Ssetuba & 3 Others v Mabirizi & Another (Civil Suit 13 of 2015) [2023] UGHC 334 (1 April 2023)

### **THE REPUBLIC OF UGANDA**

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

# **CIVIL SUIT NO. 13 OF 2015**

- **1. ABUDALLAH MUSOKE SSETUBA** - **2. NAKAWALA HADIJA** - **3. NABITENGELO MOLLY** - **4. NABANOBA REHEMA ………………………………………………. PLAINTIFF**

### **VERSUS**

- **1. GEORGE MUSOKE MABIRIZI** - **2. COMMISSIONER LAND REGISTRATION.….……….………... RESPONDENT**

### **JUGDMENT**

*Hon. Lady Justice Victoria N. N. Katamba*

# **BACKGROUND**

The plaintiffs instituted the instant suit for a declaration that the Plaintiffs are entitled to a share in the estate of the late Ntwane Zijangampewo, that the registration of the Defendants to the Late Ntwane's title was wrongful among other reliefs.

The facts of the Plaintiff's case are that they are beneficiaries of the estate of the late Ntwane Zijjangampewo who died intestate and left the suit land comprised in Kabula Blcok 76 situate at Kasambya Vilage Kirowooza Parish Kabula County Lyantonde District.

That upon the death of the said Zijjangampewo, this Honourable Court granted letters of administration vide Administration Cause No. 1 of 1978 to one of the deceased's children, the late Antonio Musoke, to administer the estate. The Plaintiffs further state that Antonio Musoke unfortunately died before administering the estate but he had got registered on the certificate of title comprising the suit land as an administrator.

It is also reported by the Plaintiffs that upon the death of Antonio Musoke (the administrator of the estate of the late Zijjangampewo), Antonio Musoke's son the first defendant, applied to this


Court and got letters of administration to administer the estate of his father, the Late Antonio Musoke.

It is also the Plaintiff's case that the 1st defendant unlawfully and fraudulently used the letters of administration for the estate of the late Antonio Musoke and got registered on the certificates of title comprising the suit land that belonged to the estate of the late Zijjangampewo, where Antonio Musoke was registered as an administrator.

The Plaintiffs also stated that upon getting registered on the said titles, the 1st defendant started intermeddling with the estate's land and hence the filing of this suit for a legal redress.

In his defence, the 1st defendant denied the plaintiffs' claim and averred that whatever he did was lawful. In the same defence, he admitted that whereas the Plaintiffs are beneficiaries to the estate of the Late Ntwane, they had long received their beneficial shares. The 1st Defendant went on to purport to have annexed a certificate of title of the 1st Plaintiff and an agreement of sale of a beneficial share of 15 acres by the other plaintiff but the documents are not attached to the WSD in fact. The 2nd defendant did not file any defence.

When the case came up for hearing on the 17th day of May 2022, none of the defendants was in Court and as a result the plaintiffs were allowed to proceed ex parte.

# **Representation**

The Plaintiff was represented by **M/s Lukaawa Advocates**.

### **Issues for Court's determination:**

- *1. Whether the suit land forms part of the estate of the late Ntwane Zijjangampewo.* - *2. Whether the 1st defendant is an administrator of the estate of the late Ntwane Zijjangampewo.* - *3. Whether the registration of the 1st defendant on the certificates of title for the suit land was fraudulently and unlawfully done.* - *4. Whether the 1st defendant's dealing in the suit land are lawful.* - *5. Remedies.*


#### **PLAINTIFF'S SUBMISSIONS**

The Plaintiffs submitted that the burden of proof lies on he who alleges. They referred to *S. 101 of the Evidence Act and the case of Sheikh Ali Ssenyonga others Vs Sheikh Hussein Rajab Kakooza & others SCCA No. 09 of 1990 reported in [1992-1993] HCB 94. Where it was held that: "He who alleges must prove."*

# **ISSUES No. 1:** *Whether the suit land forms part of the estate of the late Ntwane Zijjangampewo*?

The plaintiffs submitted that the suit land forms part of the estate of the late Ntwane Zijjangampewo. That unchallenged evidence from all the four plaintiffs' witnesses was led to prove that the late Ntwane Zijjangampewo died intestate and left behind the suit land comprised in Kabula Block 76 plot 14. A certified copy of the certificate of title was admitted in evidence as an exhibit. The certificate of title clearly shows that the suit land was first registered in the name of the late Ntwane Zijjangampewo and later in the name of Antonio Musoke as an administrator of his estate. The Plaintiffs also submitted that *Section 59 of the Registration of Titles Act, Cap 230* provides that a certificate of title is conclusive evidence of ownership of land contained in it. The Plaintiff referred this court to the case of *Father Narsensio Begumisa and others Vs Eric Tibebaga SCCA No. 17 of 2002* in which the above proposition of law was upheld.

