Namazzi and Another v Kasumba (Civil Suit 273 of 2018) [2023] UGHCLD 134 (24 May 2023)

### THE REPUBLIC OF'UGANDA

,

### IN THE HIGH COURT OF UGANDA AT KAMPALA

#### LAND DIVISION

# clvrl, surr No. 273 ()F 2018

#### 5 L. NA]IITAZZI JUSTINE

2. NALI,IWOOZA AMINAH.. .... PLAINTIFFS

#### VERSUS

# 10 JOSEPHKASUMBAATEENYI DEFENDANT

# Before: Justice Alexandra Nkonse Ruqadua

#### JUDGMENT

# Introduction:

15 The plaintiffs are some of the administrators to the estate of the late kaboyo jane san)'u and registered proprietors of the suit land Bloclc 265 plot 6894, Kgaddondo Waklso.

The late Kaboyo Jane Sany'u died in 2008, leaving behind three (3) roofed rental uncompleted units which the family went ahead to complete following her death.

They filed this suit seeking the following orders:

- a) A declaration that the plaintiffs are the beneficial ou)ners of the suit land; - b) A declaration that ang sale to the defendant uas null and uoid; - c) A declaration thot the defendant is a trespasser;

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- d) An order against the defendant to deliuer up uacant possession uithin a specified time and/ or an order of euiction agoinst the defendant; - e) An order of pennanent injunction restraining the defendant and/ or his agents from euer trespassing on the suit land; - fl General damages; interest and costs of the suit

It is the plaintiffs' case that the defendant who was unknown to the plaintiffs 10 claiming as owner in the company of weight lifters and assisted by the police and without a court order forcefully took possession of the late Kaboyo's property confiscating all the materials. They arrested all the beneficiaries.

The defendant claiming as owner had purchased the property from one Wasswa Musa a son of the deceased who was not the administrator of the estate. It is the

plaintiffs' further claim that he has been illegal possession since 2018, deriving his livelihood from the estate to the detriment of tl:e bona fide benehciaries to the estate. 15

In his WSD the defendant claimed he was a bono fide purchaser for value for the suit land comprised in Rgadondo Block 265 plot 6a94 land at Bunamutaga,

having purchased the same in 2016 from the beneficiaries of the estate of the late Kaboyo Jane Sanyrr and taken possession thereof. 20

Furthermore, that the beneficiaries needed the finances to stream line the estate; and that he entered into the purchase agreement with their knowledge and consent.

After receiving the initial purchase price, the beneficiaries appointed one Bogere Ahmed to apply for the grant over the estate on 13th January, 2016. The beneficiaries requested for further payment and signed a deed of acknowledgment which showed that the money was for the processing letters of administration. 25

According to him therefore the plaintiffs had actual and constructive notice of his interests and activities since 2009 when he purchased the same from Wasswa Musa. He therefore denied any acts of trespass on the land.

5 Upon agreement of both sides court on 23'd Pebruary 2022 directed parties to engage office of Chief Government valuer to assess the value of the land comprised in BIocIc 265 plot 6894, measuring 0.0570 hectares in the names of the administrator of the estate.

On 8th September,2022 the two sides were a-lso directed to file submissions be for court to address the issues raised, the gist of which is the validity of the transaction between the defendant and Wasswa Musa.

Timelines were given in court but only the plaintiffs' side filed submissions.

The following were the issues for court to determine

#### Issues.'

- 7) Who ouns the sult propertg; - 15

- 2) Whether there ls a ualld sale betueen Wassua Musa and the defendant; - 3) Whether the JorceJul eulctlon o;f the beneficlarles bg the deJendant ua.s legal.

### Representatlon:

The plaintiffs were representedby M/s Munna, Wananda & Co. Aduocates. The defendant on his part was representedby M/s Ja nbo & Co. Aduocates

# 25 The la.u:

By virtue of sectlon 1Ol (1) of Euldence Act, Cap. 6, whoever desires court to give judgment to any legal right or liability depending on the existence of any

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facts he/she asserts must prove that those facts exist. (George l/,flllann Krzkoma a Attorfleg General [2O7O] HCB 7 at page 78).

