728 that:

No court ought to enforce an illegal contract or allow itself to be made the 15 instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the legality is duly brought to the notice of the court, and if the person invoking the aid of the court is himself implicated in the illegality. It matters not whether the defendant has pleaded the legality or whether he has not. If the evidence adduced by the plaintiff proves the illegality the court ought 20 not to assist him.

In this case the trial judge found that the actions of the first and second appellants of selling the property to the third and fourth defendants was illegal because it was done without authority of letters of administration. The purchaser who is the $3^{\mbox{\tiny{rd}}}$ appellant was privy to the illegality because they expressly stated that the vendors were merely applicants to letters of administration thereby admitting that they had no authority. Secondly, the suit was not an action by the sellers of the property seeking to revoke the sale for illegality but an action by other beneficiaries of the estate of the deceased. The transaction is not enforceable against the estate of the deceased which is entitled to recover the property. The only question is whether it was just to award general damages in the circumstances and whether the award of $50,000,000/$ = was excessive.

Under section 54 of the Contracts Act 2010 of Uganda obligations under a void contract can be considered by court in that it provides that:

5 "54. Obtigation of person who receives advantage under a void agreement or a contract that becomes void.

> (1) Where an agreement is found to be void or when a contract becomes void, a person who received any advantage under that agreement or contract is bound to restore it or to pay compensation for it, to the person from whom he or she received the advantage.

> (2) Where a party to a contract incurs expenses for the purposes of performance of the contract, which becomes void after performance under section 25(2), the court may if it considers it just to do so in aL[ the circumstances-

> (a) aLtow the other party to retain the whole or any part of any advantage received by him or her;

> (b) discharge the other party, wholly or in part, from making compensation for the expenses incurred; or

> (c) make an order that the party recovers the whole or any part of any payments, discharge or other advantages not greater in vatue than the expenses incurred."

The crrcumstances of this appeat were that the agreement was found to be void ab initio but no evidence was Led as to the advantages the respondents were gaining by the respondents taking back possession of the [and. There was no counterctaim for compensation for devetopments such as buitdings erected on the land by the 3'd defendant and the 4tn defendant. The learned 20

triat judge retied on the evidence of destruction by appel.[ants without any evidence of the quantum of the destruction. Was the vatue of the property enhanced? Ctearl.y the case of the pl.aintiffs who are now respondents in this appeat in the pteadings is that the tand is supposed to be a burial ground and therefore it was not for sate. That notwithstanding they pteaded that they were benef rciaries. 25 30

The trial judge on the other had considered the fact that the [and was being used for ptantations in the meantime and some crops were destroyed by the third and fourth defendant devetopers.

The ptaintiffs who are now the respondents were not in pari delictowith the persons who entered into the itlegaI transaction. Because the site was 35

meant for burial grounds, its value cannot be ascertained without further $\mathsf{S}$ evidence about the benefits of construction and without a counterclaim for compensation under section 54 of the Contracts Act (supra) The purpose of the property according to the plaintiffs was for cultural use. It cannot be auantified.

$\tilde{X}$

- The rationale for the award of general damages was stated by the East 10 African Court of Appeal in Dharamshi vs. Karsan [1974] 1 EA 41 as being to fulfil the common law remedy of *restitutio in integrum*. This remedy is that the Plaintiff is to be restored as nearly as possible to a position he or she would have been had the injury complained of not occurred. - According to Halsbury's Laws of England Fourth Edition Reissue Volume 12 15 (1) paragraph 812 general damages are those losses, usually but not exclusively non-pecuniary, which are not capable of precise quantification in monetary terms. They are presumed to be the natural or probable consequence of the wrong complained of with the result that the Plaintiff is required only to assert that such damage has been suffered. To establish 20 quantum is easy where loss of money can be established for instance in Johnson and another v Agnew [1979] 1 All ER 883 Lord Wilberforce held that the award of general damages is compensatory and to place the innocent party so far as money can do so, in the same position as if the contract had been performed. The plaintiffs in the circumstances of this appeal put 25 themselves in the position where they cannot assert any loss for failure to develop the area as an income generating land. They proceeded on the premises that the land was meant to be for burial grounds for their generation and for future generations. I can only see inconvenience suffered by the plaintiffs and the destruction of crops which was not 30 quantified.

