Nakitende and 3 Others v Kawesa Kyakulubaala (Civil Suit 996 of 2021) [2024] UGHCLD 259 (11 October 2024)

Full Case Text

### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT KAMPALA

### (LAND DIVISION)

### **CIVIL SUIT NO. 996 OF 2021**

## 1. IMMACULATE NAKITENDE

#### 2. NABUNYA NABUKKO ELIZABETH::::::::::::::::::::::::::::::::::::

#### 3. LUBWAMA SEMU

## 4. BULIMULU EPHRAIM

(All administrators of the estate of the Late Kiyita Eronaida)

#### **VERSUS**

### KAWESA YONNA KYAKULUBAALA ::::::::::::::::::::::::::::::::::

*(Administrator of the estate of the Late Lubwama Semu)*

#### Before: Lady Justice Alexandra Nkonge Rugadya

#### **JUDGMENT:**

The plaintiffs are all administrators of the estate of the late Kiyita Eronaida. They 15 filed this suit against the defendant, as the administrator of the late Lubwama Seemu Byekwaso who died intestate.

They filed this suit seeking:

- *a) A declaration that the beneficiaries of the estate of the late Kiyita Eronaida are* - entitled to 21 acres of land comprised in Busiro Block 81 Plot 216 at Baale 20 as their beneficial share from the estate of the late Lubwama Seemu Byekwaso, as per the inventory made by the defendant himself. - *b) A declaration that the defendant's actions of deliberately and without any valid* cause refusing to surrender the suit land to the beneficiaries of the estate of the late Kiyita Eronaida are illegal and unlawful.

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- c) An order directing the defendant to surrender the remaining beneficial share of 27 acres of land compised in Busiro Block 87, Plot 276 at Baale to the estate of the late Kigita Eronaida. - d) In the alternatiue, but without prejudice to (c) aboue, an order for tLrc cancellation of the certificate of title of land comprised in Block 81, plot 279 at Baale- Kanzize measuing approximatelg 28 acres currentlg registered in the names of the defendant and his children and the same be regktered in the names of the plaintiffs so as to enable them mutate/ subdiuide the land to obtain the claimed beneficial share of 21 acres giuen that the said land u.tas fonnerly part of the estate of the late Lubutama Seemu Byekwaso.

That further without prcjudice to thc foregoing, an order that the defendant compensate the be ncficiarics to thc cstatc of thc late Kiyita Eronadia with the market valuc of 21 acrcs of land at Busiro- Baale which currently equates to a sum of Ugx 630,O0O,0O0/= (caloulated at a rate of Ugx SO,OOO,OOO/= per acrel, the value this court was able to note during lhe locus-in-quo.

## Background to the case:

The facts as statcd in thc plaint arc that thc plaintiffs are all administrators of the e state of the latc Kiyita Eronida. The defendant is the administrator of the estate of the late Lubwama Seemu Byekwaso who dicd intestate, leaving eight children, amongst whom was thc dcfendant himsclf and thc late Kiyita Eronaida.

The defendant applied, vide: Administration Cause lVo. 456 oJ 2O11 and was on thc 2"d day of Augusl, 2O1l granted lctters of administration to the estate of the late Lubwama Scemu Byekwaso.

He purportedly distributed the properties of his father's estate among the beneficiaries and consequently filed an inventory in this court on the 4fr September 2O 13. 25

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In the inventory he indicated that hc had apportioncd 54 acres of land to the late Kiyita as her bencficial share, brokcn down as follows: 30 acres of land at Baale Busiro, 23 acrcs of iand at Wo1o1o -Busiro; and 1 acre of land at Busega - Kibuga.

In orde r to enable thcm obtain thc beneficial sharc of the late Kiyita from the defendant as an administrator, thc plaintiffs applied, vide: Ad.minlstration Cause No, 335 of 2O151 and wcrc granted letters of administration to the estate of the late Kiyita Eronaida on the 1gth day of Novcmbcr, 2015.

Out of the 30 acres, the defendant howevcr only surrcndered 9 acres of the land comprised in Block 87 Plot 27O at Baale- Kanzize to the plaintiffs, with a promise to surrender the rest but which to date he has failed to do, without giving any valid reason.