The burden of proof lies therefore with the plaintiff who has the duty to furnish evidence whose level of probity is such that a reasonable man, might hold more probable the conclusion which the plaintiff contends, on a balance of probabilities. (Sebullba as Cooperdtiae Bo,nk Ltd. [1982] HCB 73O; Oketha as Attorneg General Ctvll Suit No. OO69 ol 2OO4).

In the case of: Justln Lutaga a Stlrling Civil Englneerlng Cornpang, Supreme Court Ctril Appedl No, 77 oJ 2OO2, the Supreme Court defined trespass as arr unauthorized entry upon land that interferes with another person's lawful possession.

A tort of trespass to land is committed, not against the land, but against the person who is in possession ofthe land and such possession may be physical or constructive.

- 15 A party alleging that the tort was committed against him ought to satisfy court that the disputed land belongs to him; that the other party had entered upon that land; and that the entry was unlawful in that it was made without permission or had no claim or right or interest in the 1and. (Shetkh Mohammed Luboua os Kltara. Enterprlses Ltd SCCA No, 04 oJ 194fl. - In this instance, the plaintiffs being two of the administrators of the estate had to prove that suit property rightfully belonged to the estate and also had to discharge the burden to prove that trespass had been committed by the defendant. 20

### Analasis of the documefttdru evideftce:

As proof of ownership, the plaintiffs relied on several admitted documents. Annexture F is a copy of the letters of administration granted vtde AC No. O434 oJ 2016 for the estate of the late Kaboyo Jane Sanfr. 25

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It is undisputed evidence that the 1"t and 2na plaintiffs, both sisters of the deceased together with the five children of the deceased had been issued with letters of administration by this court on 14th December,2016.

A special certificate of title had subsequently been issued in the names of the administrators for the land comprised in bloclc 265, plot 6894 Kgadondo Waklso dtstrtct . (Annerture Q.

The certificate of title also indicates that the previous owner was the late Kaboyo Sanyu who orr 24rh August, 2010 became registered on the title. It also shows that the administrators of her estate subsequently got registered onto the title on 4th October, 2Ol7 , wnder Instrument No. WAKOO143618.

A search report dated 6th May, 2022 (Annerture L) exhibited through the witness statement of Ahmed Bogere, Pur3 corroborates such evidence of ownership.

The certificate shows that a caveat had been lodged by Ahmed Bogere on 18th May, 2017. On 12th February, 2018 the defendant lodged a caveat on the same iand.

This court noted that the two caveats were lodged several years after the impugned transaction between the defendant artd one Wasswa Musa, one of the children of the late Kaboyo.

20 There is also no dispute that the defendant had bought the suit property on 24th November, 2OO9, before letters of administration had been issued; and some eight years before the title was issued in the names of the administrators. There is nothing to show that at the time he bought the suit land, the estate of Kaboyo had already been distributed to Wasswa who sold the property to him.

Going by the contents of the family consent dated 13th Jaluary, 2016 attached as annexture B, nine of the children/beneficiaries had endorsed this document, the sole purpose of which however was to consent to the appointment of Bogere Ahmed one of the sons of the deceased, to administer the estate. 25

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There was nothing to show that they actually knew about the sale transaction of 2009 and consented to it. The vendor, Wasswa Musa was among those who consented to the appointment of his brother Ahmed Bogere as an administrator.

5 It was also noted by this court that although had been proposed as administrator, some others were subsequently appointed by court as administrators, none ofwhom however had been a party or witnesses to the 2009 sale agreement between the defendant and Wasswa Musa.

After the initial transaction by which the defendant had deposited part payment of Ugx TO,OOO,OOO/=, a deed of acknowled glr,ent (Annerture C) was made, signed by the beneficiaries on 13th January, 2016 and a further sum of Ugx 5IOOO,OOO/= was paid to Ahmed Bogere their representative, to facilitate the process of securing the grant.

This court could not find any proof from the record that the entire purchase sum of Ugx 4OTOOO,OOO/= \ tas paid to Wasswa or Bogere or to any other member of that family for that matter.

