[2025] UGHCFD 14

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (FAMILY DIVISION) CIVIL SUIT NO. 0102 OF 2022**


### 20 **BEFORE: HON. LADY JUSTICE ALICE KOMUHANGI KHAUKHA**

#### **JUDGMENT**

#### **Introduction**

This Judgment is in respect of a suit brought by way of an ordinary Plaint by Bugingo 25 Andrew Nganda, Kyakuwa Claire and Nalongo Cotilda Kasozi, Florence Oyela Sserunkuma Obol, Rosemary Aryemo Sserunkuma Obol, Paulina Kwonga Sserunkuma Obol who were suing through their lawful Attorney Kassim Alule (hereinafter collectively referred to as "**the Plaintiffs**") against Sserunkuma Charles, Mbabazi Shamim, Mulumba Shafiq Ssebuggwawo and Buganda Land Board (hereinafter collectively referred to as "**the Defendants**") for declarations and Orders that:

- a) the 1st, 2nd and 3 5 rd Defendants are trespassers to the suit residential holding of the Plaintiffs' late mother and grandmother, the late Philomena Arombo Obol at Bulwa Zone, Rubaga Division, Kampala; - b) the 1st and 2nd Defendants do not have any legal or equitable right/interest in the suit residential holding; - c) the 1st and 2 10 nd Defendants fraudulently sold the suit residential holding with its plot and its adjacent kibanja plot to the 3rd Defendant to defeat the equitable interest therein by the Plaintiffs; - d) the 3rd Defendant fraudulently applied for and obtained a lease title in respect of land comprised in Kibuga Block 1 LRV 4734 Folio 5 Plot 580 at Bulwa in 15 Kampala measuring approximately 0.1060 hectares into his name; - e) the 4th Defendant fraudulently approved and granted a lease title in respect of land comprised in Kibuga Block 1 LRV 4734 Folio 5 Plot 580 at Bulwa in Kampala measuring approximately 0.1060 hectares to the 3rd Defendant to defeat the equitable interest therein of the Plaintiffs as sitting tenants without 20 their consent; - f) the 3rd Defendant's name be cancelled from the title deed of land comprised in Kibuga Block 1 LRV 4734 Folio 5 Plot 580 at Bulwa in Kampala measuring approximately 0.1060 hectares; - g) the Chairperson of the 4th Defendant makes a leasehold title deed for the suit - 25 land and registers it into the names of the Plaintiffs; - h) General damages are awarded to the Plaintiffs; - i) Punitive damages are awarded to the Defendants;


- j) a permanent injunction is issued against the Defendants, their agents, legal representatives, family members, transferees, successors in title or any other person acting on their behalf prohibiting them or anyone of them from claiming ownership of the Plaintiffs' residential holding, approval of any lease 5 thereon or dealing with it in any way contrary to the interest of the Plaintiffs; - k) the 1st and 2nd Defendants account to the Plaintiffs for income generated from the suit residential holding in form of rental income; - l) An eviction Order; - m) Interest on (h), (i) above and (n) below at 24% p.a from the date of the cause - 10 of action till payment in full; and - n) Costs of the suit.

#### **Representation**

The Plaintiffs were all represented by Counsel Ambrose Tiishekwa of M/S

Tiishekwa. A. Rukundo & Co. Advocates; the 1st and 2 15 nd Defendants were represented by Counsel Andrew Wetaka of M/S Wetaka, Bukenya & Kizito Advocates; the 3rd Defendant was represented by Counsel Ssegwanyi Ssakka of M/S Sssegwanyi Ssakka & Co. Advocates while the 4th Defendant was represented by Counsel Mukwaya Idris from Buganda Land Board.

#### **Facts**

wife of Col. Primo Obol (hereinafter referred to as "**Obol**"). The two were biological parents of Nalongo Cotilda Kasozi (3rd Plaintiff), Florence Oyela Serunkuma-Obol

(4th Plaintiff), Rosemary Aryema Serunkuma-Obol (5 th 25 Plaintiff), Paulina Kwonga Serunkuma-Obol (6 th Plaintiff) and Bosco Anywar Serunkuma-Obol (hereinafter after called " **Bosco**"). Philomena and Obol were also the biological grand parents

The late Philomena Arombo Obol (hereinafter referred to as "**Philomena**") was a


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of Kyakuwa Claire (2 nd Plaintiff) and Kassim Alule (the donee of the Power of Attorney), the two having been born by their late daughter Noeline. They are also the biological grandparents of Charles Serunkuma (1 st Defendant), having been born to their late son Bosco. Mbabazi Shamim, the 2 nd Defendant, was a girlfriend of the

late Bosco and the mother of the 1 5 st Defendant.

Obol became a blood brother to the late Nicholas Bruno Serunkuma (hereinafter referred to as "**Bruno**"). The two were bound by a blood pact. Bruno was the father of the late Haman Nganda Serunkuma, father of Andrew Bugingo Nganda (1 st 10 Plaintiff). When Obol died in 1971, Bruno took over his whole family and even went ahead to adopt all his children as his own. Bruno had a home in Nsangi, Mpigi District, where he lived with his biological children and the adopted children of Obol. They lived as one happy Serunkuma-Obol family. All the children of Obol also took on the name Serunkuma. Bruno is also said to have taken the children of the late Obol to Britain, where he was working and staying, and this is where the 3 rd 15 to 6 th Plaintiffs have since settled. John Baptist Kasozi (PW4), who was also an adopted son of the late Bruno, married Cotilda Nnalongo Kasozi (3 rd Plaintiff).

The Plaintiffs claim that land comprised in Kibuga Block 1 LRV 4734 Folio 5 Plot 20 580 at Bulwa in Rubaga Division, Kampala, measuring approximately 0.1060 hectares (**suit land**) formerly belonged to John Baptist Kasozi and he donated it to his mother-in-law (Philomena). The land was being used as a garden by Philomena and her family, but later, the family desired to construct a house for the late Philomena on the suit land. Whereas the construction started while Philomena was

25 still alive, it was completed when she had died. The Plaintiffs further claim that upon the death of Philomena, the suit land became her estate.

However, the $1^{st}$ and $2^{nd}$ Defendants fraudulently sold the suit land to Mulumba Shafiq Ssebuggwawo (3^rd Defendant) and the Buganda Land Board fraudulently issued a lease on the suit land to the 3^rd Defendant, hence this suit against the four Defendants.

$\mathsf{S}$

The Defendants, on the other hand, contend that the suit land has never belonged to Philomena. They insist that the suit land was one plot out of two plots that were bequeathed to the late Bosco by the late Bruno. The late Bosco built a house on the suit land and rented it to an Organisation called Save for Health for a long time, and upon his death, the $1^{st}$ and $2^{nd}$ Defendants obtained Letters of Administration of his $10$ estate. On account of that authority as administrators, they sold the land to the $3^rd$ Defendant, and it was on the same authority that the 4^th Defendant issued a lease to the 3^rd Defendant. The 3^rd Defendant also claims that he is a bona fide purchaser of the suit land, having bought the same from the lawful administrators of the late Bosco and is currently the registered proprietor of the suit land, but the $1^{st}$ , $2^{nd}$ 15 Plaintiffs and Kassim Alule have since lodged a caveat thereon.

### $\underline{Issues}$

$20$

$25$

- 1. Whether the suit property formed part of the estate of the late Philomena Arombo Obol or John Bosco Serunkuma Anywar; - 2. Whether the Plaintiffs, as beneficiaries of the estate of the late Philomena Arombo Obol, have any interest in the suit land; - 3. Whether the $1^{st}$ and $2^{nd}$ Defendants fraudulently dealt with the suit property; - 4. Whether the 3^rd Defendant lawfully acquired the suit property; - 5. Whether the 4^th Defendant fraudulently approved and granted a lease on the suit property to the $3^rd$ Defendant;


6. What remedies are available to the parties?

## **Resolution of issues**

Counsel for all the Defendants raised preliminary objections that I will first deal with before resolving the issues.

