Nandaula v Wameli & Co. Advocates (Execution Miscellaneous Application 45 of 2020) [2024] UGHCFD 88 (23 October 2024)

Full Case Text

# THE REPUBLIC OF UGANDA

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

## EXCUTION MISC. APPL. NO. 45 OF 2020 (FORMERLY HCT MISC. APPL. NO. 0723 OF 2020) (ARISING OUT OF HCT NO. 095 OF 2016) EMA

PRINCESS NANDAULA GLAYS KYAKUSE (suing as the administrator of the estate of the late Sir Daudi Chwa II) ::::::::::::::::::::::::::::::::::

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

#### **VERSUS**

1. WAMELI & CO. ADVOCATES

2. LUWANGULA ESTATE LTD

3. BUGINGO WILFRED

4. ABDUL KARIM HUSSEIN

5. ABUBAKARI PENDO ZUBAIRI

6. UBORA HOLDINGS LTD

7. MUTESASIRA MOSES (T/A MUTESASIRA

ASSOCIATES & COURT BAILIFFS)

### **RULING**

# Before: The Hon. Justice John Eudes Keitirima

1]. This is an application brought by way of Notice of Motion under Section 34 (1) of the CPS and Order 52 Rules 1 & 2 of the CPR. Seeking

The applicant is selling for Orders that:

Execution of Decree/Order in HCT EMA No. 095 of 2016 $(i)$ arising from the Family Court Originating Summons No. 09 of 2014 be annulled, cancelled and or set aside.

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- $(ii)$ The purported attachment, sale and/or transfer of the estate property comprised in Kyaggwe Block 113, Plots 1097, 1098, 1099, 1100, 1101 and 1102 formerly Plots in execution of HCT EMA 095 of 2016 arising from Family Court Originating Summons No. 09 of 2014 be declared null and void, cancelled reversed and/or set aside. - A consequential Order directing the commissioner for land $(iii)$ registration and/or the Principal Registrar, Mukono Land Registry to reverse all entries in respect of the above land and reinstate the administrators of the estate of the late H. H. Sir Daudi Chwa II thereon. - The costs of this application be provided for. $(iv)$

**2].** The application is supported by the affidavit of the applicant who states inter alia: -

- $(i)$ That the purported execution against the suit properties and all consequential Orders made thereon are illegal, null and void. - $(ii)$ That M/S Wameli & Co. Advocates filed Originating Summons vide the estate of the late Sir Daudi Chwa II. - That on 25th August 2015 **Originating Summons No. 09** (iii) of 2014 was determined and court declared inter alia that M/s Wameli & Co. Advocates is entitled to 10% of the share by Prince Alexander Ssembwa in the estate of the late Sir Daudi Chwa II. - That subsequently M/s Wameli & Co. Advocates filed $(iv)$ Miscellaneous Application No. 278 of 2015 arising from O. S No. 09 of 2014 against the administrators of the estate of the late H. H Sir Daudi seeking for consequential

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orders interalia that the Registrar of Titles at Mukono Zonal Office issues certificates of titles for land described at Kyaggwe Block 13, Plots 457 and as 458 Nantabulirwa.

- $(v)$ That on 14th December, 2015, **Miscellaneous Application** No. 278 of 2015 was dismissed with costs to the estate of the late Daudi Chwa II and the Judge clearly stated in her decision that the extent of the entire estate of the late Sir Daudi Chwa II is yet to be determined and that any attempts to make court issue consequential orders was an abuse of court process. - (vi) That contrary to the orders of court in M. A No. 278 of 2015, M/s Wameli & Co. Advocates filed EMA 095 of 2016 against the administrators of the estate of the late Sir Daudi Chwa II being an application for execution of a decree obtained in the family division vide Originating Summons No. 9 of 2014. - (vii) That on 12th April 2016 without any basis whatsoever, the Deputy Registrar of the execution division issued a warrant of attachment and sale of estate land comprised in Kyaggwe Block 113 Plots 9, 457, and 458 $\mathtt{at}$ Nantabulirwa supposedly to pay the decretal sum of 163,738,000,000/= ordered by the Family Court on $25th$ August 2015. - (viii) That the warrant of attachment and sale of the estate land upon which the stated executed was founded is a nullity and void abinitio in that it was issued in execution of a nonexistent decree/order.

