Nassolo and 4 Others v Engola and 8 Others (Civil Suit 623 of 2017) [2024] UGHCLD 115 (25 April 2024)

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

## (LAND DTVTSTON)

## CIVIL SUIT NO. 623 OF 2017.

I. NASSOLO LAMULA: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : PLAINTIFFS

- 2. SAID GANAFA - 3. MUKIIBI YASIN - 4. KALEMA ABBEY - 5. SSAMULA HASSAN (Administrator of the estate of the late Haj Kasali Ayub)

#### VERSUS

- I. ENGOLA BETTY: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : DEFENDANTS - 2. ADUPA PATRICK NELSON - 3. DAVID MPANGA - 4. BYAMUGISHA OWAK FRANCIS - 5. SAM ENGOLA - 6. MRS CHRISTINE OKOTCHINO MUGABI,

(Administrators/executors of the deceased's last will, WILLIE PATRICK OGULE)

- 7. PATRICIA OGULE - 8. THE BOARD OF GOVERNORS SPRING FIELD SECONDARY SCHOOL - 9. THE COMMISSIONER LAND REGISTRATION.

JUDGMENT

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## BEFORE: HON. MR. JUSTICE TADEO ASIIMWE

## BACKGROUND:

The plaintiffs brought the suit against the defendants jointly and severally seeking for annulment of any purporled sale and transfer of land comprised in Kyadondo Block 93, Plot 7, Land at Jakana, a permanent injunction restraining the defendants from any furlher dealings in the suit land, a declaration that the 6th and 7th defendants are trespassers on the suit land, an order for cancellation of entries on title over the suit land by Willie Ogule and Badru Katerega, an order re-instating a certificate of title in the names of Ayub Kalasi as a registered proprietor, an order against the l't-6th defendants to surrender duplicate certificates of title to the 8th defendant for further management, an order for compensation, eviction, vacant possession, general damages, costs and interest thereon.

The plaintiffs claim is that they are the administrators of the estate of the late Haj Kalasi Ayub. That the same Ayub died testate and left behind a will which dealt with the suit property. That while the family was in the process of obtaining Letters of Probate, a one Badru Katerega connived with Willie Ogule and transferred the suit land into his names as an administrator of the estate of the late Ayub Kalasi. After obtaining letters of administration, that he later transferred the suit land into the names of the said Willie Ogule. He stated particulars of fraud as follows; -

- a) Transferring the suit land into the names of Willie Ogule without carrying proper due diligence. - b) Transferring the suit land without the consent of the rightful beneficiaries.

On the other hand, the defendants denied the allegations of the plaintiffs and stated that on the 13th of September 2003, the late Willie Patrick Ogule purchased the suit land from Badru Katerega the administrator of the estate of the late Ayub Kalasi and 5 other beneficiaries of the estate. That subsequently the late Willie Patrick Ogule was registered on the suit land as the registered proprietor. That the l't and the 6th defendants are currently registered as the proprietors of the suit land by virtue of being executors of the estate of the late Willie Patrick Ogule. That the 8th defendant is in physical possession ofthe suit land as a tenant. That the 7tl' defendant is neither in physical possession of the suit land nor the registered proprietor ofthe suit land.

At scheduling the parties agreed on the following issues.

- l. Whether the plaint discloses a cause of action against the 7th defendant? - 2. Whether the suit is time barred? - 3. Whether the late Willie Patrick Ogule was a bonafide purchaser for value of the suit land?

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- 4. Whether the suit land was fraudulently and illegally transferred into the names of the late Willie Patrick Ogule. - 5. What remedies are available to the parties.

At trial the plaintiffs were represented by Counsel Daniel Byaruhanga while the defendants were represented by Counsel Jude Byamukama.

Both Counsel filed written submissions which I will consider in this Judgement.

# THE LAW

The general rule is that he or she who asserts must prove and the burden of proof therefore rests on the person who must fail if no evidence at all is given on either side. The standard of proof required to be met by either party seeking to discharge the legal burden of proof is on a balance of probabilities.

