[2025] UGHCLD 36

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [LAND DIVISION] MISCELLANEOUS APPLICATION NO. 2769 OF 2024.** *(ARISING FROM CIVIL SUIT NO. 0622 OF 2019)*

- **1. KADDU STEVEN** - **2. MUGAGA JONATHAN ::::::::::::::::::::::::::::::::::::: APPLICANTS**

#### **VERSUS**

**1. ROBERT MULINDWA 2. DIMITIRIA ZAWEDDE 3. DAVID SSEMPEWO ::::::::::::::::::::::::::::::::::::: RESPONDENTS 4. DAVID KAMBUGU**

#### **BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA**

#### **RULING.**

#### *Introduction:*

- 1. This was an application by notice of motion brought under Section 98 of the Civil Procedure Act, Section 3 of the Judicature Act and Order 46 rule 1 of the Civil Procedure Rules (CPR) for orders that: - i) That the consent settlement/ judgment in Civil Suit No. 622 of 2019 be reviewed and set aside by this honourable Court.

ii) That the Costs of the application be borne by the respondents.

## *Background;*

2. That the 1st Respondent filed Civil Suit No. 0622 of 2019 against the 2nd, 3rd and 4th Respondents seeking recovery of land, three (3) acres out of land comprised in Busiro Block 485 Plot 5 at Kagga which forms part of the estate of the late Zulubaberi Yawebwa. Subsequently, on the 22nd day of April, 2024, the Respondents executed a consent judgement sharing and or distributing the estate of the late Zulubaberi Yawebwa in collusion with other purported beneficiaries of the estate of the late Zulubaberi Yawebwa which consent judgment the applicants seek to review and set aside hence this application.

#### *Applicants' Evidence;*

- 3. The grounds of the application are contained in the affidavit in support of the application deposed by **KADDU STEVEN** the Applicant and are briefly that: - i) That I am one of the children of the late Ssenyonga Wilberforce Makanga the son of the late Erunasani Makanga the biological son of the late Zerubaberi


Yawebwa, the registered proprietor of the land comprised in Busiro Block 485 Plot 5 at Kagga.

- ii) That being the children and administrators of the late Wilberforce Makanga we are entitled to both the estate of our grandfather Erunasani Makanga and our great grandfather the late Zerubaberi Yawebwa. That the late Ssenyonga Wilberforce Makanga was the administrator of the estate of his late father Erunasani Makanga. - iii) That the estate of the late Zerubaberi Yawebwa to date does not have legal representatives duly appointed by Court and the letters that had been procured by the Respondents were decreed fraudulent in Civil Suit No. 192 of 2017 and the Respondents conceded and surrendered the same to the High Court Family Division for destruction. - iv) That the Respondents conceded that the transfer of land on Block 485 Plot 5 at Kagga was fraudulent and conceded that the special certificate of title for the same be cancelled by the Registrar of lands at Wakiso and reinstate the original duplicate title in the names of the late Zerubaberi Yawebwa.

- v) That the Respondents who were party to the impugned consent in Civil Suit No. 622 of 2019 were much aware that they did not have letters of administration to determine the distribution of the estate of the late Zerubaberi Yawebwa. - vi) That the Respondents refused and failed to call for a family meeting involving all concerned beneficiaries to reach an agreement that was concerning the estate of the late Zerubaberi Yawebwa and further the estate of the late Erunasani Makanga and thereby reaching an illegal and irregular consent settlement. - vii) That the respondents without any authority illegally proceeded and entered a consent judgement deciding that the suit land be distributed and subdivided to various people and parties not being party to Civil Suit No. 622 of 2019. - viii) That we are aggrieved because the estate that was distributed in the impugned consent was already owned by our late father Wilberforce Makanga and the will of the late Erunasani Makanga was clearly bequeathing the

property to our father and yet all this was not considered by the Respondents who entered into the consent.

ix) That the impugned consent is clearly illegal for having been entered fraudulently and prematurely without letters of administration and without engaging the concerned beneficiaries to the estate of the late Zerubaberi Yawebwa and Erunasani Makanga.