- Counsel for the 1st and 2 5 nd Defendants raised two preliminary objections to wit: - 1. Non-disclosure of a cause of action in the Plaint; and - 2. The Power of Attorney being a forgery.

Counsel for the 3rd raised two preliminary objections to wit:

- 1. The Power of Attorney alleged donated to Kassim Alule by the 3rd to 6th 10 Plaintiffs were illegal; and - 2. Whether the 1st and 2nd Plaintiffs have locus to sue.

Counsel for the 4th Defendant raised three preliminary objections to wit:

- 1. The 3rd, 4th, 5th and 6th 15 Plaintiffs did not have the legal capacity to issue the purported Power of Attorney to Kassim; - 2. Even if the said Plaintiffs had the legal capacity to issue the said Power of Attorney, the same was a forged document basing on the evidence on record; - 3. Even if the Power of Attorney was not forged and the donors had locus, it was 20 issued in violation of the law.

From the above objections raised, they can be summarised into the following three questions:

- (a) Whether the Plaint discloses a cause of action; - 25 (b)Whether the Plaintiffs have locus standi; and - (c) Whether the Power of Attorney given to Kassim Alule is legal.

I will address the first two preliminary objections together.

## (a) Whether the Plaint discloses a cause of action and whether the Plaintiffs have locus standi.

Counsel for the Defendants contended that the Plaint did not disclose a cause of action, especially for the $1^{st}$ and $2^{nd}$ Plaintiffs. According to Counsel for the $1^{st}$ and $\mathsf{S}$ 2^nd Defendants, the Plaint stated that the suit land belonged to Philomena but did not go ahead to disclose how the $1^{st}$ and $2^{nd}$ Plaintiffs were related to Philomena.

On the other hand, Counsel for the Plaintiffs insisted that the 1^st and 2^nd Plaintiffs are grandchildren of the late Philomena and therefore, beneficiaries with a right over $10$ the suit land.

### **Court's Decision**

$25$

Order 7 Rule (1) (e) of the Civil Procedure Rules (CPR) provides that the plaint shall contain facts constituting a cause of action and when it arose. In the case of *Uganda* 15 Telecom Ltd versus ZTE Corporation, Supreme Court Civil Appeal No. 0003 of *2017*, the Court held that in order to determine whether or not a plaint discloses a cause of action, the Court must look only at the plaint and its annexures, if any, and nowhere else. Further, for a Plaintiff to establish a cause of action, he or she must show that they enjoyed a right, that the right has been violated, and that the $20$ Defendant is liable.

In the instant case, the adduced evidence from both the Plaintiffs and the $1^{st}$ and $2^{nd}$ Defendants reveals that the 2^nd Plaintiff is a biological granddaughter of the late Philomena, while the 1^st Plaintiff is a blood grandson of the late Philomena by virtue of the blood pact between the Serunkuma and Obol families. They claim that as

grandchildren of the late Philomena, they were beneficiaries of her estate, and the same was sold fraudulently without considering their rights.

In light of the above, therefore, it is the finding of this Court that the 1 st and 2 nd 5 Plaintiffs have a cause of action against the Defendants and they have locus standi because they claim a beneficial share in the suit land on account of being beneficiaries of the estate of the late Phiolomena. The first and second questions have therefore been answered in the affirmative.

#### 10 (b)**Whether the Power of Attorney given to Kassim Alule is legal**.

Counsel for the Defendants contended that the suit by the 3 rd to 6 th Plaintiffs was wrongly before the Court because they purportedly brought it by the Power of Attorney donated to Kassim Alule (PEX 33). They argued that the said Power of Attorney was illegal/ or unlawful because the purported donee of the Power of 15 Attorney (Kassim Alule) denied having signed it. While relying on the Court decision of *Makula International Ltd versus HE Cardinal Nsubuga [1982] HCB 11,* Counsel for the Defendants invited the Court to reject the Power of Attorney on account of their illegality and accordingly strike out the Plaint for the 3 rd to 6 th Plaintiffs arguing an illegality, once brought to the attention of the Court cannot be

20 ignored.

On the other hand, Counsel for the Plaintiffs, submitted that whereas it is true that Kassim Alule (PW5) was inconsistent regarding when, how and from where he signed the Power of Attorney, he later corrected the record and confirmed that he 25 had signed the Power of Attorney. He invited the Court to find that the Power of Attorney was lawful. It was also his argument that even if the Court was to find that the Power of Attorney was not properly executed, it would still not affect the case because the $3^rd$ to $6^th$ Plaintiffs personally appeared in the Court via audio- visual link.

## **Court's Decision**

- It is true PW5 (Kassim Alule), the donee of the Power of Attorney for the 3^rd to 6^th $\mathsf{S}$ Plaintiffs gave contradictory accounts concerning the same. He testified that the 3^rd to 6^th Plaintiffs, who are his maternal aunts gave him the Power of Attorney to represent them in this suit. However, when he was asked how the same were donated to him, he stated that he signed, while at home in Rubaga, later he said he signed before a lawyer in town at Uganda House. When asked whether he appeared before $10$ - a Commissioner for Oaths, he said he had never appeared before one. He also stated that two of the donors of the Power of Attorney were physically in Kampala and the rest were out of the country at the time the Power of Attorney was signed. At some point PW5, when asked why the signature on the Power of Attorney were different - from the one appearing on the witness statement, he denied having signed on the 15 Power of Attorney but again immediately changed and insisted he had signed but he was in a hurry because he was going to do work up country.

The above contradictions raised doubts in my mind, and I wondered whether the 3^rd to 6^th Plaintiffs actually existed and whether they had indeed donated their Powers $20$ of Attorney to PW3. I then made a directive for their appearance after the locus visit, and they all appeared via audio-visual as Court witnesses. They were all interviewed by the Court and also examined by all Counsel, save for Rosemary Aryemo Serunkuma Obol (5^th Plaintiff), who had challenges with the internet. They all confirmed Kassim Alule was a son of their late sister Noeline, and they donated the $25$ Powers of Attorney to him to pursue this Civil Suit on their behalf. Their evidence went unchallenged by the Defence Counsel.

In light of the above, whereas there may have been irregularities in the process of executing the Powers of Attorney, it is my considered view that they were not illegal because the donors confirmed having donated the same to PW5.

However, in the alternative but without prejudice to the above finding, even if $\mathsf{S}$ this Cout was to find that the Powers of Attorney were unlawfully issued, I would still find that the suit was properly before the Court for the 3^rd to 6^th Plaintiffs because at the instance of the Court, they appeared personally via audio visual link and the Court had the opportunity to interface with them and interview them. It is therefore my finding that the $3^rd$ to $6^th$ Plaintiffs appeared in the Court and prosecuted their $10$

case. This question is therefore answered in the affirmative.

## Issue 1: Whether the suit property formed part of the estate of the late Philomena Arombo Obol or John Bosco Serunkuma Anywar.

Counsel for the Plaintiffs submitted that the Plaintiffs adduced evidence to prove 15 that the suit property belonged to the estate of the late Philomena Arombo and not Bosco Anywar. He stated that the Plaintiffs adduced evidence to the effect that the suit land was donated to the late Philomena Arombo by her son-in-law, John Baptsit Kasozi (PW4), which she used as a garden, and later all her children and grandchildren, who include the Plaintiffs, contributed to constructing a house $20$ thereon.

On the other hand, Counsel for the $1^{st}$ and $2^{nd}$ Defendants contended that the suit land did not form the estate of the late Philomena Arombo but belonged to the estate

of the late Bosco Anywar. He argued that the Plaintiffs adduced evidence from $25$ which four versions can be deduced: - (a) That the suit property was donated to the late Philomena by John Baptist Kasozi (PW4), but that claim was never pleaded in the Plaint; - (b) That the $3^{rd}$ , $4^{th}$ , $5^{th}$ , and $6^{th}$ Plaintiffs acquired interests in the suit property by their contributions towards the construction of the residential holding on the suit property. He argued that if this were to be true, then this issue should not arise because they would have acquired interests during the lifetime of the late Philomena Arombo; - (c) That Major Oringi (PW3) gave a version that contradicted all the other versions. He stated that the late Philomena bought the suit property in 1972, immediately after the death of her husband, and he even made a contribution towards its acquisition; and - (d) That the Plaintiffs inherited the suit property as beneficiaries of the late Philomena. Counsel for the 1^st and 2^nd Defendants argued that although this version could have carried some weight, the same was not pleaded. Instead, what was pleaded is that the Plaintiffs claim an interest by virtue of their contribution towards the construction of the residential holding.

