[2005] UGCA 91

## 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. 22/2002

#### IDAH ITERURA :::::::::::::::::::::: $\vdots \vdots \vdots \vdots \vdots \vdots \vdots \vdots \vdots \vdots \vdots \vdots \vdots \vd$

### **VERSUS**

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

(Appeal from the judgement of the High Court of Uganda at Mbarara (Hon. Justice V. F. Musoke-Kibuuka) dated 01/02/2001 in original High Court Civil Suit No. 35 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

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.

**\**

Ground ¹ reads as follows:-

**I**

" *The learned trialjudge 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 person obtained letters of administration/probate in respect of him to proceed with the suit"*

20 For the appellant his counsel submitted that it was an 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 **21, (1) (2) and 3 of the Civil Procedure Rules,** reproduced here below:-

- continues. The death of a plaintiff or defendant shall not cause the suit to abate if the cause of action survives or "1. - 2. defendants than or Where there are more plaintiffs or one, and any one of them dies, and where the cause of action survives or continues to the surviving plaintiff or plaintiffs alone or against 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 of the surviving defendant or defendants.

**b**

**I**

- 3- (1) on Where one of two or more plaintiffs dies and the cause of action does not survive or continue to court, shall or a the surviving plaintiff or plaintiffs alone, sole plaintiff or sole surviving plaintiff dies and the cause of action survives or continues, the an application made in that behalf, cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. - 2) Where within no on the time limited by law 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."**

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

**L**

**b**

**30**

**e**

**I**

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 appellant's father, made the following declaration and order-

**" a) Plot 33, Sheema Block 2, comprised the unregistered customary interests of the defendant, the plaintiff 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 title over the entire land in his personal names, through fraud. Accordingly, the individual customary holdings of each brother must be restored and separated from the defendant's title.**

**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 excludes those of his brothers.**

*c)* **Owing to the special circumstances and peculiarities of this suit, each party shall meet its own costs".**

**I10**

**20**

*I*

Mindful of the stand of the law as stated above ^I agree that the deceased plaintiff's suit may have abated due to the failure to appoint a legal representative. It is true it would be ordinarily wrong for the court to give judgement in favour of an estate of a deceased person in the absence of a legal representative. 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 included the share of the deceased 30 plaintiff.

a ^I do not agree that the mere failure of the deceased plaintiff's family to appoint a legal representative would justify deprivation of the benefits in his estate. ^I am mindful of the provisions of sections 191 and 192 of The Administrator Generals Act which state as follows: -

**I**

## Section 191 reads:

**a court of "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 competent jurisdiction".**

**'s**

*(*

## **20** Section 192 reads:

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

nothing to no 30 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 support the conclusion that no letters of

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

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

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 brothers whose portion of the land had been grabbed by the appellant's father- and registered in his name.

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 with costs of this court paid to him by the appellant. As for the appeal in respect of the deceased brother, for the

**20**

**30**

**I**


aforementioned reasons, it should also fail. The appellant is not entitled to the portion of the disputed land fraudulently registered in her father's name. 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 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 day of August 2005.

**8**

L. E. M. Muka&a-Kf **DEPUTY CHIEF** Sicklyogo **JUSTICE**

**20**

**to**

**I** # 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 2002

IDAH ITERURA APPELLANT

# VERSUS

ISMAIL MUGUTA RESPONDENT

[Appeal from the judgment of the High Court of Uganda at Mbarara (Musoke Kibuka, J) dated 1/2/2001 in HCCS No.33 of 1995]

#### JUDGMENT OF TWINOMUJUNI, JA

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 of Appeal and I have nothing useful to add.

Dated at Kampala this day of 2005 **I**

hujuni Hon. JUSWEDE

**I**

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

⁵ *CORAM:*

**20**

**I**

**b**

**I**

*HON. LADYJUSTICE L. E. M. MUKASA-KJKONYOGO, DCJ. HON. MR. JUSTICEA. TWINOMUJUNI, JA. HON. LADYJUSTICE C. K. BYAMUGISHA, JA*

## CIVIL APPEAL NO.22/02

## BETWEEN

IDAH ITERURA APPELLANT

### ¹⁵ AND

ISMAIL MUGUTA :RESPONDENT

*[Appealfrom thejudgement ofthe High Court ofUganda sitting at Mbarara* (Musoke-Kibuka J) *Dated 01/02/2001 in 11CCS No.33/95]*

### JUDGEMENT OF BYAMUGISHA, JA

The respondent, and one Joab Mujungu, 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 oftheir late ⁱ father. They were also seeking an order directing the Registrar ofTitles to cancel or rectify the certificate oftitle issued in the names Iterura on the 30 ground of fraud.

