[2023] UGHCLD 150

#### **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [LAND DIVISION] CIVIL SUIT NO. HCT-00-LD-CS-0849-2018**

## **1. JJUMBA RONALD** ². JUSTINE MUYANJA KAFEERO . ···· ····· · ···· **···················**. **PLAINTIFFS**

#### *VERSUS*

#### **1. TEOPHIL SEMUYINDE** 2 . SUZAN NAMUDDU . **················································**. **DEFENDANTS**

# *BEFORE: HON. JUSTICE BERNARD NAMANYA*

## *JUDGMENT*

## *Introduction:*

1. In this case, the plaintiffs seek to recover 2 acres of land at Naalya from the defendants. The case raises the following key legal questions for investigation - what happens when a parent makes a bequest to a child in a Will, and that child dies before the parent, leaving children of their own? Are the children of the child beneficiary in a Will (i.e., the testator's grandchildren) entitled under the law to receive the bequest that would have gone to their parent if he or she had not predeceased the parent? Does the bequest in the Will to a child beneficiary who predeceases the testator or testatrix lapse?

#### *Background:*

2. The plaintiffs brought this suit by ordinary plaint against the defendants for: i) a declaration that the plaintiffs are the rightful owners of land and developments comprised in Kyadondo Block 221 Plot 758 land at Naalya

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(hereinafter "the suit property"); ii) a declaration that the defendants' claim of the suit property is wrong and illegal; iii) an order directing the Registrar, High Court (Land Division) to pay to the plaintiffs compensation for part of the suit property deposited in court by Uganda National Roads Authority (UNRA) to a tune of Shs 139,361,394; iv) a declaration that the plaintiffs are beneficiaries to the estate of the late Fred Kafeero Mugagga; and v) costs of the suit.

- 3. The suit was initially filed against the following defendants: Teophil Semuyinde; Victo Musoke; Kabugo Geofrey; Suzan Namuddu; Margaret Namuli; Sarah Nakabugo; Rosette Musoke; and Latima Mugerwa. However, at the commencement of the trial, it was brought to my attention that Victo Musoke; Margaret Namuli; and Sarah Nakabugo are deceased. The plaintiffs sought the leave of court to withdraw the suit against the rest of the defendants, except for Teophil Semuyinde, and Suzan Namuddu. By consent of the parties, it was agreed that the suit against the initially named defendants be withdrawn except for Teophil Semuyinde and Suzan Namuddu. - 4. The brief facts of the case are that the late Ssezi Musoke Ssalongo made a Will, in which he bequeathed the suit property to his son, a one Fred Kafeero Mugagga. Fred Kafeero Mugagga, the son, died intestate on the 18 th December 1998. No changes were made to the Will, and Ssezi Musoke Ssalongo, the father, died on the l " February 1999. In other words, the son who was a beneficiary in the Will predeceased the father. The plaintiffs in this case (Jjumba Ronald and Justine Muyanja Kafeero) claim to be a son and widow of the late Fred Kafeero Mugagga respectively.

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- 5. Upon the death of Ssezi Musoke Ssalongo (the testator), the pt plaintiff (Teophil Semuyinde) and a one Kimuli Christopher ( deceased) were granted probate vide High Court Administration Cause No. 205 of 2001 *(per Justice VF. Musoke - Kibuuka).* The executors of the Will refused to hand over the suit property to the plaintiffs. - 6. Related to the dispute concerning the suit property is compensation in the sum of Shs 139,361,394 deposited by UNRA in court. The suit property was affected by the construction of the Northern Bypass project, and a portion of the suit property was compulsorily acquired by UNRA. Due to the family dispute on the rightful recipient of the compensation, UNRA filed Originating Summons No. 05 of 2018 in the High Court (Land Division) and deposited the compensation money in court, pending the resolution of the family dispute. - 7. The defendants contend that the plaintiffs are not beneficiaries of the estate of the late Ssezi Musoke Ssalongo and thus have no share in the suit property. They further contend that the said Fred Kafeero Mugagga having predeceased his father, the late Ssezi Musoke Ssalongo, the bequest to Fred Kafeero Mugagga lapsed. The defendants further contend that the plaintiffs are not entitled to the sum of Shs 139,361,394 deposited by UNRA in court.

### *Representation:*

8. At the hearing of the suit, the plaintiffs were represented by Mr. Francis Nyakoojo of *Mis* Uganda Christian Lawyers' Fraternity while the defendants

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were represented by Mr. Lutakoome Simeo of M/s Lutaakome & Co. Advocates.

