[2015] UGCA 2026

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPAI. A

# CIVIL APPEAL NUMBER 11 OF 2OO9

5 lAppeal against the deciston of the Hon. Justice Eldad Mwangusya (as he then wad of the High Court of lJganda delivered on 16,/7,/07 in HCCS No. 760 of 1999

ISAAC KASIBA APPELI-ANT

### VERSUS

1. ADMINISTRATOR GENERAL

RESPONDENTS

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#### 2. MARGARET NABITALO NALONGO )

CORAM: HON. JUSTICE RUBBY AWERI OPIO, JA HON. I-ADY JUSTICE SOLOMY BALUNGI BOSSA, JA HON. JUSTICE KENNETH KAKURU, JA

### ¹⁵ JUDGMENT OF THE COURT

The appe[ant is a son and customary heir of the Late Butasiyo Bwenza Lule. He sued the two respondents in the High Court regarding his father's estate seeking for orders inter alia lo cancel the registration of the 2nd respondent on the certificate of title for land known as Kibuga Btock 38 Ptot 166 at Wandegeya, cancettation of the second respondent's name from the said title and the re-di bution of .?0 il

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this property among the three children of the deceased. The rest of the estate had been distributed between the appellant and another while the 2nd respondent got the suit property. The second respondent claimed that the suit property had been given to her as a gift inter vivos by the deceased. The trial Judge hetd that there was no gift lnter vivos of the suit property to the 2nd respondent but stitt altowed the 2nd respondent to take this property on the ground that the appe[lant was estopped from claiming the property having atlowed the 2nd respondent to take the suit property and to use the same for ten years. The Judge ruted that there was acquiescence on the part of the appel[ant. He dismissed the suit, hence this appeal intended to rectify the [ega[ errors committed by the trial Judge.

#### 40 Grounds of Appeal

- 1. The Learned trial Judge erred in fact and in law when he decided the case in favour of the respondents - 2. The Learned trial Judge erred in fact and in law when he faited to evaluate the evidence on record and took into account extraneous matters thereby coming to a wrong decision fl\_ ko'

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- 3. The Learned trial Judge erred in fact and in law when he faited to consider the authorities and law presented by the appetlant. - 4. The Learned trial Judge's awards were contrary to his findings, the [aw and facts of the case

5. The Learned trial Judge erred in fact and in law when he failed to grant any of the remedies sought by the Appetlant

At the hearing, the appellant was represented by Mr. Satim Makeera. Mr. Simon Peter Muyomba, a state attorney represented the first respondent white Mr. li/ac Dusman Kabega reprsented the second respondent.

# Submissions of the parties

Counsel for the appeltant submitted that the Learned Trial Judge erred when he failed to properly eva[uate the evidence. However, counseI conceded that the trial Judge rightty over ruled the second respondent on the issue of a gift inter vivos on the ground that it was ineffectua[. Counse['s contention therefore, is that the learned trial Judge erred in going ahead to rule that the second respondent shoutd retain the property nt w nce the

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appeItant estopped finding evidence. depicts ^a CounseI had acquiesced from ctaiming back this fact and was the suit property which rea[ fai[ure of evaluation of fufther contended that the Learned Triat Judge relied on extraneous matters in hotding the conclusion, for instance, that the appetlant was present when the distribution was being conducted by the first respondent, whereas it is a fact that at the time, the appel[ant was only ^a boy of 17 years. Counsel submitted that the doctrine of estoppeI was therefore not properly invoked by the Learned Trial Judge in arriving at that decision and prayed that the appeat be atlowed with costs.

On the other hand, counsel for the first respondent submitted that the Learned Tria[ Judge property evaluated the evidence on record as clearty indicated on pages 335-337 of the CounseI further submitted that the record of appeat. trial Judge rightty dismissed the appe[[ant's on the basis of estoppel as provided for Evidence Act and as under Section 114 of the pleaded by the second CASE respondent in her written statement of defence.

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Counsel for the second respondent adopted the submissions of counsel for the first respondent and added that the appetlant's claim is not bona fide but was brought after prodigat, inefficient management and depletion of atmost 95% of his entire share of the estate. Counsel prayed that this appeal be dismissed with costs for lack of merit.

Resotution

This is a first appeal and the duty of a first appellate Court is we[[ settled. Rule 30 (1) of the Judicature (Court of Appeat Rules) Directions (Sl 13- 10) [hereinafter referred to as the "Court of Appeat Rutes"l provides that:

> "...on any appeal from a decision of the High Court acting in the exercise of its original jurisdiction, the couft may-

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(b)ln its discretion, for sufficient reason, take additional evidence or direct that additional evidence be taken by the trial coutt or by a commissioner..." (Emphasls added)

The Supreme Court in the case of Kifamunte Henry V Uganda, Crimina[ Appeal No 10 of L997 hetd that ⁵ t

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it is the duty of the first appe[late couft to rehear the case on appeal by reconsidering att the materiaI which was before the trial court and make up its own mind. Furthermore, a failure by the first appellate Court to evaluate the materia[ evidence as a whole constitutes an error in [aw.

