Tumuhairwe and 2 Others v Gumisiriza and 5 Others (Civil Appeal 3 of 2024) [2024] UGHC 882 (12 July 2024)

Full Case Text

#### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT HOIMA

#### CIVIL APPEAL NO. 003 OF 2024 (Formerly MSD HCCA No.30 of 2019) (Arising from consolidated C. S No.46 & 51 of 2017)

# 1. TUMUHAIRWE GRACE

#### 2. MUHANGI INNOCENT

3. KWESIIMA MICHAEL ::::::::::: **.....................................**

#### **VERSUS**

| 1. GUMISIRIZA ANITA | |--------------------------------------| | 2. KOMUHANGI ESTHER | | 3. ALIGANYIRA REBECCA | | 4. FARIDA LUSYA | | 5. TURYAHEBWA SARAH | | 6. AKAMPURIRA EMMANUEL | | (Suing through Asobasi Daniel | | holder of powers of Attorney) |

[Appeal from the Judgment and orders of H/W Simon Toloko Magistrate Grade 1, Kagadi Court in consolidated Civil Suits No.46 & 51 of 2017 delivered on the $17/6/2019$

## Before: Hon. Justice Byaruhanga Jesse Rugyema

#### **JUDGMENT**

## **Introduction**

In C. S No.46 of 2017, the Respondents, Gumisiriza Anita and Komuhangi $[1]$ Esther through their holder of powers of Attorney, Asobasi Daniel **Okumu** sued the Appellants for trespass and fraudulent sale of a room by the $1^{st}$ Appellant to the $2^{nd}$ Appellant comprised in a plot of land belonging to their late father Habomugisha Deus, General and special damages, interest and costs of the suit.

- In C. S No.51 of 2017, the above 2 Respondents and 4 others; Akampurira $[2]$ Emmanuel, Turyahebwa Sarah, Farida Lusya and Aliganyira Rebecca sued the Appellants for intermeddling with the estate of their deceased father Byamugisha Deogratious and failing to file inventory in court, general & special damages and interest. - $[3]$ Both suits being similar in nature as they referred to 2 deceased persons, the late **Habomugisha Deus** and his father, the late **Deogratious** Byamugisha wherein the plaintiffs in either suit sued as beneficiaries to avoid multiplicity of the cause of action, the 2 suits were consolidated before the trial Magistrate.

### **Background of the Appeal**

- $[4]$ The late Habomugisha Deus was a son to the late Byamugisha Deogratious whom he predeceased. The late Byamugisha Deogratious had three wives during his life time: - a) The $1st$ wife (deceased) had one child **Habomugisha Deus**, father to the $1^{st}$ and $2^{nd}$ plaintiffs/Respondents. - b) The $2^{nd}$ wife (still alive)/ $1^{st}$ Appellant had 12 children who include Agaba Patricia and Kwesiima Michael. - c) The $3rd$ wife (deceased) by the names of **Maria Josephine Changwama** had 4 children, i.e., the $3^{rd}$ - $6^{th}$ plaintiffs/Respondents. - The late **Byamugisha Deogratious** died intestate around 29/12/2016 and in a family meeting of around $19th/5/2017$ , the family members (beneficiaries) of his estate, nominated Kwesiima Michael to administer the estate of his late father, **Byamugisha Deogratious**. - Following his nomination by the family members meeting, Kwesiima $[6]$ **Michael** without first securing letters of administration allegedly connived with his mother **Tumuhairwe Grace**, the $1^{st}$ Appellant to misappropriate the proceeds of the estate to only a section of the beneficiaries of his mother's side leaving out the others from different mothers.