In Miller V Minister of Pensions ll947l2 ALL E R372 Lord Denning stated:

"That the degree is well settled. It must carry a reasonable degree of probability but not too high as is required in a criminal case. If the evidence is such that the tribunal can say, we think it more probable than

noL the burden of proof is discharged but if the probabilities are equal, it is not. "

It is also the position of the Law that the evidential burden does not shift to the defendant unless there is cogent and credible evidence produced on the issue for determination.

In a bid to proof their case, the plaintiffs led evidence of 8 witness and closed while the defendants called I witnesses and court called one witness.

To prove his case, the plaintiffs called 2 witnesses while the defence called 3 witnesses.

PWl, Nakimbugwe Hadijah testified that she is a daughter of the late Habib Njumba son of late Haj Ayub Kalasi and a beneficiary of the late Ayub Kalasi. That his grandfather Haj Ayub Kalasi passed in <sup>1997</sup> leaving l0 children and several properties including the suit land. That in 2016 resulting from a family meeting, the plaintiffs were granted letters of administration in the estate of the late Ayub Kalasi. That however, her grandfather had left a will behind. That some children of the deceased including a one Badru Katerega disputed the content of the last will of the deceased for not complying with the Sharia Law. That a meeting was held at Administrator General's office and a one Hassan Kayizi, H ima

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Namagembe, Hadijah Baseka, Hajjat Jalia Nalongo and Mohamed Lukwata were appointed as persons to be issued letters of no objection. That unknown to the family members, the said Badru Katerega used the last will of their deceased father to obtain letters of administration on the 2"d August 1997 . That family members objected and petitioned the Chief Magistrate Court Mengo and a directive was issued recalling the letters of administration granted to Badru till the pendency of the suit. That while letters of administration had been deposited in the Chief Magistrate's Court, a letter addressed to the 9th defendant with a name of a one Badru Katerega but signed by Mohamed Magembe was used to enter the said Badru Katerega on title of the suit land. It was later established that the said Badru had transferred the suit land into the names of the late Willie Ogule. That however, the I't-611' defendants addressed the Registrar of Titles and were registered on title as administrators of the late Willie Ogule while an application for a caveat to be lodged on the title was still pending.

In cross-examination, she confirmed the contents of her witness statement and confirmed that late Badru Katerega was his uncle who died and also confirmed that Masudi Ssemakula and Magembe Mohamed are equally her uncles. She also confirmed that the ground of Badru Katerega in 1991 was only re-called but not cancelled.

In re-examination, she confirmed that in a will of her late grandfather the suit land had been bequeathed to all his children to be distributed in accordance with Sharia Law.

PW2 Nansamba Fatuma testified that the suit land belonged to her father in law the late Haj Ayub Kalasi who was the father of her husband Hassan Kayizi. That she stayed on the suit land with her husband until her husband was murdered in 2002. That in 2003 she went to visit the suit land and to her surprise she was told that the said Badru Katerega had sold the suit land to Ogule Willie. That in 2016 a section of family members was granted leiters of administration in the estate of Haj Ayub Kalasi. In cross-examination she confirmed the contents of her witness statement and confirmed that she shifted from the suit land and settled in Kyengera where her father in law had another piece of land.

On the other hand, DWl, Walugembe Herbert testified that he is a former head teacher of the 8th defendant and a board member of the same. That in2004 he met with Peter Otim and Enock Walugembe at the late Willie Ogule's residence and agreed to start a joint project of a school. That the late Willie Ogule intimated that he had acquired the suit land and was willing to avail the same to them on a tenant landlord term. That they found a house and one (l) squatter on the land a one Ssaka Ssekitoleko who was compensated. That the 8th defendant immediate took

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possession and developed the said land and has been in occupation for 13 years without interruption.

In cross-examination he confirmed the contents of his written statement and stated that the 8th defendant was incorporated in 2007 but they had taken possession in 2004.

