Nuhu Ntege v Tomusange and 15 Others (Civil Suit 439 of 2013) [2023] UGHCLD 459 (17 October 2023)

# **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT KAMPALA**

**(LAND DIVISION)**

## **CIVIL SUIT NO. 439 of 2013**

- 5 **NUHU NTEGE (Administrator of the estate of the late Musa Musoke and the late Amisi Sembajjwe) ----------------------PLAINTIFF VERSUS** - **1. TOMUSANGE LASITO** - **2. EGULANSI NAKATO NAKALEMA** - 10 **3. SULAIMAN AIDHA TENYWA** - **4. DR. SERUYANGE RACHEAL** - **5. SIRIWA NAKAZI** - **6. NALONGO NANONO** - **7. KATUMBA SWAIBU** - 15 **8. ROSE ATUGONZA** - **9. MAGERO JOSEPH** - **10. GETRUUDE NABOSA** - **11. KASIMBI EDWARD** - **12. RWOMUSHANA HOPE** - 20 **13. ROSE BELA** - **14. MIREMBE DORA** - **15. SANDE BALIOBWABE**

**16. THE COMMISSIONER LAND REGISTRATION------------------------DEFENDANTS**

## **Before: Hon. Lady Justice Olive Kazaarwe Mukwaya**

## 25 **JUDGMENT**

The Plaintiff brought this suit against the Defendants in his capacity as the Administrator of two estates. His complaint is that the Defendants unlawfully purchased the suit land from a fictitious person who had no right to sell the suit land to them.

In their defence, the defendants who appeared in court; 1st, 2nd, 4th, 8th, 13th and 14th Defendants denied that their acquisition and subsequent registration of their respective parcels of land was marred by fraud and illegalities.

#### **Plaintiff's Claim**

- 5 To establish the claim against the Defendants, the Plaintiff, PW1, Mr. Nuhu Ntege testified that he was the administrator of the estate of the late Musa Musoke and Aminsi Ssembajwe. He confirmed that the former was the original registered proprietor of the land formerly comprised in Busiro Block 227 Plot 2 land at Kigoma, Wakiso now subdivided into among other Plots, the suit land. According to the Plaintiff, the late Musa - 10 Musoke died in or around 1940 and the property was later transferred into the name of Amisi Ssembajwe, a son and customary heir to the late Musa Musoke. He died in 1991 before distributing the entire estate among all beneficiaries. In 2012, the Plaintiff took over the administration of the late Amisi Ssembajwe. The Defendants interests as proprietors were all acquired after the late Ssembajwe died and yet he was indicated as the vendor - 15 and transferor in all their transactions. This was before the Plaintiff had obtained letters of administration. PW1 drew the conclusion that a fictitious person had passed himself off as the registered proprietor resulting in transactions which deprived the beneficiaries of the estate of their rightful shares to the property. Since the discovery was put to the Defendants, they have refused to vacate the suit land leading to the detriment of the - 20 beneficiaries. The Plaintiff was therefore in court to seek declarations that the suit land belongs to the deceased's estate and it was fraudulently registered in the Defendants' name. In his testimony, the Plaintiff relied on letters of administration of the estates of the late Musa Musoke & Amisi Sembajjwe, Exb. P.1, and P.2; correspondences from the Administrator General, the short death certificate of the late Amisi Sembajjwe, records - 25 from the Succession Register in the office of the Administrator General and certified copies of the transfer, mutation forms and Area Schedules of the suit land.

PW2, Mr. Mohammad Kaganganya testified that he was a grandson of the late Musa Musoke. Before he died, Musa Musoke, a grandson, informed them that Mr. Tomusange Lasito his surveyor had all the titles to the suit land but he only gave them 3 titles. PW2

30 testified that Tomusange Lasito was responsible for the theft of their land. All the people

who bought, were aware that their purchases were illegal and they were aware that they were dealing with Musa Musoke, the grandson, and not Aminsi Ssembajwe, the heir and son. Efforts to settle the matter amicably had failed and they therefore appointed the Plaintiff to pursue the matter in court.

- PW3, Mr. Robert Bogere, Assistant Administrator General testified that on the 25 5 th May 2009, a file in respect of the estate of the late Musa Musoke was opened in their office vide Mengo AC/1992/2009. Since he died in 1941, a search was conducted of the succession registers formerly managed by the Kabaka's Government before its abolition by President Obote during the 1966 crisis. According to the records, the principal heir to - 10 the estate was Aminsi Ssembajwe. From the meetings held between PW3 and the beneficiaries, he found out that Aminsi Sembajjwe had taken to himself all the property of the deceased formerly comprised in Busiro Block 227-229-300, Plot 2 measuring 211.60 acres. And that he refused to demarcate off the interests of the deceased's estate and died with all the land within his control. PW3 further learnt that upon the death of Aminsi - 15 Sembajjwe in 1991, his son, also named Musa Musoke, a grandson to the deceased, fraudulently took it upon himself to perpetuate the disposal of the estate of the deceased, to various persons, pretending to be Aminsi Ssembajwe. PW3 interacted with a number of these purchasers, some of whom agreed to settle the matter amicably with the beneficiaries. One of the purchasers though, an advocate failed to appreciate that she - 20 could not plead the defence of bonafide purchaser for value in the circumstances. He added that because there was a departmental policy at the Office of the Administrator General to apply for letters of administration in respect of all estates formerly administered by the Buganda Government, the Administrator General took out letters of Administration dated 15th April 2010. Another file was opened in respect of the estate of the late Amisi - 25 Ssembajwe. During the course of time, the policy at the Office of Administrator General changed allowing any person duly nominated by the beneficiaries to apply for letters of administration. The Plaintiff was duly nominated and subsequently granted letters of administration to both estates.