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- $[7]$ It was the plaintiffs' case that in or around 10th December 1995, the late Habomugisha Deus, father to the 1st & 2nd Respondents bought a plot of land in Muhorro Town Council from a one Damiano Kato which he developed with a commercial building of 2 apartments for renting out with the support of his father, Byamugisha Deogratious. Before his death, Byamugisha Deogratious is said to had told the clan members that the rental facilities should benefit the children of his late son, Habomugisha **Deus** (his grandchildren). - Upon the death of **Byamugisha Deogratious**, it was found that the $1st$ $[8]$ Appellant Tumuhairwe Grace (widow of Byamugisha Deogratious) had sold one room to a one **Muhangi Innocent** ( $2nd$ Appellant). - It is from the above developments that the plaintiffs opted to institute the $\alpha$ instant 2 suits against Tumuheirwe Grace (1st Appellant), Muhangi Appellant) and **Kwesiima Michael**, the purported Innocent $(2nd$ administrator of the estate of the late Byamugisha Deogratious as the 3rd Appellant. - [10] The Appellants on the other hand denied the Respondents' claims and averred as follows: - a) That the $1st$ Appellant is the surviving owner of the disputed plot of land developed with a 2 double room commercial, being a widow to the late Byamugisha Deogratious. - b) That the late **Byamugisha Deogratious** jointly acquired the suit plot of land measuring 40ft on the 24/6/1989 with a one **Katesigwa** from a one David Besigye, who was the equitable/kibanja owner on the land of **Damiano Kato** at a consideration of Ugx $80,000/$ =. On the $24th/8/1991$ , the said co-owner **Katesigwa** sold off his interest measuring 20ft to Jack Karuzarigwa. - c) That however, on $10/12/1995$ , the late **Habomugisha**, son to the late **Byamugisha Deogratious** bought legal interest of the suit land from **Damiano Kato** and after words developed part of his father's kibanja with 3 boys' quarters. - d) That the said **Habomugisha**, the father of the $4^{th}$ & $5^{th}$ Respondents died in 2020 and was survived by his father **Byamugisha**, the late

husband to the 1st Appellant who in 2006 developed the said plot with 2 double roomed commercial house and rented the same to the tenants who were paying directly to him.

- [11] The $1^{st}$ & $2^{nd}$ Appellants counter claimed against the Respondents for a declaration that the $1^{st}$ Appellant is the lawful owner of the suit plot of land developed with a 2 double roomed commercial house to which she partly sold to the $2^{nd}$ Appellant. That the $4^{th}$ & $5^{th}$ Respondents are therefore trespassers thereon. - [12] As regards the $3rd$ Appellant, Kwesiima Michael, he contended that he is not the administrator of the estate of the Byamugisha Deogratious save for having acquired a Certificate of no objection from the administrator General and therefore, the claims that he has not filed an inventory and/or that he is the administrator of the estate are unfounded since he has not yet acquired letters of administration as the grant was halted until after the disposal of the instant pending suits. - [13] The trial Magistrate upon evaluation of the evidence before him found that the $1^{st}$ & $3^{rd}$ Appellants unlawfully sold one of the double rooms to the $2^{nd}$ Appellant on the grounds that none of them had letters of administration to empower them to do so. The trial Magistrate therefore entered judgment in favour of the Respondents with the following orders: - a) The $1^{st}$ and $2^{nd}$ Respondents/plaintiffs had a right to share the suit property in Muhorro Town Council. - b) The 2nd Appellant having illegally purchased one of the double rooms was liable for eviction and refund the $1^{st}$ Appellant's purchase price. - c) That the Administrator General should consider equitable distribution of the suit estate among the beneficiaries. - [14] The Appellants were dissatisfied with the judgment and orders of the learned Magistrate Grade 1 and lodged the instant appeal on the following grounds: - 1. The learned trial Magistrate erred in law and fact when he disregarded and or overlooked the defence evidence on record especially for DW2, DW3 and DW4 on ownership and exhibits thereof of the disputed

