Namubiru and Another v Birungi and 3 Others (Civil Suit 7 of 2019) [2023] UGHCFD 143 (27 July 2023)

### **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT KAMPALA (FAMILY DIVISION)**

#### **CIVIL SUIT NO.07 OF 2019**

### **1. NAMUBIRU BETTY OWORI**

**2. NAMUTEBI WINNIE ::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFFS**

### **VERSUS**

- **1. SAULO BIRUNGI** - **2. PETER MUKASA** - **3. SPECIOZA KAYITESI MUKALUMONGI** - **4. KIZITO STEPHEN ::::::::::::::::::::::::::::::::::::::::::: DEFENDANTS**

# **BEFORE: HON. LADY JUSTICE CELIA NAGAWA JUDGEMENT**

### **1.0 INTRODUCTION**

- 1.1 This suit was instituted by the plaintiffs against the defendants seeking orders that; - a) A declaration that the 4th defendant (Kizito Stephen) is not a beneficiary in the estate of the late Fred Wamala Nsimbi and his interest in property comprised in Bugerere Block 12 Plot 20 land at Kirasa, Kiraberi and Kiyuka was acquired by fraud and/or deceit thus null and void.


- b) A declaration that the Plaintiffs and Ms. Angela Nansubuga are the only beneficiaries of the estate of the late Fred Wamala Nsimbi. - c) A declaration that the Plaintiffs and Ms. Angela Nansubuga are entitled to their respective shares of the estate of the late Paul H. K. Wandera Mubiru and their father, Fred Wamala Nsimbi. - d) A declaration that the 1st defendant's interest in property comprised in Bugerere Block 12 Plot 9 was acquired by fraud and/or through an illegality and is thus null and void. - e) An order that the Registrar of Titles cancels the 4th defendant's title for Bugerere Block 12 Plot 20 and the same be distributed to the Plaintiffs and Ms. Nansubuga Angela. - f) An order rectifying the register by canceling the 1st Defendant's name from the Certificate of Title for Bugerere Block 12 Plot 9. - g) An order that the 4th defendant surrenders vacant possession of property comprised in Bugerere Block 12 Plot 20 and the 0.50 acres of land at Kyadondo Block 236 Plot 132 at Bweyogere to the plaintiffs. - h) An order directing the 1st to 3rd defendants to distribute the suit property to the plaintiffs and their sister Angela Nansubuga. - i) An order against the Defendants for a comprehensive, true and correct statement of account regarding their dealings in the estate of the late Paul H. K Wandera Mubiru and the late Fred Wamala Nsimbi.


- j) A permanent injunction restraining the defendants from the undertaking any further dealings with the suit property and/or interfering with the plaintiff's ownership. - k) An order against all defendants to pay reparation for loss and damages negligently and willfully occasioned to the plaintiffs. - l) Costs of the suit and Interest thereon. - 1.2 The defendants denied all allegations through a Written Statement of Defense filed on 20th May, 2019 contending that the 1st through 3rd Defendants are administrators of the estate of the late Paul HK Wandera Mubiru who was the grandfather of the Plaintiffs along with their sister Nansubuga Angela. The late Paul HK Wandera Mubiru died testate and the executors distributed the estate according to his Will wherein the Plaintiffs and their sister received their share of the estate. They further averred that the Plaintiff's father died before their grandfather and this caused redistribution by their late grandfather and after their father's passing the 4th defendant was installed as heir to the late Fred Wamala Nsimbi. That the land comprised in Bugerere Block 17 Plot 20 had nothing to do with the estate since the testator gave out 100 acres and the balance was distributed to his 2 children including the 4th defendant.

# **2.0 Representation**

2.1 The plaintiffs were represented by Mr. Henry Kirunda from M/S Kamahoro, Kiboome & Kirunda and the defendants were represented by Mr. Guma Byomugisha from M/S KGN Advocates.