$9.$ At the conclusion of the hearing of the case, I directed the parties to file written submissions as follows: plaintiffs' written submission (by the 12 May 2023); defendants' written submissions (by the 31 May 2023); and plaintiffs' written submissions in rejoinder (by the 7 June 2023). The plaintiffs complied with my directives but the defendants did not. As of 14 June 2023, when I concluded writing this judgment, Electronic Court Case Management Information System (ECCMIS) records indicated that the defendants had not filed their written submissions.

#### *The plaintiff's evidence:*

- The plaintiffs produced 2 (two) witness to prove their case. PW1 (Jjumba 10. Ronald) and PW2 (Justine Muyanja Kafeero). - 11. The plaintiffs adduced evidence of the following documents that were exhibited: - $Exh. P1 A$ copy of a birth certificate for the 1^st plaintiff; i) - ii) $Exh. P2 - A$ copy of the will and its translation: - Exh. P3 A copy of the grant of probate by Justice V. F. Musokeiii) Kibuuka; - $iv)$ $Exh. P4 - A$ copy of the decree in Civil Suit No. 006/2009; and - $v)$ $Exh. P5 - A$ copy of the judgment vide High Court Civil Suit No. 06 of 2009 (Family Division) delivered by Hon. Justice B. Kainamura.

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### *The defendants' evidence:*

12. The defendants produced 2 (two) witnesses to prove their case. DWl (Teophil Semuyinde) and DW2 (Suzan Namuddu). The defendants did not produce any additional documents as exhibits.

#### *Locus in quo visit:*

- 13. On the 20 th day of April 2023, I carried out a locus in quo visit to the suit property, along the Kampala Northern Bypass adjacent to Hillside Primary School, in the presence of Mr. Francis Nyakoojo, counsel for the plaintiffs, and Mr. Lutakoome Simeo, counsel for the defendants. Both parties to suit (Jjumba Ronald and Justine Muyanja Kafeero (plaintiffs), and Semuyinde Teophil and Susan Namuddu (defendants) were present. - 14. The main features on the land include a main house, guest wing and a cow shade, enclosed by a wall and chain link fence on parts of the land. - 15. I established that the defendants are in occupation of the suit property, and have employed a one Ms. Edisa Nam bi as the caretaker of the property. - 16. The 2 nd plaintiff (Justine Muyanja Kafeero) and the pt defendant (Teophil Semuyinde) gave evidence during the locus in quo visit, and were cross examined by either counsel. The two witnesses confirmed their earlier evidence before court during the hearing of the case.

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17. The two witnesses gave further evidence to the effect that a portion of the suit property was acquired by UNRA for the construction of the Kampala Northern Bypass project.

## *Issues to be determined bv the court:*

- 18. The parties raised five issues for court's determination: - i). Whether the plaintiffs are son and widow respectively to the late Fred Kafeero Mugagga? - ii). Whether the plaintiffs are beneficiaries to the estate of the late Ssezi Musoke Ssalongo? - iii). Whether the plaintiffs have any interest in the land at Kyadondo Block 221 Plot 758 at Naalya? - iv). Whether the plaintiffs are entitled to receive the sum of shs 139,361,394 being compensation for part of the land? - v). What other remedies are available to the parties?

# *Issue No.]: Whether the plaintiffs are son and widow respectivelv of the late Fred Kafeero Mugagga?*

- 19. It was argued for the plaintiffs that the l " plaintiff (Jjumba Ronald) is a son of the late Fred Kafeero Mugagga, and that the 2 nd plaintiff is a widow of the late Fred Kafeero Mugagga. - 20. PWl (Jjumba Ronald) testified that he is 33 years of age, and is the sole surviving son of the late Fred Kafeero Mugagga. He adduced Exh. P 1 (birth

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certificate dated 14 September 2007) showing Fred Kafeero Mugagga and Justine Muyanja Kafeero as his father and mother respectively.