- That on the basis of the said irregular /illegal warrant of $(ix)$ attachment and sale of immovable property, the 7th respondent (Mutesasira Moses) advertised the estate property on 20th April 2016 and the sale was to be conducted after thirty days from the date of publication. - $(x)$ That the $7th$ respondent instructed a firm of valuers (Salem Appraisals) to value the attached Plots 9,457 and 458 before sale. - That the valuation report was submitted to court on $10^{th}$ $(xi)$ May 2016 for approval. - (xii) That the forced sale value per acre indicated in the valuation report is $90,000,000/$ = and consequently on the same day (10th May 2016) the Deputy Registrar of the Execution Division approved the valuation report and Ordered the 7th respondent to sell the attached property comprised in Kyaggwe Plots 9, 457 and 458 at Nantabulirirwa by public auction and not below the forced sale value. - (xiii) That the 7th respondent without authority illegally caused the amalgamation of Plots 457, 458 and 459 to create Plot 1096 measuring 163.02 hectares (402.82 acres) and Plot 1096 was later subdivided into six smaller Plots namely:- - (a)Plot 1097 measuring approximately 8.09 hectares (20 acres). - Plot 1098 measuring approximately 4.05 hectares (10 $(b)$ acres). - (c) Plot 1099 measuring approximately 8.09 hectares (20 acres). - Plot 1100 measuring approximately 20.23 hectares (50 $(d)$ acres).

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- (e) Plot 1101 measuring approximately 20.18 hectares (50 acres). - (f) Plot 1102 measuring approximately 101.68 hectares $(251.25 \text{ acres}).$ - (xiv) That the sale to the $3rd$ and $5th$ respondents was allegedly carried out on 16th May 2016 before the expiry of the thirtyday period indicated in the notification of sale. - (xv) That contrary to the Order of sale, the $7th$ respondent purportedly sold the land to the $2^{nd}$ to $6^{th}$ respondents by private treaty. - (xvi) That the sale to the 2dn and $4^{th}$ respondents was below the reserve price indicated in the approved valuation report and Order authorizing the sale. - (xvii) That on 16th May 2016, the 7th respondent filed a return of warrant claiming that execution had been carried out and concluded in respect to Plots 457 and 458 with the exception of Plot 9 which was allegedly occupied by squatters. - That on $20^{th}$ May 2016 four days later, the $7^{th}$ (xviii) respondent signed a sale agreement purportedly selling 240 acres to the $2^{nd}$ respondent and 20 acres to the $4^{th}$ respondent off Plots 457 and 458. - (xix) That the sale agreement purportedly executed between the $2^{\rm nd}$ and the $7^{\rm th}$ respondent was for 240 acres however the purported purchaser obtained registration in respect to Plots 1101 and 1102 measuring 50 acres and 251.25 acres as per the deed plans submitted to court by the Ministry of Lands, Housing and Urban Development.

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- (xx) That on $14^{th}$ August 2017, the $2^{nd}$ respondent passed a special resolution distributing the extra 50 acres to some of its officials after the allotment of the 251 acres the company had allegedly purchased. - (xxi) That the records at the Uganda Registration Services Bureau (URSB) indicate that the $2^{nd}$ respondent was incorporated on the 16th September 2015 and the company incorporation documents indicated that they were drawn and filed by M/s Wameli & Co. Advocates the majority shareholder being Mr. Muriafu Mukembo Philip, an advocate and partner in M/s Wameli & Co. Advocates) with 60% shareholding at the time of the purported sale of the suit property. - (xxii) That a perusal of the court file reveals that the suit properties were purportedly sold and transferred to the 2nd $-6th$ respondents without any proof of payment of the purchase price. - That the $7^{th}$ respondent claims that the $2^{nd}$ respondent (xxiii) $16,800,000,000/=$ , the paid $3^{\rm rd}$ respondent paid $11,250,000,000/=$ and the $5th$ respondent paid $2,250,000,000$ all in cash on signing the various agreements but to date the said monies have never been deposited in court nor has the $7th$ respondent made any payments to the purported Judgment Creditors (the 1st respondent) satisfaction of the debt or part thereof. - $(xxiv)$ That as a resultant consequence of the respondents' irregular actions, the applicant and the entire estate of the late Sir Daudi Chwa II has suffered loss and damages.

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(xxv) That the respondents' actions were high-handed, oppressive and they acted with impunity.

