Nassanga v Makula (Miscellaneous Application 1382 of 2024) [2024] UGHCFD 83 (29 November 2024)

#### **THE REPUBLIC OF UGANDA**

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

#### **MISCELLANEOUS APPLICATION NO. 1382 OF 2024**

**(ARISING OUT OF CIVIL SUIT NO. 138 OF 2020)**

**HASSIFA NASSANGA ::::::::::::::::::::::::::::::::::::::::: APPLICANT (**The Administratrix of the Estate of the Late Massanga Lillian Maggen) **VERSUS**

## **LINDA PRECIOUS MAKULA :::::::::::::::::::::::::::::: RESPONDENT**

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

#### **1.0 Introduction.**

This Ruling relates to a Notice of Motion filed in this Court by Hassifa Nassanga (The Administratrix of the Estate of the Late Massanga Lillian Maggen) (the Applicant) (through her Attorney) under Section 123 (1), (2) & (3) of the Registration of Titles Act, 240, Section 98 of the Civil Procedure Act, Cap. 282, Order 52 Rules 1 & 2 and all enabling provisions of the law seeking orders that;

- a) The caveats lodged on land comprised in Busiro Block 376, Plot 403 and 407 Mengo, LRV Volume 4523 Folio 8 land at Bulange Kibuga Block 26 Plot 894, be vacated to allow the Applicant to effectively administer and distribute the estate of the late Massanga Lillian Maggen. - b) Leave be granted to the Applicant to file a final/comprehensive and true statement of account for the estate of the late Massanga Lillian Maggen after the distribution of the same.


c) Costs of the Application be provided for.

1.1 The grounds of the application are set out in the Notice of Motion and explicated in the supporting affidavit sworn by the Dan Luggya, the Applicant's Attorney but in brief are that;

- 1. The Applicant is an Administratrix of the estate of the late Massanga Lillian Maggen. - 2. The Respondent lodged caveats on estate properties comprised in Busiro Block 376, Plots 403 and 407 Mengo, LRV Volume 4523 Folio 8 Land at Bulange Kibuga Block 26 Plot 894. - 3. The Applicant requested the Respondent to vacate the Caveats, but no response was received, thus hindering the Applicant's ability to fulfil her statutory duty of Administering and distributing the estate of the late Massanga Lillian Maggen. - 4. The Caveats lodged by the Respondents are based on imaginary and speculative grounds. - 5. The Applicant is unable to file a comprehensive and full statement of account of the estate and for this reason, the Applicant prays for an extension of time to do so once final distribution is complete. - 6. It is in the interest of Justice to all the beneficiaries that this Application be granted.

1.2 The Respondent opposed the application through an Affidavit of Reply filed on her behalf by Hawa Ndaruzi who described herself as one with authority to deponed and swore the affidavit in that capacity in which she averred briefly as herein below that;


- a) The Respondent currently lives in Germany but occasionally returns to Uganda as and when the circumstances arise, require or permit it. - b) The Caveats the Respondent registered on the suit land are the only means through which she can notify any 3rd parties with intentions to transact in the same about her interest therein. - c) Whereas the Applicant listed Billy Joy Massanga as the Respondent's sibling in the Petition for Letters of Administration, the said Billy Joy Massanga is unknown to the Respondent and has instructed her counsel to institute proceedings for declaration of Billy's parentage, because the Respondent has just obtained Majority age. - d) The Caveat is necessary to protect the estate of the Respondent's late mother from being distributed to strangers. - e) The Applicant has never requested the Respondent to vacate her Caveats on the suit land. - f) The Applicant brought this application seeking that the court vacates the Caveats without informing her of how she intends to distribute the estate. - g) The Respondent would voluntarily vacate the said caveats if the Applicant, as her trustee notifies/notified her how she intends to distribute the impugned estate. - h) The Respondent Registered Caveats on the suit land because she ordinarily resides out of Uganda and yet she needs to notify 3rd parties that they may be transacting therein about her interests as a beneficiary.