The plaintiffs therefore filcd Ctutl Suit lVo. 67 oJ 2076 tn the High Court (Family Division) against thc dcfcndant claiming thc rcmaining beneficial share of 21 acre s at Baale , which suit was howcvcr dismisscd for non- appearance of parties.

Consequently, the plaintiffs filed the instant suit for orders that the defendant surrenders to thcm thc remaining bcneficial sharc of 21 acres in respect to land at Busiro- Baalc; gencral damagcs and costs, among others. 15

The defendant who filed a written statemcnt of dcfence initially participated in the pre-tria1 proceedings but in the coursc of the hearing he stopped attending

court despite having been effectivcly served. in his defence, he denied the claims against him. 20

This court upon satisfying itsclf that thc dcfendant had been duly served issued the order to procccd ex-parle against him.

## . Issues

At a joint schcduling memorandum executcd bctwccn the parties' respective advocate s on l0d January, 2023, thc following issue s wcre agrced upon: 25

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7. Whether the defendant dulg apportioned qnd distributed to the estate of the late Kigita Eronadia thelr beneficlal share out of the estdte of the late Lubuanna Seemu Bgekuaso in accordance ulth the lntentory filed bg the defendant;

# 2. Whether the plaintiffs haae ang cause of action against the defendant?

# 3. Whether the plaintiffs are entitled to the reliefs sought?

# 10 Represent4;tion:

The piaintiffs wcrc reprcscnted by M/s Tenax Aduocates who as directed by court filed written submissions. Thc dcfendant's writtcn statement of defence was fi1ed by M/s Zautedde Lubuama & Co. Aduocates. Thcy however did not file for him writtcn submissions in court.

# 1s Consideration af the issues;

The plaintiffs prcsentcd thcir casc through the evidcnce of two witnesses to wit; 11r" 4\*t plaintiff, Mr. Buzimulu Ephraim (Putl); and thc 2"d plaintiff, Ms. Nabunya Nabuko E\izabelh (Put2). A numbcr of documcnts wcre also relied on as presentcd in the trial bundlc; and filcd on court rccord on 23'd November,2023.

- The defendant neither attcndcd thc ful1 trial nor did hc prcsent any documentary evidence to rebut the plaintiff's evidence to prove his case. He did not attend the Iocus visit despite the fact that he was duly notificd; and a resident in the same village and within the same location/ neighbourhood. 20 - 25 It is important to note at this stage, (as duly submitted by counsel), that after the conclusion of the visit at locus, hc was requested to attend court to present his defence as well as dclivcr both thc original grant and all the certificates of the title to thc suit land which wcrc in all his posscssion.

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However, despite his acceptancc to do so, he ncver turned up. This court therefore concluded that hc had no intcrcst in presenting his defence.

# Issue No. 2: Whether the olaintiffs haue d-tlu cd.se of action a,oainst the defendant?

A cause of action mcans cvcry act, which if, travcrscd, it would bc ncccssary for thc plaintiff to provc in ordcr to support his/hcr right to judgment of court. 5

ln Cottar a Attorneg General for Kenga 193 AC P. 18 it was said by Sir Joseph Sherid.an G,Ias hc thcn was

nWhat is important in considering uhether the cause of action is reaealed is bg the pleadings is the question to uhat right has been uiolated. In addition of course, the plaintiff must appeo.r as d persort aggrieaed bg the violation of his right and the defendant as d person utho is liable, then in tng opiniorr a cause of action has been disclosed. and ang omission or defect rnag be put right bg amendment. If on the other hand ang of those essentials is missing no cctuse oJ action has been shoutn,,- 10 15

In determining whether thc above three clements exist, the court only needs to look at the plaint and annextures thcreto, and nothing clsc.

An administrator of a dcceased person is/arc his/her iegal representative for all intents and purposes and accordingly, all the property of the deceased vests in such administrators. 20

Paragraph 5(a) of thc plaint indicates clearly that thc late Lubwama Seemu Byekwaso died intcstatc leaving behind the dcfendant and late Kiyita Eronadia as well as other children as bencficiaries to his cstate.

Furthermore, as pleadcd in paragraphs 1,2, and 5 (b) of the plaintiffs are administrators to thc estate of the latc Kiyita Eronadia. Likewise, as stated in 25

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paragraph 5(a), lhe defendant is the administrator of the late Lubwama Seemu Byekwaso.