### *Respondents evidence;*

- 4. The 1st Respondent, **MULINDWA ROBERT** opposed the application by filing an affidavit in reply which briefly states that: - - I. The 1st Respondent shall raise the following preliminary objections; that the 2nd Respondent is deceased and it's within the knowledge of the Applicants and that the Applicants have no cause of action against the 1st Respondent. - II. That I was party to the said consent judgement after I was informed and made to believe by the defendants therein who are also family members that the family and/or all beneficiaries had agreed to appoint new people to administer the estate of the late Zerubaberi Yawebwa and according to

the copy of the certificate of no objection shown to me were; Rebecca Makanga, Mbabali Hudson, Musoke Francis, Ssekijjo Richard and Yawebwa Samuel.

- III. That I deny ever refusing or failing to call a family meeting and state I am not a member of the Applicants' family and i could not have been in position to call a family meeting before the consent settlement was reached. I only believed what the defendants in Cs No. 622 of 2019 told me and once parties to the suit agreed to a settlement with me, I did not have business meeting the applicants or any other members of the family who were not privy to the suit. - IV. That the consent judgement was entered legally between the parties to the suit and the said distribution was agreed legally in anticipation that the same would be effected after the new administrators being appointed. I did not assume any authority to act in the land/estate but to wait for new administrators as were stated on the said certificate of no objection shown to me. - V. That the land/estate had never been owned by the said Mr. Wilberforce Makanga as the same was for the late Zerubaberi

Yawebwa who was the proprietor and I have/had no knowledge whatsoever of the said will or its contents.

- 5. The 3rd Respondent, **DAVID SSEMPEWO** opposed the application by filing an affidavit in reply which briefly states that: - - I. That the Application is devoid of any merit, brought in bad faith, is legally incompetent, offends the law, an abuse of court process and the affidavit in support therefore contains deliberate falsehoods. - II. That I also profoundly believe and also premised on the information of my above-mentioned lawyers which I believe to be correct that the whole application is frivolous and vexatious and is brought in bad faith after the Applicant learning about the sudden death of the 2nd Respondent and should as such be dismissed with costs. - III. That the 2nd Respondent was a grandmother to the Applicants and a widow to the late Erunasani Makanga and I have been informed by Counsel Fred Gadala which information I believe to be correct that she was entitled to 20% share from the estate of the late Erunasani Makanga as per the Succession Act Cap 268 but she unfortunately

passed away on 12th November, 2024 which information is in the knowledge of the Applicants.

- IV. That Dimitiria Zawedde was my biological mother and wife to Erunasani Makanga and I have also been informed by my Lawyer that when the matter came up for hearing on 9th December, 2024 the 1st Applicant admitted before Court that indeed the 2nd Respondent had passed on and was buried before the filing of this application. - V. That myself and the 4th Respondent who is currently mentally deranged or insane, we are children of the late Erunasani Makanga and the late Kaddu Cranema respectively and the late Zulubaberi Yawebwa was their biological father. That I have been informed by my lawyers that no suit can be brought against a deceased or mentally deranged or insane person like the instant case against the 2nd and 4th Respondents respectively. - VI. That the applicants are children of my late brother, a one Ssenyonga Wilberforce Makanga and they are great grandchildren of my late grandfather the late Zulubaberi Yawebwa.

- VII. That I profoundly believe that the Applicants who are great grandchildren have no direct beneficial claim in the estate of my grandfather (Yawebwa Zulubaberi) which comprises of land described as Busiro Block 485 Plot 5 at Kagga and their beneficial claim is only restricted to the estate of their late father Ssenyonga Wilberforce and perhaps that of my late father (Applicants' grandfather) Erunasani Makanga. - VIII. That the alleged letters of administration held by the Applicants for the estate of their late father Ssenyonga Wilberforce entitle them to only claim from their father and perharps that of the Late Erunasaani Makanga and not that of the late Zulubaberi Yawebwa. - IX. That I know all persons who hold beneficial interest in the estate of the late Zulubaberi Yawebwa to wit; - Kaddu Cranema, Makanga Erunasani, Kuuku Stanely, Sekayombya Jackson, Kalega Isreal, Nampewo Mariam, Nalwanga Manjeri, Namuyamba Alice, Bulya Aaron and Kayaga Christine all sons and daughters of Zulubaberi Yawebwa and the Applicants fall under the estate of their late father Ssenyonga Wilberforce and perhaps that of Erunasani Makanga their grandfather.