- 21. PW2 (Justine Muyanja Kafeero) testified that the late Fred Kafeero Mugagga was her husband. They got married in 1993 by way of a customary marriage ceremony that was held at Kirinya, Bweyogerere at her father's home. She had had two children with her late husband -Jjumba Ronald and Denick Kiggundu. Jjumba Ronald (L" plaintiff) is the only surviving child. - 22. On the other hand, it was argued for the defendants that the l " and 2 nd plaintiffs are not son and widow of the late Fred Kafeero Mugagga. - 23. DWl (Teophil Semuyinde) testified that he has no knowledge of the marriage between Justine Muyanja Kafeero and the late Fred Kafeero Mugagga, and that by the time Fred Kafeero Mugagga died, he had not signed any document stating that Jjumba Ronald was his son. That since Jjumba Ronald and Justine Muyanja Kafeero are not son and widow of the late Fred Kafeero Mugagga, they are not entitled to a share of the estate of the late Ssezi Musoke Ssalongo. - 24. DW2 (Suzan Namuddu) denied that the late Fred Kafeero Mugagga was married to Justine Muyanja Kafeero. That Fred Kafeero Mugagga died before introducing Jjumba Ronald as his son. - 25. In cross-examination, DW2 (Suzan Namuddu) testified that her late sister, Nalongo Namuli had ever told her that Fred Kafeero Mugagga had a son. Jjumba Ronald and Justine Muyanja Kafeero were called to attend the funeral of the late Fred Kafeero Mugagga because some people knew about the relationship that Fred Kafeero Mugagga had with them. She further testified

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that she had heard about Jjumba Ronald and Justine Muyanja Kafeero before the death of Fred Kafeero Mugagga but the late Fred Kafeero Mugagga did not give her detailed information about them. That Jiumba Ronald and Justine Muyanja Kafeero live in a house that Fred Kafeero Mugagga left behind at Kamuli in Kireka.

## 26. Sections 70 & 71 (1) of the Children's Act (Cap 59) provide that:

"70. Proof of parentage The burden to prove parentage shall lie on the person alleging it. 71. Prima facie and conclusive evidence of parentage

(1) Where the name of the father or the mother of a child is entered in the register of births in relation to a child, a certified copy of that entry shall be prima facie evidence that the person named as the father is the father of the child or that the person named as the mother is the mother of the child."

27. The 1^st plaintiff (Jjumba Ronald) produced a birth certificate (Exh. P1) showing that the late Fred Kafeero Mugagga is his father. Pursuant to the provisions of section 71 (1) of the Children's Act (Cap 59), the birth certificate is prima facie evidence that the 1^st plaintiff is the son of the late Fred Kafeero Mugagga. The defendants contended that the 1^st plaintiff (Jjumba Ronald) is not the son of the late Fred Kafeero Mugagga. They have the burden to prove that the 1^st plaintiff is not the son of the late Fred Kafeero Mugagga pursuant to the provisions of section 70 of the Children's Act. Other than the oral evidence that the late Fred Kafeero Mugagga did not introduce 1^st plaintiff (Jjumba Ronald) as his son

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prior to his death, the defendants did not produce cogent evidence to prove that the late Fred Kafeero Muggaga is not the father of the 1^st plaintiff.

- 28. Accordingly, it is my finding that there is adequate evidence to prove that the 1^st plaintiff (Jjumba Ronald) is the son of the late Fred Kafeero Mugagga. The defendants failed to adduce contrary evidence to displace the prima facie position that the 1^st plaintiff is the son of the late Fred Kafeero Muggaga. - 29. I now wish to consider whether the $2^{nd}$ plaintiff (Justine Muyanja Kafeero) is a widow of the late Fred Kafeero Mugagga. According to the 2^nd plaintiff, she got married in 1993 by way of a customary marriage ceremony that was held at Kirinya, Bweyogerere. The defendants contend that there was no such customary marriage. The 2^nd plaintiff gave evidence that the customary marriage was never registered hence a certificate of registration of the customary marriage is non-existent. - 30. <u>Section 6 (1) of the Customary Marriage (Registration) Act (Cap 248) provides</u> for mandatory registration of customary marriages, and it states that:

#### "Registration of customary marriages

$(1)$ The parties to a customary marriage shall, as soon as may be, but in any event not later than six months after the date of completion of the ceremonies of marriage, attend at the office of the registrar of the marriage district in which the customary marriage took place, with at least two witnesses to the marriage ceremonies, to register details *of the marriage.*"

31. Although Section 6 (1) of the Customary Marriage (Registration) Act (Cap $248$ ) is couched in mandatory terms on the requirement for registration of Page 9 of 24

Barnerslameny customary marriages, courts have held that non-registration does not invalidate a customary marriage. In the case of *Steven Bujara v. Twengye Bujara, Civil* Appeal No. 81 of 2002 (2001–2005) HCB Vol. 3 62–63 (Coram: Mpagi-Bahigeine, Engwau and Byamugisha, JJ. A), the Court of Appeal of Uganda held that:

"Failure to register a customary marriage does not make such a marriage invalid. $[...]$ There has to be evidence of customary *ceremonies of the community or tribe having been performed before one can consider himself customarily married* [...]"