Counsel for the $1^{st}$ and $2^{nd}$ Defendants insisted that the above contradictory versions were neither pleaded nor proved by the adduced evidence. He argued that the contradictions in the Plaintiffs' case go to the root of the matter and make the $20\\$ evidence of the Plaintiffs unreliable. He also contended that on the contrary, the 1^st and 2^nd Defendants' case is more plausible because they adduced evidence to prove that the suit land initially belonged to the late Bruno Serunkuma which he conditionally bequeathed to the late Philomena to occupy during her lifetime and upon her death, the same would devolve to her son Bosco Anywar Serunkuma. He $25$ argued that the suit property, therefore, formed part of the estate of the late Bosco Anywar Serunkuma, whose administrators are the 1^st and 2^nd Defendants.

$10$

$\mathsf{S}$

Counsel for the 3 rd Defendant associated himself with the submissions of Counsel for the 1 st and 2 nd Defendants as well as Counsel for the 4 th Defendant. He also added that the suit property did not constitute the residential holding of the late Philomena because evidence was adduced to the effect that the late Philomena never lived on 5 the suit land but instead had her residence in the neighbouring plot. He argued that

the undisputed evidence was to the effect that the construction of the residential holding was completed when the late Philomena had already died.

It was also the argument of Counsel for the 3 rd Defendant that though the Plaintiffs 10 claimed to have contributed to the construction of the residential holding, they did not adduce any evidence to prove that claim. He argued that they did not adduce the architectural plans approved by KCCA, receipts of purchase of building materials, photographs of the house at different stages of construction, evidence of money transfer of those living abroad, among others. He contended that, on the contrary, 15 the Local Council 1 Chairman, who testified during the locus visit as a Court witness,

testified that it was the late Bosco Anywar Serunkuma who built the house and not the Plaintiffs. He invited the Court to find that the suit property belonged to the estate of the late Bosco Anywar Serunkuma.

Counsel for the 4 20 th Defendant's submissions on this issue were the same as his colleagues, Counsel for the 1 st and 2 nd Defendants and Counsel for the 3 rd Defendant. In addition to the above, Counsel for the 4 th Defendant submitted that it is the case of the 4 th Defendant (Buganda Land Board) as the controlling Authority on behalf of the Kabaka who owns the reversionary Mailo interest of the suit property that the 25 same does not form the estate of the late Philomena Obol but that of Bosco Anywar Serunkuma. He argued that the claim that the late Philomena received the suit land as a gift from John Baptist Kasozi (PW4) was not supported by evidence because

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the Plaintiffs did not produce any gift Deed to that effect and whereas John Baptist Kasozi claimed to have bought a kibanja which he later donated to the late Philomena, he did not produce a copy of the sale agreement for the same as evidence and that if he gifted the same to the late Philomena, it would have been done by

5 signing a Transfer Form which was not done.

It was also the contention of Counsel for the 4 th Defendant that the alleged donation of the suit land by John Baptist Kasozi to the late Philomena was in violation of the lease terms and was therefore void. He submitted that the said John Baptist Kasozi 10 could not purport to donate the suit land to Philomena without first fulfilling the covenants in the lease. He argued that there was a building covenent in the lease under 2 (b, c, d & e) of the lease which ought to have been completed first not later than 30th October 1978 and obtained a final occupation permit before he could sell or confer an interest to a third party and most importantly, he ought to have first 15 obtained a written consent of the lessor which was the Uganda Land Commission at the time.

It was also the argument of Counsel for the 4 th Defendant that the late Philomena's alleged interest in the suit property arose from an expired lease and could therefore 20 not stand. He argued that the lease of JB Kasozi expired in 1978 and upon its expiry without renewal, he ceased to have any interest in the suit land, became a trespasser and could not pass on any title to the late Philomena. Accordingly, even Philomena's interest also expired with the lease.

Counsel for the 4 25 th Defendant further contended that, on the contrary, there was sufficient evidence to prove that the late Bruno Serunkuma bequeathed the suit land to Philomena and the same would devolve to her son, the late Bosco Anywar Serunkuma upon Philomena's death. He insisted that the suit land formed the estate of the late Bosco Anywar Serunkuma since the Will of Bruno Serunkuma has never been challenged.

## 5 **Court's Decision**

Before, I resolve this issue, I would like to address the confusion in the usage of words describing the suit property. Counsel for the Plaintiffs kept on referring to the suit property as the suit residential holding of the late Philomena in his pleadings and even in his submissions, thereby confusing. The Defence Counsel in their reply

- 10 also kept on making reference to the residential holding. They both seemed to separate the house and the land on which the house was constructed. But this was mainly caused by the choice of words of Counsel for the Plaintiffs. To me, this would restrict the subject matter to the house which was constructed on the land. However, this issue is meant to address property currently comprised in Leasehold Register - 15 Volume 985 Folio, land at Bulwa, Rubaga, Kibuga Block 1 Plot 580 with all the developments thereon.


The Court visited the locus, which is located at Bulwa Zone, Rubaga Parish, Rubaga Division, Kampala District. At the locus, the Court observed a storeyed permanent 20 house with a ground floor and a first floor. It is said to have eight 8 rooms on the ground floor and three 3 rooms on the first floor. It has a garage and quarters. It also has a compound and a place for cultivating crops, and at the time of the visit, there were groundnuts and a jackfruit tree. It is my considered opinion that the suit property comprises all that and not only the house, as the submissions of both parties 25 seem to suggest. The Plaintiffs also adduced evidence of the photographs of the suit land (PEX1).

I also need to point out that Counsel for the Plaitiffs in his submissions kept on referring to the evidence of the 3 rd , 4 th and 6 th Plaintiffs as the Plaintiffs' witnesses. However, I need to point out that though they are Plaintiffs, they were never Plaintiffs' witnesses. Counsel for the Plaintiffs adduced the evidence ofsix witnesses

but the 3rd to 6 th 5 Plaintiffs were never produced in the Court as witnesses. They were invited at the instance of the Court because it was, in the considered opinion of the Court, that in the interests of justice, they needed to testify. They were therefore, interviewed as Court witnesses and Counsel for each of the parties had an opportunity of cross examining them.

Having made the above observation, I will proceed to resolve this issue.

The Plaintiff called a total of six (6) witnesses in support of their case while the Defence called a total of three witnesses, namely the 1 st Defendant, the 3 rd Defendant and a representative of the 4 th Defendant. The 2 nd Defendant who was in the Court 15 was not availed as a Defence witness. The Court, then on its own motion interviewed four (4) witnesses, namely the Chairman LC1 of the area where the suit land is situate and the 3 rd , 4 th and 6 th Plaintiffs.

Apart from Major Oringi James (PW3), brother to the late Philomena who testified that the late Philomena Arombi bought the suit property (land on which the house

20 was built), the rest of the Plaintiffs witnesses and the Court witnesses save for the Chairman L. C I all testified that the suit land was given to the late Philomena by John Baptist Kasozi (PW4) as a gift. John Baptist Kasozi (PW4) who is a husband to Nalongo Cotilda Kasozi (3 rd Plaintiff) testified that he donated the suit land to his mother-in-law in in 1975, the late Philomena which evidence the rest of the

25 Plaintiffs' witnesses confirmed.


It is also important to note that the Plaintiffs adduced the evidence of Vicent Kataba (PW6), a witness that is not related to the family and was aged 88 years at the time of giving of evidence but was very impressive and coherent in the way he gave his evidence. He informed the Court that he is the immediate neighbour to the suit land 5 and he has lived on the village for 55 years. He gave a detailed background of the

suit land as follows:

- (a) That John Baptist Kasozi was an adopted son of the late Bruno Serunkuma. Bruno Serunkuma rented his house in which he resided with John Baptist Kasozi as they operated a business of a garage in Mengo; - 10 (b)That John Baptist Kasozi fell in love with the daughter of Philomena called Cotilda and in order to appease Philomena, John Baptist Kasozi gave this suit land to Philomena; - (c) That from then, Philomena started using the suit land as her garden until the time of her death. - 15 The above evidence which was confirmed by all the other Plaintiffs' and Court witnesses was never challenged during cross examination. Charles Serunkuma (1 st Defendant) also confirmed in his evidence during the locus visit that the suit land was always being used by his grandmother as a garden before the house thereon was built. - 20 Counsel for the Defendants have attacked this version of the Plaintiffs evidence mainly for reasons that, that aspect was not pleaded, there was no documentation speaking to the donation of the land, the lease held by John Baptist had expired, among others.