 - X. That the estate of the late Zulubaberi Yawebwa was proposed to be administered by Ssekijjo Richard, a son of the late Sekayombya Jackson, Makanga Rebecca, a daughter of the late Erunasani Makanga, Mbabali Hudson, a son of the late Kuuku Stanely, Musoke Francis a son of the late Kaddu Cranema and Yawebwa Samuel, a son of the late Isreal Kalega who are all grandchildren of the said deceased who were legally appointed by all family members at the office of the District Chief Administrative Officer (CAO) who was appointed by the Administrator General to do so and the family meeting was held on 23rd September 2021, together with the 1st Applicant's father Ssenyonga Wilberforce when still alive attended and consented to same appointed Administrators. - XI. However, the Applicants without any legitimate cause registered a caveat to stop the process of acquisition of the grant which was in advanced stages vide Administration Cause No. 1131 of 2024. That all the family members including the late Wilberforce Ssenyonga, the late father of the Applicants had consented to the persons appointed as the Administrators of the estate of Zulubaberi Yawebwa

and this happened after the parties signing the consent decree in Civil Suit No. 192 of 2017 following its content in paragraph clause (e).

- XII. That after the death of my late brother Wilberforce Ssenyonga (father of the applicants) on the 6th April, 2022 who was in possession of the documents in respect of the two estates of both Erunasani Makanga and Zulubaberi Yawebwa the Applicants used that opportunity and connived with a group of land dealers and brokers headed by a one Kabajjo Fred and others who were close associates of my late brother without a family consent or awareness purported to deal with the estate property. - XIII. That I profoundly believe that the Applicants and the said land dealers/brokers processed from Wakiso Land Office and while using the said documents cancelled the first special certificate of title that had been issued and registered in the names of the previous cancelled administrators and they applied and processed a second special certificate of title with the view of selling off whole land comprised in Busiro Block 485 Plot 5 at Kagga while alleging that the said land belonged to their late father


Wilberforce Ssenyonga and I and other beneficiaries to the estate lodged a complaint with the Registrar of titles and subsequently registered a caveat on the original certificate of title in land office.

- XIV. That I and my co respondents were not among the persons appointed to administer the late Zulubaberi Yawebwa and we are not among the Applicants in Administration cause Cause No. 1131 of 2024 and it is well within my full knowledge and that of all the grandchildren and beneficiaries of the estate of the late Zulubaberi Yawebwa that the said deceased while still alive demarcated and gave portions of his land to his late children from whom I and the other grandchildren claim under or from our said deceased fathers took possession of their portions and utilized the same and after their deaths, I and the other grandchildren inherited the same. - XV. That I and my co respondents did not distribute the estate of the late Zulubaberi Yawebwa but the semblance of distribution reflected in the said consent vide Civil Suit No. 622 of 2019 is the actual ownership of the beneficial interest in the estate of the late Zulubaberi Yawebwa which


has for many years been known to all the family members and beneficiaries and this explains why many other beneficiaries including the persons selected as administrators signed the consent after a number of meetings and deliberations.

XVI. That I and the other Co Respondents did not hold out as Administrators or even sign the said consent as Administrators of the estate but as beneficiaries of the estate who had disposed of our respective beneficial shares or interests in the estate to among others a one Wasswa Paul and the consent judgement dated 22nd April 2024 which was endorsed and sealed by Court on 29th April 2024, clause 2 bore a clear picture of the beneficial ownership of the land comprised in Busiro Block 485 Plot 5 at Kagga and the disposal of part of the said land under clauses 4 and 5 of the consent was lawfully done by myself and other beneficiaries of the estate of the late Zulubaberi Yawebwa. The late Erunansani Makanga has never bequeathed his property to Wilberforce Ssenyonga.