32. In the case of Negulu Milly Eva v. Dr. Serugga Solomon (Civil Appeal No. 103 of 2013) [2014] UGHCCD 64, Justice Godfrey Namundu held that the omission to register a customary marriage does not necessarily invalidate it, and went on to state that if the requirement for registration were to be strictly enforced:

> "[...] then most if not all customary marriages in this country would *be rendered illegal/invalid."*

- 33. Accordingly, the position of the law is that non-registration does not invalidate a customary marriage. - 34. Although the 2^nd plaintiff (Justine Muyanja Kafeero) did not adduce evidence of a certificate of registration of a customary marriage, I am persuaded by her oral evidence that she was married by customary marriage to the late Fred Kafeero Mugagga at the time of his death. - 35. It is therefore, my finding that the $2^{nd}$ plaintiff (Justine Muyanja Kafeero) is a widow of the late Fred Kafeero Mugagga.

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Germanmamam

36. Issue No.1 is therefore answered in the affirmative.

*Issues No. 2, 3* & *4: Whether the plaintiffs are beneficiaries to the estate of the late Ssezi Musoke Ssalongo? Whether the plaintiffs have any interest in the land at Kyadondo Block 221 Plot 758 at Naalva? Whether the plaintiffs are entitled to receive the sum ofShs 139,361,394 being compensation for part of the land?*

- 37. Issues No. 2, 3 & 4 shall be handled jointly. - 38. The plaintiffs' case is that the *section 96 ofthe Succession Act (Cap 162)* gives exceptions to lapse of bequests under the Will where the beneficiary dies before the testator. It was argued for the plaintiffs that the bequest to the late Fred Kafeero Mugagga did not lapse by operation of the law. According to the plaintiffs, the suit property inclusive of the 1.39 acres taken by UNRA was bequeathed to the late Fred Kafeero Mugagga in the Will. The plaintiffs argue that that they are entitled to ownership of the residue of the suit land after the land taken off by UNRA for purposes of construction of the Northern By-pass. In summary, the plaintiffs claim that they are entitled to the suit property plus the compensation paid by UNRA in the sum of Shs 139,361,394. - 39. PWl (Jjumba Ronald) testified that his father, Fred Kafeero Mugagga died intestate on the 18 th December 1998. That the late Ssezi Musoke Ssalongo, the father of Fred Kafeero Mugagga (PWl 's grandfather) died on the l " February 1999. The evidence shows that Fred Kafeero Mugagga died before his father. The late Ssezi Musoke Ssalongo left behind a Will, in which he bequeathed the suit property to Fred Kafeero Mugagga.

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- 40. PW2 (Justine Muyanja Kafeero) testified that her father-in-law, the late Ssezi Musoke Ssalongo died on the l " February 1999 leaving behind a Will, in which he bequeathed the suit property to the late Fred Kafeero Mugagga. That part of the land bequeathed to her late husband was taken over by UNRA for purposes of construction of the Northern Bypass. That because the family could not agree on who was lawfully entitled to receive compensation from UNRA, the money was deposited in court. - 41. On the other hand, the defendants' case is that a bequest in favour of a person who does not exist on the date of death of the testator, is void. The defendants argue that upon the death of Fred Kafeero Mugagga (beneficiary in the Will) during the lifetime of the testator (the late Ssezi Musoke Ssalongo ), the bequest to late Fred Kafeero Mugagga lapsed, and the property that was initially bequeathed to late Fred Kafeero Mugagga reverted to the estate of the late Ssezi Musoke Ssalongo, and is subject to redistribution as intestate property. - 42. DWl (Teophil Semuyinde) testified that he is a son in law to the late Ssezi Musoke Ssalongo and that he died on the pt February 1999 leaving behind a Will. DWl is one of the executors of the Will. That by the time Fred Kafeero Mugagga died on the 17 th December 1998, his father the late Ssezi Musoke Ssalongo was still alive, and only died later on the l " February 1999. That Fred Kafeero Mugagga having died before his father, whatever was devised to him in the Will lapsed. That such bequests became part of the late Ssezi Musoke Ssalongo estate and had to be shared by the beneficiaries of the late Ssezi Musoke Ssalongo. That the plaintiffs are not entitled to the suit property.