DW2, Patricia Ogule testified to this Honorable Court and stated that she is a Lawyer and a sole beneficiary of the estate of the late Willie Patrick Ogule. That she is aware that her late father Willie Patrick Ogule purchased the suit land from a one Badru Katerega an administrator to the estate of the late Haj Ayub Kalasi. That the suit land was later transferred to his father's name without any fraud. She finally stated that the suit is time barred, frivolous, vexatious and has been brought in bad faith. That the same should be dismissed with costs.

In cross-examination she confirmed the contents of her written statement and stated that Badru futqftu was registered on title on lgth September \-" 2003. That however, the purchase agreement was executed on the l31h of September 2003. And that at that time Badru Katerega was not yet on title. That it is after her father's death that they received informal complaints on the late Katerega's family which they did not understand. DW3, Sekitoleko Saka testified that he was a neighbour of the 8th defendant and was a squatter on the suit land. That he was born on the suit land in 1953 and his family has stayed on the same land for more than70 years. That by the time they settled on the suit land, the owner was Ayub Kalasi and their father was a kibanja holder. That after the war, Ayub did not return on the suit land and only Hassan Kayizi returned on the suit land for a short time and left the city where he eventually met his death. That the suit land remained vacant and unutilized until the early 2000 when the late Ogule Willie, Herbert Walugembe and Enock Walugembe started developing the land and compensated him as a kibanja holder.

In cross-e>:amination he confirmed the contents of his written statement and stated that the suit land formerly belonged to Haj Ayub Kalasi but was bought by the defendants. He confirmed that however he did not see any documents to prove the purchase ofthe suit land by the defendants.

## RESOLUTION

In this case I shall resolve issues l, 2 & 5 separately and 3 & 4 together since they are related.

Issuel. Whether the suit discloses a cause of action against the 7th defendant.

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Under O7 r ll(a) of the Civil Procedure Rules, a plaint may be rejected by the court if it does not disclose a cause of action. The Court of Appeal in Kapeka Coffee l{orks Ltd V NPART CACA No.3/ 2000 held that in determining whether a plaint discloses a cause of action, the court must look only at the plaint and its annexures if any and nowhere else. In order to prove there is a cause of action, the plaint must show that the plaintiff enjoyed a right; that the right has been violated; and that the defendant is liable. If the three elements are present, a cause of action is disclosed and any defect or omission can be put right by amendment. See

## Tororo Cement Co Ltd V Frokina International Ltd Civil Appeal No. 212001.

In this case, the plaintiffs claim against the defendants is that they are the administrators of the estate of the late Haj Kalasi Ayub. That the same Ayub Kalasi died testate and left behind a will which dealt with the suit property. That while the family was in the process of obtaining Letters of Probate, a one Badru Katerega connived with Willie Ogule and transferred the suit land into his names as an administrator of the estate of the late Ayub Kalasi.

From the evidence on record, the executors of the last will of the late willie Patrick ogle are the l't to the 6th defendants AS PER DE6,DE7 and DES, the grant, the application and the certificate ofno objection respectively. The 7th defendant is a daughter and a sole beneficiary of the estate of the late willie Patrick Ogule. The said Patricia Ogule, the 7th defendant is

neither in occupation of the suit land no registered on tittle. It would have been logical if the estate did not have administrators to sue the 7th defendant as a sole beneficiary ofher father's estate. however, since the estate has administrators as legal representatives (as per section 180 of the succession act) of the estate of the late Patrick Ogule, there is definitely no cause of action against the 7Ih defendant. this suit is therefore dismissed against the 7th defendant.

## ISSUE 2. WHETHER THE SUIT IS TIME BARRED.

The defendant's counsel submitted that the suit is time barred since the limitation act is clear as to expiration of time after 12 years in suits of recovery ofland.

Section 5 of The Limitation Act, provides that;

No action shall be brought by any person to recover any land afier the expiration of twelve years from the date on which the right of action accrued to him or her or, if it.first accrued to some person through whom he or she claims, to that person.

