Serwano Kulubya and Another v Nalumaga Nyaika (Civil Appeal 16 of 1998) [1999] UGCA 36 (20 January 1999)

#### THE REPUBLIC OF UGANDA

Harrison Harrison

### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

HON. MR. JUSTICE S. T. MANYINDO, DCJ, CORAM: HON. LADY JUSTICE A. E. MPAGI-BAHIGEINE, J. A. HON. MR. JUSTICE J. P. BERKO, J. A.

# CIVIL APPEAL NO.16 OF 1998.

........... APPELLANTS SERWANO KULUBYA & ANOTHER. .....

#### **VERSUS**

$\ldots \ldots \ldots \ldots \ldots$ RESPONDENT BETTY NALUMAGA NYAIKA ....

> (Appeal against the judgment of High Court of Uganda at Kampala by Mukanza, J, dated 22-7-97 in HCCS No.591/94)

# JUDGMENT OF JUSTICE MPAGI-BAHIGEINE, J. A.

This is an appeal from the decision of Mukanza J. delivered 22-7-97 at Kampala.

The material facts are as follows.

$101$

On 10-4-1960 Mr. Sam Mugambe Kulubya made a will leaving the bulk of his estate including Plot 15 Nakivubo Place, also known as Kulubya House, to his son Edwin Kulubya.

Of the four executors appointed by the will, the two appellants are surviving, the other two who were his parents having predeceased The 1st appellant, Serwano Kityaba Kulubya Esq, is his him. younger brother while the 2nd appellant, Mrs. Florence K. Kulubya is his widow.

$\mathbf{1}$

On 25-5-1982 Mr. Sam Mugambe Kulubya wrote a letter to the 1st appellant, Ex. P3 informing him that he was giving Plot 15 Nakivubo Place Kampala to his daughter, Margaret Nampiima, in appreciation of everything she had done for him during his life and for her care that would continue during his failing health. He said he had written that letter to avoid problems that might crop up upon his It was copied to Margaret Nampiima and $M/s$ Sendege & Co. death. Advocates. Mr. Sam Mugambe Kulubya died two moths later, on 25-7-1982.

$\cdot$

Probate of his will was taken out by the two appellants during the same year.

In 1987, almost five years later, Margaret Nampiima lodged a caveat on Plot 15 Nakivubo Place.

The 1st appellant filed High Court Miscellaneous Cause No.41 of 1987 calling upon Margaret Nampiima to show cause why the caveat should not be removed.

Byamuqisha J. while dismissing the application not only maintained the caveat, but also made a declaration that the property Plot 15 Nakivubo Place belonged to Margaret Nampiima.

The 1st appellant appealed against that decision to the Supreme Court vide S. C Civil Appeal No.15/90, which Court reversed the High Court decision on the ground that the latter of Mr. Sam Mugambe Kulubya dated 25-5-1982, Fx. P2, was not a codicil as contended by the respondent and therefore it could not be part of the will.

In 1992 Margaret Nampiima died. The current respondent, Ms Betty Nalumaga Nyaika, who is her mether obtained letters of Administration to her estate wide Administration Cause No.400 of 1994. Consequent upon this grant, the respondent filed HCCS No.591 of 1994 against the appellants as executors of the will and administrat.ors of estate of IaEe Sam Mugambe Kulubya - claiming pl-oE 15 Nakivubo Place which she contended had been gi,ven Eo her daughter as a gift.

Mukanza ,f, agreed with her, and entered j udgment in her favour and declared that the said property did not form part of Ehe esEate of Mr. Sam Mugambe Kulubya - Hence this appeal .

The memorandum of appeal comprised six grounds.

Mr. Barnabas Tumusingize for Ehe appellants decided Eo abandon grounds Nos 1,3,4,5 & 5 and confined himsel-f to ground No.2 which he believed would dispose of the entire appeal one way or the oEher.

cround No.2 alleged:

o

o

"The fearned E.ria} judge erred in holding t.hat. E.he 25-5-f982 was a gifE inter vivos or Donatio Mortis fetter of Causarr .