I respectfully disagree with Counsel for all the Defendants because what I deduce 25 from the evidence as adduced is that what John Baptist Kasozi gave to his mother-

in-law, the late Philomena was not a lease but a "kibanja". Clearly, if he had given a lease, the same would have followed the formal processes of having the same registered in her name. The lack of a documentation should also not be emphasised in the face of the overwhelming and unchallenged evidence of the Plaintiffs 5 including PW4 himself who gave out the land/kibanja. I believed this evidence to be

true because it was unchallenged.

The Defence also agrees that the lease for the suit property was first in the name of John Baptist Kasozi (PW4). The Certificate of Title was admitted as PEX34 which revealed that the suit land was registered in the name of John Baptist Kasozi as a lessee, on 14th October 1977. The lease expired on the 31st 10 day of October 1978 as per the Statement of Search attached. The description of this property that was first registered in the name of John Baptist Kasozi is the same that was later registered in the name of Mulumba Shafiq Ssebuggwawo as a lessee having acquired the same through his transaction between himself and the 1 st and 2 nd Defendants. A Certificate 15 of Title for Plot 580 Kibuga Block 1, land at Bulwa, in the name of Mulumba Shafiq Ssebuggwawo was admitted and marked PEX8. The same was issued on 6 th May

2022 for a lease of forty-nine (49) years to run from 1 st March 2022.

The argument by the Defence that this version of the Plaintiffs case was not pleaded is in my view not very material. The Plaintiffs pleaded that the suit land belonged to

20 the late Philomena and how she came to acquire the same is, in my considered view, a detail in the evidence which the Plaintiffs adduced to the satisfaction of the Court.

The other argument advanced by the Counsel for the Defendants is that the Plaintiffs did not adduce evidence to prove that they contributed towards the construction of the residential house. I also do not find this argument tenable because the 1 st and 2 nd

Defendants also did not adduce any evidence to prove that it was the late Bosco Anywar Serunkuma who built the house exclusively.

On the contrary, the Plaintiffs all admit that though the construction of the house was a joint venture for all the children and the able grand children of the Obol-Serunkuma family, it was the late Bosco and Andrew Bugingo Nganda (1 st 5 Plaintiff) who were mainly physically on the ground. This is because both the 1 st Plaintiff and the late Bosco are builders and whereas the 1 st Plaintiff is ordinarily resident in Kampala, the late Bosco was working in Rwanda which would make it convenient for them to supervise the construction, compared to the 3 rd , 4 th , 5 th and 6 th Plaintiffs 10 who reside in the United Kingdom. This, in my considered view sufficiently explains why it was mainly the late Bosco who was present during the construction.

The other argument by the Defendants' Counsel is that the suit property cannot qualify to be a residential holding of the late Philomena within the meaning of Section 22 of the Succession Act Cap 268 (2023 Edition). This is because the 15 adduced evidence from both the Plaintiffs and the Defendants revealed that the late Philomena did not reside in the house because she died before construction was completed. This evidence notwithstanding, sufficient evidence was adduced to the satisfaction of the Court that the late Philomena used the suit land as her garden for a long time while she resided in her home, which is about two plots away until when

20 her children and grand children decided to build for her a better house which would eventually become a family home. Unfortunately, she died before its completion and did not have an opportunity of living in the house.

All the Counsel for the Defendants argued that contrary, to the version advanced by the Plaintiffs that the suit land was donated by John Baptist Kasozi to the late 25 Phiolomena, there was evidence that the suit land was one of the plots that was

bequeathed by the late Bruno to the late Philomena which devolved to the late Bosco

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upon Philomena's death. They relied on the copy of the Will dated 5 th May 1996 which was admitted as PEX 17. The relevant provisions of the Will are contained paragraph 9(a)(v) on page 10 thereof and paragraph vii on page 12.

5 Paragraph 9(a)(v) reads thus:

**"** *I own two plots at Rubaga near Lubiri Secondary School with two houses occupied by the mother of my deceased brother, the late Lt. Col. Primo A. Obol's widow Mrs. FELOMINA AROMOBO ABNOL and children***";** and

10 Paragraph vii on page 12 reads thus:

*I give, devise and bequeath my plots comprising two houses at Rubaga near Lubiri Secondary School to Mrs, Felomina Arombo Obol for life, at her death the plots and houses become the property of Bosco Anyar Serunkuma, heir and successor of my brother the late Lt. Col. Primo Obol to look after his sisters, but has no right to sell the plots or houses which must be passed*

15 *on in succession only within the family of Obol***"** [Emphasis is mine.]

The argument of the Defence is that the suit land is one of the two plots mentioned in the Will and it belonged to the late Bosco upon the death of his mother Philomena. I visited both areas, the houses bequeathed by the late Bruno to the family of the late 20 Obol and the suit land, and my considered view is that they are not one and the same but different. By reading of the Will, it creates an impression that the two plots and the houses are together. However, physically, the suit land and the property referred to in the Will are separated by two Plots. If the suit property was part of what is referred to in the Will, I believe that the late Bruno would have clearly stated in the

25 Will that the two plots (bequeathed to Philomena) were separated by two other plots owned by other people.

Besides, as observed in the preceding discussion, it is not in dispute that John Baptist Kasozi owned a lease on the suit property. If this suit property was part of what is referred to in the Will, the late Bruno would have also mentioned that John Baptist Kasozi had a registrable interest in the property. This is because I have read the entire

5 Will of the late Bruno, and I find that the testator was very detailed and thorough. For instance, he had many sons from three mothers, but he made the elder son of the youngest wife his heir and successor. However, he went ahead to mention each of the other sons by name, providing explanations as to why he did not make them his heir.

Further, from the Will of the late Bruno (PEX 17) on page 2 thereof, John Baptist Kasozi is mentioned as one of his adopted sons. This, therefore, means that he was aware of Kasozi's interests in the suit land and would have mentioned it in the Will. When the Court visited the locus, we went to two places, namely, the contested 15 property (suit land) and another place where the late Philomena resided. The two places are separated by two developed plots and one of the plots belongs to Vincent Kataba (PW6). I am mindful of the fact that during the locus visit at the place mentioned in the Will, the piece of land looked small and it was a consensus of the people present that it constituted one plot and not two. It therefore, became the 20 argument of the Defence that the two plots referred to in the Will constituted that plot and the suit land, an argument that I did not agree to.

In light of the above, therefore, it is my finding that the suit property is not part of the property mentioned in the Will of the late Bruno, but it was property belonging 25 to the late Philomena, having acquired the same as a gift from his son-in-law John

Baptist Kasozi. In the Alternative, but withot prejudice to the above finding, even if this Court was to find that the suit property was one of the plots mentioned in the Will of the late Bruno, I would still find that the same formed the estate of the late Philomena and not the late Bosco Anywar Serunkuma. This is because the intention of the testator

- 5 in the Will (the late Bruno) was very clear. He never intended the late Bosco to be the owner of the property but to hold it in trust for the family of the late Col. Primo Obol as his only surviving male child (heir and successor of the late Obol). That is why he specifically stated that if Philomena died, the property would go to Bosco but expressly indicated that he was supposed to use the property to look after his - 10 sisters. There was also a condition never ever to sell or give out the property to anyone outside the Obol family. It had to be held in succession within the Obol family.

$$\mathcal{S}$$

Resultantly, therefore, it is the finding of this Court that the suit property formed part 15 of the estate of the late Philomena Arombo Obol, **AND NOT** the late John Bosco Anywar.