According to Section 25 of the Limitation Act, fraud presents a legal exemptionto limitation. The court in Hammaann Ltd & Anor Vs. Ssuli & Anor (supra), when interpreting that section was of the view that:-

on fraud, the limitation period does not begin to n until ch a time " ...the main thrust of the provision is essentially that in actions founded

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when the plaintiff is invariably eware, or could have with reasonable diligence been aware of the fraud. This must be pleaded, and it is premised on such a plea that court may exercise its power under Section 2 not to reckon with the period the plainti/f was unaware of the fraud in computqtion of the limitation period... "

The plaintffi did plead and give particulars of fraud in their plaint. However, it seems unclear when the plaintffi who were not the direct beneficiartes then, found out about the fraud, however what is clear is that they got locus to sue on the 2l/12/2016 as per DE6, letters of administration.

Section 191 ofthe succession act is to the effect that.;-

Except as hereafter provided, but subject to section 4 ofthe Administrator General's Act, no right to any part of the property of a personwho has died intestate shqll be established in any court ofjustice, unless letters of administration have first been granted by a court of competent jurisdiction.

By virtue of the above, the plaintiffs got locus to sue in 2016 and their time begun to run then. Having filed the suit in 2017, they were still in time to file the suit.

In conclusion, I find that the suit is not time barred but rather one exempted from limitation.

ISSUES 3 AND 4

3. Whether the late Willie Patrick Ogule was a bonafide purchaser for value of the suit land?

4. Whether the suit land was fraudulently and illegally transferred into the names of the late Willie Patrick Ogule.

The plaintiffs in this case raises two particulars of fraud.;-

a) Transferring the suit land into the names of Willie Ogule without carrying proper due diligence.

b) Transferring the suit land without the consent of the rightful beneficiaries.

Fraud denotes any act ofdishonesty. This definition has also been noted in the case of Zabwe Fredrick versus Orient Bank & Others SCCA No. 4 of 2006. According to that case fraud constitutes;

An intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. Afalse representation of a mqtter offact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which deceives and is intended to deceive another so that he shall act upon it to his legal injury.

In order to succeed on an action based on fraud, the Plaintiff must attribute the fraud to the transferee that is; by showing that Defendant is guilty of some dishonest act or must hsve known of such uct by somebody else and taken advuntage of such act. <sup>S</sup> : Supreme Court

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decision of Kampala Bottlers Ltd vs Domanico (U) Ltd SCCA No.22 of 1992.

In this case from the evidence on record, the suit land originally belonged to the late Ayub Kalasi. When he died, he left l0 children who were beneficiaries of the same. one of his children a one Katerega Badru got letters of administration and sold the suit land to Willie Patrick Ogule on the 13th of 0912003 as per DEl. However, the said sell took place before the said Badru Katerega was registered on tittle as an administrator. He was later registered on tittle on the 19th of o912003 as per PEX9. The sell however was not blessed by all beneficiaries.

Further borne out of evidence, the said Badru Katerega obtained letters of administration vid mic 192197, the same was challenged by other beneficiaries and was recalled in Mengo court. He however secured another grant in the high court and registered himself on the suit land.

To begin with, section 270 of the succession act allows an administrator of the estate of the deceased person to dealwith it as he or she thinks fit. However, the said sale or dealing must be for the benefit of the estate or its beneficiaries. In this case there is evidence on record to show that the said sell was protested by some beneficiaries and there is no evidence on record to show that the aim of sale was done for the good of the estate and its beneficiaries. No such evidence was led to show accountability of the proceeds, instead evidence indicates that some beneficiaries never got their share in the suit land. Besides what was the hurry to sell the suit land

for immediately after the death of the late Ayub? In addition, although the grant was only recalled and not cancelled, it was a warning that the grant may be revoked. The rush amidst the circumstances was quite suspicious. Secondly, Article 134 of the RTA is very clear and I shall quote it verbatim "the Registrar shall on application of the executor or administrator to be registered as a proprietor... ... ... and upon that entry, being made that the executor or administrator shall become the transferee and be deemed to be the proprietor."