In the premises I would allow ground 4 of the appeal because the award of Uganda shillings 50,000,000/= was not given a clear rationale basis. I would set it aside and exercising the powers of this court under section 11 of the Judicature Act, I would substitute the award with an award of general 5 damages for inconvenience and the destruction of crops amounting to Uganda shittings 20,000,000/= onty.

Further, the award of interest as stiputated in the ground 5 of 20% per annum can be contested because it is an award on general damages. GeneraI damages are awarded for the inconvenience and damages suffered up to the date of judgment. lt is not based on contract where a stiputated interest rate may be awarded. lt is not based on a business transaction as al.l.eged by the respondent's counset lnstead, the ptaintiff suffered inconvenience and loss of some crops whose value was not quantified and cannot be guessed. However, the primary purpose of the [and was a site for customary use as a bunal ground. ln the premrses, commercial interest of 20% per annum on the generaI damages is excessive. I wouLd set it aside and find that award of 20% interest per annum is unreasonabte on general damages.

Section 26 (2) of the Civit Procedure Act provides that:

"Where the decree is for the payment of money, the court may in the decree, order interest at such rate as the court deems reasonabte to be paid on the principaL sum adjudged from the date of the suit to the date of the decree, in addition to any interest adjudged on such principaI sum for any perrod prior to the institution of the suit, with further interest at such rate as the court deems reasonabLe on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit." 20 25

The award of interest is to compensate the ptaintiff for the time after the judgment before he or she receives the genera[ damage from the defendant. This shoul.d cater for infl.ation or depreciation of the currency and for opportunity costs of not getting the sum eartier. The land reverts to the estate of the deceased and so the interest awarded caters for any infl.ationary trends and delays. According to Forbes J in Tate & Lyte Food and Distribution Ltd Vs Greater London Counci[ and another [1981] 3 Al.t ER 716 interest is not a punitive measure but compensation. ln hrs persuasive judgment he said that in awarding interest. 30 35

5 One Looks, therefore, not at the profit which the Defendant wrongfutly made out of the money he withheLd (this woutd indeed invoLve a scrutiny of the Defendant's financiat position) but at the cost to the Ptaintiff of being deprived of the money which he shoutd have had. I feel satisfied that in commercia[ cases the interest is intended to reflect the rate at which the PLaintiff woutd have had to borrow money to supply the ptace of that which was withheld.

As noted above, thrs was not a commercial transactron but one in which there coutd be some detay in payment of general damages. The court considers the time from the date judgment is detivered awarding general damages to the time in the future which cannot be estabtished when the ptaintiffs woutd have reaiised payment. ln such circumstances, money accrued at the time of Judgment and the court can presume that the rate which can be fair coul.d be a rate of about 10% per annum. lf the defendants del.ay in the payment of the damages, it is reasonabte to expect the money to depreciate and in any case, the ptaintiffs wou[d not have had the use of the money eartier when they could have put the money to good use after judgment. I wou[d set aside the award of 20% interest as being a commercial interest which is unreasonabte in the circumstances and substitute it with 15 20

- a reasonabte rate of 10% per annum on the general damages. Having said that, I woul.d a[[ow ground five of the appeal. with the above orders. - I have carefutty considered ground six of the appeaI which is to the effect that the learned trial. judge erred in [aw and fact when he ordered that the suit property be administered by the Administrator GeneraI in trust for the benef icraries. 25 - The appettant's counsel dwett on the fact that the deceased was survived by severaL chitdren namety adutt chil'dren being the first respondent, the first appel.l.ant and the second appetl'ant. There was evidence of a famity meeting in which some persons were chosen to appty for letters of administration. 30

ldo not need to consider in detait the submissions of counseI because the ctear principl.e is that the grant of [etters of administration fo[[ows due process as I have heLd above. ln granting letters of administration to the 35

5 Administrator GeneraI by imptication, the [earned triat judge erred in law. The matter shoul.d be handLed by the famity division of the High Court which allows for notice to the pubtic as wetl as the possibil.ity of caveats or disputes among the entitl.ed person as to who shoul.d administer being determined by court or even an agreement on that. I woutd attow ground 6 of the appeal without much ado and fottowing that I woul.d dectare that the matter can be handled by the famity division of the High Court after the parties who are interested inctusive of the Administrator General have fil.ed the appropriate papers for grant of letters of admrnistration. 10

ln ground 7 of the appeat, the appel.l.ant compLained that the learned trial judge erred in law and fact when he issued a permanent injunction restraining the first and second appel.l.ants from interfering with the respondent's possession and use of the suit property. 15