PW4, Mr. Makumbi Jude Kamya testified that he was the Chairman of Gombe (A) local 30 council from 2003 to 2018. He confirmed that four meetings were convened by the

Administrator General with those who had illegally acquired plots and the beneficiaries of the estate of the late Musa Musoke. PW4 added that the children of the late Amisi Ssembajwe refused to be appointed as administrators which led to the appointment of the Plaintiff. He clarified that Musa Musoke and Amisi Sembajjwe were two different 5 people and it was wrong for one to pass himself off as the other.

The gist of the Plaintiff's evidence is that the person from whom the Defendants acquired their interest, one Amisi Sembajjwe was dead by the time he is purported to have signed transfer instruments in favour of the Defendants. According to the witnesses, this fact rendered all their purchases illegal. It was the Plaintiff's prayer that all their titles be 10 cancelled.

### **Defendant's Case**

DW1, the 14th Defendant, Ms. Dora Mirembe testified that she acquired the suit land comprised in Busiro Block 277, Plots 505 & 506 in 2007 from its registered proprietor, the 1 st Defendant, Mr. Tomusange Lasito, on the 20th February 2008, she was registered on

15 the title as proprietor (Exb. D.7 & D.8). She denied dealing with the estates of any deceased persons in the transaction to acquire the suit land.

DW2, the 8th Defendant, Ms. Rose Atugonza, testified that on the 17th March 2005, she bought land from Amisi Sembajjwe comprised in Block 277 Plot 329. She paid UGX 5,500,000/= for the land and it was registered in her name (Exb. D.6). Ms. Atugonza 20 denied any participation in fraudulent dealings as alleged by the Plaintiff.

DW4, the 1st Defendant, Mr. Tomusange Lasito, testified that he was in the real estate business. In 2006, he was introduced to a land owner called Amisi Sembajjwe. Later, his lawyer M/S Nyombi & Co. Advocates confirmed that Mr. Sembajjwe was the registered proprietor of land comprised in Block 277 Plot 333. His visit to the land registry confirmed

25 this information. After this verification, DW4 negotiated the price for 1 acre and made the payment. In return he received 5 certificates of title, in total measuring 1 acre. He denied any knowledge of the estates the Plaintiff represented and maintained that he only dealt with Mr. Amisi Sembajjwe.

DW6, the 4th Defendant, Dr. Racheal Seruyange, testified that as per Exb. D.15, copies of sales agreements, she purchased the first portion of the suit land in her possession on the 15th April 2005. It is comprised in Block 227 Plot 264, 265 and 258. She later bought an additional 1.68 acres comprised in Plot 327. On the 23rd June 2005, that land was

- 5 transferred in her name (Exb. D.13). DW6 made two further purchases of land. One measuring 0.206 hectares, purchased on the 26th May 2005 and the second comprised in Block 227 Plot 339 purchased on the 23rd August 2005 measuring 0.497 hectares( Exb. D.12). After the agreements were concluded, Mr. Amisi Sembajjwe sub-divided the land at DW6's cost. She received two titles in her name. Plot 345 measuring 0.440 hectares ( - 10 Exb. D.14) and Plot 339 measuring 0.497 hectares. According to Ms. Seruyange, the subdivisions caused a change in the title numbers but the land she had bought remained the same. On 12th January 2011, DW6, bought Plot 338 measuring 0.109 hectares from Mr. Hussein Nsubuga Mpombe (Exb. D.11). All the land is fenced off. Her brother, Mr. Patrick Seruyange currently is in possession of the land as care taker and DW6 has been in quiet 15 possession until she learnt of this suit in 2016.

In summary, the Defendants maintained the position that their transactions were devoid of fraud and prayed that this suit be dismissed.

# **REPRESENTATION**

Mr. Elias Seguya represented the Plaintiff while Mr. Felix Ampaire appeared for the 1st , 2 nd, 4th, 8th, 11th, 13th & 14th 20 Defendants. Submissions were filed on behalf of the parties.

