[2005] UGCA 98

#### THE REPUBLIC OF UGANDA

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

CORAM: HON. JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ $10$ HON. JUSTICE A. TWINOMUJUNI, JA HON. JUSTICE C. K. BYAMUGISHA, JA

#### CIVIL APPEAL NO. 22/2002

### <table> IDAH ITERURA ::::::::::::::::::::::::::::::::::: VERSUS

ISMAIL MUGUTA ....................................

(Appeal from the judgement of the High Court of Uganda at Mbarara (Hon. 20 Justice V. F. Musoke-Kibuuka) dated 01/02/2001 in original High Court Civil Suit No. 33 of 1995)

#### JUDGEMENT OF L. E. M. MUKASA-KIKONYOGO, DCJ

I had the benefit of the reading in draft the judgement prepared by C. K. Byamugisha JA. I agree with the facts as she narrated them. I do not have to repeat them.

I also agree with the reasons for the conclusions on grounds 2 and 4. I, however, have a slightly different view with regard to ground No. 1 where the learned trial judge gave judgement to both the respondent who was a party and his deceased brother called Joab Majungu who died before the trial started. In her draft judgement Hon. Justice C. K. Byamugisha is of the view that since the deceased plaintiff died before the hearing

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started and no legal representative had been appointed and without letters of administration granted to the family, it (thefamily) was not entitled to any reliefs. I do not ascribe to this view, although apart from costs I agree with the rest of her observations and decisions.

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Ground 1 reads as follows:-

^uThe learned. trl'al Judge erred in laut and in fact in entertaining and disposing of the sult in Jaaour ot the respondent qnd a deceqsed plaintilf when the latter hqd died betore tlrc hearing oJtlrc sult and no person obtained letters of administratlon/probate in respect of him to proceed with the stit'

20 For the appellant his counsel submitted that it was arr error on the part of the trial judge to give judgement in favour of both, plaintiffs that is the respondent and his deceased brother, Joab Majungu. As the suit had survived his death a legal representative should have been appointed by the family before the suit could proceed but this was not done.

The stand of the law on this matter is clear. This includes Order 2L, lLl (2) and 3 of the Civil Procedure Rules, reproduced here below: -

(1 The death of a plaintiff or defendant shall not cause the suit to abate if the cause of action survives or continues.

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- 10 Where there are more plaintiffs or defendants than one, and any one of them dies, and where the cause of action survives or continues to the surviving plaintiff or plaintiffs alone or agaiust the surviving defendant or defendants alone, the court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance ofthe surviving defendant or defendants. 2 - 3.(1) Where one of two or more plaintiffs dies and the cause of action does not sunrive or continue to the sunziving plaiutiff or plaintiffs alone, or ^a sole plaintiff or sole sunriving plaintiff dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. - 2l Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the court may award to him the costs

which he may have incurred in defending the suit to be recovered from the estate of the deceased plaintiff."

On the evidence before court the deceased plaintiff's claim 10 survived his death. However, the failure to appoint an administrator to continue to pursue it in accordance with the relevant law and time, may have resulted into abatement of the deceased's suit.

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The position of the law is that the cause of action remains alive until the prescribed time for filing such actions has lapsed. The learned trial judge was clearly alive to the law applicable in cases of this type. Satisfied that sufficient evidence had been adduced to prove fraud on the part of the 20 appellant's father, made the following declaration and order-

" a) Plot 33, Sheema Block 2, comprised the urregktered customary interests of the defendant, the platntiff and their brother, MaJungu. The defendant, at one time, held the land in trust for himself and his brothers. The defendant secured a certificate of tltle over the entire land in his personal names, through fraud. Accordingly, the lndlvidual customary holdings of each brother must be restored and separated from the defendant's title.

b) The Commissioner, Land Reglstration (Chief Registrar of Titles) is ordered to rectify the certificate of title lssued to the defendant in respect of Plot 33, Sheema Block 2, so that lt enconpasaes only the customary holding of the defendant and excludes those of hls 10 brothers.