In conclusion, the Plaintiff submitted that it was erroneous and fraudulent for the 2nd defendant to register on the suit land the 1st defendant who was not an administrator of the estate of the late Ntwane Zijjangampewo and invited this Court to resolve the 1st issue in the affirmative.

# **ISSUE No. Two:** *Whether the 1st defendant is an administrator of the estate of the late Ntwane Zijjangampewo?*

The Plaintiffs submitted that it is not in dispute that the 1st defendant is an administrator of the estate of his father the late Antonio Musoke but that he has never been appointed Administrator of the Late Ntwane Zijjangampewo.

The Plaintiffs then buttressed their submissions with the case of *Annet Namirimu Ndaula Vs Rev. Aloni Mulondo & 2 others HCCS No. 27 of 2011,* it was held by *Hon. Lady Justice Catherine Bamugemereire* thus:


*"An administrator only becomes one on getting letters of administration in respect of the estate of that particular deceased person. In practical terms the administrator of the estate of the late Zerubaberi Kyamagwa cannot by that authority administer the estate of the late Samuel Kayondo and vice versa".*

On the basis of the above authority, the Plaintiffs invited this court to answer this issue in the negative.

**Issue No. Three:** *Whether the registration of the 1st defendant on the certificates of title for the suit land was fraudulently and unlawfully done?*

The Plaintiff submitted that under *Section 180 of the Succession Act,* **the executor or administrator, as a case may be, of a deceased person is his or her legal representative for all purposes and all the property of the deceased person vests in him or her as such\**

The Plaintiff also cited *Section 134 of the Registration of Titles Act* and submitted that the provision permits an administrator or executor to be registered on the certificate of title for the deceased person and not any other.

The Plaintiffs argued that the 1st Defendant's registration is not only unlawful but also fraudulent and thus invited this court to resolve this issue in the affirmative.

### **Issue 4:** *Whether the 1st defendant's dealing in the suit land are lawful.*

The Plaintiffs by and large reiterated their earlier submissions on this ground. This is understandable because resolution of the earlier issues by implication, also resolves the instant issue.

#### **Issue 5: Remedies**

**T**he plaintiffs prayed for the following prayers; That Judgment be entered in their favour against the defendants with the following declarations:

(a) A declaration that the plaintiffs are entitled to a share in the estate of the late Ntwane Zijjangampewo.

(b) A declaration that the registration of the 1st defendant on the certificates of title comprising the suit land was wrongful and unlawful.

(c) A declaration that letters of administration of the estate of the late Ntwane Zijjangampewo be granted to the 1st, 2nd and 3rd plaintiffs.

- (d) Nullification of all dealings in the suit land. - (e) Cancellation of the certificate of title illegally created. - (f) General damages. - (g) Permanent injunction - (h) Costs of the suit

The Plaintiffs prayed for general damages of *Ug. Shs. 60,000,000/= (sixty million shillings)* for the suffering they have endured in the hands of the 1st defendant for over two decades. That the 1st defendant has been intermeddling with their late grand father's estate where they are beneficiaries.

The Plaintiffs relied on the authority of *Annet Namirimu Ndaula Vs Rev. Aloni Mulondo (Supra)*, whose facts they stated to be mutatis mutandis those of the instant case in which the, *Hon. Justice Catherine Bamugemereire made a similar award of sixty million in general damages.*

# **DETERMINATION BY COURT**.

I have carefully examined the Plaintiff's pleadings, evidence and submissions and below are my findings and reasons for the same.

# **Issue 1**; *Whether the suit land forms part of the estate of the late Ntwane Zijjangampewo?*

A certified copy of the title to Block 76 Plot 14 from which several subdivisions have been created was tendered on the record of this court as PEX5. This title was registered in the names of Ntwane Zijangampewo on 26th July 1963. It was later registered in Antonio Musoke as Administrator of the Late Ntwane Zijangampewo on 17th October 1983. It was later registered in the names of the 1 st Defendant on 6th February 1998 as Administrator of the Late Antonio Musoke vide Administration Cause No. 93 of 1990.