## **Issue 2:** *Whether the Plaintiffs, as beneficiaries of the estate of the late Philomena Arombo Obol, have any interest in the suit land.*

20 Having made the above findings in the preceeding issue, it is also my finding that the Plaintiffs as beneficiaries of the estate of the late Philomena Arombo have an interest in the suit land. This Court has made a finding that the suit land belonged to the late Philomena, having acquired the same from her son-in-law John Baptist Kasozi. However, even if I was to conclude that it was part of the Plots bequeathed 25 in the Will of the late Bruno, I would still find that the Plaintiffs are beneficiaries of the suit land. The 3 rd to 6th Plaintiffs are the biological daughters of the late Philomena while the 2 nd Plaintiff is her biological grandson. The 1 st Plaintiff became

a blood grandson of the late Philomena because, as I already observed, the Serunkuma-Obol family became one big family because of the blood relationship.

Counsel for the Defendants have argued that from the time the house on the suit land was constructed, it was the late Bosco who occupied it and rented it out to Save for $\mathsf{S}$ Health and upon his death, his daughter, the late Joseline Nabbosa managed the same and upon her death, the 1^st Defendant started collecting rent. They wondered where the Plaintiffs were and why they did not object and or lay a claim on the property.

However, this state of affairs was very well explained by the 3^rd, 4^th and 6^th Plaintiffs $10$ in their testimony. They stated that when construction was completed, they first lived in the house as a family. Later, they made a decision to rent it out and they authorised the late Bosco to deal with the rental income because he was sick and he also had a sickly daughter (suffering from lung disease) and also going to an expensive school. He needed money and as a family, they allowed him to collect the money and use it 15 and they had no problem with it. That explains why the rent was being paid to the

late Bosco and his children who succeeded him, namely the late Joseline Nabbosa and later Charles Sserunkuma (1^st Defendant). For as long as the property was still within the family of the late Obol, there was no complaint from the Plaintiffs.

$20$

$25$

During the locus visit, the 1^st Defendant confirmed that after the death of his sister, the late Joseline Nabbossa, he started collecting the rental income and he put it it to his exclusive use including traveling to different places because he loves travelling. The Plaintiffs did not complain and I believe it is because it was their nephew who was still benefitting from the property. Counsel for the Defendants wondered why the Plaintiffs were silent until 2022 when the 1^st Defendant was collecting rent from 2017, after he obtained the Letters of Administration.

Should they blamed for extending kindness to their only brother and heir to their late father and later to his children? To blame them would be the highest level of ingratitude. The Plaintiffs also stated that when they learnt that their nephew (1 st Defendant) and his mother (2 nd Defendant) were selling their home, they contacted

5 them but they were very rude and that is why they filed the case in the Court. I find that this is a very valid explanation. Issue 2 is therefore, answered in the affirmative.

# **Issue 3:** *Whether the 1st and 2nd Defendants fraudulently dealt with the suit property*.

- 10 Counsel for the Plaintiffs while relying on the decision of the Supreme Court in the case of *Fredrick J. K. Zaabwe versus Orient Bank & 5 Others, SCCA. No. 0004 of 2006* submitted that the 1 st and 2 nd Defendants were fraudulent when they represented themselves as the owners of the kibanja (suit land) to the Buganda Land Board (4 th Defendant), whereas they were not. Counsel insisted that the 1 st and 2 nd - 15 Defendants, fully aware that the suit land did not form part of the estate of the late Nicholas Bruno Serunkuma under his last Will (PEX17), deceitfully presented the same to the 4 th Defendant, purporting that the suit land had been bequeathed to the late John Bosco Anywar Sserunkuma. - Counsel for the Plaintiffs also submitted that the 1 20 st Defendant also tricked Kataba Vicent (PW6), a *mutongole* (Kabaka's representative) into introducing the 1 st and 2 nd Defendants as the owners of the suit land but later he wrote a letter to the Buganda Land Board withdrawing his recommendation because he was fully aware that the suit land belonged to the late Philomena and not Bosco Anywar Serunkuma 25 exclusively as per PEX 15 (a) and (b).

Counsel for the Defendants, on the other hand, contended that the Plaintiffs failed to prove any fraud on the part of the 1 st and 2 nd Defendants, but they lawfully dealt with the suit land. They argued that the suit land was bequeathed to the late Bosco and the 1 st and 2 nd Defendants are the Administrators of his estate, thereby having the 5 authority to deal with the suit land.

#### **Court's Decision**

In the case of *Fredrick Zaabwe versus Orient Bank & 5 Others SCCA 0004 of 2006,* which both Counsel for the Plaintiffs and Defendants relied on, Katureebe JSC, while defining fraud, referred to Black's Law Dictionary, 6th 10 Ed, page 600 and stated that:

**"***It is an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. A false representation of a matter of fact, whether by words or by conduct, by false or misleading*

- 15 *allegations, or by concealment of that which deceives and is intended to deceive another so that he shall act upon it to his legal injury. Anything calculated to deceive, whether by a single act or combination, or by suppression of truth, or suggestion of what is false, whether it is by direct falsehood or innuendo by speech or silence, word of mouth, or look or gesture…a generic term, embracing all multifarious means which human ingenuity can devise and which are resorted to* - 20 *by one individual to get advantage over another by false suggestions or by suppression of truth, and includes all surprise, trick, cunning, dissembling and unfair way by which another is cheated, dissembling. Bad faith, and "fraud" are synonymous and also synonymous of dishonesty, infidelity, faithlessness, perfidy, unfairness etc."*

25 The Court further held in that case that: *"an allegation of fraud need to be fully and carefully inquired into. Fraud is a serious matter."* In *Kampala Bottlers Ltd versus Damanico (U) Ltd, (S. C.) Civil Appeal No. 0022 of 1992* Wambuzi, C. J (as he then was) stated at page 7 of his judgment:

*"… fraud must be attributable to the transferee. I must add here that it must be attributable either directly or by necessary implication. By this I mean the transferee must be guilty of some* 5 *fraudulent act or must have known of such act by somebody else and taken advantage of such*

*act."*

The evidence adduced by the Plaintiffs that imputes fraud on the part of the 1 st and 2 nd Defendant is as follows:

- (a) The 1 st and 2 10 nd Defendants, fully aware that the suit land formed part of the estate of the late Philomena and not that of the late Bosco Anywar obtained the Grant of Letters of Administration for the estate of the late Bosco Anywar and purported to administer it as such; - (b) The 1 st and 2 nd Defendants misrepresented to the 4 th Defendant (Buganda 15 Land Board) that they were administrators of the suit land (kibanja); - (c) Entering into a sale agreement with the 3 rd Defendant for the suit land purpoting to be administrators over the said suit land; and - (d) Giving consent to the 4 th Defendant to offer a lease to the 3 rd Defendant. - 20 In light of the above and following the decision of this Court in the preceeding two issues, it follows that the dealings by the 1 st and 2nd Defendants on the suit land were fraudulent because the suit land did not form part of the estate of the late Bosco Anywar for which the 1 st and 2nd Defendants purport to administer. - I have considered the vehement argument by the Defence that the 1 st and 2nd 25 Defendants relied on the Will which gave the suit land to the late Bosco. With all due respect, I find that argument self defeating even if this Court was to make a

finding that the suit property formed part of the property referred to in the Will of the late Bruno. The Will (PEX 17) on which the Defence anchors their argument expressly stated that upon the death of Philomena, the property would go to Bosco to take care of his sisters. The Will further expressly and unequivocally prohibited 5 selling of the bequest and emphasised that the property had to remain within the family of the late Obol through succession.