commercial house at Muhorro Town Council thereby reaching an *unjust decision.*

- 2. The learned trial Magistrate failed to adequately evaluate all the evidence on record and as a result reached a wrong conclusion on record, inter alia: - i) That the semi-permanent house was built by both Byamugisha and Habomugisha. - ii) That **Habomugisha** was staying in the same house with Byamugisha. - iii) That **Kwesiima Michael** intended to manage the 2 estates of Habomugisha and Byamugisha Deogratious. - 3. The learned trial Magistrate erred in law when he totally disregarded the objection by the defence as to the wrong consolidation of C. S No.46 & 51 of 2017. - 4. The learned trial Magistrate erred in law when he gave judgment basing on the amended S.27 of the Succession Act. - 5. The learned trial Magistrate erred in law when he ignored the entire final submissions by the defendants/Appellants thereby reaching an unjust and ambiguous decision.

# Duty of the $1^{st}$ Appellate Court

[15] This being an appeal from the decision of the Magistrate Grade 1, as a $1st$ Appellate court, this court is under duty to review the record of evidence itself in order to determine whether the decision of the trial court stands without necessarily interfering with the discretion of the trial court unless satisfied that the trial court has misdirected itself and thus arrived at a wrong decision; NIC Vs Mugenyi [1987] HCB 28.

# **Counsel legal representation**

[16] The Appellants were represented by Mr. Isaac Mwebaze of M/s Aequitas Advocates, Kampala while the Respondents were self-represented on appeal. Nonetheless, both parties were able to file their respective submissions for consideration of this court in the determination of this appeal.

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# **Consideration of the Appeal**

[17] Both grounds 1 & 2 of the appeal revolve around how the trial Magistrate evaluated the evidence on the record to determine the parties' entitlement on the suit property at Muhorro Town Council. I shall in the premises deal with **grounds 1 & 2** together and the subsequent grounds separately.

### Grounds 1 & 2: Evaluation of evidence on entitlement of the commercial Plot and house at Muhorro Town Council suit property.

[18] From entire court record, it is apparent that it is not in dispute that Habomugisha Deus dies intestate on the year 2000, predeceased his father Byamugisha Deogratious who died on 30/12/2016. There is no dispute that **Habomugisha Deus** bought the legal interest of the land that comprise the contested commercial building, see the 1st Appellant/DW1 pleaded thus;

> "The said late Habomugisha being a son to the late Byamugisha" later on $10th$ Dec.1995 bought legal interests (of the suit land) from Damiano Kato and afterwards developed.....with three boys' quarters."

[19] What is in dispute is whether the late **Byamugisha Deogratious** had any equitable interest/kibanja on the suit land as claimed by the $1^{st}$ Appellant. According to the 1st Appellant, her husband Byamugisha Deogratious and a one Katesigwa jointly purchased the equitable interest/kibanja plot from a one **Besigye** on $24/6/89$ (D. Exh.3). This piece of evidence was nevertheless not challenged by the Respondents. It also appears not in dispute that the late Byamugisha Deogratious is the one who built the commercial house/Apartments though the 1st & $2nd$ permanent Respondents claim that the late **Byamugisha** did it while giving a hand to his late son **Habomugisha's** widow **Kyomuhangi**. The 1st & 2nd Respondents pleaded that

> "In or around 2016 before his death Byamugisha Deogratious" told the clan members that whenever he dies the proceeds from the rental facilities should benefit his grandchildren of Habomugisha Deus the late."

[20] There is however no evidence on record in support of the above or that the late Byamugisha built the commercial house for the benefit of the late Habomugisha's family, his son. What is apparent is that whereas the late Habomugisha had a legal interest on the suit land, his father, the late Byamugisha enjoyed thereon an equitable interest. The commercial house built by **Byamugisha** appear to had been for the benefit of his family which included Habomugisha and the widow, the 1st Appellant since Habomugisha constructed thereon a 3 bedroom boys' quarter building and stayed in the commercial house as the $1^{st}$ Appellant/DW1 conceded at page 13 of the typed proceedings:

> "Then later..... Habomugisha requested my husband to stay in the house. My husband accepted him because he had not built his."

