Nakuba and 2 Others v Nakitende(as administrator of the Estate of late Eria Kirumira Nakalango) and 3 Others (HCT-00-MA 2198 of 2021) [2022] UGHCLD 270 (27 October 2022)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA **LAND DIVISION**

## HCT-00-LD-MA-2198-2021

(Arising from LD-CS-No. 2541-2017)

1. NAKUBA ALICE ::::::::::::::::::::::::::::::::::::

# 2. MUKASA STEPHEN BUTENGEZA

3. NKAYUGIDDE PETWA MAKONZI

#### VERSUS

1. FRISTA NAKITENDE:::::::::::::::::::::::::::::::::::

(Administrator of the estate of the late Eria Kirumira Nakalango)

### 2. ROBERT MUGERWA

3. KYEPA YAZID MUKALU

4. COMMISSIONER LAND REGISTRATION

# **BEFORE: HON. MR. JUSTICE TADEO ASIIMWE**

### **RULING**

#### **BACKGROUND:**

The Applicants brought this motion under section 82 and 98 of the Civil Procedure Act Cap 71 and O.46 r 1 & 2 and O.52 r 1&3 Civil

Procedure Rules S.171-l and scction 2l (l) (c) of the limitation act seeking the following ordcrs that;

- 1. That court reviews its judgmcnt in civil suit No.34 o1.2006 be set aside and have the applicants added as co-defendants. - 2. That this honorable court issues an ordcr cancelling instruments of sub division of the suit land comprised in Busiro Block <sup>403</sup> plots 262 subdivided into plot 320,322,323 that wcre created as <sup>a</sup>result of the judgments and ruling of this honorable court. - 3. That this honorable court issues an order cancciling instruments of transfer of thc suit land compriscd in Irusiro, block 403 plots 262 (now subdivided into plots 320,322,323). - 4. Thal court issues a permanent injunction stopping any lurther transfers, sale, negotiations of settling squatters, mortgaging, leasing, subdividing and in any way alienating the suit rand by the respondcnts in rcspect to thc land comprised in Busiro block <sup>403</sup>plots dealing with the suit rand comprised in Busiro block <sup>403</sup>plots 262 now subdivided inro plots 320,321,322 &323. - 5. Costs be provided for.

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1'he grounds of this application are stated in the affidavits in support of the motion deponed by all the applicanls dated l6th/lll2O21 respectively. rhe gist of the affidavit is that this Ilonorable court passcd judgmenl in Civil suit No.34 of 2006 and a ruling in Misc. Application No.254l of 2017 against the l.r rcs ondcnt in avo ur

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of the 2nd and 3'd rcspondents. fhat the eflect o[ these decisions affected their beneficial sharc in their late father's estate the latc Lesen Kasule Nakalago.

I'hat they are aggrieved parties and thcrc exists a new and important matter of evidence which was not available at thc time the above decisions were made that thc late Eria Kirumira Nakalago had obtained Letters of Administration fraudulently without involving the applicant. In reply the I't respondent in her affidavit did not oppose the application and stated that shc is a widow of the latc llria Kirumira Nakalago and that the suit land was matrimonial properry which her late husband allegedly sold to rhe 2d and 3'd rcspondcnts without her spousal consent. l'hat she is an aggrieved party lhat was condemned unheard in civil suit No.34 of 2006 whcre court awarded the suit land to the 2d and 3'd respondents against her interest in the samc.

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on thc other hand, the 2nd and 3'd respondcnts opposcd the application in their affidavits in reply and thc gist ol. the alfidavit is that this application has no merit and that simirar various apprication havc been filed and dismissed in various courts against thc applicant.

That there is nothing ncw in this apprication or any ncw evidencc found by the applicants to warrant an ordcr of review cr jrd cnt by this Honorable Court.

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At the hearing, the applicants were represented by Counsel Kanyago Annet, the l't respondent was represented by Counsel Kenneth Nasuuna Victoria while 2,,d and 3'd respondents were rcpresented by counsel Bemanyisa Adonijah.

Both counsel filed writtcn submissions in this matter which I have considered.

In his submissions counsel for the applicant submitted in length but briefly that the applicants are aggrievcd pcrsons who have suffered grievancc by not being heard in a matter that involvcd thcir late father,s estate and that they discovered some new and important matter of evidence which was not available to court at a time the judgment was delivcred.

That the purported administrator of their late fathcr's estate obtained Letters of Administration illegally in thc court that had no jurisdiction and fraudulently without authority disposcd oIthcir late fathcr's estate without authority.

counsel for thc Applicants formulated thrcc issues which I have o rearranged and narrowed down to four.

#### ISSUES:

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- 1' whether the applicants are aggrieved pcrsons within the meaning of section 82 of the Civil procedure Act. - 2. Whether the application meets the critcria for revicw. - 3. Whetherapplication No.2l97 is comp rt record. etcnt on c

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4. Whether applicant's affidavit in rejoindcr sworn on 5th1412022 in response to 2nd and 3'd affidavit in rcply was validly filcd.