- 6. The Respondents also filed supplementary affidavits deponed by **SSEMANDA MICHEAL** and **SSEBIGWO MARTIN** which both, briefly allude to the following; - I. That the application was brought in bad faith and it's an abuse of Court process as the Applicants sued a dead person and a mentally deranged or insane person. - II. That the Applicants are children of the late Ssenyonga Wilberforce and they are great grandchildren of the late Zulubaberi Yawebwa and I believe that just like myself, the Applicants have no direct claim from my late grand father's estate as we sold off our shares to third parties. - III. That the 1st Applicant as an administrator of the estate of Ssenyonga Wilberforce on behalf of himself and on behalf of the other beneficiaries received a share of their father in the estate of the late Erunasani Makanga and sold it off to Sseruwagi Fredrick and Nakasi Dorcus. - IV. That the applicants bear no grounds for review or setting aside the consent judgement.

## *Rejoinder*

I. That it is not true that the instant application was brought after the death of the 2nd Respondent as she passed on the 12th day of November 2024 and the application was filed on 18th October 2024.

- II. That the 4th Respondent is presumed to be of sound mind since he participated in the endorsing of the consent settlement last year and if he is adjudged to be with mental illness then his legal representatives or guardian ought to take on the proceedings. - III. That the 3rd Respondents averment is misconceived and untrue that being great grandchildren we are not entitled to our beneficial interest and I aver that we are equally beneficiaries entitled to claim our share that was meant for our late father and grandfather. - IV. That the impugned consent in clear terms shows that the Respondents agreed to sell/surrender and distribute part of the estate property which the Applicants claim under to other third parties who are not even beneficiaries. That the respondents' claims are misplaced and do not justify the illegality and intermeddling they were involved in and misleading Court to endorse a consent judgement while it was irregular.

## *Representation;*

7. The applicants were represented by Counsel Amon Nabasa of M/S Kalenge, Bwanika, Kisubi & Co. Advocates whereas the 1st respondent was represented by Counsel Wakibi Nassur, Counsel Gadala Fred represented the 2nd, 3rd and 4th respondents. Parties proceeded by written submissions which I considered in the determination of this application.

## *Issues for determination;*

**i) Whether there is sufficient cause to review and set aside the consent judgement and decree in Civil Suit No. 622 of 2019.**

## *Resolution and determination of the issue;*

Whether there is sufficient cause to review and set aside the consent judgement and decree in Civil Suit No. 622 of 2019?

10. Before I delve into the merits of this application, I wish to address the preliminary points as raised by the Respondents in the affidavits in reply and the supplementary affidavits as well. It's the Respondents contention that this application is defective because the Applicants sued a dead person, the 2nd Respondent a mentally ill person, the 4th Respondent. The 3rd Respondent adduced evidence of a death certificate in proof of the death of the 2nd Respondent and a visit clinical summary from Butabika National Referral mental hospital to support the allegation that the 4th Respondent was mentally ill.

- 11. The Applicants in the affidavit in rejoinder lead evidence to show that the application was filed on 18th October 2024 and the 2nd Respondent passed away on 12th November 2024 after the filing of the instant application thus it can't be said that the Applicants sued a dead person. They further stated that the 4th Respondent is presumed to be of sound mind since he participated in the endorsing of the consent settlement last year and if he is adjudged to be with a mental illness then his legal representatives or guardian ought to take on the proceedings. - 12. It is a well-established principle that a deceased person cannot be sued and any proceedings against them are a nullity from the outset. However, Order 24 rule 4 of the Civil Procedure Rules provides for substitution of a dead defendant (respondent) with their legal representatives. - 13. Be that as it may, the Respondents attached a death certificate for the 2nd Respondent and the same shows she passed away on 12th November 2024 and the application was

filed on 18th October 2024 thus the allegation that they sued a dead person is rather untenable.