- [21] The trial Magistrate while faced with the above evidence rightly in my view, found and decreed that the $1^{st}$ and $2^{nd}$ Respondents/plaintiffs in C. S No.46 of 2017 have a right to share the suit property i.e the commercial house/Apartments in Muhorro Town Council. Their father owned a legal interest in the suit land and had a beneficial interest in the commercial building thereon. - [22] The $1^{st}$ and $2^{nd}$ grounds are in the premises found to be devoid of any merit and both accordingly fail. Both the 1st and 2nd Respondents together with the 1st Appellant are entitled to a share in the commercial building property.

## Ground 3: The learned trial Magistrate erred in law and fact when he totally disregarded the objection by the defence as to the wrong consolidation of C. S No.46 and 51 of 2017.

[23] Counsel for the Appellants submitted that the consolidation was never formally heard by the trial Magistrate. That he allowed the consolidation while totally denying, counsel for the defendants/Appellants a chance to object and counsel was only ordered by the trial Magistrate not to respond. $0.11 \text{ r.1(a)}$ & (b) CPR provides thus:

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"Where two or more suits are pending in the same court in which the same or similar questions of law or fact are involved, the court may, either upon the application of one of the parties or of its own motion, at its discretion, and upon such terms as may seem fit-

- (a) order a consolidation of those suits; and - (b) direct that further proceedings in any of the suits be stayed until further order."

## [24] In Prince Balera George & 71 Ors Vs A. G & 124 Ors, citing Kneller. J in Stunberg and Anor Vs Potgieter [1970] 1 EA 323 (HCK) it was observed;

"Consolidation of suits...should be ordered where there are common questions of law on fact in actions having *sufficient importance in proportion to the rest of each* action to render it desirable that the whole of the matters should be disposed of at the same time; consolidation should not be ordered where there are deep differences between the claims and defences in each action.... It remains the discretion of the court to allow or decline the prayer for consolidation.... the justification of consolidation is to avoid multiplicity of suits."

[25] Counsel for the Appellants submitted that the consolidation at hand was erroneous per se since the suits didn't form a similar question for determination by the court. The record at pages 2 & 3 of the of the typed proceedings show that the Respondents/plaintiffs under M. A No.8 of **2018** applied to consolidate the 2 files and before the determination of the application, counsel for the Respondents/plaintiffs orally in court prayed for consolidation of the 2 files and it is apparent, court accordingly obliged and consolidated the 2 suits. There is nowhere on record where counsel for the Appellants/defendants objected to the prayer for consolidation of the suits as counsel claims. As a result, one is entitled to state that in the circumstances of this case, the consolidation was by consent. It is not true and it is not correct as counsel for the Appellants submitted that the Appellants were not given an opportunity to be heard on the issue of consolidation.

[26] In the instant case, as rightly found by the trial Magistrate, the 2 suits refer to the estate of the 2 deceased persons; the late **Byamugisha Deogratious** and the late **Habomugisha Deus** who are father and son wherein the plaintiffs in either suits have sued as beneficiaries over the same subject

matter where each of the deceased had an interest alleging trespass thereon and illegal sale of part of the subject matter and generally, intermeddling in the deceased suit property without authority. Clearly, there are common questions of law and fact regarding ownership of the suit properties and whether, the defendants trespassed thereon and/or, whether the 1st Defendant's sale of part of the property was fraudulent and illegal.

[27] In my view, I find that the trial Magistrate judiciously rightly exercised his discretion and accordingly ordered for consolidation of the 2 suits (C. S No.46 & 51 of 2017). I do not have any reason to interfere with the trial Magistrate's discretion of directing and ordering that the 2 suits be consolidated for avoidance of multiplicity of suits and in order to conveniently dispose them off within the shortest time possible.

