Ssekiranda ( Administrator of the Estate of the late Kalyango) v Sseluwa and Another (Civil Suit No. 687 of 2019) [2021] UGHCLD 118 (10 September 2021)

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

## (LAND DIVISION)

# **CIVIL SUIT NO. 687 OF 2019**

#### **SSEKIRANDA BENON**

(Administrator of the estate of the late Kalyango Lauben)::::::::::::: PLAINTIFF

#### **VERSUS**

1. SSELUWU LAUBEN

2. THE COMMISSIONER LAND REGISTRATION ::::::::::::::::::::::::::::::::::::

### **BEFORE: HON. JUSTICE JOHN EUDES KEITIRIMA**

#### **JUDGMENT**

The Plaintiff's claim against the defendants is for:

- 1. A declaration that the $1^{st}$ defendant's registration on the certificate of title for the land comprised in Busiro Block 106 Plot 39 at Mulume, **Masuliita Wakiso** was fraudulent, illegal, criminal and void. - 2. An order directing the 1<sup>st</sup> defendant to deposit into court for inspection the document he holds as Letters of Administration in the estate of the late Kalyango Leuben allegedly granted by Hon. Justice David Matovu vide H. C. T-00-FD-698 of 2017 by which he got himself registered on the suit land. - 3. A declaration that the actions of the $1^{st}$ defendant in respect to the estate of the late Kalyango Lauben amounts to intermeddling with the deceased's estate.


- 4. An order directing the $2^{nd}$ defendant to cancel all entries by which the $1^{st}$ defendant became registered on the land. - 5. An order of rectification of the register directing the $2^{nd}$ defendant to register the suit land into the plaintiff's name as the Administrator of the estate of the late Kalyango Lauben. - 6. A permanent injunction restraining the $1^{st}$ defendant from ever holding himself out as the registered proprietor of the suit land. - 7. General damages for intermeddling, anguish, inconvenience and wastage of the estate of the late Kalyango Lauben. - 8. Costs of the suit. - 9. Any other relief this court may deem necessary.

The facts constituting the Plaintiff's cause of action as stated in his plaint are as follows:

- 1. That the Plaintiff's father Kalyango Lauben who formerly lived at Mulume Masuliita Wakiso District died intestate on the 2<sup>nd</sup> August 1978 and he was survived by the Plaintiff and Charles Lubowa as surviving children. - 2. That the deceased left property at Mulume village Masuliita Wakiso measuring around 10 acres comprised in **Busiro Block 106 Plot 39.** - 3. That while the Plaintiff was processing Letters of Administration for the estate of his deceased father, the 1<sup>st</sup> defendant forged Letters of Administration purporting the same to have been granted by the High Court under Administration Cause No. 698 of 2017.

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- 4. That using the said forged Letters of Administration, the 1<sup>st</sup> defendant applied to the 2<sup>nd</sup> defendant who issued him a special certificate of title to the suit land in the names of the 1<sup>st</sup> defendant purportedly as the Administrator of the estate of the late Kalyango Lauben. - 5. That using the certificate of title, the 1<sup>st</sup> defendant has since descended on the said estate subdividing the same into plots for sale to the unsuspecting purchasers and depriving the estate of its rightful beneficiaries. - 6. That upon crosschecking for verification from the High Court Family Division, it was confirmed that the Letters of Administration were a forgery since the Administration Cause No. they bear is in the names of Ssebugwawo Kaloli as deceased, and the applicants being Bamuyiga Mauricius and Maria Ssebugwawo. - 7. The Plaintiff contends that the $1^{st}$ defendant's registration onto the suit property which is the estate of the late Kalyango Lauben is fraudulent, illegal, and void ab-initio.

The Plaintiff lists the particulars of fraud as follows:

- Forging Letters of Administration purporting to have been issued by the $\mathbf{i}$ . High Court whereas not. - Uttering a false document to wit, forged Letters of Administration to the ii. $2<sup>nd</sup>$ defendant - Procuring registration of the 1<sup>st</sup> defendant as Administrator of the estate iii. of the late Kalyango Lauben whilst he is not an Administrator as such. - The 1<sup>st</sup> defendant holding himself out as Administrator appointed by iv. court whereas the Letters of Administration are a forgery. - Intermeddling with the estate of the late Kalyango Lauben. V.