By virtue of paragraph 5(c) & (d) thercof, it was also pleadcd that the defendant in his capacity as administrator distributcd the cstatc of late Lubwama Seemu

5 Byekwaso; filed an invcntory whercin thc latc Kiyita Eronadia's estate is said to be entitled to receive 30 acres of land at Baalc- Busiro.

In paragraph 5(c), only 9 acres wcrc however surrendered, leaving the balance of 21 acres which to date have not been surrendered by him despite the fact that the parties entered into a consent by which conscnt the balance of 21 acres was 10 to be paid by the defendant.

In response to this issue therefore, the plaintiffs' rights as both co-administrators and beneficiaries undcr thc cstatc of thc latc Kiyita Eronadia were violated by the defe ndant as an administrator of the estate of late Lubwama Seemu Byekwaso, which position was not rebutted by the defendant at the trial.

#### 15 Issue ^Io. I;

# Whether the de ndant du ortioned. and. distributed to the estate o the Late Kigita Eronadia their beneficial share out of the estate of the late LubUgma Seemu Bqekuaso, in accordance uith the inaentory filed bu the defend.ant?

# 20 The laut:

Section 1O1 of the Euidence Act provides that whoever desires any court to givc judgment as to any lcgal right or liability dcpcndcnt on the existence of facts which he or she asscrts must prove that those facts exist and the burden of proof lies on that person.

25 Section IO3 furthcr strpulatcs that the burdcn of proof as to any particular fact lies on that person who wishcs thc court to bclievc in its existence.

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As stated in Tageba Geolfreg and Anor as Kagitni IfCCS lVo. 11 of 2O12 quoting Ojuang as Wilson Bagonza CACA No. 25 of 2OO2, for onc to claim interest in land he/she must show that hc/she acquired interest/tit1e from someonc who prcviously hand intcrcst/titlc thcrcon.

Under section 27 of the Succession Act, all property in an intestate devolves upon the administrator or personal rcprcscntative of the deceased, as trustee for all the persons entitled to the propcrty.

Letters of administration havc thc effect of cntitling the administrator so appointed to rights bclonging to thc intcstatc undcr section 788 oJ the

## 10 Succession Act. (2023 Ed.n). (Ref: Hilda Ejon os Concg Ejon CACA No. 27 oJ 2O17).

The plaintiffs in this instance claimed that the defcndant had committed fraud and that due to his wanton fraudulent and unlawful actions, the plaintiffs and other beneficiaries to the estate of the late Kiyita have suffered grave loss, inconveniences, mental anguish for which the defendant should be found to be personally 1iab1e and pay general damages.

## Co nsid.e ratio n b U c ourt :

Fraud has been defincd as an intcntional perversion of truth for the purpose of inducing another in reliance upon it, to part with some valuable thing belonging to him or to surrender a legal right.

A false representation of a mattcr of fact, whcthe r by words or by conduct, by false or misleading allcgations or by conccalmcnt of that which deceives and is intended to deceive another, so that the othcr shall act upon it to his legal injury. (See: FJK Zaabwe as Orieftt Bank & 5 Others SCCA . I\Io. 4 oJ 2006 at pdge 28).

C)n account of the scriousness of the gravity of the allegation and its consequcnccs, fraud must not only be specifically plcadcd but also strictly proved. (JWR Kazoora as M. L. S Rukuba SCCA JVo. 13 of 1992|

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The court in anothcr casc, Kampala Bottlers Ltd rts Damanico (U) Ltd SCCA No. 22 of 1992 to hold that the burdcn o[ proof in fraud was higher than on a balance of probabilitics gcncrally applied in civil mattcrs.

Fraud is such a grotcsquc monstcr that courts should hound it wherever it rears its head and wherevcr it sccks to take cover behind any legislation. It unravels everything and vitiatcs all transactions. (Fcm International Ltd and Ahmad Farah us Mohamed El Fith [1994]KARL 3O7).

As observcd by court in KDLB & Anor as Babutegaka & others [2OO8] KALR 154 (SCU) at page I69, a ccrtificatc of titlc obtaincd by fraud cannot be said to have bcen obtained 1awfu11y; and such a certificatc is defeasible and liable to be cancellcd.