Whereas it is true that the 1 st Defendant belongs to the Obol family as a grand child, being the son of the late Bosco, the 2 nd Defendant is unrelated to the family. She was

- a mother of the two children of the late Bosco, namely Charles Serukuma (1 st 10 Defendant) and his late sister Joseline Nabbossa. It is important to note that the 1 st Defendant attempted to allege that she was customarily married to the late Bosco but that claim was disputed by the 3 rd Plaintiff who stated that the 2 nd Defendant was never married to the late Bosco. She further stated that the late Bosco had a wife, - 15 with whom they have two male children namely: Pierre Anywar Serunkuma Obol (also heir of the late Bosco) and Primo Serunkuma Obol. The two sons of the late Bosco reside with their mother in the United Kingdom. That evidence went unchallenged during cross examination. I also confirm that the 2 nd Defendant was not married to the late Bosco because on the Letters of Adminsitration, she was - 20 indicated as "a friend" of the deceased and not a widow (See PEX2).

The 1 st Defendant, who knows how to read English, read the Will which he claims gave him rights over the property, knew that his father, the late Bosco was to hold the property in trust for the sisters and the other members of the Obol family but 25 chose to act singly, deal with it excluding the rest of the beneficiaries at the time of obtaining the Grant, and subsequently the transactions that followed and instead chose to work with his mother. The 3 rd , 4 th and 6th Plaintiffs in their unchallenged

evidence testified that when they tried to ask him concerning how he was dealing with the property, him and his mother became rude towards them. They stated that the 1 st Defendant, ignored all the family members but dealt with strangers. I confirmed this during the Court proceedings because the 1 st Defendant was always 5 in the company of a one Kamya Gordon Mustafa, whom he later informed the Court that the said Kamya Gordon Mustafa was a land dealer who introduced him to Mulumba Shafiq Ssebuggwawo (3 rd Defendant). The said Kamya Gordon Mustafa attended the Court all through, including the locus visit. Infact, during the locus visit, the 1 st Defendant stated that the said Kamya was more important to him than his 10 family members.

I also take note that the 1 st Defendant, if indeed he believed that the suit land belonged to his late father Bosco, then he would not have dealt with it exclusively the way he did. He first told the Court that he was not aware that his father had other children, but later he admitted that he had two brothers. When the 3 rd to 6th 15 Plaintiffs were interviewed via audio-visual, they had on-line Pierre Anywar Serunkuma Obol, and when the 1 st Defendant saw him, he confirmed that he knew him (Pierre) as his brother. The Court was informed that Pierre was installed as the heir of the late Bosco at the Serunkuma family home in Nsangi in accordance with the wishes of 20 the late Bosco. This evidence was never challenged during cross-examination. The question that I would ask is, why would the 1 st and 2nd Defendants deal with the suit land without even consulting and or considering the heir of the late Bosco? The only probable answer to this question is that the two were indeed propelled by fraud and greed.

In light of the above, therefore, it is the finding of this Court that the $1^{st}$ and $2^{nd}$ Defendants fraudulently dealt with the suit property. Issue No. 3 is therefore answered in the affirmative.

#### **Issue 4:** Whether the 3^rd Defendant lawfully acquired the suit property. $\mathsf{S}$

Counsel for the Plaintiffs submitted that the 3^rd Defendant unlawfully acquired the suit property because he was fully aware that John Baptist Kasozi had a lease on the same property which he had acquired as early as 1977 (PEX 34), long before the $1^{st}$ Defendant was born. He insisted that, though the lease for John Baptist Kasozi had then expired, he should have been given the first priority to renew the lease if he so $10$ wished. While relying on the Court decision in the case of *Edward Gatsinzi &Anor versus Lwanga Steven HCCA No. 0690 of 2004*, Counsel further argued that, the 3^rd Defendant cannot be said to be a bonafide purchaser because he had notice that the $1^{st}$ and $2^{nd}$ Defendants did not have rights to sell the property to him but he went ahead and purported to buy the suit property. 15

Counsel for the Defendants on the other hand contended that the 3^rd Defendant lawfully acquired the suit land because he purchased the same from the $1^st$ and $2^nd$ Defendants who were the administrators of the estate of the late Bosco. Counsel for the 4^th Defendant in particular argued that the claim by the Plaintiffs that the 3^rd $20$ Defendant could not acquire a lease when John Baptist Kasozi had a lease over the same property does not arise because the lease for John Baptist Kasozi had since expired and had never been renewed thereby making him a tresspasser and the lessor was at liberty to offer the lease to any other person.

$25$


### **Court's Decision**

From the pleadings, the evidence and submissions in favour of the 3 rd Defendant, I deduce that his defence is that he is a bonafide purchaser. The 3 rd Defendant was the only witness for his case and he testified as DW2. The evidence adduced to support his claim is that he bought a kibanja from the administrators of the estate of the late Bosco Anywar Serunkuma, namely the 1 st and 2 5 nd Defendants. A sale agreement between the 3 rd Defendant (Purchaser) and the 1 st and 2nd Defendants (Sellers) in the vernacular version and its English translation was admitted and marked PEX 11(a) and (b) respectively, in which the Sellers sold the kibanja to the Purchaser at a cost of Uganda Shillings Two Hundred and Eighty Million only (UGX

- 280,000,000). The sale agreement is dated 2nd December 2021. Thereafter, the 1 st 10 and 2nd Defendants applied for the lease but before its approval, they sought the consent of the Buganda Land Board to transfer their kibanja interest in the suit land to Mulumba Shafiq Ssebuggwawo (3 rd Defendant) and the same was given by the 4 th Defendant in a letter dated 28th April 2022 as per PEX 9. - 15

Blacks Law Dictionary, 11th Edition, page 1491 defines a bona fide Purchaser as: "*someone who buys something for value without notice of another's claim to the property and without actual or constructive notice of any defects in or infirmities, claims, equities against the seller's title; one who has in good faith paid valuable consideration for property without notice*

20 *of prior adverse claims.***"**


In the case of *Israel Lwanga versus Leonard Mubiru & 3 Others, SCCA No. 0018 of 2022,* the Supreme Court observed thus:

**"** *It is trite law that a person who relies on the defence of bona fide purchaser for value without* 25 *notice under Section 181 RTA has the burden to prove he or she acted in good faith. The purchaser must have given due consideration and purchased the land without notice of the fraud. Such notice covers both actual and constructive notice of fraud."*

In the case of *Jones versus Smith (1841) 1 Hare 43,* the Chancery Court held that, **"***A purchaser has constructive notice of fraud if he had actual notice that there was some incumbrance and a proper inquiry would have revealed what it was, (but if) abstained either deliberately, carelessly, from making those inquries which a prudent purcahser would have*

5 *made, then the defence cannot be availed to him or her."* (Also see: *Yakobo Versus M. N. Senkungu & Others, Civil Appeal No. 0017 of 2014.*)

In the case of *Vivo Energy (U) Ltd versus Lydia Kisitu, SCCA No. 0007 of 2015,*

10 which cited with approval *Sir John Bagaire versus Arnest Matovu, CACA No. 0007 of 1996*, the Court observed that:

**"***Lands are not vegetables which are bought from unknown sellers. Lands are very valuable properties and buyers are expected to make thorough investigations not only of the land but also of the owner before purchase***."**

In the case of *David Sejjaka Nalima versus Rebecca Musoke, Court of Appeal Civil Appeal No. 0012 of 1985,* page 26 para 2, the Court held inter alia that: **"***If it be shown that (a purchaser's) suspicions were aroused and that he abstained from making inquiries for fear of learning the truth, the case is very different and fraud may be properly* 20 *ascribed to him***."**

In the case of *Sir John Bagaire versus Arnest Matovu, CACA No. 0007 of 1996* (supra), the Court further observed that the requirement to conduct due diligence includes, but is not limited to, registry searches, boundary opening, physical

25 inspection of the property, and involvement of local authorities, inquiries from beneficiaries, if the land is a family property. In the case of *Nabanoba Deziranta & Anor versus Kayiwa Joseph &Anor, Land Division Civil Suit No. 0497 of 2005*, the Court held inter alia:

**"...***Secondly, transfer into the executor or administrator's name does not mean that the land devolves upon the personal estate of the executor or administrator, such that he /she can do*