Sectioz 59 of the RTA provides that every certificate of title issued under the Act is conclusive evidence that the person named therein is the proprietor ofthe land. (Yekogasl Mullndwa us Attorneg General [7985] IICB8O), The exception to the general rule is where fraud is proved against the registered owner.

Fraud must not only be pleaded but also strictly proved; and the burden lies with the party who wishes to prove fraud. It is heavier than the balance of probabilities generally applicable in civil matters. (Kampala Bottlers Ltd. as Damrrnlcrco (U) Ltd SCCA lVo. 22 ol 79921. 20

The defendant in this suit however did not plead fraud or prove any fraud against the administrators of the estate. The above leaves no other conclusion that the suit property was part of the estate of the deceased long before the defendant conducted the eviction and took physical occupation thereof. 25

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The suit land was accordingly duly registered in the names of the administrators of the estate of Kaboyo who couid only hold it and deal with the same as trustees for the rest of the beneficiaries.

That therefore addresses lssue lVo. I

# 5 Istue No. 2: Whether there is a valid. sole betueen Wassua Musa and. the defendant:

Sectlon 1O(1) of the Contracts Acts 2O7O delines a contract as an agreement enforceable by law, made with free consent of the parties with capacity to contract for a lawful consideration and with a lawful object, with the intention 10 to be legally bound.

The essentials of a lega1ly binding contract are offer and acceptance; a promise or obligation supported by valuable consideration; intention to create legal obligation; and capacity to enter into the contract.

15 Under secf,ton 7 7(7), a person has capacity to contract where that person is of eighteen years or above; of sound mind; and not disqualified from contracting by any 1aw to which he or she is subject.

It is now settled law that once a contract is va-lid, it automatically creates reciprocal rights and obligations between the parties thereto and when a document containing contractual terms is signed, then in the absence of fraud,

20 or misrepresentation the party signing it is bound by its terms. (See: William Kasozl uersus DFCU Bank Ltd Htgh Court Clull Sult No,7326 of 2OOO).

Among the key elements of a valid contract which I find most relevant to this case is the capacity by both sides to enter into legally binding relationship.

25 A perusal of the agreement indicates clearly that Wasswa the vendor had signed the agreement in his individual capacity, but not as the administrator of the estate or legal representative of the family since by that time no person had applied for, or been appointed as administrator of the estate.

U"!"d Wasswa had no written consent/authority to give him any powers to deal with the property of his deceased mother.

Indeed as earlier noted by this court, none of the other beneficiaries had consented to or endorsed the said agreement, by which the defendant was to pay Wasswa an agreed sum of Ugx SO,OOO,OOO/= as consideration for the transaction. By that said agreement, Ugx TOTOOOTOOO/= was acknowledged by Wasswa as part payment of the full sum.

The balance was to be paid within a period of three months, upon satisfactory fulfillment of a number of conditions, that is, obtain letters of administration; procuring a transfer into the names of the son of the late Kaboyo, among others.

The vendor in that agreement committed himself among other undertakings, to refund the money which would attract an interest at commercial rate. The conclusion is inevitable therefore that the eviction by the defendant took place even before the full amount was paid and before the beneficiaries had consented to the sale of the suit property is inevitable.

The capacity to transact in any part of the deceased's estate is clearly laid out under the provisions of the Successlon Act, Cap. 762. By virtue of sectlon 792 of this Act, letters of administration entitle the person appointed by court as administrator to all rights belonging to the intestate as effectually as if the administration has been granted at the moment after his or her death.

Thus also no right to any part of the estate of an intestate is to be established in any court ofjustice unless letters of administration have been granted by a court of competent jurisdiction. (sectlon 7971

Sectlon 25 of the Successlon Act, Cap. 262 ir addition provides that all property in the estate devolves upon the personal representative of the deceased as trustee for all persons entitled under the Act; and by virtue of sectlon 78O he/she is his or her legal representative for al1 purposes. As such all the property 25

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of the deceased vests in that person. No other person has powers to act as such until probate or letters have been recalled or revoked. (Sectton 264).