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# c)owingtothespeclalcircumstancesandpeculiaritiesof thls suit, each party shall meet its own costs"'

Mindful of the stand of the law as stated above I agree that the deceasedplaintiffssuitmayhaveabatedduetothefailureto appoint a legal representative. It is true it would be ordinarily wrongforthecourttogivejudgementinfavourofanestateof a deceased person in the absence of a legal representative' 20 However, in my view the instant appeal differs in that the trial judge gave a declaratory judgement on the issue of ownership of the disPuted land.

On the proof that the appellant had committed fraud' the learned trial judge was justified to direct the Chief Registrar of Titles to rectify the certificate of title issued to the appellant's father in respect of Plot 53 Sheema Block 2 so that it encompasses only his customary holding and excludes those of his brothers which 30 plaintiff. included the share of the deceased

I do not agree that the mere failure of the deceased plaintiffs family to appoint a lega1 representative would justify deprivation of the benefits in his estate. I am mindful of the provisions of sections 191 and 792 of The Administrator Generals Act which state as follows: -

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### Section 191 reads:

"Right to intestate's property, when established. Except as hereafter provided, but subject to section 4 of the Administrator General's Act, no right to any part of the property of a person who has died intestate shall be established in any court of justice, unless letters of administration have first been granted by a court of competent jurisdiction".

## 20 Section 192 reads:

"Effect of letters of administration. Letters of administration entitle the administrator to all rights belonging to the intestate as effectually as if the administration has been granted at the moment after his or her death".

On the record before court apart from the statement from Mr. Katembeko that the suit had abated there is no evidence to show that the family was caught up by limitation. There was 30 nothing to support the conclusion that no letters of

administration could be obtained in respect of the deceased,s estate, after the judgement complained of.

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Further, fraud on the part of the appellant's father had been admitted as it was not raised on appeal. What is the 10 justification for rewarding the appellant's father for the fraud? It would be unconscionable to a\_llow the appellant to keep the portion of the disputed land her father fraudulently registered in his name.

The evidence on which the trial judge based his declaratory judgement was adduced by the respondent to prove his claim. It was a declaration of the interests all the beneficiaries were entitled to. The judgement was not directly passed in favour of the deceased's brother but he happened to be one of the 20 brothers whose portion of the land had been grabbed by the appellant's father and registered in his narne.

With regard to the respondent the appellant had no cause of action against him. The fraud was not contested on appeal which amounted to an admission. He should not have been dragged into this court. All the complaints raised by counsel for the appellant concern interests of the deceased brother's estate. This appeal, in my view, is without merit. It is nonexistent in respect of the respondent. It should be dismissed 30 with costs of this court paid to him by the appellant. As for the appeal in respect of the deceased brother, for the

aforementioned reasons, it should also fail. The appellant is not entitled to the portion of the disputed land fraudulently registered in her father's narne. Allowing her to take that land, there is no doubt, would be tantamount to unjustifiable enrichment. The appellant should meet her own costs of the 10 appeal in respect of the deceased brother.

As Twinomujuni JA concurs that the appeal fails, it is dismissed with costs to the respondent in this Court.

Dated at Kampala this t1 TL day of August 2005.

L. E. M. Mu SA-Ki yogo DEPUTY CHIEF STICE

o # o THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# CORAM: HON JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ HON. JUSTICE A. TWINOMUJUNI, JA HON. JUSTICE C. K. BYAMUGISHA, JA

## CIVIL APPEAL NO.22 OF 2OO2

IDAH ITERURA APPELLANT

# VERSUS

ISMAIL MUGUTA... RESPONDENT

lAppeal from the judgment of lhe High Court of Uganda at Mbarara (Musoke Kibuka, J) dated ll2l200l in HCCS No.33 of ¹⁹⁹⁵¹

#### JUDGMENT OF TWINOMUJUNI. JA

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I have read, in draft, the judgment of her Lordships Justices Mukasa-Kikonyogo, DCJ and Byamugisha, JA. I entirely agree with the reasons and conclusions of the Deputy ChiefJustice on all grounds ofAppeal and I have nothing useful to add.