5 *whatever he/she wishes without recourse or care to the interests of other beneficiaries. His or her duty is to hold the land in trust for the beneficiaries.*

*I have to point out that a legal representative or executor of a deceased person's property devolves to him or her upon trust for the beneficiaries and those entitled under the law. He or she is a representative in right of the deceased person and not in his or her personal right. It*

10 *therefore, follows that a personal representative to give a good title as a transferee, he or she must have acted in accordance with the law***."**


In the case of *Silver Byaruhanga versus Fr. Emmanuel Ruvugwaho & Rudeja SSCA No. 0009 of 2014*, it was held inter alia that:

15 **"***The administrator gets registered as such to exercise power to administer the estate of the deceased person not for his own but upon trust for the estate of the beneficiaries.***"**

In the instant case, the 3 rd Defendant contended that he bought a kibanja from the 1st and 2nd Defendants upon seeing a copy of the Will of the late Bruno, which bequeathed the suit property to the late Bosco, and the 1 st and 2 20 nd Defendants were the administrators of his estate. I had discussed this provision of the Will while resolving the first issue, but I will reproduce it for emphasis purposes. It reads as follows:

**"** *I give, devise and bequeath my plots comprising two houses at Rubaga near Lubiri Secondary* 25 *School to Mrs, Felomina Arombo Obol for life, at her death the plots and houses become the property of Bosco Anyar Serunkuma, heir and successor of my brother the late Lt. Col. Primo Obol to look after his sisters, but has no right to sell the plots or houses which must be passed on in succession only within the family of Obol***"** [Emphasis is mine.]

If the 3 rd Defendant is to be believed that he anchored his decision to buy the suit property on the above provision, which he insists he did, this was sufficient notice that the suit property did not belong to the 1 st and 2nd Defendants. The Will expressly provided that upon the death of Philomena, the property would devolve to Bosco, 5 who would use it to look after his sisters. The Will further expressly prohibited the sale of the property, but the same to remain within the family of the late Obol. This was sufficient notice to the 3 rd Defendant that the property did not belong to the estate of the late Bosco. The 3 rd Defendant does not belong to the Obol family and

therefore, is not among the people envisaged to benefit from the suit property as per 10 the testator's wishes. He also never made any efforts to trace the sisters of the late Bosco, in whose trust Bosco was holding the property.

Even if the property belonged to the estate of the late Bosco, the 1 st and 2nd Defendants were only administrators holding the same in trust for the beneficiaries 15 of the late Bosco. The late Bosco had two other sons, Pierre (who is also his heir) and Primo. However, the 3 rd Defendant chose not to inquire about them and dealt with only the 1 st and 2nd Defendants. To me, this was not only careless but fraudulent as well, and it cannot be excused.

The 3 20 rd Defendant further contended that at the time he entered into the transaction with the 1 st and 2nd Defendants, they were the ones renting out the suit property to Save for Health and receiving the rental income uninterrupted. Tenancy Agreements and receipts were adduced in evidence (See DEX 2, DEX 3, DEX 4, and DEX 5). However, it is my considered opinion that this did not absolve the 3 rd Respondent of

the responsibility to make inquiries, especially knowing that the 1 st and 2nd 25 Defendants were not owners of the suit property but administrators of the estate.

I was also bothered by the witnesses on the Sale agreement between the 1 st and 2nd Defendants and the 3 rd Defendant, namely: Ssemakula Andrew and Hajji Abdu. None of them is a family member and none of them was called as a witness. Surely, anybody who intends to buy land from administrators of an estate and has good faith,

5 would insist on having family members, who would in most cases be beneficiaries, as witnesses.

I have also noted that by the 6 th of May 2022 when the 3 rd Defendant entered into a lease agreement with the Buganda Land Board (PEX 14), a dispute had already arisen between the 1 10 st Defendant and his family members and was being handled by different public offices including the Land Department of State House, Office of the Administrator General, among others, which the 3 rd Defendant should have known about and would have been cautious if he indeed was vigilant. For example, on 12th

April 2022, the State House Land Department, made a report in respect of the suit 15 property and the findings were that the property belonged to the family of the late Philomena Arombo and the 1 st and 2nd Defendants did not have a right to deal with it exclusively (PEX 18).

On 1 st February 2022, the Administrator General wrote to the 1 st, 2nd Defendants and 20 the LC1 Chairman of the area Mr. Fred Musoke, cautioning them not to sell the suit property (PEX 10). Whereas this letter came after the date of the sale, it was before the 3 rd Defendant entered into a lease agreement with the Buganda Land Board over the property. The Plaintiffs also adduced evidence of Court orders prohibiting any dealings with the suit property dated 30th March 2022 and 12th May 2002 (PEX 4 and PEX 6). Although, the 3 25 rd Defendant was not a party to the Court Orders, it is my earnest belief that he came to know about them because he does not reside far

away from the suit land but most importantly, he is a real estate dealer with

experience in land matters and he was expected to exercise caution and due diligence which he unfortunately did not do.

I have also considered the argument by Counsel for the Defendants that during the 5 locus visit Mr. Fred Musoke confirmed that the suit property belonged to the late Bosco. However, it is also on record from the correspondences of the Administrator General and State House, Land Department that Mr. Fred Musoke was one of the people working with the 1 st and 2nd Defendants to deal in the property fraudulently. This makes him not a very credible and reliable witness and I treat his evidence in 10 favour of the defence with utmost caution.

In light of the aove, it is the finding of this Court that the 3 rd Defendant did not acquire the suit property lawfully. Issue 4 is therefore, answered in the negative.

## **Issue 5:** *Whether the 4* 15 *th Defendant fraudulently approved and granted a lease on the suit property to the 3rd Defendant*.

Counsel for the Plaintiffs submitted that the 4 th Defendant was fraudulent in approving and later granting a lease to the 3 rd Defendant without giving a first option to John Baptist Kasozi whose lease had expired. He further argued that the 1 st and 2 20 nd Defendants who purported to register a kibanja interest in the suit property with the Buganda Land Board and thereafter apply for the lease did not produce any sale agreement of the same.

On the other hand, Counsel for the 4 th Defendant contended that there is no law that 25 provides that a lessee with an expired lease should be given the first priority when granting a lease. On the contrary, he argued that the provision of the law is that when a lease expires, the land reverts to the land lord, the lessee becomes a trespasser, and the land lord can allocate the land to another person. He relied on the decision of the Court in the the cases of *Dr. Adeodanta Kekitinwa & 3 Others versus Edward Maudo Wakida, Civil Appeal No. 0003 of 2007*, *Sulaiman Mbazira versus Mande Kafeero Stuart, Land Division Civil Appeal No. 0073 of 2014* and *Luduula Fred*

5 *& 6 Others versus Reverand Canon Eriya Luzinda (Executor of the Will of the*

*late Kaaya), Land Division, Civil Suit No. 2029 of 2016.*

Counsel for the 4 th Defendant, while relying on the Court decisions in the cases of *Lunco Contractors Ltd versus Attorney General HCCS No. 6318 of 2004* and

- 10 *Obuntu Construction versus Plan Build Technical Services, HCCS No. 0173 of 2014*, further argued that the Plaintiffs sued a wrong party because the Buganda Land Board was never a party to the lease agreement in dispute. According to him, the lease agreement was between the Kabaka of Buganda and the 3 rd Defendant. He contended that whereas it is not in dispute that the Buganda Land Board is an agent 15 of the Kabaka of Buganda, it was wrong to sue an agent of a disclosed principal and - yet the Kabaka is a corporation sole under the Constitution.

Counsel for the 4 th Defendant further argued that it was wrong for Counsel for the Plaintiffs to pray that this Court orders the Chairman of the Buganda Land Board to cancel the Certificate of Title in the name of the 3 20 rd Defendant (PEX 8) because issuance of the Certificates of Title is exclusively done by the Commissioner Land Registration.