3]. In his affidavit in reply Wilfred Bugingo hereinafter referred to as "the third respondent" stated their alia: -

- That he has been advised by his lawyers that the $(i)$ application is bad in law, frivolous, lacks merit and an abuse of court process. - That he is the registered proprietor of land comprised in $(ii)$ Kyaggwe Block 113 Plot 1100 land at Nantabulirirwa having acquired the same through and absolute judicial sale in H. C. EMA No. 95 of 2016 M/s Wameli Advocates Versus the Estate of the late Sir Daudi Chwa II. - That there is already a finding of this court that the land $(iii)$ formerly comprised in Kyaggwe Block 113 Plots 457 and 458 land at Nantabulirwa the suit land where his land now Plot 1100 arises, was successfully sold by court through a judicial sale. - That H. C. M. C No. 1678 of 2018 the applicant on behalf $(iv)$ of the estate of the late Sir Daudi Chwa II deponed to the affidavit in reply opposing the application but also confirming that the estate of Sir Daudi Chwa II had no interest or claim to the suit land to wit Plots 1097, 1098, 1100, 1101 and 1102 land at Nantabulirirwa Mukono District. - That he is surprised that the applicant is turning around $(v)$ to deny as a single administrator the position of the estate of late Sir Daudi Chwa as far as the suit land is concerned and further confuse court regarding its finding. - $(vi)$ That the Land Division of High Court vide M. C No. 0137 of 2017 consolidated with M. C No. 136 of 2017 Luwangula Estates Limited and Wilfred Bugingo Versus Vanice Industries Ltd and Others observed in its ruling that the estate of the late Sir Daud Chwa on sworn oath by its administrators acknowledged that the said estate has no any interest in the suit land. - (vii) That indeed in H. C. M. A No. 2409 of 2017 (Execution Division) Prince David Namugala Mawanda, Prince Moses Kimera Luswata and General Bugingo Wifred and Moses Mutesasira still in respect of the suit land, the applicant duly signed a withdraw by consent confirming that the applicants were satisfied that the estate of late Sir Daudi Chwa has no valid claim in as far as the suit land was concerned. - (viii) That the applicant as the administrator of the estate of the late Sir Daudi Chwa II deponed to a statutory declaration confirming that she was aware and wholly associated herself with the outcome of High Court Family Division Originating Summons No. 09 of 2014. - That in H. C. C. S No. 199 of 2018 (family Division), Sava $(ix)$ Michael David Kyazze and others versus Attorney General and others, the Applicant as the 4th Respondent filed a defence confirming among others that the debt to Wamali & Co. Advocates was a debt on the entire estate of the late Sir Daudi Chwa 11 which was settled by way of execution vide execution in EMA No. 95 of 2016. - That in all, the applicant's claim is frivolous brought in bad $(x)$ faith, an abuse of court process and that the applicant is

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estopped to bring up the allegation as contained in this application.

(ix). That he us advised by his lawyers that this application is banned by the legal/equitable maxim of "quod approbo non reprobo".

4]. The $2^{nd}$ respondent, $4^{th}$ respondent, $5^{th}$ respondent and $6^{th}$ respondents also filed affidavits in reply opposing the application. In essence they stated that they purchased their respective lands as a result of a judicial sale and were not engaged in any fraudulent acts. The 7th respondent never filed an affidavit in reply.

**5].** Counsel for the applicant and counsel for the $2^{nd}$ $3^{rd}$ $4^{th}$ , $5^{th}$ and 6th respondents filed without submissions the details of which are on record and which I have considered in determining this application.

## Preliminary objection by the $2^{nd}$ respondent

6]. The $2^{nd}$ respondent contends that this application is brought by only one of the several administrators without the demonstrated consent and/or involvement of the other administrators. The $2^{nd}$ respondent contended that the estate of the late H. H Sir Daudi Chwa 11 has letters of Administration that were issued on 19th October 2011 from the family division vide FD-AC-No. 2505 of 2008 in respect of several administrators to wit, Prince Alexander Daudi Ssimbwa, Nnalinya Edith Nabweteme, Prince George Mugala Mawanda, Nnalinya Dorothy Nassolo, Nnalinya Gladys Nandawula Kyalluse Lumaama, Prince Moses Kimera Luswata and Ssava Iga Matovu.

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7]. That of the original administrators of the said estate, only the present applicant still has administrative powers at present as others are either dead or they renounced administration or were injuncted by court. That even the four administrators who were co-opted by order of court vide FD-C-S No. 285 of 2017, Prince Kalemera Henry Harrith Kimera, Prince David Nakibinge, Princess Diana Teyeggala and Prince Semakokiro Henry Kalemera have never been included on any letters of Administration.

That it was also true that at the time of filing the present 81. application, two of the original administrators were still alive and were still possessed with joint administrative powers i.e the present applicant and prince David Namugala Mawanda. The 2nd respondent cited the case of Silver Byaruhanga versus Father Emmanuel Ruvugwaho and Rudija S. C. C. A No. 09 of 2014 to butters his submissions.

The said respondent contended that the preset application was totally incompetent as it was only brought by one of the administrators of the subject estate.