# **ISSUES**

- **1. Whether the land comprised in Busiro Block 277 Plots 346, 507, 338, 313, 285, 345, 339, 327, 341, 329, 510, 278, 503, 511, 325, 505, 506 and 504 belongs to the estates of the late Musa Musoke and Amisi Ssembajwe?** - 25 **2. Whether the Defendants illegally, fraudulently and/or illegally irregularly acquired the respective properties comprising the suit land?** - **3. Whether the Defendants are bonafide purchasers for value without notice of fraud?** - **4. What remedies are available to the parties?**

### **RESOLUTION**

**Whether the land comprised in Busiro Block 277 Plots 346, 507, 338, 313, 285, 345, 339, 327, 341, 329, 510, 278, 503, 511, 325, 505, 506 and 504 belongs to the estates of the late Musa Musoke and Amisi Ssembajwe?**

### 5 **Section 192 of the Succession Act Cap 162** provides;

#### *192. Effect of letters of administration*

*Letters of administration entitle the administrator to all rights belonging to the intestate as effectually as if the administration has been granted at the moment after his or her death.*

The Plaintiff filed this suit as holder of letters of administration for the estates of the late 10 Musa Musoke and the late Aminsi Ssembajwe. Being father and son they died sometime in 1940 and 1991 respectively. No inventory was adduced as evidence for either estate by the Plaintiff.

**Section 278** provides for an inventory as follows;

#### *Inventory and account*

- 15 *An executor or administrator shall, within six months from the grant of probate or letters of administration, or within such further time as the court which granted the probate or letters may from time to time appoint, exhibit in that court an inventory containing a full and true estimate of all the property in possession, and all the credits, and also all the debts owing by any person to which the executor or administrator is entitled in* - 20 *that character; and shall in like manner within one year from the grant, or within such further time as the court may from time to time appoint, exhibit an account of the estate, showing the assets which have come to his or her hands, and the manner in which they have been applied or disposed of.(Emphasis added)*

Addressing the critical duty of an executor/administrator of an estate to file an inventory,

25 in the case of **Abu baker Sebalamu Ganya v Yasmin Nalwoga SCCA No. 14 of 2017**, Nshiimye, JSC held,

'*The above provision makes the filing of an account and inventory by an executor mandatory and time specific. Failure by an executor to oblige the provision amounts to an offence under Section 119 of the Penal Code Act.*

*Furthermore, the inventory filed should contain and true estimate of all the property of the* 5 *deceased's estate and how it was distributed and the remainder (if any).' (*Emphasis mine).

Having obtained letters of administration to the estate of the late Musa Musoke on the 25th May 2012, Exb. P.1 and the estate of the late Amiisi Sembajjwe on the 17th September 2012, the Plaintiff was duty bound to file inventories on the 25th November

- 2012 and the 17 10 th March 2013 in respect of the two estates. It is my firm view that without the two inventories, there was no legal basis for the Plaintiff to make a claim that the suit land formed part of the estates of the deceased. Under the law, it is the only document that is deemed to accurately reflect the true estimate of the deceased's estate and how it was distributed to the beneficiaries. - 15 This court held in the case of **Hadijah Ndagire and Anor v Mohammad Kasozi and 15 Others (Civil Suit No. 40 of 2014) [2021] UGHCLD 38 (8 February 2021**) that;

*'It was therefore premature for the Plaintiffs to file this suit without an inventory to the deceased's estate. There could be no cause of action to recover land under a deceased's estate in the absence of an official inventory to his estate duly filed with the court that* 20 *issued the grant to administer the estate. This was the only valid foundation upon which the administrator to the estate or could make a claim on the Defendants. The filing of an*

*inventory is a crucial and mandatory part of the succession process which has for the most part been disregarded by holders of letters of administration.'*

**For the reasons stated, Issue 1 is resolved in the negative and this finding in my** 25 **view renders all the other issues moot.**

**Before I take leave of this matter, I took note that the Plaintiff's claim is founded on the contents of the Succession Register in the possession of the Office of the Administrator General. There are recent developments which the Plaintiff ought to take interest in. By an Internal Memo dated 6th October 2023 the Hon. The Principal** **Judge, communicated the Recommendations of the Joint Working Committee on Succession Registers and Certificates of Succession contained in letter dated 22nd September 2023 from the chambers of the Attorney General. Part of the letter reads;**

**'By a letter dated 29th May 2023, the Chairperson of the committee submitted a report to my office.** 5 **As recommended by the committee, this is to advise that the Local Administration (Performance of Functions) Instruments, S. I No.150 of 1967 was deleted from the Law Revised Edition and therefore, has no force of law in Uganda.**

**The office of the Administrator General, therefore, no longer has jurisdiction over estates under Succession Registers, Certificates of No Objection and Letters of Administration cannot be issued**

10 **in respect of estates under 1912 Buganda Succession Law. Courts should also not renew the Letters of Administration held by the Administrator General and private persons in respect of estates under Succession Registers once they expire within the timelines in the Succession Amendment Act No. 3 of 2022.'**

**In conclusion, this suit is dismissed with costs to the 1 st, 2nd, 4th, 8th, 11th, 13th & 14th** 15 **Defendants.**

**----------------------------------**

**Olive Kazaarwe Mukwaya**

20 **JUDGE**

**17th October 2023**

**Delivered by email to Counsel for the Parties.**