Mr. Tumusingize argued that the letter Ex. P3 dj.d not either constiEut.e a donatio mortis causa, or a gift inter vivos to Margaret Nampiima though the judge was right. to hold, following the Supreme Court ruling C/A No.15/90 thaE it. was not. a codicil. CiEing S.178(1) Succession Act (Cap.139), he point.ed out that the doct.rine of DonaLion MorEis Causa did not apply to immoveables buts only moveables. He submiEted that there was no evidence of Mr. Sam Mugambe Kulubya part.ing with or Eransferring Plot 15 Nakivubo PLace. There was no change of poesession as required by law and therefore Ehere could be no gift. inter vivos. He asserted that the legal requirement.s for transfer of registered land had not been complied with and t.herefore no interest. could have ever passed to Margaret Nampi ima.

Mr. Lubega Matovu for the respondent agreed that the doctrine of donatio mortis causa did not apply to immoveable property -S.178(1) Succession Act. He however contended that there was a qift inter vivos by Mr. Sam Mugambe Kulubya to his daughter in appreciation of her care and affection which was bound to subsist throughout his failing health. He said that there was delivery of the gift by the letter, Ex. P3, as required by law, though the 1st appellant who was supposed to implement the transfer failed to do so. He argued that the taking or acceptance of the gift may be effected after the donor's death and not necessarily during his life-time.

The learned judge had this to say:

"With due respect I found the letter of 25-5-82 was not a codicil but a gift inter vivos or a donation mortis causa."

I think the learned judge was obviously somewhat troubled by the amphibious character of donatio wortis causa being neither entirely inter vivos nor testamentary. It is important to resolve this confusion. Donatio Mortis Causa is an act inter vivos by the donor in contemplation of death by which the donee is to have the absolute title to the gift rot at once, but if the donor dies. It is therefore conditional only on the donor's death. It applies only to moveables. There must be delivery of the gift either actual or constructive. Re Beaumont (1902) 1 Ch. 889.

In contradistinction, a gift inter vivos is a gratuitous transfer of any property from one person to another while the donor is alive and not in expectation of death. There must be delivery of the qift either actual or constructive. The qift takes immediate effect with the full intention that the thing shall not return to the donor - Halsbury's 3rd Edn. Vol.18 page 364 para 692. Doubtless, the two doctrines cannot stand together as the learned judge purported to hold. But perhaps, most importantly, he should

$\overline{4}$

have Eaken the cue from S.178(1) Succession Act, t.hat donaE.io mortis causa does not apply to realty. In CaLn v. Uoon (1895) 2OB 285 the defendant claimed her title on two grounds: first thaL there had been a gift inter vivos and, secondly that there had been a donatio ltrortis causa. It was held that. it was clear both these grounds coufd not stand together.

That. being so, the quesEion which now fall-s for consideralion is: Did the letter, Ex. P3, constitute a gift inter vivos? Its English translaCion reads:

> NamuEebi Cottage Namirembe 25-5-82

Dear Mr. Serwano Kulubya,

o

o

I have written this letter Eo Ehank you for t.he massive work you have done for me by taking care of my building KUI\_rUBYA HOUSE during this period especially t.he period when I was sj.ck for over f j-ve or six years.

The maj or avoid the reason why I have problems that may wri- t. t en crop up this let.ter to you is to in case I died.

Now I would like to inform you that I have given this building to my daughter, Margaret Nampiima to be her property and she is free to decide what she wants to use it for.

This I have done to Ehank her for al1 the assistance she has given me during the period of my life and she is the one who is going Eo take care of me l-ike feeding me and all the other necessities.

This I have made when I am still alive and with a clear mind.

I your beloved brother (S. M. Kulubya)

c.c. Margaret Nampiima c.c. M/s Sendege & Co. Advocates."

For this letter to constitute a gift inter vivos, there must be delivery of the property. The law prescribes two modes of doing this:

- (a) By deed or other instrument in writing. Hawksby v. Kane (1913) 47 1LT 96. - By delivery in cases where the subject of the gift admits of $(b)$ delivery. This mode excludes realty with the exception of mortgages. However there must be actual transfer of the gift or of the incidia thereto. **Re Swinburne, Sutton v. Featherley** (1926) Ch 38 CA at 44.

Whichever of the above methods of making a gift is employed, the result is the same. The interest is effectually transferred from donor to donee.