The 1st Plaintiff's witness statement was filed in this court on 6th March, 2021 and during trial it was admitted as her evidence in chief. The 1st through 4th Defendants filed witness statements on 31st March, 2020. During the hearing of this case, following the absence of the defendants and their counsel, the Plaintiffs prayed that the matter is heard exparte. The suit proceeded exparte as provided for under Order 9 Rule 20 (1) (a) of the CPR. Counsel for the Plaintiffs filed written Submissions which have been considered in determination of this suit.

## 3.0 **Background of the suit**.

3.1 The plaintiffs and Ms Nansubuga Angela are children of the late Fred Wamala Nsimbi and grandchildren of the late Paul H. K Wandera Mubiru hereinafter referred to as the deceased. The deceased died testate leaving behind several properties described in a Will. Following his death, the 1st, 2nd, and 3rd defendants applied for and obtained Letters of Administration in respect to the Estate of the deceased vide Administration Cause No. 108 of 1999. The 4th defendant was appointed principal heir to the late Fred Wamala Nsimbi. In the said Will, the deceased bequeathed land at Buyego Bugerere Block 12 Plot 18 at Kirasa measuring 60 acres to his son Philip Alexander Mubiru Mutebi and Block 12 Plot 9 land at Kirasa to Saulo Lwanga Birungi, Fred Nsimbi Wamala and Esther Batabakika Namutebi to share it equally, this land was approximately 60 acres according to the Will. Part of the land at Bweyogerere Mailo Reg. Vol. 1362 Fol. 25 Plot 132 measuring


approximately 0.50 Acres was bequeathed to Fred Nsimbi Wamala (son).

- 3.2 The Plaintiffs aver that instead the 0.50 acres bequeathed to their father was taken by the 4th defendant with the assistance of the 1st, 2nd and 3rd defendants purportedly as the principal heir who also denied to give them the Certificate of Title to this land. The Plaintiffs contended that without cause, the 1st to 3rd Defendants have willfully and without reasonable cause failed to exhibit an account of the estate showing their dealings in the deceased's property. - 3.3 The defendants on the other hand, aver that the estate was properly distributed in accordance to the will. They contended that the plaintiffs' father died before the testator, causing him to redistribute his estate. The 4th defendant avers that he was installed as a customary heir of Fred Wamala Nsimbi and his father confirmed him as such and also bequeathed to the plaintiffs a big plot of land at Bweyogerere which they have since sold off. - 3.4 The defendants aver that the delay to file inventory was occasioned by another pending case in court together with the death of one of the Administrators E. W. Kigundu and the loss of the title to the land comprised in Kyadondo Block 236 Plot 132 at Bweyogerere which has hindered the subdivision of the title to the beneficiaries.

# **4.0 Evidence of Parties.**

# **4.1 Plaintiffs Evidence.**

a) A copy of the late Paul H. K Wandera's Will marked **"PE1" ,** a codicil dated 16th December, 1995 marked **"PE2"** and a codicil


dated 5th October, 1996 marked **"PE3"** attached to the 1st Plaintiff's Witness Statement**.**

- b) A copy of Letters of Administration of the Estate of the late Paul H. K Wandera marked **"PE4".** - c) The Plaintiffs averred that suit property comprised in Bugerere Block 12 Plot 9 is currently registered in the names of the 1st defendant as the sole owner. A copy of the search letter is marked **"PE5".** - d) The Plaintiffs state that suit property comprised in Bugerere Block 12 Plot 20 subdivided into 3 Plots forming Bugerere Block 12 Plots 19, 20 and 21. Block 12 Plot 20 is registered in the names of the 4th defendant. Copies of the search certificate and area schedule are marked annexures **"PE6"** & **"PE7"** respectively.

# **4.2 Defendant's Evidence**

- a) The defendants aver that a family meeting was held in which the property belonging to the plaintiffs was distributed to them. A copy of the minutes to the said meeting are attached and marked annexure **"BB"** and the English translation is attached and marked **"CC".** - b) A testamentary document dated 5th October, 1996 where the deceased redistributed his estate and gave the plaintiffs and their sister, land between Dr. Serwadda and Eseza marked annexure "**A**"


c) A letter dated 16th December, 1996 written to the family lawyer, the late Hon. J. S Mayanja attached to the 4th defendant's witness statement marked annexure **"A1"**.