In the particulars of fraud as plcaded, the plaintiffs claimed that:

- a) the defendant distributed the estate and apportioned 30 acres of land compised in busiro Block 87 plot 276 at Baale as the beneficial shore of late Kigita and onlg surrendered 9 acres; - b) deliberately refusing to surrender the remoining 21 acres to the administrators/ beneficiaies uhich is part of the beneficial share of the estote of tLrc late Kigita; - c) disposing of the estate to almost extinction uithout first surrendering the entire beneficial share of 21 acres to the administrators/ beneficiaries. . . . . of estate of the late Kigita; - d) deliberately ignoing plaintiffs' demands of the beneficial share of the estate of the late Kiyita.. .

The 2"d plaintiff, Ms Nabunya Nabukko Elizabeth, a grandchild to the late Byekwaso and also one of the administrators of the estate of the late Kiyita testified as Put2. 25

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In support of the cvidencc 1cd by Put7, tinc 4ttt pl2intiff, Bizumulu Ephaim, she confirmed that their grandfathcr who die d intcstate was survived by eight children including thc defendant and the late Kiyita.

Thcy tendcred in court a numbcr of documents. A certified copy of the letters of administration grantcd to them on 19e Novembcr, 2015, as proof that they administered the samc jointly with the 1st and 3rd plaintiffs.

Another grant had carlier bcen issucd to the dcfendant for the administration of the estate of the late Byekwaso on 2"d Augusl,2O1l uide: AC 456 oJ 2O11. As submitted by counsel for thc plaintiffs, an administrator must exercise the power to administer the estate of the deccascd, not for themselves but in trust for the

estate. (Isreal Luanga us l\*onard Mubiru & Others SCCA l\Io. O18 of 2O22,). 10

Counsel for the plaintiffs also referred to the case ol Anecho Hanttna Musd as Tualib Noah & 2 others that the letters of administration obtained by the defendant entitlc him to all rights belonging to the intcstate effectually as if the administration has bccn grantcd at the moment aftcr the death of the deceased; that all assets of their late grandfathcr wcrc therefore hcld by him on bare trust for them as beneficiarics. His rolc as administrator was to distribute the estate.

It is also trite as statcd in that case cited by counsel that a personal representative must to discharge three functions in relation to the estate of the deceased.

First, the personal reprcscntative is to pay the debts and testamentary expenses of the deceased. Secondly, the personal representative is to marshal or collect and realizc the asscts of the deceased.

"Marshal1ing" asscts is the tcrm uscd to describe taking control of all of the assets of the estate, involving registering assets, such as bank accounts, real estate, automobile s, e tc, in the name of the administrator as guardian, conservator, or personal representative. Thirdly, an administrator is to distribute the assets of the estate. 25

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In the instant case however, thc defcndant on thc 4ft of September, 2013 filed an inventory beforc this court claiming to have distributed all the properties in thc estatc of the late Lubwama Sccmu Byekwaso to the rightful beneficiaries.

Undcr thc inventory, thc cstatc of thc late Kiyita Eronadia was apportioned 54 acrcs of land as thcir bencficial share. 30 acrcs of land at Baale - Busiro, 23 acres of land at Wo1o1o - Busiro and 1 acre of land at Busega - Kibuga.

The plaintiffs through thcir counsel referred to thc provisions of section 278 (1) lcurrentlg section 273(1) oJ the Succession Act), which makes it mandatory for an cxecutor/ administrator to exhibit in court a truc and correct inventory containing a full and true estimate of all thc propcrty in possession.

It was their further submission that the invcntory filed by the defendant on the 4fr of September, 2O13 was intended to reflcct as thc full and final account in respect to the estate of the late Lubwama Seemu Byekwaso after distributing all the properties to the rightful beneficiarics.

Out of the 30 acres of land at Baale- Busiro apportioned for the Late Kiyita Eronaida, only 9 acres thereof had been surrendered to them as administrators of the estate. 15

In his defence, the defcndant in paragraph 7 of tlne WSD referred to paragraph 5/c/, contending that hc had duly distributed the estate and that the plaintiffs had received their share of the late Kiyita and therefore had no claim against

him.

ln paragraph 8 thereof, that the 4ttt plaintiff had filed a suit against him in 2016, (Cinil Suit No. 61 of 2016). However, that a conscnt was rcached betwcen the parties whcrcin the 4ff plaintiff had acccpted to withdraw the suit. He however neither attached thc conscnt nor did hc tender it in court.