I woutd attow ground 7 of the appeal wrthout much ado because it is an agreed fact that the first and second appeltants are also beneficiaries and therefore they are entit[ed to the estate of the deceased as is enabl.ed by the law of succession. Let a chance be given to the admrnistrator of the estate to be, to administer the estate in accordance with the succession [aws. A permanent injunction woutd have the effect of depriving any interest that the f irst and second appeLl.ants would have to possession and use of

- the suit property under any law of intestacy that is retevant. I woutd find that the best course would be to leave the matter to the process of the laws of succession and not the civit suit that gave rise to the appeat. I woutd attow ground 7 of the appeat. The court deal. with ittegatity of sale of estate property and not entittement to [etters of administration. 25 - The sum total of the above is that I woutd attow ground 4 of the appeat by setting aside the award of Uganda shitl.ings 50,000,000/= and substituting it with an award of Uganda shitl.ings 20,000,000/=. 30

Secondl.y, I woutd attow ground 5 of the appeal by setting it aside and substituting it with an award of interest of 10% per annum on the general damages.

5 Thrrdty lwould atlow ground 6 of the appeal with an order that the n']atter be referred for handl,ing by the famrty division after the appropriate person has fited a petition for grant of letters of administration.

Lastty I woul.d atlow ground 7 of the appeaI onLy to the extent that the first and second appeU.ants who are benef iciaries of the estate of the deceased shoul,d not to shut out from the possibitity of benefiting from the 5 acres, the subject matter of the suit, based purel.y on the laws of succession as administered by the person to be LawfuLty appointed [ega[ representative of the intestate through grant to him or her of letters of administration.

The above notwithstanding, the appeal onLy partiatty succeeds. I wou[d make an order that in the circumstances, the appel.l'ants pay hatf the costs of the appeal. to the respondents. The costs in the court betow shat[ be paid by the Appet[ants. 15

Dated at Kampata the 2R day of 2022 b-

20 Chflstopher Madrama

Justice of Appeal

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# (Coram: Cheborion, Madrama and Mulyagonja, JJA)

### CIVIL APPEAL NO. 111 OF 2019

1. NAKAYIMA JOYCE 2. NANGENDO ROSEMARY 3. KIBUUKA ROBERT

**::::APPELLANTS**

4. PARADISE PROPERTY CONSULTANTS

#### **VERSUS**

- 1. NALUMANSI KALULE - 2. SENGENDO WASHINGTON

**::::::::::::RESPONDENTS**

3. KADDU EDWARD

(Appeal from the Judgment of Keitirima J, dated 7th March 2019 in Kampala High Court (Land Division) Civil Suit No. 2531 of 2016)

# JUDGMENT OF CHEBORION BARISHAKI JA,

I have had the benefit of reading in draft the judgment of my brother, Christopher Madrama, JA and I agree with him that this appeal should succeed only in part. I also agree with the orders he has proposed.

As Mulyagonja JA also agrees, the appeal succeeds only in part along the lines proposed by Madrama JA. The appellants shall pay half of the costs of the appeal and the costs in court below to the respondents.

Dated at Kampala the. $28$ day of ...................................

**Cheborion Barishaki Justice of Appeal**

## THE REPUBLIC OF UGANDA, IN THE COURT OF APPEAL OF UGANDA AT KAMPALA (Coram: Cheborion, Madrama and Mulyagonja, JJA) CIVIL APPEAL NO 111 OF 2019

![](1__page_29_Figure_1.jpeg)

(Appeal from the Judgment of Keitirima J., dated 7th March 2019 in Kampala High Court (Land Division) Civil Suit No. 2531 of 2016)

### JUDGMENT OF IRENE MULYAGONJA, JA

I have had the benefit of reading in draft the judgment of my learned brother, Christopher Madrama, JA. I agree that the appeal partially succeeds and with the orders that he has proposed and have nothing useful to add.

Dated at Kampala this $\mathbb{R}^{\mathbb{Z}}$ day of September 2022.

Irene Mulyagonja JUSTICE OF APPEAL