[ $\angle$ ] The 3rd ground of appeal is in the premises found devoid of any merit. It accordingly fails.

## Ground 4: The learned trial magistrate erred in law when he gave judgment basing on the amended S.27 of the Succession Act.

[29] I do not find it true and it is not correct that the trial Magistrate based his judgment on the impugned amended S.27 of the Succession Act which has been declared unconstitutional for being inconsistent with Article 21(1) of the Constitution which provides for equality and freedom from discrimination basing on sex etc. The trial Magistrate's judgment was based on the evaluation of the entire evidence as a whole upon which he found inter alia, that the Respondents/plaintiffs as beneficiaries were entitled to have a share in the estate of the 2 deceased persons Byamugisha and Habomugisha, father and son. The trial Magistrate only referred to S.27 of the Succession Act when alluding to locus standi of the Respondents/ Plaintiffs to sue the Appellants/defendants as beneficiaries without obtaining letters of Administration. The reference to S.27 of the Succession Act did not therefore occasion any miscarriage of justice to the Appellants since it was not the basis for the determination of the rights of the parties.

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- [30] The 4th ground is also in the premises found to be devoid of any merit. It accordingly fails. - Ground 5: The learned trial Magistrate erred in law when he proceeded to make judgment on C. S No.51 of 2017 without visiting locus in quo on the demised properties in Nyakorongo and Kyaterekera sub county. - [31] This ground of appeal is being smuggled in this appeal through submissions without leave of court. O.43 r.2 CPR provides thus; "The Appellant shall not, except by leave of the court argue, or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the High Court in deciding the appeal shall not be confined to the grounds of objection set forth in the memorandum of appeal or taken by leave of the court under this rule; except that the High Court shall not rest its decision on any other ground unless the party who may be affected by the decision has had a sufficient opportunity of contesting the case on that ground." - [32] By Counsel's introduction of a new ground not framed in a memorandum of appeal as in the instant case, is in contravention of **0.43 r. 2 CPR** since the alien ground has no basis since it sprung out of an unknown memorandum of appeal on the court record, see Ocaye Vs Akena & 3 Ors, HCCA No.30 of 2015. The fact that the Appellants indicated that "the other grounds of appeal shall be added with leave upon receipt of the typed record of proceedings from the trial court" as they did in the instant case, does not justify counsel for the Appellants to argue a ground of appeal not raised as a ground of appeal in the memorandum of appeal without leave of court or an amendment of the memorandum of appeal incorporating it.

[33] Besides as rightly, observed by the trial Magistrate, "Generally the whole issue is about the sharing and managing of the suit estates that were left by deceased persons."

[34] In the instant case, it is not in dispute that the impugned properties in Nyakarongo and Kyaterekera Sub county, formed part and parcel of the

estates affecting the 2 deceased persons. As was held in Kwebiiha & Anor Vs Rwanga & 2 Ors, HCCA No.21 of 2011,

> "In a nutshell, the purpose of visiting locus in quo is to clarify" on evidence already given in court... However, if the trial court finds/or is satisfied that the evidence given in court is enough. then he or she may not visit the locus in quo. Evidence at locus in quo cannot be a substitute for evidence already given in court. It can only supplement. It should therefore be noted that visiting locus in quo is not mandatory. It depends on the circumstances of each case."

[35] In the circumstances of this case, in agreement with **Mr. Apangu** who was counsel for the Respondents at locus and as taken up by the trial Magistrate, there was no need for court to go to the other estate. The evidence adduced in court and solicited during locus visit at Muhorro Town Council where one of the subject matter property is located was enough for court in the determination of the suit. In the premises, I find no miscarriage of justice was occasioned to the Appellants by the court's failure to visit the other estates of the deceased persons in Nyakarongo and Kyaterekera sub county. This ground of appeal would also fail for the above reasons.