# **5.0 According to the Joint Scheduling Memorandum Issues to be determined by this Court are;**

- **i) Whether the 4th defendant is entitled to a share in the estate of the late Fred Wamala Nsimbi?** - **ii) Whether the plaintiffs are entitled to a portion equivalent to 0.75 acres from the land comprised in Kyadondo Block 236 Plot 132 at Bweyogerere?** - **iii) Whether property comprised in Bugerere Block 12 Plot 9 was illegally/fraudulently transferred to the 1st defendant?** - **iv) Whether property comprised in Bugerere Block 12 Plot 20 was illegally/fraudulently transferred to the 4th defendant?** - **v) What are the remedies available to the parties?**

## **6.0 Submissions by the Counsel.**

Counsel for the plaintiffs filed written submissions on 24th June, 2022. This court has reviewed these submissions, the pleadings, evidence and authorities submitted and the same will be considered in determination of this suit.

# **7.0 Burden of proof**

In all civil matters, he who alleges bears the burden to prove his/her case on a balance of probabilities. The plaintiff in this matter bears the burden of proof as required under **Section**



**the Evidence Act (supra)** is to the effect that; "Whoever desires any Court to give judgment as to any legal right or liability, dependent on the existence of the facts which he or she asserts must prove that those facts exist".

## 8.0 **Locus in Quo Proceedings.**

- 8.1 This court conducted a locus visit guided by **Practice Direction No.1 of 2007** issued to provide guidelines to litigants, counsel and the judicial officers on how locus in quo proceedings should be handled. (See; **Bongole Geoffrey & Others versus Agnes Nakiwala CACA No. 0076/2015).** - 8.2 **Order 18 of the Civil Procedure Rules SI 71-1,** prescribes the procedure for conducting and hearing of Civil Suits and examination of witnesses. (See **Nagidde Rebecca v Mwasa Charles Steven (Civil Appeal No. 160 of 2018) [2020] as decided by Hon. Justice Egonda Ntende).** - 8.3 This court conducted locus in quo proceedings on 29th March, 2023 at Kakajjo Village, Kigandazi Zone, Wakiso District starting at 10:00am as provided for under **Order 18 Rule 14 of The Civil Procedure Rules SI 71-1** which provides that the Court may at any stage of a suit inspect any property or thing concerning which any question may arise. The Court deemed it necessary to visit the locus in quo and the parties together with their witnesses were informed to be in attendance on the said date. **(David Acar & 3 others v Alfred Acar Aliro (1982) HCB 60).** The parties in this suit were present at the locus visit and they were duly represented by their advocates.


- 8.4 The Locus in quo proceedings formed part of the trial and all rules observed in court were also observed at locus proceedings. The purpose of locus proceedings was to enable court check on the evidence given by the witness in court, and not to fill gaps in the evidence. **(See Fernandes V Noroniha [1969] EA 506\ De Souza v. Uganda [1967] EA 784\ Yeseri Waibi v. Edisa Byandala [1982] I1CB 28 and Nsibambi v. Nankya [1980] HCB 81).** - 8.5 During the locus in quo, this court had the opportunity to check on the evidence already adduced in court by the witnesses particularly on the physical state of the subject matter. This also gave court a clear view of the physical aspects of the evidence so as to enhance the testimonies on court record. It helped this court to better understand the evidence adduced by the witness. - 8.6 It helped the parties to clearly indicate to court their claim. Court was able to see the land as described in the Will of the deceased, its boundaries and location. - 8.7 While at the said locus visit on 29th March, 2023, Counsel Henry Kirunda represented the Plaintiffs, Counsel Byomugisha Guma represented defendants. The plaintiffs were present in Court. The 1st, and 3rd defendants were present. Court was put on notice about the death of the 4th defendant. The LC1 Chairperson, a one Abubaker was present with witnesses including, Jimmy Nsubuga, Ronald Kasasa and Nansubuga Angela among others though mostly beneficiaries. The court was able to see for ascertain the land that the deceased Paul H. K Wandera bequeathed to his beneficiaries as described in the Will.