Dated at Kampala this. .. . . . . t 1+L ......day of ..4- ²⁰⁰⁵

Hon JUS PEAL. uJunl

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

CORAM: HON. LADY JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ. HON. MR. JUSTICE A. TWINOMUJUNI, JA. HON. LADY JUSTICE C. K. BYAMUGISHA, JA

### CIVIL APPEAL NO.22/02

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### **BETWEEN**

IDAH ITERURA:::::::::::::::::::::::::::::::::::

#### AND

ISMAIL MUGUTA:::::::::::::::::::::::::::::::::::

Appeal from the judgement of the High Court of Uganda sitting at Mbarara (Musoke-Kibuka J) 20 Dated 01/02/2001 in HCCS No.33/95

#### **JUDGEMENT OF BYAMUGISHA, JA**

The respondent, and one Joab Majungu, now deceased sued their elder

$25$ brother, Yesse Iterura (now deceased) in the High Court of Uganda, Mbarara Circuit, seeking a declaration that the said Iterura held the suit land for himself and the two plaintiffs in trust as beneficiaries of their late father. They were also seeking an order directing the Registrar of Titles to cancel or rectify the certificate of title issued in the names Iterura on the ground of fraud. 30

At the time of the trial, the first plaintiff had passed away and at the time of hearing the appeal, the defendant had also passed away. The legal

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representative ofthe defbndant, one Idah Iterura prosecuted the appeal. (3 The suit land is complised in Block I Plot NoIl situated at Kabwohe, Kagango, and Sheema in Bushenyi District. It was registered in the names of Yesse Itelura as a fi'eehold estate under Instrument No. MBR 7003 on 7'h March 1975

The respondent and his late brother were younger than Iterura. In their plaint, they clairned that they were the sons of late Abel Rwandongyero who died in l94l . He was a lay preacher in the present Church of

l0 Uganda. Befbre his death he owned a kibanja or a customary land holding norv in dispute. The respondent clainred that after the death of their father exercised control over the land. The reason for this exercise ofcontrol rvas because the appellant and his late brother were still young. they shared out the land holding equally with their elder brother who

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-fhe appellant established his honre on the disputed land, while his piece of land elsewhere where he built his home. He, however rernained the owner olhis share of the custornary holding on the suit land. In 1995 he tried to constrLlct a house on his portion of the land but was stopped by his deceased brother, Yesse lterura, who informed him that he was the registered orvner of the entire land. It was at this point that the two deceased brother Joab MOjungLr did not. He, instead acquired another

idah iterura v isnrail muguta

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brothers carre to know that they had lost their share of the suit land. They instituted a suit claiming that in bringing the land under the operation of the Registration ol Titles Act Yesse lterura did so fraudulently. The particulars offraud were tabulated in paragraph 6 ofthe plaint as the

5 tbllowing:-

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- (a) Causing the land olthe plaintiffs to be surveyed without consulting them or seeking their consent. - (b)lgnoling the custonrary interests of the plaintiffs in their respective poftions of land as their share of inheritance fiom their father's estate. - ^I0 (c) Withholding information florn the Registrar of Titles relating to the interests of the plaintiffs in the land. - (d) Causing the certificate of title to be made and issued in his own personal narnes instead of being as a legal representative of their deceased father.

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In a written statement oldefence filed on his behalf by the Legal Aid Project, Iterura adrnitted the relationship he had with his brothers but the suit land is his legitirnate personal property, which he acquired on his l0 own initiative. He also denied the allegations of fraud contained in the plaint. denied tliat their late fbther owned any land at all. He further averred that

At the trial, the tbllowing issues were framed for court's determination: l.rvhether the father of the parties owned the suit land as kibanja? 2.rvhether the plaintiff rvas entitled to a share of the suit land? 3.rvhehcr thc defendant obtained the certificate of title fraudulently? 5 4.whether thc plaintiff is entitled to the remedies.