Ground 6: The learned trial Magistrate erred in law when he ignored the entire final submissions by the defendants especially on the validity of the sale of the commercial house at Muhorrro Town Council thereby reaching an unjust and ambiguous decision.

[36] In the instant case, it is not in dispute that the $1^{st}$ Appellant/defendant sold part of the suit property at Muhorro Trading Centre - 1 room of the commercial house to the $2^{nd}$ Appellant. According to the $1^{st}$ Appellant, she sold 1 double room of the commercial suit property to cover the burial expenses and the funeral of her late husband Byamugisha Deogratious. The fact that the sale took place on $26/1/2017$ immediately after the death of her husband which occurred on $29/12/2016$ is evidence that indeed, the proceeds were meant for the intended purpose. The above evidence appear not to be contested by the Respondents. The conduct and action of the $1st$ Appellant fell within S.268 (c) and (b) of the Succession Act of the exception to intermeddling thus, one is not an executor or his or her own wrong where such dealing with the estate is

"...for the purpose of providing for his or her [deceased] funeral or for the intermediate necessities of his or her own family and property or dealing in the ordinary course of business with goods of the deceased received from another...."

- [37] In Ignatius William Kajubi & Anor Vs Canan Wanyama, HCCA No.26 of 2002 where a widow was collecting rent before obtaining a grant of letters of administration in an event where the deceased died intestate, it was held that the same could not make her an executor of her own wrong. - [38] As a result of the above, I do find that the conduct and act of the $1^{st}$ Appellant, widow to the late **Byamugisha Deogratious** and her alleged collection of rent from the properties in **Nyakarongo** and **Kyaterekera** in the circumstances where there is no administrator of the estates of the deceased persons do not amount to intermeddling with the deceased persons' estate. Generally, upon perusal of the entire record $of$ proceedings, save from the above justified conduct and acts of the $1^{st}$ Appellant there is no evidence that either the 1st Appellant or her son, the $2^{nd}$ Appellant has assumed the administration of the estate and or that they have intermeddled with the estates of the 2 deceased persons. This ground of appeal accordingly succeeds. The $1^{st}$ Appellant lawfully sold the one double room of the commercial estate property to the $2^{nd}$ Appellant for purposes of securing funds to cover the funeral of her husband. - [9] However, it is apparent that the 2 families of the late **Byamugisha** and the late **Habomugisha** are too deeply divided as regards the administration of the estate of the 2 deceased persons. The family of **Habomugisha** is prejudiced against the $1^{st}$ Appellant and her son, the $2^{nd}$ Appellant who was nominated to administer the estate but is yet to succeed in doing so, to the extent that no member of the family is acceptable to take out the grant and administer any of the estates of the 2 deceased persons in question. - [40] The trial Magistrate decreed and ordered that the Administrator General should consider equitable distribution of the suit estates among the

beneficiaries in the consolidated suits. It appears that none of the parties is or was aggrieved by the order as there is neither appeal nor cross appeal against this particular decision of the trial Magistrate ordering the Administrator General to take over the administration of the 2 estates of the 2 deceased persons and distribute it among the beneficiaries accordingly.

- [41] In view of the above finding, I would uphold the trial Magistrate's order on this aspect. The Administrator General is to manage the estate of the 2 deceased persons' estates being guided by the judgment in this appeal. - [42] All in all, this Appeal fails. The judgment and orders of the trial Magistrate are upheld save for the order to the effect that the 1st Appellant/Defendant be evicted and the $1^{st}$ Appellant to refund the $2^{nd}$ Appellant's money. The 2nd Appellant/Defendant lawfully purchased the 1 double room of the commercial house and therefore, the orders by the trial Magistrate for his eviction were uncalled for. That order is accordingly set aside. - [43] The Appeal is in the premises dismissed with no order as to costs since the suit involves beneficiaries of both the deceased persons.

Dated this 12th day of July, 2024.

**Byaruhanga Jesse Rugyema IUDGE**