A certified copy of the Letters of Administration in cause No. 93 of 1990 granted to the 1st Defendant in respect of the estate of the Late Antonio Musoke was tendered into this court by PW1. It is the same Letters of Administration to the estate of the Late Antonio Musoke that were used to register the 1st Defendant as Administrator.


I agree with counsel for the Plaintiff that Antonio Musoke and Ntwane Zijangampewo are two different individuals. The 1st Defendant had no right to be registered on the certificate of title to the estate of the Late Ntwane Zijangampewo.

The 2nd Defendant as Registrar of titles ought to have known this as well.

Owing to the above findings, it is my conclusion that the suit land forms part of the estate of the Late Ntwane Zijangampewo.

# *Issues 2,3and 4 have been disposed of in favor of the Plaintiff under determination of Issue 1 save to add to issue 3 that the Plaintiff did not set out particulars of fraud against the defendant. Nevertheless, the defendant's dealing in the estate of the Late Ntwane Zijjangampewo was unlawful.*

#### **Issue 5; What remedies are available to the parties?**

I find that the Plaintiffs are entitled to a declaration that they are entitled to a share in the estate of the late Ntwane Zijjangampewo.

The Plaintiffs are also entitled to a declaration that the registration of the 1st defendant on the certificates of title comprising the suit land was wrongful and unlawful.

The Plaintiffs also sought a declaration that letters of administration to the estate of the late Ntwane Zijjangampewo be granted to the 1st, 2nd and 3rd plaintiffs. This court is unable to grant this order or declaration in this suit because the procedure for applying and granting Letters of Administration is clearly provided for in law and does not include a declaration made under a suit.

The Plaintiffs also sought an order of nullification of all dealings in the suit land. This court has not been brought to speed as regards to the impugned transactions. It is unable to ascertain their veracity. In any case, the court risks condemning the third parties, if any, that may have acquired an interest in the suit land, unheard. The Plaintiffs are hereby advised to challenge the impugned transactions in another suit.

The Plaintiffs also sought an order of cancellation of the certificate of title illegally created.

# **S.177 of the Registration of titles Act Cap.230 provides that upon recovery of any land, estate or interest by any proceedings from the person registered as proprietor thereof, the High**


# **court may direct the Registrar to cancel any certificate of title and to substitute such certificate of title as the circumstances may require.**

This court hereby directs the Registrar of titles to cancel all certificates of title created out of Ntwane Zijjangampewo's estate that are currently registered in the names of the 1st Defendant.

General damages, these arise from the direct possible consequences of the act complained of and are intended to put a party injured in the same position they were at before the wrong complained of see **Uganda Commercial Bank Vs Kigozi (2002(1EA 305.**

The Plaintiff's prayed for General damages of UGX. 60,000,000/= In *Annet Namirimu Ndaula Vs Rev. Aloni Mulondo (Supra)*, *Hon. Justice Catherine Bamugemereire made a similar award of sixty million as being fair*. I am inclined to follow my learned sister Judge's verdict on an award of General damages. I find the award of UGX. 60,000,000/= appropriate in the circumstances of this case for the inconvenience brought to bear upon the Plaintiffs by the Defendant.

A Permanent injunction; I am equally persuaded that a permanent injunction restraining the 1st Defendant, his agents, assignees and successors in title from intermeddling, selling, alienating or in any other way dealing in the suit property should issue.

Costs of the suit; I award the costs of this suit to the Plaintiffs.

In conclusion, Judgement in this matter is hereby entered in favor of the Plaintiff and against the defendant with the orders below;

- 1. A declaration issues that the Plaintiffs are entitled to a share in the estate of the late Ntwane Zijjangampewo. - 2. A declaration issues that the registration of the 1st defendant on the certificates of title comprising the suit land was wrongful and unlawful. - 3. The Registrar of titles is hereby directed to cancel all certificates of title created out of Ntwane Zijjangampewo's estate that are currently registered in the names of the 1st Defendant. - 4. The Plaintiffs are awarded UGX. 60,000,000/= in general damages.


- 5. A permanent injunction issues, restraining the 1st Defendant, his agents, assignees and successors in title from intermeddling, selling, alienating or in any other way dealing in the suit property. - 6. The Plaintiffs are also awarded costs of this suit. I so order.

Dated and delivered electronically this 1st day of April, 2023

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**HON. LADY JUSTICE VICTORIA NAKINTU NKWANGA KATAMBA**