Befbre the hearing cornrnenced, Mr Katernbeko infbrrned cor.rrt that the second plaintiffhad passed away and nobody had taken out letters of adn-rir-ristration to adrninister his estate. He also intbrrned couft that the l0 case against him abated.

-fhis explains why the issues were framed in respect of one plaintiff. At 'l'he trial.ludgc answered the issues tiarned in the alflnt-rative and rnade l5 the following declalations and orders: the trial, the plaintiff called five witnesses and the defendant called three.

53 (a) Plot.?3, Sheema Block 2, comprised the unregistered customary intcrest of the dcfcndant, the plaintiff and thcir brother, Mojungu. The defendant, at one time, heltl the land in trust for hinrsclf and his brothers. The defendant sccuretl a certificate of l0 titlc ovcr thc cntirc land in his pcrsonal natnes, through fraud. Accortlingly, thc individual customary holdings of each brother nrust be rcstoretl antl sep:rrltctl fronr thc tlcll.ntlant's titlc.

itlah ilclrua v isrttail nrrrqLrta

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- (b) The Commissioner, Land Registration (Chief Registrar of Titles) is ordered to rectify the certificate of title issued to the defendant in respect of Plot 33, Sheema, Block 2 so that it encompasses only the customary holding of the defendant and exclude those of his brothers. - $\mathsf{S}$ (c) Owing to the special circumstances and peculiarities of this suit, each party shall meet its own costs.

The appellant was dissatisfied with the above orders and declarations and he lodged the instant appeal. The memorandum of appeal contained 4

grounds that were argued separately. $10$

Ground one stated as follows: -

"The learned trial judge erred in law and in fact in entertaining and disposing of the suit in favour of the respondent and a deceased plaintiff when the latter had died before the hearing of the suit and no $15$ person had obtained letters of administration/probate in respect of him to proceed with the suit".

Mr Muhwezi, learned counsel for the appellant in submitting on this 20 ground argued that the fact of death featured in the proceedings and also in the judgement. He stated that the judge gave judgement in favour of both plaintiffs and this was an error on his part. He contended that the suit against the deceased plaintiff did not abate and therefore someone should have taken out letters of administration before the suit could proceed. He

cited to us sections l9l and 192 ofthe Succession Act and order 2l rule I of tl.re Civil Procedure Rules fbr his contention.

Mr Katembeko, who appeared for the respondent invited us to dismiss the appeal because it lacked rnerit.

plaintiffs died before the hearing of the suit commenced. Nobody applied to be substituted as the administrator of his estate. On page 1l of the There is no dispute according to the record ofproceedings that one ofthe

l0 r'ecord, Mr Katernbeko informed court that the second plaintiff died and comrnents on the f-act of death and the tfial judge did appear not to have taken interest in the rnatter. The issue to be answered is whether this was an error on his part to proceed with the trial of the case without a legal that the suit against him abates. Counsel for the respondent made no

l5 representatlve

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Order 2l that Mr Mul.rwezi cited provides as follows:

(l) The lcuth of a phinliff or dcJcnilunt shull ttot cuuse te suit to ubtttc i/ tha cuuse oJ actiutt strrvirt:s or continues.

l0 (2) llherc therc urc ntorc plttittl(l.s or lefendunls run one, tnd unyone o/'lhem dies, urttl x,here lhe cuuse of uctiotr survives or continues lo thc suryiving pfuinliff or pluintiffs ulone or uguitrsl u surviving de/'endant or rlefendunls alone, lhe court shttll cat\$e an enlrl: to that c/fecl lo ba muie on record, ond the suil shull proceed ot the instonce o.f the survivittg pluinliff or phintilfs, or agtinst te ^survivitrg lefenlont or defenlants. t5

(3) (1) Where one of two or more plaintiffs dies and the cause of action does not survive or continue to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or a sole surviving plaintiff dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the

deceased plaintiff to be made a party and shall proceed with the suit. (2) Where within the time limited by law no application is made under $sub-rule(1)$ , the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the court may

award to him the costs which he may have incurred in defending the 10 *suit to be recovered from the estate of the deceased plaintiff".* Emphasis added.