The 4s plaintiff in paragraph 9 of his statcmcnt in his rej oinde r denied any claim that hc had consented to thc withdrawal of thc suit as alleged but however

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maintained instead that the suit had been dismissed by court for nonappearance by both sides.

A careful perusal of thc inventory dated 4ft September,2Ol3 duly signed by the defendant indicates indeed that the total number of acres at Baale Busiro were 34 1 acres, (among other shares under the estate of Byekwaso).

Out of the 341 acres, he had rctained a total 1 1 1 acre s for himself, part of which was in the names of his children, a claim he failed to rcbut.

At the end of the 2"d page of that inventory, he wrote:

So I haue clearly distibuted the estate of ma lote fother Lubtuama Semu Bgekuaso os shown aboue and fulfilled the powers confined (sic!) on me bg both as the administrator of the deceased and as utell as the honouroble court of Nokaua (sic!) and moreso aboue all in good faith and for the benefits of the deceased's beneficial lies thereof. I, KAWEESI KYAKULUMBALA YONA, call upon each beneficiary to come for his share as soon as possible. 10 15

Sgd I<AWEESI KYAKULUMBALA YONA,

It is not disputed that thc plaintiffs upon receiving thc grant for Kiyita's estate proceeded under section 734 of the R?)l by which they, as the coadministrators of the estatc of thc late Kiyita on 29ft April, 2016, requested the Registrar of titles to havc thcir rcspectivc namcs registcrcd onto land comprised in block 87, plot 27O at Baale (as per ccrtificatc of titlc).

The registration in thcir joint names was effected on 4ff February, 2015, for an area covering 3.5740 hectares (equivalcnt to 8.8277ti acrcs).

The supporting transfer form as per court rccord duly signed by the defendant showed his photo as the transferor, indicating tinat plot 27O, block 87 measuring only 3.5740 hectares was transferred to the joint ad ministrators / plain ti ffs. 25

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Also attached to the said documents, was a conscnt dated 5fi May, 2016 between the plaintiffs and thc defendant. In paragraph 3 of thc consent it is stated:

## . CONSDNT

1.......

5 2....... ...

> 3. That I haue therefore handed ouer the title deed of land compised in Busiro Block 81 plot 210 approx. 3.574O hectares to Eronaida uide AC No. 335 of 2015. administrators of the estate of the late KiAita

4. That the lale KNITA ERONAIDA Luas entitled to lhirty (3O) acre-s at l)baa[e on block 81 10 but I haue handed ouer the litle deed of land measuing 3.5740 hectares , he remainin t dminislrators a subdluisions e hasis

Dated at Kampata this 5h May, 2O 1 6'

The above terms and conditions of the consent were however never complied with by the defendant.

15 As such, he never completed the estate distribution; and did not make any attempt to attend court to explain why he never fulfilled his obligations under the consent and the inventory; or to explain where the remaining 21 acres were, or to whom he had surrendered the same; why and when.

Thus also as correctly submittcd by counsel for the plaintiffs, when this court later interacted with thc defendant, by failing to attend court as advised, he lost his final opportunity to defend himself. He is therefore deemed to have admitted the allegations of fraud raised against him. 20

Court at locus also confirmed the assertions made by the 4tt' plaintiff, PutT in court that the defendant had disposcd of part of the land to several occupants.

These were seen occupying part of the land, in comfort. 25

The plaintiffs admitted having disposed of the 9 acres allocated to them by the defendant. But they also proved to court that they were not in occupation of the additional 21 acres to which they and other beneficiaries were entitled.

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Court had no reason to disbelieve the assertion also therefore that the proceeds from the sales were never shared between the beneficiaries; and no accountability was ever furnishcd to the plaintiffs or other beneficiaries.

5 As such the defendant's failure to pass on/ surrcnder the same to the beneficiaries of the estate of the late Kiyita Eronadia as exhibited in the inventory, amounted to fraud.