By virtue of sect{on 134 (2) of the RTA a certificate of title upon which an entry is made therefore relates back to and is deemed to have risen upon the death of the proprietor as if there had been no interval of time between such death and entry.

The above provisions read together imply that all powers over intestate property are vested in the hands of the administrator. Even though Wasswa Musa is a son of the deceased, he had no powers, authority to deal with or commit the estate on behalf of the rest of the beneficiaries.

At the time the transaction was made with Wasswa, the defendant was fully aware or had constructive knowledge of the fact that no authority had yet been issued to support any dealing with that estate. It was his duty as the prospective buyer to prove as alleged by him that he was a bonafide purchaser for value.

A bona fide purchaser for valuable consideration of land derives protection under section 181 of the RTA. The term is defined in Black's Lant Dlctlonary &h Edition at pdge 7277 to rr.ean: 15

> nOne uho buys sornethlng Jor ualue ulthout notlce of another's clalm to the propertg and wlthout actual or constrllcthrc notlce oJ ang deJects ln or lnffnnltles, claLtns, or equltles o,go,lnst the seller's tltle; one utho has good Jalth patd rnluable conslderatlon ulthout notlce of prlor aduerse clalfits.b

In the case of Omar Salirn Mukasa Vs Hafi Muhammed. & another CACA NO 114 of 2OO3; it was held that in equity constructive knowledge is deemed to constitute fraud.

Whether or not there was fraud and whether or not a party was a bonafide purchaser for value without notice the question that a court would poise is whether the defendant honestly intended to purchase the suit property and did

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not intend to acquire it wrongfully. (Dadd Seljaka Nallm,a as Rebecca Musoke SCCA IVo. 12 of 1985).

The defendant in this case could not have been bona fide as he was fully aware of the ownership on the suit land before, during and after he purchased it. As such therefore, Wasswa who never presented any letters of administration was intermeddling with the estate, contrary to the provisions of sect{on 268 oJ the Saccession Act.

An illegality once brought to the attention court overrides all questions of pleadings. (Makula Internatlonal ae H. E Cardlnal Nsubuga [7982] HCB 17).

Ir Mulato Joseph as Ndtdmd Sguano CA No. 77 oJ 7999 court held that an agreement purporting to sell and transfer land was not sufficient proof of acquisition in absence of proof of essential fact that would have constituted creation of tl].e kibanja holding, namely consent of the mailo owner. 10

In the premises, there was no valid sale of the suit land since the consideration was not paid in full and the vendor had no capacity to sell that land.

ln George Kasede Mukasa a, Emmanuel Wabende & Others, Chil Sult No. 459/1998 trespass to land was held to be committed where a person wrongfully and unlawfully sets foot upon or takes possession or takes material from the land belonging to another.

It is inconceivable that the defendant could have evicted the beneficiaries of Kaboyo, assume ownership of property which he purportedly bought from a beneficiary who never had the consent of the rest or the authority to deal with the property. 20

In Blshopgates Motor Flnolace as. Tlansport Brakes Ltd [79491 7 KB 332, dt pdge 336-7 it was held that: 25

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"In the development of our law, two principles have striven for mastery. The first is for the protection of property: no one can give better title than he himself possesses."

That legal principle was emphasized by the Supreme Court in **Halling Manzoor**

$\mathsf{S}$ **vs. Serwan Singh Baram, SCCA No.9 of 2001** that a person cannot pass title that he does not have. Wasswa had no title to pass onto the defendant. The defendant was therefore a trespasser on the suit property.

**Issues 1,2, and 3** are accordingly answered in favor of the plaintiffs.

## **Remedies:**

- The prayers sought by the plaintiffs were: 10 - *A declaration that the plaintiffs are the beneficial owners of the suit land;* $a)$ - $b)$ *A declaration that any sale to the defendant was null and void;* - *A declaration that the defendant is a trespasser;* $c)$ - $d$ An order against the defendant to deliver up vacant possession within a *specified time and/or an order of eviction against the defendant;* 15 - $e)$ An order of permanent injunction restraining the defendant and/or his *agents from ever trespassing on the suit land;* - $\mathfrak{f}$ *General damages; interest and costs of the suit.*

## General damages:

20 General damages are those that the law presumes to arise from direct, natural or probable consequences of the act complained of by the victim.