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

I

representative ofthe defendant, one Idah Iterura prosecuted the appeal. The suit land is comprised in Block 2 Plot No. Tj situated at Kabwohe, Kagango, and Sheema in Bushenyi District. It was registered in the names of Yesse Iterura as a freehold estate under Instrument No. MBR 7003 on 7th March 1975.

J2s,

The respondent and his late brother were younger than Iterura. In their plaint, they claimed that they were the sons oflate Abel Rwandongyero who died in 1941. He was a lay preacher in the present Church of ¹⁰ Uganda. Before his death he owned a *kibanja* or a customary land holding they shared out the land holding equally with their elder brother who exercised control over the land. The reason for this exercise of control now in dispute. The respondent claimed that after the death oftheir father was because the appellant and his late brother were still young.

The appellant established his home on the disputed land, while his deceased brother Joab Mqjungu did not. He, instead acquired another piece of land elsewhere where he built his home. He, however remained the owner of his share ofthe customary holding on the suit land. In 1995 **²⁰** he tried to construct ^a house on his portion ofthe land but was stopped by **^I** his deceased brother, Yesse Iterura, who informed him that he was the registered owner ofthe entire land. It was at this point that the two

**I**

**I**

**2**

brothers came to know that they had lost their share ofthe suit land. They instituted a suit claiming that in bringing the land under the operation of the Registration ofTitles Act Yesse Iterura did so fraudulently. The particulars of fraud were tabulated in paragraph 6 of the plaint as the following:-

- them or seeking their consent. (a) Causing the land ofthe plaintiffs to be surveyed without consulting - (b) Ignoring the customary interests of the plaintiffs in their respective portions ofland as their share ofinheritance from their father's estate. - ¹⁰ (c) Withholding information from the Registrar ofTitles relating to the interests ofthe plaintiffs in the land. - (d) Causing the certificate oftitle to be made and issued in his own personal names instead of being as a legal representative of their deceased father.

**20**

**f ®** In ^a written statement of defence filed on his behalf by the Legal Aid Project, Iterura admitted the relationship he had with his brothers but denied that their late father owned any land at all. He further averred that the suit land is his legitimate personal property, which he acquired on his plaint. own initiative. He also denied the allegations offraud contained in the

At the trial, the following issues were framed for court's determination: - .[.whether the father of the parties owned the suit land as *kibanja?* 2.whether the plaintiff was entitled to a share of the suit land? 3.wheher the defendant obtained the certificate of title fraudulently? ⁵ 4.whether the plaintiff is entitled to the remedies.

Before the hearing commenced, Mr Katembeko informed court that the second plaintiff had passed away and nobody had taken out letters of administration to administer his estate. He also informed court that the ¹⁰ case against him abated.

This explains why the issues were framed in respect of one plaintiff. At the trial, the plaintiff called five witnesses and the defendant called three. The trial judge answered the issues framed in the affirmative and made ¹⁵ the following declarations and orders: -

**b** (a) Plot 33, Sheema Block 2, comprised the unregistered customary **I** interest of the defendant, the plaintiff and their brother, Mfljungu. The defendant, at one time, held the land in trust for himself and his brothers. The defendant secured a certificate of **²⁰** title over the entire land in his,personal names, through fraud. Accordingly, the individual customary holdings of each brother must be restored and separated from the defendant's title.

**I**

**I**

**4**

(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.

(c) Owing to the special circumstances and peculiarities of this suit, each 5 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.

Ü

Ground one stated as follows: $\mu$

$10$

$15$

$20$

"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 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 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 191 and 192 of the Succession Act and order 21 rule 1 of the Civil Procedure Rules for his contention.