#### RESOLUTION:

#### Whether thc applicants arc aggrievcd pcrsons?

The Applicants as 3'd parties to HCCS 34 of 2006 were duty bound to establish that they were clothed aggrieved persons as envisaged under section 82 of the Civil Procedure Act and Order 46 rule l&2 of the Civil Procedure Rules which provide as follows;

### '82. Reyicw.

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Any person considering himself or herself aggrieved-

- (a) By a decree or order from which an appeal is allowed by this Act, butfrom which no appeal has been preferred; or - (b) By a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or order as it thinks fit.'

# Under Order 46 rule I and 2;

- l. Any person conserving himself or herself aggrieved- - (a) By decree or order from which an appeal is allowed, but from which no appeal has been preferred; or - (b) By a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter of evidence, after the exercise of due diligence, was not within his or her knowledge or could not be produ d by him or er ot the

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time when the decree was passed or the order made, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him or her, may apply for a review of judgment to the court which passed the decree or made the order.

In Mohamed Allibhai V W. E Bukenya Mukasa & Departed Asians Property Custodian Board Supreme Court Civil Appeal No.56 of 1996, Odoki, JSC, explained that;

'A person considers himself aggrieved if he has suffered a legal grievance. See Yusuf v. Nokrach (1971) EA 104, and In Re. Nakivubo Chemists (U) Ltd (1971) HCB 12, Ladak Adulla Mohamed Hussein v. Griffiths Isingoma Kakiiza and others Civil Appeal No. 8 of 1995 (unreported). A person suffers a legal grievance if the judgment is against him or affects his interest;

To answer the question as to whether the Applicants were aggrieved persons, this court revisited HCCS 34 of 2006 which was attached to the application.

From the said judgment, the applicants were not party to the proceedings therein. However, the $2^{nd}$ and $3^{rd}$ respondents in this application had sued a one ERIA KIRUMIRA NAKALANGO as an administrator of the estate of the late ELISAN KASULE NAKALANGO for specific performance to transfer title of the suit land claiming that he had given powers of attorney from a one William

Kiibirigye from whom they bought land from. Court found as such and caused transfer of title to be transferred to the $2^{nd}$ and $3^{rd}$ respondents.

Defendant in Civil Suit No. HCCS 34 of 2006 was sued in a capacity of an administrator of the estate of the late ELISAN KASULE NAKALANGO. This would ideally mean that the suit land originally belonged to the estate of the late ELISAN KASULE NAKALANGO.

The applicants in this application brought this application as beneficiaries of the estate of the late ELISAN KASULE NAKALANGO who were condemned unheard in civil suit No. HCCS 34 of 2006. I have also noted that a similar application had been filed to this court by the Nakalango Mutumba foundation truest where both applicants belong. However, the same was dismissed for want of prosecution.

Ideally, beneficiaries in an estate of the deceased are aggrieved parties in case any order is made against the estate of the deceased. However, once the estate has a legal administrator with letters of administration, unless challenged and revoked by court, he suffices as a legal representative in all suits arising out of the estate and once he participates in a suit the resultant orders affect all the beneficiaries and they cannot claim to have been aggrieved for reasons that they were not personally heard by court, he (Administrator) suffices as a legal representative in all suits arising out of the estate and once he

participates in a suit the resultant orders affect all the beneficiaries and they cannot claim to have been aggrieved for reasons that they were not personally heard by court. The Administrator has a right to call them as witnesses to raise their claim. I therefore don't find the applicants aggrieved person in that regard as beneficiaries who were well represented by the administrator of the estate of the late ELISAN KASULE NAKALANGO.

I resolve this issue in the negative.

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## Whether the application meets the criteria for review under section 82 of the Civil Procedure Act.

Counsel for the Applicants argued this issue on the basis that the applicants have discovered some new and important matter of evidence. He stated that the defendant in civil suit No. HCCS 34 of 2006 had no authority to sell since he had obtained letters of administration fraudulently and in a court without jurisdiction a fact that was not in the knowledge of court.

Ideally, issues of validity of letters of administration cannot be ruled out in an application for review. Further unless the said letters of administration are revoked by court, they still stand valid.

In my view, challenging actions of an administrator or his letters of administration is a whole different suit which can still be filed subject to limitation.

I therefore do not find any justifiable reasons and the laws new evidence that was not in the knowledge of court without a court order invalidating the letrers of administration held by the defendant in civil suit No. HCCS 34 0f 2006.

This issue is equally answcrcd in the negative.

In my view, the above issues determine the entire application and <sup>I</sup> find no need to delve in the other issues.

I therefore find no merit in this apprication and thc same is hcrcbv dismissed with costs.

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TADEO ASIIMWE JUDGE 27n0t2022.

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