 ## **9.0 Resolution of Issues.**

## **Issue 1: Whether the 4th defendant is entitled to a share in the estate of the late Fred Wamala Nsimbi?**

- 9.1 The Black's Law Dictionary, 8th Edition at page 1654 defines an estate to mean the amount, degree, nature and quality of a person's interest in land or other property. At page 3841 it provides that in its widest sense property includes all a person's legal rights of whatever description. - 9.2 At the time of filing this suit, the 4th defendant was a customary heir to the late Fred Wamala Nsimbi. The Succession (Amendment) Act, 2022, amendment of Section 2 of the Succession Act, defines customary heir or heiress to mean "a person recognized under the rites and customs of a particular tribe or community of a deceased person as being the customary successor of that person". - 9.3 In the case of **Rev. Onesifolo Ngaaga & Another Versus Moses Matovu & Another Civil Case No. 107 of 2003**, court emphasized that, "It needs no emphasis that being customary heir is a cultural function which does not bestow legal authority on a person to deal with property of the deceased, but is essentially meant for someone to "step into the shoes" of the deceased, as it were, solely for cultural functions. However, when it comes to the deceased's property and its administration the customary heir must first obtain the legal authority even if he or she may be a beneficiary; in


absence of which he or she invariably becomes an intermeddler in the estate of the deceased".

- 9.4 Section 14 of the Succession (Amendment) Act, 2022 is to the effect that a customary heir of an intestate shall receive 1 percent of the whole of the property of the intestate. - 9.5 It is not in dispute that the 4th defendant was installed as the customary heir of the late Fred Wamala Nsimbi, who was the Plaintiffs late father together with Nansubuga Angela their sister. What is in contention is whether he was entitled to a share of their late father's estate and to what extent. As provided for under the Succession Act, the 4th defendant was only entitled to 1 per cent as a customary heir but not for the whole estate to revert to him solely. - 9.6 Therefore in response to issue 1, this court finds that the 4th defendant (now deceased) was only entitled to 1% of the whole property of the late Fred Wamala Nsimbi. - **10.0 Issue 2: Whether the Plaintiffs are entitled to a portion equivalent to 0.75 acres from the land comprised in Kyadondo Block 236 Plot 132 at Bweyogerere?** - 10.1 Counsel for the Plaintiffs cited the case of **Beatrice Asire Mallinga Versus Jonathan Obukunyang Mallinga HCCS No. 13 of 2013** at page 4, "a will established the wishes of the testator at the time of his death and the court is inclined to interfere with the testator's wishes, unless in circumstances where equity and justice requires".


- 10.2 Section 61 of the Succession Act, Cap. 162 provides that "it is not necessary that any technical words or terms of art shall be used in a will, but only that the wording shall be such that the intentions of the testator can be known from the wording". - 10.3 According to **Principles of Succession, Wills and Probate** by Caroline Sawyer at page 35; *A testator's will, in the sense of the means of making his testamentary dispositions, is the document or documents in which he has expressed what he wishes and intends to become of his property at his death. It should embody his will in the sense of his volition. If the testator has not has a will, in the sense of a volition, to make testamentary gifts of his property, then even if he makes and executes a document which states or the face of it that it is the testator's will and which complies with all the formalities laid down by stature, the lack of intention to make a will means that the document does not operate as such.* - 10.4 Both parties agree that the deceased Paul H. K Wandera Mubiru died testate. He left behind a will dated 5th December, 1990, a codicil dated 16th December, 1995 and another codicil dated 5th October, 1996. This is reflected under paragraph 13 of the 1st plaintiff's witness statement and paragraph 5 of the amended Written Statement of Defense. - 10.5 **Section 82 of the Succession Act, Cap. 162** provides, "*The position of the law is that where property is bequeathed to any person, he or she is entitled to the whole interest of the testator in the property, unless it appears from the will that only a restricted interest was intended for him or her"*.