- 14. As for the 4th Respondent, it is trite law that a person who is of unsound mind lacks capacity to sue or be sued in their personal capacity. The law provides safeguards to ensure that persons with mental illness are properly represented in legal proceedings. Order 32 rule 15 of the Civil Procedure Rules states that if a party to a suit is found to be of unsound mind, the Court must appoint a guardian or next friend to represent them in the proceedings. - 15. The ultimate question is whether the application can lawfully proceed against the deceased person, the 2nd Respondent and the mentally ill person the 3rd Respondent? - 16. At the time of executing the consent judgement sought to be set aside, the 2nd Respondent was alive and only passed on after the filing of the instant application whereas the 4th Respondent was also in total control of his mental faculties. The Civil Procedure rules provide mechanisms for dealing with such instances, for a deceased person, the Court can appoint legal representatives and for the mentally ill person, Court can appoint a guardian or next friend to represent them in the

 proceedings. However, this does not automatically render the entire application incompetent if there are other Respondents directly concerned with the matter in contention. In the circumstances, the application shall proceed against the 1st and 3rd Respondents respectively.

#### *Merits of the Application.*

- 17. Counsel for the Applicants in his submissions states that the Respondents in collusion with each other entered into a consent judgement in Civil Suit No. 622 of 2019 to distribute the estate of the late Zulubaberi Yawebwa without having letters of administration to the same. - 18. That the 1st Respondent initially instituted Civil Suit No. 622 of 2019 claiming/ wanting to recover 3 acres from land comprised in Busiro Block 485 Plot 5 at Kagga against the other Respondents well known to him that they were not legal representatives of the estate. That the 1st Respondent had illegally, fraudulently and in collusion with the 2nd, 3rd and 4th Respondents obtained letters of administration in order to defraud the many beneficiaries claiming under the estate of the late Zulubaberi and it's the Applicants' father Wilberforce Makanga Ssenyonga that instituted Civil Suit No. 192 of 2017

challenging the grant on grounds that it was fraudulently obtained.

- 19. That the 2nd, 3rd and 4th Respondents consented that their grant had been obtained fraudulently and hence agreed to have the same cancelled/ revoked. That upon the death of Wilberforce Ssenyonga Makanga, the 1st Respondent again colluded with the Respondents to illegally obtain land from the estate of the late Zulubaberi by entering into a consent that distributed the estate without the authority of Court. - 20. Counsel further submitted that the general position of the law is that without a grant of letters of administration no person has any right whatsoever to sell or otherwise deal with the property of a deceased person as per **John Kihika & another v**

### **Absolom Tinkamanyire CACA No. 86 of 2014.**

21. The 3rd Respondent on the other hand stated in his affidavit in reply that the Respondents did not distribute the estate of the late Zulubaberi Yawebwa but the semblance of distribution reflected in the consent judgement vide Civil Suit No. 622 of 2019. He further stated that the estate of the late Zulubaberi has no administrators, the petition was filed but the same was caveated.

- 22. That the 2nd, 3rd and 4th Respondents did not sign the consent in the capacity of administrators of the estate of the late Zulubaberi but as beneficiaries who had disposed of their shares. That the Applicants are not beneficiaries of the estate of the late Zulubaberi Yawebwa and thus they can't claim from the same nor do they have basis or grounds to set aside the consent judgement and decree in Civil Suit No. 622 of 2019. - 23. It is trite law that a consent judgement cannot be varied, set aside or discharged unless it is proved to Court that it was obtained by fraud or collusion, or by an agreement contrary to the policy of Court, or if the consent was given without sufficient material facts, or misapprehension or in ignorance of material facts, or in general for a reason which would enable a Court to set aside an agreement. **(Ismail Sunderji Hirani v Noorali Esmail Kassam [1952] EA 131 and Attorney General & Uganda Land Commission v James Mark Kamoga & anor SCCA No. 8 of 2004)** - 24. Further, **Section 82 of the Civil Procedure Act Cap…..** envisages any person who may consider him/herself aggrieved by a consent judgement/ decree to have the capacity to set it aside.

- 25. From the pleadings, I note that the Applicants are children of the late Ssenyonga Wilberforce, a son to the late Erunasani Makanga who was a son to the late Zulubaberi Yawebwa, the Applicants' great grandfather, a fact that is not in dispute. The Applicants seek to review and set aside the consent judgement/decree as beneficiaries of the said estate and those of Erunasani Makanga, their grandfather and Zulubaberi Yawebwa their great grandfather. - 26. The Respondents contend that the Applicants are not beneficiaries to the estate of the late Zulubaberi Yawebwa owing to the fact that they are great grandchildren for which I disagree. - 27. **Section 14 of the Succession (Amendment) Act** provides for the distribution of the estate of a person who dies intestate, 20% to the spouse, 4% to the dependent relatives, 75% to the lineal descendants and 1% to the customary heir and the said percentages vary in different circumstances. Further Section 1(j) of the same Act defines lineal descendants to mean 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.