- Depriving the beneficiaries of the estate of the late Kalyango Lauben of vi. the shares due to them. - The 2<sup>nd</sup> defendant failing in her duty of verifying documents presented vii. before her for conveyancing.

The Plaintiff further contends that all the notices of intention to sue which were communicated to the 1<sup>st</sup> defendant were futile.

The Plaintiff is seeking for the following remedies:

- A declaration that the 1<sup>st</sup> defendant's registration on to the certificate $i.$ of title for the suit land comprised in Busiro Block 106 Plot 39 at Mulume, Masulita Wakiso was fraudulent, illegal, null and void. - An order directing the 1<sup>st</sup> defendant to deposit into court for inspection ii. the document he holds as Letters of Administration in the estate of the late Kalyango Lauben allegedly granted by Hon. Justice David Matovu vide H. C. T FD 698 of 2017 by which he registered himself on the suit land. - A declaration that the actions of the $1^{st}$ defendant in respect to the iii. estate of the late Kalyango Lauben amounts to intermeddling with the deceased's estate. - An order directing the 2<sup>nd</sup> defendant to cancel all entries by which the iv. $1<sup>st</sup>$ defendant became registered on the land. - An order of rectification of the register directing the 2<sup>nd</sup> defendant to $V.$ register the said land into the Plaintiff's name as Administrator of the estate of the late Kalyango Lauben. - A Permanent injunction restraining the 1<sup>st</sup> defendant from ever holding vi. himself out as the registered proprietor of the suit land.

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General damages for intermeddling, anguish, inconvenience and vii. wastage of the estate of the late Kalyango Lauben.

Costs of the suit. viii.

Any other relief court may deem just and necessary. ix.

The defendants did not file a written statement of defence although there is evidence that they were duly served and there is an affidavit of service on record.

The Plaintiff therefore proceeded exparte and by way of a witness statement. Counsel for the Plaintiff then filed written submissions the details of which are on record and which I have considered in determining this case.

The issues to determine now are:

- 1. Whether the 1<sup>st</sup> defendant registration of himself on land comprised in Busiro Block 106 Plot 39 at Mulume was fraudulent and illegal. - 2. Whether the 1<sup>st</sup> defendant did intermeddle with the estate of the late Kalyango Lauben. - 3. The remedies available to the parties.

# Issue One: Whether the 1<sup>st</sup> defendant registration of himself on the suit land was fraudulent and illegal.

In his witness statement the Plaintiff stated that the 1<sup>st</sup> defendant was his nephew and grandson to Kalyango Leuben having been born by Erusama Mwanje his late elder brother.

The Plaintiff stated that the estate of his late father comprises of land measuring ten acres comprised in Busiro Block 106 Plot 39 located at Mulume village, Kanzize Parish, Masuulita Town Council in Wakiso District.

The Plaintiff stated that in the year 2009 he together with Charles Lubowa as children of their late father embarked on the process of obtaining Letters of Administration of the estate of his late father, the late Kalyango Leuben. That they applied and obtained a certificate of no objection from the Administrator

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General. The certificate of no objection was tendered in court and marked as exhibit P.4. That they later obtained Letters of Administration. The Letters of Administration were tendered in court and marked as exhibit P.5.

The Plaintiff further stated that he found out that his late father's title deeds for his late father's land were missing. That after conducting a search in the Land Office, he discovered that the 1<sup>st</sup> defendant had obtained a special certificate of title and registered himself as the Administrator of the estate of the late Kalyango Leuben vide H. C. T Administration Cause No. 698 of 2017 from the High Court at Kampala. The copy of the Letters of Administration was tendered in Court and marked as exhibit P.6.

The Plaintiff stated that he tried to verify the said letters of administration and the Registrar of the Family Division disowned the Letters of Administration on reasons that A/C No. 698 of 2017 was not in the names of Kalyango Leuben as deceased but rather Ssebugwawo Kalooli and that the applicants were Bamuyiga Mauricius and Maria Ssebugwawo and at the time the process was still incomplete. A copy of the letter of the Registrar was tendered in court and marked as exhibit P.8.