- 10.6 According to the pleadings of the parties, it seems what is in dispute is the size that was apportioned to the plaintiffs and the exact location of the land which was equally observed during the locus visit. The defendants aver under paragraph 5 (vii) of their amended written statement of defense that the plaintiffs were given their share of 0.25 acres part of the land comprised in Kyadondo Block 236 Plot 132 at Bweyogerere. The 1st plaintiff (Namubiru Betty) in her witness statement under paragraphs 18 and 19 avers that her deceased grandfather took her to the suit land and informed her that the suit land was about 0.75 acres. - 10.7 It was the testimony of the 1st plaintiff that the 1st to 3rd defendants purported to give them their share in the suit property which she signed for although she disagrees with the size of the suit property. On the other hand, the defendants state that the plaintiffs were given their portion of the suit property and sold it to a third party. - 10.8 According to the Will of the late Paul HK Wandera Mubiru dated 5th December, 1990 he bequeathed 0.75 Acres of land to his son Philip Alexander Mubiru Mutebi and 0.50 Acres of Land to his son Fred Nsimbi Wamala, this forms part of the land comprised in Bwenyogerere Mailo Reg. Vol. 1362 Fol.25 Plot 132. This he further illustrated in by a diagram at page 5 of his Will. - 10.9 On 16th December, 1995 the late Paul HK Wandera Mubiru communicated to his lawyer, Hon. J. S Mayanja Nkangi and stated therein that "My son Philip Mubiru Mutebi who has been in Kenya for more than 20 years used to tell his friends that he could sell


his heir-ship after receiving it and return to Kenya. *I have given him a Plot of my land near his elder brother Saulo Birungi upto his sister Esther Namutebi. It is 0.50 acres. That is what I had given to my son Fred Wamala who died last year.*

- 10.10 On 5th October, 1996 the late Paul HK Wandera Mubiru made a codicil to his Will and there in indicated at page 1 last paragraph, *"The children of the late Fred Wamala who was inherited by Stephen Kizito as their father now, I gave them a Plot between Dr. Sserwada and Eseza in front of my house of tiles on the road going to Butto".* As I am sick, I have failed to get money to build for them but the plan was completed and money was paid to the LCs. The grandfather of the children of my son, the Late Fred Wamala, Dr. David M. Sserwadda paid all the money to authorities for the building purpose, to build for the children of the deceased *on the plot I gave them near the plot I gave to my young son Stephen Kizito who inherited the three children. Near my house of tiles which I gave to my daughters and to others who are still in schools.* - 10.11 This Court therefore finds as per the diagram within the Will of the late Paul HK Wandera Mubiru, the description of the testator of the land bequeathed to the Plaintiffs is the land that was formerly bequeathed to Philip Alexander Mubiru Mutebi measuring approximately 0.75 Acres. It is this land that is between Stephen Simbwa Kizito, Esther Batabakika Namutebi and the house with tiles bequeathed to the Mrs. Sepiranza Wandera and the daughters.