The provision of this order has to be read together with the provision of

#### **Section 11** of the Law Reform (Miscellaneous Provisions) Act (Cap $15$

79). It states as follows:

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$"(1)$ Subject to this section, on the death of any person after the commencement of this Act, all causes of action subsisting against or vested in him or her shall survive against, or, as the case may be, for the benefit of his or her estate; except that this subsection shall not apply to 20 causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims under section 21 of the Divorce Act for damages on the ground of adultery".

- $25$ The claim of the deceased plaintiff survived since it is not one of the exceptions mentioned in the section. The question that has to be answered is for how long does it survive. The answer is provided by the rule I have reproduced. The cause of action remains alive until the time allowed by the law within which to apply for letters of administration and cause a - legal representative to be joined as a party to the proceedings. If it is not 30 done, the suit would abate.

The trial judge in dealing with this matter stated as follows: "By the time the case was cause-listed for hearing, the second plaintiff had died. Nobody had been granted probate or Letters of Administration of his estate. In the absence of a personal representative, the case proceeded with only the first plaintiff as the claimant. It was the understanding of both counsel, that the remedies sought by the first plaintiff if granted, would, in effect benefit the estate of his deceased brother".

With respect, the trial judge erred in proceeding with the suit and later in

granting relief to a person who had died without a personal representative $10$ being appointed. The plaintiff who remained did not become a personal representative without any formal appointed by a court of competent jurisdiction, as the law requires.

Mr Katembeko was right when he informed court that the case in respect

of the deceased plaintiff had abated. Consequently the estate of the $15$ deceased plaintiff in my view cannot take any benefit from the fruits of the judgement when the claim abated. The provisions of **sections 191** and **192**(supra) are clear in their wording. **Section 191** provides as follows:

"Except as hereafter provided, but subject to section 4 of the Administrator General's Act, no right to any property of a person who 20 has died intestate shall be established in any court of justice, unless letters of administration have first been granted by a court of competent jurisdiction".

**Section 192** deals with the legal consequences of a grant. It states that: 25

"Letters of administration entitle the administrator to all rights belonging to the intestate as effectually as if the administration has been granted at the moment after his or her death".

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Without letters of administration being granted to anyone, the family of the deceased plaintiff were not entitled to any reliefs as the learned judge stated. The suit abated when the estate of the deceased plaintiff failed or omitted to take or.rt a grant fbr pLlrposes of pursuing the clairn. This

5 ground would be allowed.

The second ground of appeal is that

## "The leurned triul judge erred in low tnd in foct in entertoining a suit instiluled uguinsl lhe defendtnl wlto was of unsound ntind and wilhout u guurdiutr utl litem".

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In submitting on this ground, Mr Mr"rhwezi pointed out the following instances to support the ground

( I ) During the trial, the respondent (P. W. I ) at page I 5 stated that in I ⁹⁹¹ the appellant started getting insane and that when he was instructing

l5 his lawyer he informed hirn that Iterura was sick.

- (2) (2) P. W. 4 also alluded to the fact that Iterura was not mentally stable and was already rnentally disturbed when the dispute arose. - (3) (3) The trial judge at page 44 of the judgement also stated that the appellant was bedridden and had granted powers of attorney to his - 20 daughter, Joan Tukahirwa, who stood in fbr him throughout the hearing ofthe suit

The cornplaint in the ground as I understand it is that the trial judge ought to have investigated the issue of insanity before proceeding with the case.

idah iterura v isrnail muguta

With respect, I think Mr Muhwezi's criticism of the trial judge is unfounded for the following reasons. First, the pleadings as filed by the parties did not raise the issue of insanity.