These follow the ordinary course or relate to all other terms of damages whether pecuniary or none pecuniary, future loss as well as damages for paid loss and suffering. See; Uganda Commercial Bank Vs Deo Kigozi [2002] EA 293.

11 Naborg

Black's Law Dlctlonary gtth Ed.n at page 445 defines damages as the sum of money which a person wronged is entitled to receive from the wrong doer as compensation for the wrong.

It is trite law that damages are the direct probable consequence off the act complained of. (Ref: Storms uersus Hutchlson (1905) AC 515.)

In the case of Assist (U) Ltd. u?rsus ltalTan Asphalt and Haulage & Anor, .[{CCS IVo. 7291 of 7999 at 35 it was held that the consequences could be loss of profit, physical, inconvenience, mental distress, pain and suffering.

General damages consist of items of normal loss which a party is not required to specify in his pleading to permit proof. These damages are presumed by law to arise naturally in the normal course of things. Court may award them where it cannot measure the way in which they are assessed, except the opinion and judgment of a reasonable person. (See RONALD I<ASIB KASIBAIUIE yS SHELL p) Lrr, [2oo8] HcB AT 76sL 10

The circumstances as highlighted demonstrated the highhandedness of the acts during the process of evicting the beneficiaries by the agents of the defendant who had no honest claim of right. 15

In the premises an award of Ugx 4O,OOO,OOO/= would be justified.

## Com,ensatlon:

Counsel for the plaintiffs in submissions expressed willingness by the plaintiffs to sell the property at a cost of Ugx 250,735 OOO/- (shillings tu.to hundred and fifiq million, one hundred and thirtg-fiue thousand). The current market value was placed at Ugx 443,73O,OOO/= 20

It was argued that during period of 2016 the structural buildings on the subject property were built at approximately 600/o. The said sum was the precasted value of the property in 2016. 25

L2 \$')'d

The above were the findings by the firm of *OSI International Consultations* which carried out the assessment and compiled a report, filed in court on 11<sup>th</sup> April, 2022 as directed.

- The report described the suit property as land measuring 0.057 hectares or 0.140 acres developed with residential buildings all enclosed with a wall fence. $\mathsf{S}$ It was property located within a well-planned residential area actively developed with a mixture of medium to very high class residential and commercial developments. I was not provided with any clear basis to doubt the accuracy of that report. - In the final result, the following orders/declarations are hereby made: 10

$\alpha$ ) The land comprised in Block 265 plot 6894, Kyaddondo Wakiso constitutes part of the estate of the late Kaboyo Sanyu;

The sale of the suit property to the defendant was therefore null and $\boldsymbol{b)}$ void. Accordingly, the defendant is a trespasser on the suit property;

- The defendant is ordered to pay a sum of Ugx 250,135 000/-15 $d$ (shillings two hundred and fifty million, one hundred and thirty-five thousand) within a period of 90 days and upon failure to do so, he shall deliver immediate vacant possession of the suit property which he *currently illegally occupies;* - A compound figure of Ugx $40,000,000/$ = is awarded as damages for 20 $\boldsymbol{\mathit{n}}$ the illegal actions of the defendant who shall be free to claim a refund of the Ugx $10,000,000/$ = irregularly paid by him to Wasswa Musa;

g) The defendant is entitled to a refund $Ugx$ 5,000,000/= payable out of the estate of the late Kaboyo Sanyu which was advanced to Ahmed Bogere

to facilitate the processing of the letters of administration and other 25 processes;

Jalo IS

h) Interest of $15\%$ payable per annum is awarded against the defendant from the date of delivery of this judgment, till payment is made in full;

Costs awarded to the plaintiff.

$\mathsf{S}$

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Alexandra Nkonge Rugadya

Delivered by encil<br>Arbory<br>24/5/2027

Judge

$10$

24<sup>th</sup> May, 2023