Sectton 161 of the RTA gives this court power to direct the Commissioner to cancel any certificate of title, instrument or entry in the register relating to the land and substitute the certificate or cntry as circumstances of the case would require.

## Issue .[lo. 3: What retnedies are aaallable to the plainttffs?

Its trite law that, that damages are dircct and probablc conscqucnce of the act complained of, also notcd in thc casc of Kampala District Land Board and George Mitala Vs Venansio Bdmueuana CA No, 2 of 2OO7. Such may be loss of profit, physical inconvcnicncc, mcntal distrcss, pain and suffering, (See also Assit (U) os. Italian Asphault & Haulage & Anor HCCS No, L297 oJ 7999 at page 5).

It is also a settled position of thc 1aw that the award of general damages is in the discretion of court and is always as the law will presume to be the natural conscquencc of the dcfcndant's act or omission.

Thc object of an award of damagcs is to givc the plaintiff compensation for the damage, loss or injury hc or shc has suffcrcd. (See: Fredrick Nsubuga Vs Attorneg General S. C. C. A. No. a of 1999}

Therefore, in the circumstances of the quantum of damages courts are mainly guided by thc value of the subject matter, the economic inconvenience that the party was put through at the instance of the opposite party and the nature and event of the breach. 25

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A plaintiff who suffe rs damage due to the wrongful act of the de fendant must be put in thc position he or shc would have bccn in had hc or she not suffered the wrong. He or she ought to lead evidencc or give an indication what damages should be awarded on inquiry as thc quantum. (Ongorn Vs. AG (1979) HCB

5 267, cited bg court in Kannugira Vs National Housing & Construction Co, CS..l\Io. 127 of 2OO9).

It is the plaintiffs' uncontroverted evidence that the defcndant has deliberately, without any valid justification refused to surrender the remaining beneficial share of 21 acres to beneficiaries of the estate of the Late Kiyita Eronadia despite various claims made.

The above evidcncc as highlighted was sufficicnt proof that the defendant committed a brcach of thc contract whcn hc failcd to mcet his obligations under the consent, and in respect of which plaintiffs were therefore entitled to the remedy of specific performance and compensation, rcspectively payable to them

## in accordancc with sections 6O and 63 oJ the Contract Act, Cap. 284. 15

Furthcrmorc, he betrayed the trust bestowed upon him by the estate (and this court which issued the letters of administration to him), and in respect of which damages are payable.

The plaintiffs sought an award of Ugx TOO,OOO,OOO/= as general damages for the loss and inconveniencc suffercd, which however I find to be rather on the high side. 20

Accordingly, thc following ordcrs arc madc:

a) a declaration herebg issues that the beneficiaries of the estate of the late Ktgtta Elronald.a are entitled. to 21 acres of land. conptlsed in Busiro Block 87 Plot 216 at Baale as their beneJicial share from the estdte oJ the late Lubuama Seemu Bgekwaso a!; per the lnoentory made bg the deJendant hitnself;

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- b) a declaration issues that the defendant's actions of deliberately and without any valid cause refusing to surrender the suit land to the beneficiaries of the estate of the late Kiyita Eronaida are illegal and unlawful. - c) An order accordingly issues, directing the defendant to surrender within a period of 45 days, from the date of delivering this judgment, the remaining beneficial share of 21 acres of land comprised in Busiro Block 81, plot 216 at Baale to the estate of the Late Kiyita Eronaida: - d) Upon failure to surrender the 21 acres of the said land to the estate 10 of the late Kiyita within that period, the defendant shall be required to pay a sum of Uqx $420,000,000/$ = as compensation for the loss of land (at a rate of Ugx 20,000,000/ $=$ per acre, estimated to be the value of the land). - e) The said amount shall be paid within only 30 days after the end of the 45 days (as decreed above), which period shall start counting from the last date of such failure to surrender the 21 acres. - f) General damages of Ugx $70,000,000/$ = shall be paid to the estate of the late Kiyita to atone for the inconveniences and loss occasioned by both the breach of contract and breach of trust; - g) Interest of 15 p.a shall be paid in respect of orders (d) and (f) above. Costs awarded to the estate of the late Kiyita.

iko Ira Nkonge Rugadya Alexand

Judge

11th October, 2024

Defined by email Albuy 15 Julio 2024