Mr. Lubeqa Matovu contended inter alia, that Ex. P3 was a deed, and that since it was copied to the respondent, the 1st appellant and the advocates there was sufficient delivery of the property. While I agree that no particular technical form of words or acts is necessary to render an instrument the deed of a party, I must reject Mr. Lubega Matovu's suggestion. A deed is a formal legal document. It is a writing or instrument signed, sealed and delivered to prove and testify the agreement of the parties whose deed it is, to the things contained in the deed. Osborn's Concise Law Dictionary. Ex. P3 was only signed by Mr. Sam Mugambe Kulubya. It was neither sealed nor witnessed. It is a mere letter.

$\overline{6}$ Mr. Lubega Matovu sought to argue in the alternative that Ex. P3 was a memorandum of transfer under which the respondent could accept or take the gift after Mr. Sam M. Kulubya's death. He asserted that there was sufficient evidence of motive for the gift. Nampiima had looked after her father during his ailment and he was expecting this care, love and affection to subsist during his failing health - as his years declined. In James v. James (1869) 19 LT 809 the defendant claimed the property as having been given to him and in support of his claim he said that the plaintiff always expressed great regard and affection for him. It was held that mere evidence of a motive for a qift where the property is not in the possession of the donee is not sufficient to establish a claim to it. Something else must be done by the donor. It was held to be no This view is consistent with that expressed in **Cochrane v.** gift. Moone (1890) 25 QBD, where it was held that to pass the property there must be both a gift and a delivery. There must be a delivery to make the gift valid. Delivery, as seen above, is crucial. It is plain that Ex. P3 merely indicates motive. It communicates late Mugambe's wishes to the 1st appellant without asking him to do anything or take any further step in the matter. It is however remarkable Mr. Sam Kulubya made no reference to the earlier will. Could it be said it had slipped his memory? As can be seen from his judgment, the learned judge observed:

"From what has been stated above all that was required was for the first defendant to convey the property to Nampiima according to Sam Kulwhya's wishes this meant the property could be removed from Fdwin Kulubya as appeared in the will and be given to Nampiima."

With respect to the learned Judge it is not as easy as that. The prime factor in this matter is that the subject matter of the gift is registered land. The learned Judge seems not to have addressed his mind to the legal ramifications of the matter. Had he done so, his finding would have been different. Most of the cases referred to by Mr. Tumusingize with the exception of MACEDO (infra) are decisions on the law affecting donationes mortis causa, where gifts depend for their validity on the physical delivery to the donee of something the possession of which may confer title to claim the real subject of the gift at the donor's death. But there can be no "delivery" of realty, though in case of a mortgage, there could be sufficient delivery because "whatever would pass the money will carry the estate along with it for every purpose. "See Duffield v. Elmes (1902) 1 Ch. 680.

The only case in which a gift inter vivos of realty was considered is Macedo & Ors v. Beatrice Stroud (1922) 2 AC 330, a Privy Council decision on appeal from a judgment of the Supreme Court of Trinidad and Tobago. There, the owner of mortgaged lands and houses in Trinidad, about three months before his death, executed a deed of conveyance and a memorandum of transfer by each of which he purported to convey or transfer certain properties absolutely to his daughter, in consideration of his love and affection for her. He had been in ill-health and she had taken care of him as a daughter would. He executed these two documents 2 months before The properties dealt with by the memorandum, unlike his death. those dealt with by the conveyance, were registered under the Real Property Ordinance No.60 of Trinidad, and accordingly by S.46, no transfer of them was effectual to pass any estate or interest unless the instrument was registered under the Ordinance. The donor after having executed the two instruments delivered them to his solicitor, telling him to keep and not to register them. They remained in the solicitor's custody unregistered, until the death of the donor, who during his life continued to receive the rents. There were concurrent findings that the instruments were intended to operate as immediate and unconditional gifts to the daughter. On appeal it was held, inter alia, that the deed of conveyance though not delivered to the daughter operated to convey to her the unregistered properties to which it referred.

$8$

That the memorandum of transfer concerning the registered $(2)$ properties, not having been registered under the Ordinance nor delivered to the donee for that purpose, there was an imperfect gift of the properties with which it dealt to which equity could not give effect. The gift was negatived by lack of transfer and registration.