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- 43. DW2 (Suzan Namuddu) testified that she is a daughter of the late Ssezi Musoke Ssalongo. That her younger brother Fred Kafeero Mugagga died before her father, the late Ssezi Musoke Ssalongo. She stated that the plaintiffs are not beneficiaries of the estate of the late Ssezi Musoke Ssalongo and have no valid claim to the suit property. - 44. The Will of the late Ssezi Musoke Ssalongo *(Exh. P2)* was proved and registered in the *High Court of Uganda (Administration Cause No. 205 0(2001 -Justice VF. Musoke - Kibuuka),* and the administration of the property of the deceased concerning his Will was granted to Semuyinde Teophil (the l " defendant) and Kimuli Christopher (now deceased). *See Exh. P3 - A copy of the grant of probate by Justice VF. Musoke-Kibuuka).* The letters were subsequently revoked by court. *(see Exh. P5 - A copy of the ;udgment by Hon. Justice B. Kainamura).*

45. Part 12 of the Will of the late Ssezi Musoke Ssalongo provides as follows: *"LAND TITLE - BLOCK 221 PLOT 4 ACRES JO {TEN) AT NAALYA. I HAVE GIVEN IT TO THE FOLLOWING PEOPLE: - 1. FREDRICK KAFEERO MUGAGGA (HEIR) 2 ACRES {TWO ACRES) ON WHICI-f THERE IS THE RESIDENTIAL HOUSE AND THE RESIDENTIAL HOUSE IS HIS 2. SUZAN NAMUDDU NAKAYIMA 2 ACRES {TWO ACRES) NEAR KALOLI KIZITO 3. MARGRET NAMULI 1 ½ ACRES (ONE AND A HALF ACRES) 4. ABIRI JAMES KIGUNDU OE ACRE 5. SAALA NANTONGO ONE ACRE*

*6. GODFREY LUKWAGO 1 ½ ACRES (ONE AND A HALF ACRE)*

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THOSE ACRES ARE AT NAALYA (10 ACRES)

THIS IS AT MBALWA - NO. 15115 PLOT NO. 50 3 ACRES (THREE $ACRES$ )

NO. 15115 PLOT NO. 36 3 ACRES (THREE ACRES).

TOTAL THEY ARE SIX ACRES

I HAVE GIVEN TO THE FOLLOWING PEOPLE: -

1. VICTO KABENGANO (MOTHER OF THE CHILDREN) 1 ½ ACRES (ONE AND HALF ACRES). 2. LATIMA MUGERWA 1 ½ ACRES (ONE ACRE AND HALF ACRES). 3. ABIRI MUSOKE ONE ACRE 4. PROSSYCOVIA NASSALI SANNYU ONE ACRE

5. SAALA NAKABUGO NAAMBI ONE ACRE.

AT NAMUGONGO – BLOCK 222 PLOT 221 SIZE 0.72 TWO ACRES (2 ACRES).

I HAVE GIVEN IT TO THE FOLLOWING PEOPLE: -

1. MY CUSTOMARY HEIR FREDRICK KAFEERO MUGAGGA FIFTY DECIMALS (DEC. 50) ON THE SIDE OF THE ROAD WHICH GOES TO THE LATE Y. KATENDE NATIGO.

2. ABIRI JAMES KIGGUNDU FIFTY DECIMALS WHERE HE **BUILT HIS HOUSE "RESIDENTIAL HOUSE"**

THE REMAINING ONE ACRE IS FOR ANCESTRAL GROUND TO BE FOR BURYING CHILDREN, GRAND CHILDREN AND MY RELATIVES. THAT IS THE ANCESTRAL GROUND FOR ABIRI TEBAJJANGA KIGGUNDU AND I SHALL ALSO BE BURIED THERE...

MY WIFE AND L. MUGERWA I HAVE GIVEN THEM ONE TITLE OF THE LAND AT MBALWA – 14115 PLOT NO. 50."

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Barnerot

46. Part 11 (B) (N. B.) of the Will of the late Ssezi Musoke Ssalongo provides as follows:

> *"If there is any child who will die but who has a share in this Will but without leaving any child that share will be distributed to you by the executors."*

- 47. The facts of the case before me are that the late Fred Kafeero Mugagga was a son of the late Ssezi Musoke Ssalongo. He was named as a beneficiary in the Will, and the suit property was bequeathed to him. Fred Kafeero Mugagga died and left behind a widow (Justine Muyanja Kafeero) and a son (Jjjumba Ronald). - 48. The provisions of the Will and the bequest of the suit property to the late Fred Kafeero Mugagga are not disputed by the defendants. The defendants' only case is that the bequest to the late Fred Kafeero Mugagga lapsed when he died before his father. - 49. The general rule is that when a bequest is made to a beneficiary in a Will, and that beneficiary dies before the testator, that bequest will usually fail to take effect or lapse. A bequest which lapses where there is no alternative clause in the Will as to how such a bequest is to be dealt with, will go into the residue of the estate. Such a bequest will then be distributed under the residuary provision in the Will. If there is no such provision in the Will, then such a bequest shall be distributed as intestate property *(see Hals bury 's Laws of England, 4th Edition, Vol 50, paras 347, 365).* - 50. This general rule is contained in *Section 92(1) ofthe Succession Act (Cap 162)* which provides that:

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## "92. In what case legacy lapses

(1) If the legatee does not survive the testator, the legacy cannot take effect, but shall lapse and form part of the residue of the testator's *property* $[...]'$

- 51. However, there are exceptions to the general rule. One of the most important exceptions to the general rule, involves bequests to the testator's children. Under the law, if a parent makes a bequest to a child in a Will, and that child dies before the parent, leaving children of their own, the bequest in the Will does not lapse. The beneficiary's children (i.e., the testator's grandchildren) shall receive the bequest that would otherwise have gone to their parent had they not predeceased the testator or testatrix. The provisions of the law that prevent lapse of a bequest from occurring in the situation described above are known as anti-lapse laws. - 52. In Uganda, the anti-lapse law can be found in section 96 of the Succession Act (*Cap 162*) which provides that: $\frac{1}{2}$

## "96. When bequest to testator's child or lineal descendant does not lapse on his or her death in testator's lifetime

Where a bequest has been made to any child or other lineal descendant of the testator, and the legatee dies in the lifetime of the testator, but any lineal descendant of his or hers survives the testator, the bequest shall not lapse, but shall take effect as if the death of the legatee had happened immediately after the death of the testator. unless a contrary intention appears by the will." (underlining is mine *for emphasis).*

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Berneronlamange

- 53. The effect of the anti-lapse law is to prevent the bequest in a Will to a child from lapsing provided such a predeceased child leaves behind a lineal descendant. - 54. If a child beneficiary dies during the life time of the testator, and the testator subsequently dies, and is survived by a lineal descendant of the beneficiary, then the bequest shall not lapse *(see section 96 of the Succession Act (Cap 162)*). - 55. According to the section $1$ (ma) of the Succession (Amendment) Act, 2022, a "lineal descendant" means a person who is descended in a direct line from the deceased, and includes a child, a grandchild of the deceased and any person related to the deceased in a direct descending line up to six degrees downwards. - 56. Other exceptions from lapse of a bequest in a Will where the beneficiary predeceases the testator include, bequests in a Will in pursuance of moral obligations; or where the Will makes it clear that in the event of death of a beneficiary, the bequest will go to a different person (see Halsbury's Laws of England (supra) paras 350, 351). - 57. The object of anti-lapse laws is to prevent a lapse of the testator's bequest from happening, and to put the property into the estate of the deceased beneficiary to be dealt with as part of his estate, either according to his or her Will or as part of his or her intestate property (see the case of Toronto General Trusts Corporation v. The Minister of National Revenue, 1958 CanLII 54 (SCC), [1958] SCR 499) (Supreme Court of Canada). - 58. In the case of *Re Hurd, Stott v. Stott [1941] 1 All ER 238*, the brief facts of the case were that, the testatrix, Anna Hurd, by her Will gave to her daughter, Sarah Page 17 of 24

BerneroMarnery

certain lands. Sarah had a child, but predeceased the testatrix and died intestate in 1923. The testatrix died on 18 April 1939 (16 years after the death of her daughter). The bequest to the daughter was saved from lapse by section 33 of Wills Act 1837 (United Kingdom) (which is the equivalent to section 96 of *Uganda's Succession Act). Farwell J* held that:

"*The effect of the section is to prevent lapsing in this particular case,*" the result being that, instead of the gift lapsing, it becomes part of the estate of the deceased person $[...]$

- 59. I have carefully considered the arguments of both parties, the evidence adduced by the parties and the law. - 60. Jjumba Ronald (1^st plaintiff), being a son of the late Fred Kafeero Mugagga, is a lineal descendant as defined in *section 1(ma) of the Succession (Amendment)* Act, 2022. - 61. It is my finding that by operation of the law *(section 96 of the Succession Act)* (*Cap 162*), the bequest to the late Fred Kafeero Mugagga did not lapse. - 62. With this in mind, it is my finding that the suit property forms part of the estate of the late Fred Kafeero Mugagga. - 63. The plaintiffs led evidence to prove that the late Fred Kafeero Mugagga died intestate. PW1 (Jjumba Ronald) testified that:

"I am the sole surviving son of the late Fred Kafeero who died intestate on the $18$ ^th December 1998 [...]"