Paragraph two of the plaint described the defendant as a male adult of

5 sound mind

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Paragraph one of the written statement of defence admitted the avernments in paragraph two of the plaint. Secondly, the defendant instructed lawyers to file a written statement of defence on his behalf in which he described how he acquired the title without committing any

- l0 fraud. Thirdly he appointed an attorney to prosecute the case on his behalf and the appointment was not contested. Therefore, there was no basis in rny view, for the trial court to inquire into the sanity or the insanity of the defendant merely because the witnesses described him as being mentally unstable. At most this was a layman's description of the defendant's state - t5 of mind. It did not amount to legal insanity. This ground had no merit. It would accordingly fail

The third ground ofappeal was abandoned.

The lourth ground stated that:

"The leorned lriol judge erred in law ond in fuct in grunting property reliefs to lhe respontletrl ond lhe 2"'t deceosed plointiff on the bosis of inherilonce of the suit property /rom tlteir deceased fallter which was supportel bl, neither u x:ill nor Probute/Lellers of Alminislrolion". 20

In submitting on this ground Mr Muhwezi stated quite that none of the plaintiffs had letters of adrninistration. He claimed that everything was a nullity including the judgement of the couft. He cited sections 25, l9l and 192 ofthe Succession Act fbr that contention

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On his pan Mr Katembeko subrnitted that the respondent was seeking a declaratory judgement which was an equitable relief and the court had power to grant it. He argued that the decision of the judge was supported by the evidence on record and the proceedings were not a nullity. He

l0 invited us to disallow the ground.

The issue that was raised beibre us was not a subject ofadjudication upon by the trial judge. This is a point of law that can be raised at any time of the ploceedings even at the appellate level. Section 25 that Mr Muhwezi

l5 referred to states as follows:

## "All property in on inleslate estote devolves upon lhe personol represenldive of lhe deceased upon truslfor lhose persons entitled to tlte propert\_y under this Act.

20 The word personal representative is defined under the Act to mean ^a person appointed by law to administer the estate or any part ofthe estate sue or be sued in respect of an estate must be a holder of letters of adm in istlation. ofa deceased person. It goes without saying that the only person who can In the matter now before us, at the time of the trial in 2000 the respondent stated in court that he was aged 71 years. In giving his testimony on the dispute he said:

- I was myself born on the land. My brother Iterura was also born there. $5$ When our father died we remained with our mother on the land. I was 11 yrs old. My brother was 14 or 15. My mother died in 1952. When all 3 of us had not married. In 1955 our elder brother married. We continued to live in the same - $10$ home. In 1959 I also got married. My younger brother married in 1960. After marrying we shared the banana plantation (all 3 brothers). The sisters got nothing. They had left the home. We planted some migorora plants to mark the boundaries of each of us. There was a large area of uncultivated land of our father. We kept on - cultivating that land at random. Each one of us cultivated in line with $15$ his portion of the banana plantation. In 1994, the defendant revealed to us that he had obtained a land title to the land Mujungu wanted to build some structures on the land but the defendant told us that we did not have land there". - 20

The witness was not asked either in cross-examination or in examination-

in- chief whether his late brother Iterura or anyone else had obtained

letters of administration or probate. He was not asked whether his late

father died intestate or not. Even if he had not obtained letters of

$25$ administration or probate, the land was shared out between the

beneficiaries. Therefore in my opinion Iterura's role as the trustee,

caretaker or administrator ended the moment the land he was caretaking

was shared out. Moreover the finding of the trial court to the effect that

the late Iterura committed fraud against his brother(s) is not being

30 challenged in this appeal. Even if no letters of administration were

obtained in 1941 the respondent has been in occupation of his customary land holding as a beneficiary and he had the right to bring an action to protect his interests. It would be unjust and unconscionable at this point in time to rule on the issue of letters of administration or probate since it is not known whether the late Rwandongyero left or did not leave a will.

$\mathsf{S}$ This ground would also fail.

In the result, I would allow the appeal in part by setting aside the orders of the trial court giving judgement in favour of a deceased plaintiff. The respondent would be awarded $3/4$ costs of the appeal.

Dated at Kampala this. ...................................

C. K. Byamugisha **Justice of Appeal**

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