- 28. As earlier noted, the Applicants are great grandchildren of the late Zulubaberi following the death of their grandfather and subsequently their father for which they classify to be lineal descendants and can benefit from the estate of the late Zulubaberi Yawebwa provided their grandfather and father never received a share from the same. In the circumstances, the Applicants can ably review and set aside the consent judgement and decree as aggrieved parties. - 29. The Applicants averred that the Respondents in their capacities as administrators executed a consent judgement distributing the estate property comprised in Busiro Block 485 Plot 5 at Kagga amongst themselves in collusion with the 1st Respondent who is not a beneficiary in the said estate and after the 2nd, 3rd and 4th Respondents had surrendered their grant of letters of Administration, their entry onto the certificate of title according to the consent judgement vide Civil Suit No. 192 of 2017. - 30. The Respondents knew that the estate of the late Zulubaberi at the time was not under administration and thus none of them had the authority to deal with the deceased's property but none

the less they entered into a consent with the 1st Respondent purportedly as beneficiaries and distributed the estate property.

- 31. The 1st Respondent stated in his affidavit in reply that the consent judgement was entered legally between the parties to the suit and the said distribution was agreed legally in anticipation that the same would be effected after the appointment of new administrators. - 32. It is my considered view that all the facts above allude to collusion which is one of the factors that vitiate a contract and thus a consent judgement. - 33. **The Black's law Dictionary 5th Edition page 240, defines collusion; "Collusion connotes an agreement between two or more persons to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law. It implies the existence of fraud of some kind, the employment of fraudulent means, or of lawful means for the accomplishment of an unlawful purpose. A secret combination, conspiracy or concert of action between two or more persons for fraudulent or deceitful purpose."** - 34. In the execution of the consent judgement in question, whereas the 2nd, 3rd and 4th Respondents did not execute the

same in the capacity of Administrators of the estate of the late Zulubaberi Yawebwa, they did so as beneficiaries. The said estate was not under administration up to date thus none of the parties to the consent was authorised to deal with the estate property.

- 35. The said consent judgement/decree are illegal and against Court policy for not only collusion, but the estate had and still has no administrators thus the parties could not purport to usurp the powers of the administrators to distribute the estate and the appointed administrators ratify or legitimize an illegal order. Further still, the said distribution was done in isolation of other beneficiaries to the estate; the applicants to say on grounds that as great grandchildren they had no interest in the estate property. - 36. The consent judgement vide Civil Suit No. 622 of 2019, was entered with collusion with the intent to deprive the Applicants of their share in the estate of their late great grandfather, the parties that executed the consent judgement had no authority to deal with the deceased's property thus the same being against Court policy as enforcing the same would amount to intermeddling with the estate of the late Zulubaberi Yawebwa.


37. It is trite law that Court cannot enforce an illegality as the principle is in the case of **Makula International Ltd v His**

## **Eminence Cardinal Nsubuga & Anor [1982] HCB 15**.

- 38. Therefore, the instant application succeeds with orders that; - i) The consent judgement entered in Civil Suit No. 622 of 2019 on the 22nd day of April 2024 is hereby set aside. - ii) The 2nd and 4th Respondents shall be substituted with their representatives in accordance with the law. - iii)The Applicants shall be joined onto Civil Suit No. 622 of 2019 to ably address and or claim their interest in the estate of the late Zulubaberi Yawebwa if any. - iv) Civil Suit No. 622 of 2019 shall be heard and disposed of on its merits.

### **I SO ORDER.**

### **NALUZZE AISHA BATALA**

**Ag. JUDGE**

## **24/02/2025**

# **Delivered Electronically via ECCMIS on the 24th day of**

**February 2025.**