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Buerneromlasnery 64. In their pleadings, the plaintiffs stated that $2^{nd}$ plaintiff is an administratrix of the estate of the late Fred Kafeero Mugagga. In paragraph 9 (a) of the plaint, the plaintiffs aver that:

> "The $1^{st}$ plaintiff is the rightful owner and a son to the $2^{nd}$ plaintiff and they are respectively beneficiaries and administratrix to the estate of the late Fred Kafeero who died intestate on the 18^th December 1998."

- 65. The $2^{nd}$ plaintiff attached to her plaint, a copy of the letters of administration of the estate of the late Fred Kafeero Mugagga, issued by the Chief Magistrate's Court of Mengo at Mengo. - 66. During the hearing of the case, the $2^nd$ plaintiff did not produce the original or a certified copy of the letters of administration to prove that she is the administrator of the estate of the late Fred Kafeero Mugagga. - 67. The defendants contend that the $2^nd$ plaintiff is not the administrator of the estate of the late Fred Kafeero Mugagga. In paragraph 6 of their written statement of defence, they deny that the plaintiffs are administrators of the estate of the late Fred Kafeero Mugagga. DW1 (Teophil Semuyinde) in his evidence in chief testified:

"That the plaintiffs are not administrators of the estate of the late" Kafeero and they have no benefit in the late Ssezi Musoke's estate and the late Kafeero's estate."

68. On the basis of the evidence on record, I am *not* satisfied that the $2^{nd}$ plaintiff (Justine Muyanja Kafeero) is an administrator of the estate of the late Fred

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Berneronlamenge

Kafeero Mugagga. In this regard, the 2^nd plaintiff cannot take control of the suit property bequeathed to late Fred Kafeero Mugagga. The 2^nd plaintiff cannot also access Shs 139,361,394 deposited by UNRA in court.

- 69. I have already decided in Issue No. 1 above that the 1^st plaintiff (Jjumba Ronald) is a son of the late Fred Kafeero Mugagga. - 70. The position of the law is that if the intended beneficiary dies before the testator, leaving a child, the bequest goes to the child who is living at testator's death. According to Halsbury's Laws of England, 4^th Edition, Vol 50, paras $356$ :

"[...] in the absence of a contrary intention in the will a devise or $\mathbb{L}$ bequest to a child or remoter descendant of the testator does not lapse if the intended beneficiary dies before the testator, leaving issue, but takes effect as a devise or bequest to the issue living at the *testator's death.* [...] *Issue are to take under these provisions through* all degrees, according to their stock, in equal shares if more than one, any gift or share which their parent would have taken, but no issue may take whose parent is living at the testator's death and so *capable of taking.* "*(underlining is mine for emphasis)*

71. I have already decided that the bequest in the Will to the late Fred Kafeero Mugagga did not lapse by operation of the law (section 96 of the Succession Act (Cap 162). I have also already decided that the $2^nd$ plaintiff cannot take control of the suit property and the compensation deposited by UNRA in court because she did not prove that she is the administrator of the estate of the late Fred Kafeero Mugagga.

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Bernesonlameny

- 72. As regards the 1^st plaintiff (Jjumba Ronald), his position under the law is different. On the basis of Section 96 of the Succession Act (Cap 162) and Halsbury's Laws of England, 4^th Edition, Vol 50, para 356, I am of the opinion that the 1^st plaintiff (Jjumba Ronald) has legal capacity to take control of the suit property bequeathed to the late Fred Kafeero Mugagga, including compensation deposited by UNRA in court for a portion of the land (Shs 139,361,394). - 73. My conclusion on Issue No.2 is that upon the late Fred Kafeero Mugagga predeceasing the late Ssezi Musoke Ssalongo, the bequest in the Will in favour of the late Fred Kafeero Mugagga was saved from lapse by operation of the law (section 96 of the Succession Act (Cap 162). The suit property, including shs 139,361,394 being compensation for part of the land deposited by UNRA in court, form part of the estate of the late Fred Kafeero Mugagga. There is no proof before this court that the 2^nd plaintiff (Justine Muyania Kafeero) is the legal representative of the late Fred Kafeero Mugagga (i.e., she did not prove that she was granted letters of administration of his estate by a court of competent jurisdiction). However, the 1^st plaintiff (Jumba Ronald) in his capacity as a son of late Fred Kafeero Mugagga, and on the basis of Section 96 of the Succession Act (Cap 162) and Halsbury's Laws of England, 4^th Edition. *Vol 50, paras 356*, is legally empowered to take control of the suit property. including shs 139,361,394 being compensation for part of the land deposited by UNRA in court.