*I have noted that the Affidavit in reply is filed without Powers of Attorney by the deponent, the right procedure would have been to have registered Powers of Attorney on behalf of the Respondent and not authority like the deponent of the affidavit was sued along with other individuals as respondents.*

1.3 The Applicant filed an affidavit in rejoinder.

## **2.0 Background of the Application.**

- 2.1 The brief background to the instant application is as follows: The Applicant is an Administratrix of the estate of the late Massanga Lillian Maggen. In 2020, the Applicant's authority to administer the estate of the late Massanga Lillian Maggen was unsuccessfully challenged by the Respondent in a suit for revocation of Letters of Administration vide Civil Suit No. 138 of 2020. Subsequently, the Respondent as beneficiary of the estate of the late Massanga Lillian Maggen lodged caveats on the estate properties comprised in Busiro Block 26 Plot 894. - 2.2 The Applicant requested the Respondent to vacate the caveats because they were hindering the Applicant's ability to fulfil her statutory duty of Administering and distributing the estate of the late Massanga Lillian Maggen, however, no response was made to the same. - 2.3 The Applicant contends that the Respondent has no reasonable cause for having lodged the Caveats on the estate properties and should be vacated. - 2.4 At the hearing, the Applicant was represented by Counsel Francis Buwule Kabonge. The Respondent was represented by Counsel Amon Abaasa, the Applicant was present in Court while the Respondent was absent. They based their

arguments on the respective affidavits summarized above and cited a number of authorities that have assisted me in determining this application.

## **3.0 Issues for Determination.**

- 1. Whether the instant Application raises sufficient grounds for the removal of the Respondent's caveat from the suit properties? - 2. What remedies are available to the Applicant?

## **4.0 Submissions by Counsel.**

4.1 Counsel agreed to proceed by filing written submissions. I have carefully perused the record, adopted and considered the submissions of the parties, in determination of this matter which submissions shall not be reproduced.

## **5.0 Resolution of the issues presented.**

# **Whether the instant Application raises sufficient grounds for the removal of the Respondent's caveat from the suit properties?**

5.1 **Section 123 (1) of the Registration of Titles Act, Cap. 240** provides that; "any beneficiary or other person claiming any estate or interest in land under the operation of this Act or in any lease or mortgage under any unregistered instrument or by devolution in law or otherwise may lodge a caveat with the Registrar in the form in Schedule 13 to this Act or as near to that as circumstances permit, forbidding the registration of any person as a transferee or proprietor of and of any instrument affecting that estate or interest until after notice


of the intended registration or dealing is given to the caveator, or unless the instrument is expressed to be subject to the claim of the caveator as is required in the caveat, or unless the caveator consents in writing to the registration.

(2)………..

(3) The person lodging such caveat shall, if required, support the caveat by an affidavit, stating the nature of the title under which the claim is made, and may withdraw any such caveat".

- 5.2 **Section 176 of the Succession Act, Cap. 268** provides that; "*The executor or executrix or administrator or administratrix, as the case may be, of a deceased person is his or her legal representative for all purposes, and all property of the deceased person vests in him or her as such".* In the case of **Maureen Tumusiime Versus Macario & Anor. [2006] 1 HCB** court declared that ownership of property of the deceased vests in the one being appointed administrator or executor, through a grant of Letters of Administration or probate. - 5.3 **Section 188 of the Succession Act (supra) provides** that, "Letters of Administration entitle the administrator or administratrix to all rights belonging to the intestate as effectually as if the administration has been granted at the moment after his or her death". - 5.4 Section 176 and 188 of the Succession Act, confirm the powers of an administrator in relation to the estate, all powers and authority vests in the administrator or administratrix on bare trust for the beneficiaries, since the administrator's role is merely distribution.