## Reply to the preliminary objection by the applicant

9]. Counsel for the applicant submitted that the said preliminary objection should be rejected for the following reasons: -

(i) The decree/ruling which was allegedly executed and forming the basis for the current application was entered against the

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administrators of the estate for which the applicant is one of them.

- That indeed, there are ongoing further execution proceedings (ii) of the said decree before this court against the administrators of the estate. That you cannot institute a matter against several persons and then turn around and challenge one of the sued persons from challenging your action as the applicant has done herein. - (iii) That the respondents concede that all the administrators of the estate except two have since died and that Section 273 of the **Succession Act** is to the effect that upon the death of one or more of several administrations or executors, all the powers of the office become vested in the survivors or survivor. That in this case, the applicant who is not only a beneficiary but a surviving administration is duty bond to institute proceedings aimed at preserving the estate from fraudsters like the respondents herein. - (iv) That Section 272 of the Succession Act is to the effect that when there are several executors and administrators, the powers of any may in the absence of any direction to the contrary be exercised by any of them who has proved the will or taken out the administration. Counsel for the applicant cited

the case of Prince Henry Kigala versus John Kaddu and 7 others MA No. 634 of 2021 (Family Division of the High **Court)** to buttress his submissions.

10]. Counsel for the applicant contended that the case cited by counsel for the $2^{nd}$ respondent of **Silver Byaruhanga versus Father Emanuel Rwagwaho (supra)** was cited out of context because the said decision completely dealt with a different scenario. That the ratio in the said decision is that where there are several administrations, all instruments regarding the estate such as a transfer form has to be executed by all not one of them. This is in line with Section 134 of the Registration of Titles Act and therefore cannot be an authority to bar an administrator from instituting proceedings moreover intended to preserve the estate just like in the present case.

## Decision of court on the preliminary objection.

11]. This preliminary objection touches on the locus standi of the applicant to institute this application.

Locus standi or legal standing is the status which requires a person to enable him or her invoke the jurisdiction of the courts in order to be granted a desired remedy. The rationale behind locus standi is that court's time should not be wasted over hypothetical and abstract questions or issues at the insistence of a mere busy body that has no genuine grievance or authority to institute a case.

12]. The issue now is whether applicant in this case had the locus standi to institute this application. The applicant has not disputed

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the allegation by the $2^{nd}$ respondent that at the time she instituted this application, two of the original administrators were still alive and were still possessed with joint administrative powers. The other administrator being Prince David Namugala Mawanda.

12]. In the case of Silver Byaruhanga versus Fr. Emmanuel Ruvugwaho and another S. C. C. A No. 09 of 2014, the Supreme Court while interpreting Section 272 of the Succession Act as it applied then, held that all administrators of an estate must act jointly at all times because Section 272 of the Succession Act does not allow them to act singly otherwise it would defeat the purpose for appointing joint executors or administrators.

13]. I am bound by the said precedent and will guided by it in this application. It is also my considered view that a Co- administrator cannot institute a case on behalf of an estate without the consent of his or her Co-administration where there is even a risk of subjecting the estate to paying damages or costs in event of losing the case.

**14].** I therefore agree with the $2^{nd}$ respondent's submissions that the present application is fatally incompetent as it was brought by one of the administrators of the estate of late H. H Sir Daudi Chwa II without the consent of the other administrator who was in existence at the time. This disposes of the entire application.

15]. The above notwithstanding, I have seen the applicant's affidavit in reply in Miscellaneous Application No. 1680 of 2012 arising from Miscellaneous Application No. 1679 of 2018 arising from Misc. Cause No. 1678 of 2018 arising from EMA No. 2230 of 2016

arising from M. C No. 1847 of 2016 arising from EMA No. 95 of 2016 all arising from Family Division Originating Summons No. 9 of 2014 where the current applicant swore an affidavit on behalf of the $1^{st}$ respondent (the administrators of the estate of late Sir Daudi Chwa II) and stated inter alia that the $1^{st}$ respondent (the estate of late H. H Sir Daudi Chwa II) no longer had claim on the suit land having lost the same some time back upon execution in EMA No. 95 of 2016. This was equally re-echoed in the ruling vide **Miscellaneous** Cause No. 0137 of 2017 consolidated with Miscellaneous Cause No. 0136 of 2017 - Luwangula Estates Ltd and Bugingo Wilfred Vanence Industries Ltd and Others.

The applicant cannot therefore blow hot and cold.

Basing on the said reasons. I will dismiss this application for being incompetent.

**DATED** this 2024 HON. JUSTICE JOHN EUDES KEITIRIMA 23/10/2024