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Demirohlammy

## *Issue No. 5: What remedies are available to the parties?*

- 74. The plaintiffs prayed for the following remedies: i) an order directing the Registrar, High Court (Land Division) to pay Shs 139,361,394 to the plaintiffs; ii) an order of vacant possession against the defendants; iii) an order against UNRA to surrender the certificate of title for the suit land and transfer forms to the plaintiffs; iv) general damages; v) an order for payment of dues and taxes on the suit land by the defendants; vi) interest on any court awards; and vii) costs of the suit. - 75. The suit property, including shs 139,361,394 being compensation for part of the land deposited by UNRA in court, form part of the estate of the late Fred Kafeero Mugagga, and the l " plaintiff (Jjumba Ronald) has legal capacity to take control of the suit property. - 76. At locus in quo visit, it was proved that the defendants are in occupation of the suit property. Accordingly, the pt plaintiff is entitled to an order of vacant possession of the suit property. - 77. The **l "** plaintiff (Jjumba Ronald) has been denied of the use and enjoyment of the suit property since the death of Ssezi Musoke Ssalongo as well as compensation of Shs 139,361,394 ordered by court to be paid by UNRA on the 2 nd August 2018. The **l "** plaintiff has suffered loss, damage, inconvenience and suffering as a result of the actions of the defendants. I award general damages of Shs 30,000,000 to the l " plaintiff to be paid by the defendants jointly and/or severally.

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- 78. It was submitted on behalf of the plaintiffs that the suit property has accumulated taxes and duties with Kira Municipality. However, the plaintiffs did not adduce any proof of the alleged taxes and duties on the suit property. In this respect, the claim for accumulated taxes and duties fails. - 79. The pt plaintiff (Jjumba Ronald) is entitled to costs of the suit pursuant to *section 27 of the Civil Procedure Act (Cap 71 ).* - 80. The plaintiffs prayed for interest on any awards made in their favour. I award interest of 15% per annum on general damages and costs of the suit from the date of judgment until full payment.

# *Final order of the court:*

- 81. The plaintiffs filed this suit jointly and/or severally (see paragraph 8 of the plaint). The suit brought by the *2 nd plaintiff (Justine Muvanja Kafeero)* against the defendants is dismissed with no orders as to costs. - 82. The suit filed by the l " plaintiff succeeds, and I enter judgment in favour of the *JS' plaintiff (Jiumba Ronald)* with the following orders: - i). An order directing the Registrar, High Court (Land Division) to pay the sum of shs 139,361,394 (Uganda shillings one hundred thirty-nine million three hundred sixty-one thousand three hundred ninety-four only) to the l " plaintiff; - ii). A declaration that land comprised in Kyadondo Block 221 Plot 758 land at Naalya or any such residue belongs to the l " plaintiff;

*Page 23 o/24*

- iii). An order directing Uganda National Roads Authority (UNRA) to surrender the duplicate certificate of title for land comprised in Kyadondo Block 221 Plot 758 land at Naalya or any such residue to the $1^{st}$ plaintiff; - An order directing the Commissioner for Land Registration to effect iv). transfer of the land comprised in Kyadondo Block 221 Plot 758 land at Naalya or any such residue to the $1^st$ plaintiff: - An order directing the defendants to vacate land comprised in $v$ ). Kyadondo Block 221 Plot 758 land at Naalya or any such residue. - An order directing the defendants jointly and/or severally to pay vi). general damages of shs 30,000,000 (Uganda shillings thirty million only) to the $1^{st}$ plaintiff; - An order directing the defendants jointly and/or severally to pay costs vii). of the suit to the $1^{st}$ plaintiff. - viii). An order directing the defendants jointly and/or severally to pay interest of 15% per annum on general damages and costs of the suit from the date of judgment until payment in full.

#### IT IS SO ORDERED.

BERNARD NAMANYA **IUDGE**

16 June 2023

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### 16 June 2023 at 8:33am

Francis Nyakoojo Both plaintiffs are in court Counsel for the defendants absent Defendants absent Esther Nakawungu

Counsel for the plaintiffs

Court Clerk

### *Francis Nyakoojo:*

We are ready to receive the Judgment.

### Court:

Judgment delivered in open chambers.

$\mathcal{O}$

BERNARD NAMANYA **JUDGE** 16 June 2023

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