 - 5.5 The Applicant relied on the case of **Rutungo Properties Limited Versus Linda Harriet Carrington & Another (Civil Appeal No. 61 of 2010)** which established that a Caveator must prove the existence of the following grounds; - a) The caveator has sufficient grounds to maintain the Caveat. - b) The caveator has brought an ordinary action timeously against the caveatee. - c) The balance of convenience lies in maintaining the caveat rather than its removal. - 5.6 The Applicant asserted that the Respondent has not shown that they have any sufficient grounds for maintaining the Caveat since these are the same grounds the Respondent raised in Civil Suit No. 138 of 2020 and the same were dismissed by the court. - 5.7 The Respondent submitted that the Applicant has not presented sufficient cause for the removal of the Respondent's caveats from the suit property. She merely sought the order to vacate the caveats to enable the effective administration and distribution of the estate in issue. - 5.8 The Respondent argued that there is no need to vacate the Caveat on land comprised at Busiro Block 376 Plot 403 at Katale. She asserted that the land in question is meant to be reserved as burial grounds and is not meant to be distributed. - 5.9 Regarding the land at Busiro Block 376 Plot 407 at Katale, the Respondent contended that it constitutes a residential house that the Applicant intends to transfer jointly into the names of the Respondent and Billy Joy Massanga. The


Respondent states that she contests the parentage of Billy Joy Massanga. She asserts that she has instructed her lawyers to institute proceedings for declaration of Parentage. She submitted that it is necessary to maintain the Caveat to prevent the deceased's land from being distributed to a stranger.

5.10 The Respondent also contested the vacation of the caveat on LRV 4523 Folio 8 Land at Bulange Kibuga Block 26 Plot 894. She asserts that the Applicant intends to sell this property to meet the debts of the estate. The Respondent submitted that she does not agree with the intended plans for the land and that if the court were to vacate the Caveat, it would be to allow an illegality to be occasioned to the estate of the deceased.

## **Determination.**

- 5.11 Beneficiary Caveats are protected under **Section 124 (2) of the Registration of Titles Act, Cap. 240** which provides that; '*except in the case of a caveat lodged by or on behalf of a beneficiary claiming under any will or settlement or by the Registrar, every caveat lodged against a proprietor shall be deemed to have lapsed upon the expiration of sixty days after notice given to the caveator that the proprietor has applied for the removal of the caveat'.* - 5.12 Accordingly, caveats that are lodged to protect an estate of a deceased person do not lapse automatically after the expiry of the statutory notice of 60 days unless the court orders such caveat to be removed upon sufficient cause being shown. - Page **8** of **12** 5.13 The same was emphasized in the case of **Nassaka Versus Nansimbi (Misc Cause No. 31 of 2020) [2021] UGHCCD**


## **201 (per Hon. Lady Justice Victoria Nakintu Nkwanga Katamba),** it was held that:

*"Beneficiary caveats ... do not lapse unlike other caveats and the reason behind this is because, interests of beneficiaries need to be protected."*

- 5.14 The administration of an estate is not intended to be perpetual. It is a process governed by law to ensure the orderly distribution of the deceased's assets to the rightful beneficiaries. The grant of letters of administration is issued with the clear purpose of facilitating this process within a reasonable timeframe, thereby bringing finality to the administration of the estate. Prolonging the administration unjustifiably contravenes this. - 5.15 The administrator of an estate can only effectively distribute the estate to beneficiaries if he/she is able to deal with the estate; which he cannot do unless the caveat is lifted; **(**See: **Anna Maria Nakamya Versus Ntandan Pascal Miscellaneous Cause No. 14 of 2017).** - 5.16 In this matter, the respondent previously instituted **Civil Suit No. 138 of 2020,** seeking to have the applicant removed as the administrator of the estate. In the above suit, the court ordered as follows; - **1. The Letters of Administration issued to the defendant vide HCT-00-FD-AC-519 of 2011 in respect of the estate of the late Massanga Lilian Magen will remain in force.** - **2. The defendant will distribute the estate of the late Maggen Lillian Massanga among the beneficiaries and**