- 10.12 This issue is resolved in the affirmative. The Plaintiffs are entitled to a portion equivalent to 0.75 Acres to be curved out of land comprised in Kyadondo Block 236 Plot 132 at Bweyogerere. - **11.0 Issue 3: Whether the property comprised in Bugerere Block 12 Plot 9 was illegally/fraudulently transferred to the 1st defendant?** - 11.1 **Section 96 of the Succession Act, Cap. 162** provides that "*Where a bequest has been made to any [child](https://ulii.org/akn/ug/act/ord/1906/1/eng%402000-12-31#defn-term-child) or other lineal descendant of the testator, and the legatee dies in the lifetime of the testator, but any lineal descendant of his or hers survives the testator, the bequest shall not lapse, but shall take effect as if the death of the legatee had happened immediately after the death of the testator, unless a contrary intention appears by the will.*" - 11.2 According to the Will, the late Paul HK Wandera Mubiru had real property which included Bugerere Block 12 Plot 9 Land at Kirasa measuring approximately 60 Acres. - 11.3 When it came to distribution, the testator bequeathed the land comprised in Block 12 Plot 9, land at Kirasa to his children Saulo Lwanga Birungi, Fred Nsimbi Wamala and Esther Batabakika Namutebi to share it equally. - 11.4 According to the codicil dated 5th October, 1996, the testator mentioned therein that "all of the title deeds should be kept by Saulo Birungi. He added that all the property was left with the widow and the committee of Saulo Lwanga Birungi to see that all Certificates are properly kept".


- 11.5 The 1st Defendant as indicated in the Will was supposed to properly keep but not to transfer into his name as a registered proprietor. The Will is clear on who was bequeathed the property comprised in Block 12 Plot 9. The Plaintiffs therefore are entitled to a share that was bequeathed to their late father. - 11.6 The issue of fraud was not well argued by the Plaintiffs and no evidence was brought forward on how the 1st defendant got himself on the title. This court will not divulge into fraudulent issues but directs the 1st defendant to transfer the Plaintiffs portion to them as per the will. - **12.0Issue 4: Whether property comprised in Bugerere Block 12 Plot 20 was illegally/fraudulently transferred to the 4th defendant?** - 12.1 According to the Will, Block 12 Plot 18 Land at Bugerere measuring approximately 60 Acres was bequeathed to Philip Alexander Mubiru Mutebi. Plot 20 was curved out of Plot 18 creating Plots 19, 20 and 21. - 12.2 The 1st Plaintiff testified that Block 12 Plot 20 is registered in the names of the 4th Defendant and this Plot was curved out of Plot 20. - 12.3 The testator did not redistribute this property in his will or following codicils, and therefore neither the plaintiffs nor the 4th defendant can claim legal right to this property unless it was legally obtained from the legate Phillip Alexander Mutebi. On their part, the defendants did not specifically respond to the averment that Block 12 Plot 20 was illegally transferred to the 4th defendant. They referred to Land comprised in Bugerere Block 17 Plot 20 at Kirasa


which they aver was given to the Kabaka. According to the letter written by the testator to his lawyer, the 50 acres of land given to the Kabaka. The beneficiary to this property Phillip Alexander Mutebi or his legal representatives reserve the right to recover this suit property and not the plaintiffs in this matter.

## 13.0 **Conclusion.**

- 13.1 In the final result I hereby make the following orders; - 1. The 4th defendant's (now deceased) estate is not entitled to a share in the plaintiffs beneficial interest granted to them by their late grandfather. - 2. The plaintiffs and their sister Ms. Angela Nansubuga are entitled to their respective shares of the estate of the late Paul H. K Wandera Mubiru and that of their father, the late Fred Wamala Nsimbi. - 3. A declaration that the 1st defendant is not the sole Registered Proprietor of the property comprised in Bugerere Block 12 Plot 9. - 4. An Order directing the Commissioner for land registration to cancel the title issued to Saulo Lwanga Birungi (the 1st defendant) comprised in Land situate at Bugerere Block 12 Plot 9. - 5. The 1st defendant shall redistribute land situate at Bugerere Block 12 Plot 9 equally into 3 parts and have a third of each registered in names of the Children of the deceased Fred


Wamala, Esther Batabakika Namutebi and himself (Saulo Birungi).

- 6. The plaintiffs together with Nansubuga Angela are entitled to 0.75 Acres land to be curved out of Kyadondo Block 236 Plot 132 at Bweyogerere. - 7. A permanent injunction restraining the 1st to 3rd defendants from the undertaking any further dealings with the suit property and/or interfering with the plaintiff's ownership. - 8. Costs are awarded to the Plaintiffs.

**Dated, signed and Delivered by email this 27th day of July, 2023.**