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

There is no dispute according to the record of proceedings that one of the plaintiffs died before the hearing of the suit commenced. Nobody applied to be substituted as the administrator of his estate. On page 11 of the

$10¹$ record, Mr Katembeko informed court that the second plaintiff died and that the suit against him abates. Counsel for the respondent made no comments on the fact of death and the trial judge did appear not to have taken interest in the matter. 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 representative. 15

Order 21 that Mr Muhwezi cited provides as follows:

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

(2) Where there are more plaintiffs or defendants than one, and anyone $20$ of them dies, and where the cause of action survives or continues to the surviving plaintiff or plaintiffs alone or against a surviving defendant or defendants alone, the court shall cause an entry to that effect to be made on record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the

$25$

$\mathbb{S}$

surviving defendant or defendants.

$(3)$ (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

$\boldsymbol{\varsigma}$

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

79). It states as follows:

$\mathsf{S}$

$\mathbb{Z}$

$"(1)$ 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".

- The claim of the deceased plaintiff survived since it is not one of the $25$ 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

$10$ granting relief to a person who had died without a personal representative 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".

$30$

$\mathsf{S}$

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 out a grant for purposes of pursuing the claim. This

$\mathsf{S}$ ground would be allowed.

$10$

The second ground of appeal is that

"The learned trial judge erred in law and in fact in entertaining a suit instituted against the defendant who was of unsound mind and without a guardian ad litem".

$\overline{ }$

In submitting on this ground, Mr Muhwezi pointed out the following instances to support the ground:

(1) During the trial, the respondent $(P. W.1)$ at page 15 stated that in 1991 the appellant started getting insane and that when he was instructing

his lawyer he informed him that Iterura was sick. $15$

- $(2)$ $(2)$ P. W. 4 also alluded to the fact that Iterura was not mentally stable and was already mentally 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 - daughter, Joan Tukahirwa, who stood in for him throughout the 20 hearing of the suit.

The complaint 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.

$\mathsf{O}$

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 sound mind.

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

fraud. Thirdly he appointed an attorney to prosecute the case on his behalf $10$ and the appointment was not contested. Therefore, there was no basis in my 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 of mind. It did not amount to legal insanity. This ground had no merit. It $15$ would accordingly fail.

The third ground of appeal was abandoned.

The fourth ground stated that:

$\mathsf{S}$

"The learned trial judge erred in law and in fact in granting property $20$ reliefs to the respondent and the $2^{nd}$ deceased plaintiff on the basis of inheritance of the suit property from their deceased father which was supported by neither a will nor Probate/Letters of Administration".


In submitting nullity including the judgement ofthe court. He cited sections 25,191 and 192 ofthe Succession Act for that contention. on this ground Mr Muhwezi stated quite that none ofthe plaintiffs had letters of administration. He claimed that everything was a

On his part Mr Katembeko submitted 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 ofthe judge was supported by the evidence on record and the proceedings were not a nullity. He ¹⁰ invited us to disallow the ground.

The issue that was raised before us was not a subject of adjudication upon by the trial judge. This is a point oflaw that can be raised at any time of the proceedings even at the appellate level. Section 25 that Mr Muhwezi

¹⁵ referred to states as follows:

**I**

**I**

**I!**

*"Allproperty in an intestate estate devolves upon thepersonal representative ofthe deceased upon trustfor those persons entitled to the property 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 **I** of ^a deceased person. It goes without saying that the only person who can sue or be sued in respect of an estate must be a holder of letters of administration.

idah iterura v ismail muguta

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:

$\mathsf{S}$ I was myself born on the land. My brother Iterura was also born there. $I$ 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

$20$

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

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

defendant told us that we did not have land there".

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

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

$1 -$

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 ofletters of administration or probate since it ⁵ is not known whether the late Rwandongyero left or did not leave a will. This ground would also fail.

In the result, I would allow the appeal in part by setting aside the orders ofthe trial court giving judgement in favour of a deceased plaintiff. The ¹⁰ respondent would be awarded 3/4 costs ofthe appeal.

**i**

2005. Dated at Kampala *this J.z.* day

C. KjJyainii-giSlia Justice of Appeal

idah iterura v ismail muguta

**b**

**I**

**I**