**file in court a comprehensive and true statement of account dealings.**

- **3. The defendant, Hassifa Nassanga (Administrator of the Estate of the Late Maggen Lillian Massanga) is granted a period of Six (6) months from the date of this Ruling within which to file an inventory.** - 5.17 Despite this decision, the respondent's caveats effectively circumvent the outcome of the suit. This not only disregards the court's findings but also undermines the authority of the court in granting and upholding letters of administration in favour of the applicant. - 5.18 The lodging of these caveats has the effect of frustrating the administration of the estate, contrary to the principles established by the law and the earlier court ruling. The respondent is using the caveats as an alternative method to challenge the administrator's authority, despite the court having already addressed and resolved the issue. - 5.19 The Court therein also ordered the Administrator to file an inventory and account of the estate. However, the Respondent's actions have frustrated this process, making it impossible for the Administrator to fulfil her obligations. - 5.20 The Respondent has raised objections concerning how the Administrator intends to distribute the land and has questioned the parentage of Billy Joy Massanga. Despite these contentions, the Respondent has not initiated any legal proceedings to formally challenge either the administration of the estate or Billy's parentage. The Applicant's concern regarding the proceeds from the sale of LRV 4523 Folio 8 land in Bulange appear to prematurely anticipate the distribution


process. It is a settled legal requirement that an administrator must render a full inventory and account of the estate, detailing how the property was distributed, including any proceeds from the sale of the estate property. This obligation must be fulfilled in adherence to the law, ensuring transparency and accountability in the administration process.

- 5.21 The administration of an estate is an ongoing responsibility carried out until the estate is formerly and fully distributed and an inventory account filed. The applicant was issued with Letters of Administration for all intent and purposes to administer the estate of the late Massanga Lillian Maggen. - 5.22 In light of the above, I find that beneficiary caveats should not be misused as a means to subject administrators to the unsubstantiated claims or personal grievances of beneficiaries of the estate. While administrators owe a fiduciary duty to the estate and its beneficiaries, this duty must be exercised within the confines of the law and with the ultimate goal of bringing the administration to a timely and just conclusion. The role of an administrator is one undertaken in service to the memory of the deceased and for the benefit of the beneficiaries. It is neither intended to be indefinite nor to subject the administrator to perpetual challenges that lack merit or legal basis. I therefore, find that there are sufficient grounds to warrant the caveat to be lifted to enable administer the estate of the late Massanga Lillian Maggen. The Court resolves this issue in the affirmative. - **6.0 Conclusion.** - 6.1 In the final result, the court orders as follows;


- 1. The caveats lodged by the Respondent Linda Precious Makula comprised in Busiro Block 376, Plot 403 and 407 Mengo, LRV Volume 4523 Folio 8 land at Bulange Kibuga Block 26 Plot 894 are hereby vacated to allow the Applicant to effectively administer and distribute the estate of the late Massanga Lillian Maggen. - 2. The caveat lodged by Lenerz Erwin Johann the Respondent's father (Linda Precious Makula) on 7th August, 2019 at 12:32pm under Instrument No. WAK-00232026 comprised in Busiro Block 376, Plot 403 land at Katale is hereby vacated to allow the Applicant to effectively administer and distribute the deceased's estate. - 3. The Commissioner land registration is hereby directed to lift the caveats lodged against the suit properties comprised in land situate in Busiro Block 376, Plot 403 and 407 Mengo ( Katale), LRV Volume 4523 Folio 8 land at Bulange Kibuga Block 26 Plot 894 as vacated by this court. - 4. The Applicant is granted leave to file a final/comprehensive and true statement of account for the estate of the late Massanga Lillian Maggen after the distribution of the same. - 5. Costs are awarded to the Applicant.

## **I so order.**

*Dated, signed and delivered electronically this 29th day of November, 2024.*