My understanding of the above law is that an administrator or executor who has been registered on title as such is the only person that can deal with the deceased's property in cases of sale and transfer by virtue ofthem being deemed as proprietors. As such Badru Katerega had no authority whatsoeverto pass good title to Willy Patrick Ogule on the l3th day of September 2003 since he was not registered on title as administrator of the estate of Ayub kalasi.

In addition to the above, courts have been clear on sell ofestate property by administrators before they are registered on tittle.

Supreme Court in Civil APPEAL No. 018 of 2022 lsreal Lwanga vs Leonard Mubiru & 3 ors had this to say;

"l must note that sections 180, 192 of aSuccessionAct in Section 134 of the RTA must be read together with the Constitution not in isolation of it. the intention of the Succession Act was made under Article 2478 and is to ensure that the interest ofall beneficiaries are protected.

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6,.

In the case of Kayiwa Joseph & Anor Civil Suit No. 497 of 2005 Court held that;

A legal representative or administrator of a deceased's person estctte property devolves to him or her beneficiaries upon trust for the beneficiaries and not for her own personal right. And therefore, for them to pas,s good title they must have acted in accordance with the law and in the interest of the beneficiaries.

Last but not least, Court in the case of Jonah Senteza Kanyerezi & Anor Vs Chief Registrar in MA NO. 919 of 1997 while interpreting Section 143 now Section 134 of the RTA the Court said that the legal representative is duty bound to consult qnd let beneficiaries know for him to pqss a good title.

In this case born out of evidence it is very clear that obtaining letters of administration by the said Badru Katerega and the subsequent sale of the suit land to the late Patrick Ogule was done under protest of some of the beneficiaries and without their authority since he was not registered on title. It suffices to note that the circumstances under which letters of administration were obtained and the subsequent sale were not done in consultation of all beneficiaries and as such not for the benefit of all beneficiaries.

I therefore find that the sale of the suit land by Late Badru Katerega to the Late Willie Patrick Ogule without consultation of all the beneficiaries and transferring the same into the names of Willie Patrick Ogule well knowing that they had wrongly/ illegally transacted upon the suit land without authority was nothing but fraud.

I shall now proceed to deal with the issue whether the Defendants are bonafide purchasers for value.

For a party who wishes to rely on Section l8l of the RTA, they have <sup>a</sup> burden to prove that they acted in good faith.

In Amrattal Purshottan & Anor vs Gian Singh Bhambra - H. C. C. S. No. 289 of 2010, Court held that a bona fide purchaser is a person who acquires property without actual or constructive notice of any defects in title. The person must have, in goodfaith, paid valuable consideration/br the propertywithout prior notice of any adverse claim. In this regard, one who has exercised due diligence, as well as reasonable caution, before entering into a transaction would be a bona fide purchaser.

In this case, from there is nothing on record to show that the late willie ogule carried out due diligence. What is clear from the purchase agreement DEXlis that the transaction was concluded on the 13th September 2003 before the seller was registered on tittle as the administrator so as to pass good tittle to him. He therefore does not suffice as a bonafide purchaser for value since he went ahead to purchase the suit land well knowing that the said Badru Katerega was not the registered proprietor of the suit land.

I therefore find that the defendants are not bonafide purchasers for value.

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### Issue 3. What remedies are available to the parties.

one. The plaintiff sought for several remedies and I will deal with the one by

## 1. A declaration that the suit land belongs to the estate of Willie Patrick Ogule

I have aheady found that the transactions on the suit land by Badru Katerega were illegal. I therefore would ordinarily declare that the suit land belongs to the estate of the late Ayub Kalasi. However, asper DEXI the purchase agreement, 5 of children including Badru Katerega signed on the purchased agreement. In effect they had endorsed the sale oftheir share in the suit properfy. It would therefore be unfair to say that they did not sell their share in the suit land. From the evidence on record the late Ayub Kalasi had l0 children and 5 of them signed the agreement of sale. The purchaser, has tenants on the suit land, 8th defendants who have constructed a school there on. It would be an injustice to disentitle them from property they have possessed for years. Therefore, I find that the half of the suit land which would have ordinarily been a share of the 5 children who signed the purchase agreement but should be retained by the estate of the late Willie Patrick Ogule. The remaining half should return to the estate of the late Ayub Kalasi for the benefit of the other 5 children who did not sign the purchase agreement. The plaintiffs being the administrators of the late Ayub Kalasi, they are responsible for

administration of half of the suit property which is equivalent to 19.09 hectares.