The Plaintiff stated the particulars of fraud as follows:

- Forging Letters of Administration purporting to have been issued by the $i.$ High Court whereas not. - Uttering a forged document to wit forged Letters of Administration to ii. the $2^{nd}$ defendant. - Procuring registration of the 1<sup>st</sup> defendant as Administrator of the estate iii. of the late Kalyango Leuben whilst he is not an administrator as such. - The first defendant holding himself out as an Administrator appointed iv. by court whereas the Letters of Administration are a forgery. - Intermeddling with the estate of the late Kalyango Leuben. $\mathsf{V}.$ - Depriving the beneficiaries of the estate of the late Kalyango Leuben of vi. the shares due to them.


The 2<sup>nd</sup> defendant failing in her duty of verifying documents presented vii. before her for conveyancing.

## Decision of Court on issue on issue one

Evidence was adduced to the effect that the Letters of Administration which the 1<sup>st</sup> defendant used to register himself on the certificate of title comprising the suit land were forged. Exhibit P.8 which was a letter from the Deputy Registrar of the High Court Family Division was to the effect that the letters of administration the 1<sup>st</sup> defendant purported to have were a forgery as they were never issued by the Court. The Administration Cause No. they purported to have belonged to other parties whose matter at the time was still in progress.

The 1<sup>st</sup> defendant never filed a defence to this suit though he was duly served.

Order 8 Rule 3 of the Civil Procedure Rules provides that "Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated not to be admitted in the pleading of the opposite party, shall be taken to be admitted, except as against a person under disability; but the court may in its discretion require any facts so admitted to be proved otherwise than by that admission."

It was held in the case of Behangana Domaro and another versus The Attorney General - Constitutional Petition No. 53 of 2010 that evidence unchallenged should be accepted.

There is nothing to show that the 1<sup>st</sup> defendant is under any disability not to defend himself. This implies that the defendants admitted what the Plaintiff stated in his plaint. The Plaintiff proved that the 1<sup>st</sup> defendant forged letters of administration which he used to register himself on the suit land. The first defendant's actions were therefore fraudulent and illegal and I urge the Plaintiff to file a complaint with the police over the 1<sup>st</sup> defendant's forgery of a judicial document.

July 2r<br>MAJ 2021

### Decision of Court on issue 2.

# Whether the 1<sup>st</sup> defendant intermeddled with the estate of the late Kalyango Lauben.

From the evidence adduced by the Plaintiff, it is clear that the $1^{st}$ defendant used forged letters of Administration to register himself as the administrator of the suit land. In this way the 1<sup>st</sup> defendant intermeddled with the estate of the late Kalyango Lauben. It is pertinent to note that the 1<sup>st</sup> defendant never challenged this evidence which implies that he conceded to it.

### Decision of Court on issue three

### Remedies available to the parties.

Basing on the resolution of issues one and two I will enter judgment for the Plaintiff against the defendants with the following orders/declarations:

- 1. The 1<sup>st</sup> defendant's registration on the certificate of title of the suit land comprised in Busiro Block 106 Plot 39 at Mulume Masulita Wakiso was fraudulent and illegal. - 2. The $1^{st}$ defendant's actions in respect of the estate of the late Kalyango Lauben amounted to intermeddling with the said deceased's estate. - 3. The $2^{nd}$ defendant is to cancel all the entries by which the $1^{st}$ defendant became registered on the suit land. - 4. The $2^{nd}$ defendant is to rectify the register by registering **Lubowa Charles** (Son) and Sekilanda Benon (the Plaintiff/son) (holders of letters of administration to the said esatate) as the Administrators of the estate of the late Kalyango Lauben. - 5. A permanent injunction is issued against the $1^{st}$ defendant from holding himself out as the registered proprietor of the suit land. - 6. The $1^{st}$ defendant is to pay the plaintiff **fifty million shillings** (50,000,000/=) as general damages for intermeddling with the estate of the late Kalyango Lauben of which the Plaintiff is a co-administrator.

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- 7. The Plaintiff is to file a criminal case at the Police against the $1^{\rm st}$ defendant for forgery of a judicial document. - 8. The $1^{st}$ defendant is to pay the costs of this suit.

Free Pana

Hon. Justice John Eudes Keitirima

10/09/2021