## **Court's Decision**

25 I need to observe that whereas both Counsel dwelt on the issue of the lease formerly in the name of John Baptist Kasozi, the evidence adduced on behalf of the 4 th Defendant is that they first registered the kibanja interests in the suit land in the name of 1^st and 2^nd Defendants on account of the Will of the late Bruno Sserunkuma and the Letters of Administration.

Having made the above observation, I will proceed to address Counsel's submission regarding suing the Buganda Land Board. It is not in dispute that the Buganda Land $\mathsf{S}$ Board is an agent of the Kabaka of Buganda in land matters and Counsel for the 4^th Defendant also agrees to that fact. All the evidence adduced in this matter is to the effect that the parties dealt with the Buganda Land Board. The Kabaka of Buganda and/or his donees of the Power of Attorney came on board at the signing of the lease to the $3^rd$ Defendant. For example, after the sale of the suit property to the $3^rd$ $10$ Defendant, the $1^{st}$ and $2^{nd}$ Defendants wrote to the Buganda Land Board to give consent to trasfer their interests to the 3^rd Defendant. It was the Buganda Land Board that gave the $1^{st}$ and $2^{nd}$ Defendants consent to transfer the kibanja interest in the suit property to the 3^rd Defendant (PEX 9 and PEX 32). The Form of assessing the "busulu" was issued by the Buganda Land Board to the $1^st$ and $2^nd$ Defendants (PEX 15 27). DW3 who testified on behalf of the 4^th Defendant confirmed that the 4^th Defendant is an agent of the Kabaka of Buganda. The receipts of the Busulu are also issued by the Buganda Land Board. It is therefore, my finding that the 4^th Defendant cannot purport to opt out of the transation and it is <u>my further</u> finding that the $4^{th}$

Defendant was rightly sued. $20$

$25$


I will now proceed to answer the question as to whether the 4^th Defendant was fraudulent in approving and granting the lease. The case for the 4^th Defendant is that they relied on the Will of the late Bruno and the Letters of Administration held by the $1^{st}$ and $2^{nd}$ Defendants for the estate of the late Bosco. They also relied on a letter by Vicent Kataba (PW6) who was then, an agent of the Kabaka in the localty where

36 | Page

the land is situate in which he recommended the 1 st and 2nd Defendants as the rightful owners of the kibanja.

While discussing the preceding issues, I exhaustively handled the issue of the Will 5 of the late Bruno and and the Letters of Administration for the estate of the late Bosco and I will not repeat the same. However, I will add that as an agent of the Kabaka of Buganda in land matters, the 4 th Defendant was expected to exercise the highest due diligence. By reading the Will which clearly indicated that Bosco Anywar was supposed to use the land to take care of the sisters and never to ever sell it but the same to remain in the family of the late Obol, the 4 10 th Defendant would never have gone ahead to give consent to transfer the interests in the suit land to the 3 rd Defendant. I would have also expected the 4 th Defendant to get interested in the other beneficiaries of the suit property but they deliberately ignored to do that. When DW3 was asked whether she did not consider the clause in the Will which prohibited 15 selling of the property, she said there was freedom of contract. I found this attitude to not only being careless but also highly likely to have been perpetrated by fraud. This is because the Will which DW3 insisted was their anchor was written in clear and unequivocal terms and anyone willing to do the right thing would never have approved the lease.

If the 4 th Defendant had stopped at registering the 1 st and 2nd Defendants as kibanja owners, may be that would have been explained because they are the administrators of the estate of the late Bosco and one would argue that they believed that the administrators of the late Bosco were still holding it in trust for the rest of the Obol family. However, when the 1 st and 2nd Defendants informed the 4 25 th Defendant in writing that they had sold their interests to the 3 rd Defendant, this should have alerted

them and they should not have given that consent.

37 | P a g e

Concerning the letter of introduction by Vicent Kataba (PW6), he testified that he signed that introduction letter upon being tricked by the 1 st Defendant. He stated that the 1 st Defendant went to him in the night as he was in his Kraal and gave him 5 documents to sign and he also signed. However, when he realised that he had made an error, he corrected it by withdrawing the earlier letter in another document dated 7 th December 2020. That withdrawal letter signed by Kataba Vincent (PW3), Kizito Joseph Mubiru and Nakafeero Mary in the Luganda version and its English translation were admitted in evidence and marked PEX 15 (a) and (b) respectively. 10 The same was written to the Head of the Buganda Land Board. The evidence of PW6 went unchallenged in cross examination.

In the withdrawal document, the three authors gave a history of the suit land to correct an error earlier made and they clearly stated that the suit property belonged to the family of the late Philomena. This was sufficient notice to the 4 15 th Defendant to deal carefully with the suit land and the 1 st and 2nd Defendants. However, the 4 th Defendant ignored that and went ahead and approved and lease and even gave the 1 st and 2nd Defendants consent to transfer the suit property to the name of the 3 rd Defendant. It is my finding that this conduct could not have been just careless but

20 fraudulent and this Court cannot excuse it.


Issue 5 is therefore, answered in the affirmative.

Issue No. 6 relates to the remedies sought by the Plaintiffs and the same are here 25 below contained in the declarations and orders of the Court.

## **Conclusion**

In light of the above, the suit wholly succeeds and Judgment is given in favour of the Plainfiffs on the following declarations, decree and Orders:

- 1. The Kibanja on Kibuga Block 1 Plot 580, land at Bulwa Zone, Rubaga Division, Kampala (suit property) and all the developments thereon forms part - 5 of the estate of the late Philomena Arombo Obol and not the late Bosco Anywar Serunkuma; - 2. The Plaintiffs are beneficiaries of the suit property; - 3. The 1 st and 2nd Defendants fraudulently and unlawfully dealt with the suit property; - 4. The 3 10 rd Defendant fraudulently acquired the suit property; - 5. The 4 th Defendant also fraudulently approved and offered the lease of the suit property to the 3 rd Defendant; - 6. The lease offer to the 3 rd Defendant is hereby cancelled immediately; - 7. The Plaintiffs and other beneficiaries of the late Philomena Arombo-Obol 15 shall nominate person(s) to process Letters of Administration of the estate of the late Philomena Arombo-Obol; - 8. If the Administrators of the estate of the late Philomena Arombo desire to acquire registrable interest in the suit land, they shall apply to the Buganda Land Board accordingly and proceed to have themselves registered on the 20 Certificate of Title ; - 9. The Buganda Land Board is hereby prohibited from approving and offering a lease on the suit property to any other person(s), without the consent of the Administrators and or the beneficiaries of the estate of the late Philomena Arombo-Obol; - 25 10. The Buganda Land Board shall refund Uganda Shillings Twenty-Six Million (UGX 26,000,000) to Mulumba Shafiq Ssebuggwawo, which he paid as premium;

- 11. Consequentially, the Commissioner Land Registration is hereby directed to vacate the caveat lodged on the Certificate of Title of the suit property by Claire Kyakuwa, Andrew Bugingo Nganda and Kassim Alule and cancel the Certificate of Title in the name of Shafiq Mulumba Ssebuggwawo. - 12. The Administrators of the estate of the late Philomena Arombo-Obol or any other person(s) that may lawfully acquire the lease, with their consent, shall make a fresh Application for registration on the Certificate of Title; - 13. A permanent injunction hereby issues against the $1^{st}$ , $2^{nd}$ and $3^{rd}$ Defendants from dealing with the suit property in anyway; - 14. The $3^rd$ Defendant shall sue the $1^st$ and $2^nd$ Defendants for recovery of his $10$ money Uganda Shillings Two Hundred and Eighty Million Only (UGX $280,000,000$ ) if he so wishes; - 15. The 1^st and 2^nd Defendants shall give an account of all rental income collected from the suit property to the Administrators from the time they obtained the - Letters of Administration for the estate of the late Bosco Anywar till the time 15 the tenant, Save for Health, vacated the premises; - 16. No damages have been awarded because the Plaintiffs are the ones occupying the suit property; - 17. The Defendants shall bear the costs of this suit in equal proportions. - I so order. $20$

$\mathsf{S}$

Dated at Kampala this 14^th day of April 2025.

Alice Komuhangi Khaukha $25$

## **JUDGE**

14/04/2025