## 2. Cancellation of entries of Badru katerega and administrators of the estate of the late willie Patrick Ogulle form title.

Section 177 of the RTA emphasises indefeasibility of title except for fraud. I have already found that the registration of the defendant's name on the certificate of title on the suit land fraudulent.

I therefore order the registrar of titles to cancel the defendant's name on title as the administrators of the estate of Patrick Ogule and create two titles with equal hectares comprised of the suit land and register the administrators of willie Patrick Ogule on one title and the administrators of Ayub Kalasi on another respectively.

However, while measuring/curving out the land belonging to the estate of willie Patrick Ogule, the registrar of tittle should consider the part of the suit land where the school seats.

#### 3. Gencral damages

Black's Law Dictionary 9th Bdn 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 versus Hutchison (1905) AC 5 15.

In the case of Assist (U) Ltd. versus ltalian Asphalt and Haulage & Anor, HCCS No. l29l of 1999 at 35 it was held that;

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'the consequences could be loss ofprofit, physical, inconvenience, mental distress, pain and suffering'.

# In Haji Asuman Mutekanga versus Equator Growers (U) Ltd. SCCA NO. 7 of 1995, Oder JSC (RIP), held that;

'With regard to proof, general damages in a breach of contract are what <sup>a</sup> Court (or jury) may award when the Curt cannot point out any measure by which they are no to be assessed, except in the opinion and judgment of a reasonable man'

In the circumstances owing to the disturbance occasioned to the plaintiffs, the sum of tlgshs. 30 million (thirty million shillings) against the defendants save for the 7th defendant.

### 4. Permanent injunction

I have already found that half of the suit land belongs to the estate of the Late Ayub Kalasi. and therefore a permanent injunction doth issue against the Defendants from interfering with half of the suit property.

### 5. Eviction order ofthe defendants from the suit land.

I have already found that halfofthe suit property belongs to the estate of the late Ayub Kalasi. Therefore, I order the parties to curve off half of the suit property according to the titles that will be created by the registrar of titles and hand over vacant possession of the same to the Plaintiffs within 30 days from the date ofjudgment.

#### Costs

### Section 27 of the Civil Procedure Act provides that;

'costs are discretion of the Court of Judge. Subsection (2) of the Act provides that the costs of any action, cause or other matter or issue shall follow the event unless the Court or Judge shall for good reasons otherwise order.

In the instant case, the Plaintiffs being the successful parties, they are awarded the costs of the suit against all defendants save for the 7th and 9th defendants.

The 7th defendant is also awarded costs against the Plaintiffs.

In conclusion the Plaintifls case succeeds against all Defendants excluding the 7th Defendant.

In the result, Judgment is accordingly entered for the Plaintiff in the following terms; -

- 1. A declaration that the suit land belongs to the estate of the late Ayub Kalasi. - 2. An order directing the administrators of the estate of the late willie Patrick Ogule to surrender the title over the suit land for rectification. - 3. An order directing the Registrar of titles to rectifr the title over the suit land and create two titles with equal hectares in the names of administrators of the estate of the Late Ayub Kalasi, and

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another in the names of administrators of the estate of the Late Willie Patrick Ogule respectively.

- 4. 30,000,000/: (Thirty million) is granted to the plaintiffs as general damages against the Defendants save for the 7th and 9th defendants. - 5. A permanent injunction doth issue against the Defendants from interfering with half of the suit property. - 6. Half taxed Costs of this suit are granted to the Plaintiffs against the Defendants save for the 7th and the 9th Defendants. - 7. The 7th Defendant is granted costs of this suit against the Plaintiffs

I so order \ TADEO A II WE

JUDGE

2s1412024.