I think MACEDO's case covers this matter before us. Section 46 of the Real Property Ordinance (No.60 of the Consolidate Laws of Trinidad 1902) reads:

"No instrument until registered in manner hereinbefore prescribed shall be effectual to pass any estate or interest in any land under the provisions of this Ordinance."

This section corresponds to section 51 Registration of Titles Act (Cap 205) which provides inter alia:

"No instrument until registered in manner herein provided shall be effectual to pass any estate or interest in any land under the operation of this Act or to render such land liable to any mortgage...."

In MACEDO's case - the deed of conveyance which was in respect of unregistered land had complied with the local laws. It was signed There was no requirement for sealing nor and delivered. registration. The respondent's claim succeeded in respect of these lands. I ruled earlier on that Ex. P3 could not qualify as a deed. However the memorandum of transfer regarding registered land was never presented for transfer within the terms of the Ordinance and therefore transferred no estate or interest at law or in equity. With that guidance, if indeed Mr. Sam Mugambe Kulubya wanted "to avoid problems that might crop up after his death" as Ex. P3 indicates, he would have mentioned or made reference to his earlier will and indicated cancellation of the legacy to his son Edwin

> $121$ $\mathcal{L} = \mathcal{L}$

Kulubva and further strengthened his revocation by delivering the Title Deed in respect of the property, to the 1st appellant.

To me this would seem the surest way of "avoiding problems after his death." It should otherwise be understood that every testator intends that his will shall take effect unless an unequivocal expression to the contrary or something is done by him wholly inconsistent with the will (ademption). Experience shows that testators are very often optimistic and in disposing of their property are frequently far more generous than the property to be disposed of will effectively allow. Care must therefore be taken to give effect to their genuine intention.

With considerable sympathy to the respondent, I can see no possible way in which I can construe Ex. P3 so consistently with the aforementioned legal principles and achieve what she believes Mr. Sam Mugambe intended. At most I would say it could probably amount to a very faint hope.

For the reasons I have endeavoured to state, I would allow the appeal with costs here and below.

$25k$ ...day of December Dated at Kampala this. A. E. Mpagi-Bahigeine JUSTICE OF APPEAL

$10$

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## **CORAM:** HON. MR. JUSTICE S. T. MANYINDO, DCJ, HON. LADY JUSTICE A. E. MPAGI-BAHIGEINE, J. A. HON. LADY JUSTICE J. P. BERKO, J. A.

### CIVIL APPEAL NO. 16 OF 1998

SERWANO KULUBYA & ANOTHER....................................

### **VERSUS**

BETTY NALUMAGA NYAIKA ...................................

(Appeal against the judgment of High Court of Uganda at Kampala by Mukanza, J, dated 22.7.97 in HCCS No. 591/94)

I read the judgment of Mpagi- Bahigeine, JA in draft. I agree with it entirely and as Berko, JA also agrees, the appeal is allowed. The Judgement and orders of the High Court are set aside. An order dismissing the suit with costs is substituted therefor. The appellant will have the costs of this appeal from the respondent.

DATED at Kampala this day of January, 1999.

augmide

S. T. MANYINDO **DEPUTY CHIEF JUSTICE.**

#### THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CIVIL APPEAL NO. 16 OF 1998.

CORAM: HON. MR. JUSTICE S. T. MANYINDO, DCJ, HON. LADY JUSTICE A. E. MPAGI-BAHIGAINE, J. A. & HON. MR. JUSTICE J. P. BERKO, J. A.

$10$

SERWANO KULUBYA & ANOTHER............... APPELLANTS

#### VERSUS

BETTY NALUMAGA NYAIKA............... RESPONDENTS

(Appeal against the judgment of High Court of Uganda at Kampala by Mukanza, J, dated 22-7-97 in HCCS No. 591/94)

#### JUDGMENT OF BERKO, J. A.: $20$

I have had the advantage of reading in draft, the judgment of Lady Justice Mpagi-Bahigeine, J. A. I entirely agree with her reasoning and conclusions, that the appeal should succeed. I do not have anything useful to add.

J. P. BERKO JUSTICE OF APPEAL. $201199$