At the hearing of this appea[, counsel for the appel[ant argued a[[ five grounds together. We find that the single question for determination in this appea[ is whether the Learned Triat Judge erred in fact and in law when he failed to grant any of the remedies sought by the Appettant on the basis of estoppeI by acquiescence.

> On the question of gift inter vivos, the trial Judge hetd that [page 340 of the record]:

> '...1 have carefully considered the above submissions and in my view, the deceased retained his registered interest in the suit property till his death and if for whatever ree\$on he could not transfer this interest to the ?d defendant the ineffectuaL"

The trial Judge furlher held that:

140 "His intention seems to have been that the 2d defendant takes over the property after his death

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because testimony that the $2^{nd}$ defendant had sworn an affidavit in which she stated that her father used to tell her that "this house is yours, when I die you should take it" and that in another affidavit CHRISTOPHER LULE had deponed that he was giving the suit property to his daughter. That he told him on more than one occasion that it was his desire that at his death the said premises should go to Nalongo cannot be ignored. Unfortunately the property was not bequeathed to her and neither was it given to her as a gift inter vivos. What is the *remedy?*"

With respect we do not accept the learned trial Judge's view that once a registered proprietor has 155 for whatever reason not transferred his property to a person to whom the property was given as a gift inter vivos the grant or gift becomes ineffectual.

We think that a gift becomes effectual at the time it is made. As to whether a grant has been made or 160 not is a question of fact and evidence. If for example the deceased had prepared and a signed land transfer forms in favour of his daughter, the gift would have been effectual notwithstanding the fact that at the time of his death the transfer had 165 been effected. There are a host other reasons why the transfer of title may delay, many of which cannot be attributed to the transferor or the transferee. It would be unfair and unjust in such circumstances for the gift to be declared un-170 effectual simply because the title deed had, at the

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time of the death of the grantor not been transferred to the grantee.

A grantee may for example have taken possession of the land and developed it.

The grant could have been in writing or expressed in word and deed in such a way that the intention $\mathsf{of}$ the grantor unequivocal, was in such circumstances the gift inter vivos in respect of registered land would still be valid even if at the time of the grantor's death the transfer had not yet been effected.

In this case however, the evidence clearly indicates that the deceased had at the time of his death not granted the $2^nd$ respondent the land in question as a gift inter vivos, therefore it remained part of her deceased father's estates.

> This appeal is premised on refusal by the trial Judge to grant the remedies sought. by the appellant, in view of the finding that the deceased had not granted the $2^{nd}$ respondent the suit property as a gift inter vivos.

his plaint on page 10 of the In record of proceedings, the appellant pleaded that:

"WHEREFORE, the plaintiff prays for judgment against the defendant for orders and declarations that:

a) The acts of the Administrator General done in respect of the deceased's estate before grant of letters of administration be declared null and void.

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- b) The transfer made by the Administrator General to the 2^rd defendant in respect of Block 38 Plot 166 Wandegeya in 1982 be declared null and void. - c) The certificate of title subsequently got by the $2^{nd}$ defendant be cancelled. - d) The said property comprised in Kibuga Block 38 Plot 166 be redistributed equally among the three children of the deceased or the proceeds got therefrom be shared equally by the said children. - e) The $2^{nd}$ defendant accounts for the rent proceeds received from property in (d) above from $8/11/82$ when she got illegal possession of the property till the date of judgment. - f) Costs of the suit - g) Any other relief this Honourable Court may deem fit to grant."

Regarding remedies, the trial Judge went on to hold [at pages 341-342 of the record] that:

"... The question of the remedy is complicated by a number of factors the **first of which is that when the** Administrator General distributed the estate the 2^rd defendant was excluded from the distribution except for cash which was found on the deceased's **account.** The estate was shared between the plaintiff and MIRIAM NAMUSOKE. The estate divided between the plaintiff and MIRIAM NAMUSOKE was valued while the value of the suit property was not known. So even if the distribution by the Administrator General was to be reviewed the sharing the sharing of the

$\overline{9}$ suit property would not be in equal shares because the plaintiff and tullRlAM NAAIUSOKE have gotten other shares in the estate. The second kctor is that both the plaintitr and MIRIAM NAMUSOKF took their shares and during cross e-amination the plaintiff admitted having disposed of his share... "

235 The Learned trial Judge further he[d that:

"... According to e-h. P 1 the estate was distrih,ted on the oh day of March 1983 and a final account by the 'ninistrator General was made on 14h April 1993 which means that for over ten yearc the plaintiff was enjoying the henefits of the distribution that he now seeks to reverce which by the doctrine of Estoppel by acguiescence is not feasible..." (Emphasis added)

According to Btack's Law Dictiondry, 8,t, Ed., at page L66L " estoppel' is defined as a bar that prevents one from assefting a claim or right that contradicts what one has said or done before or what has been tegatty established as true.

²⁵⁰ ln essence, it is cal[ed estoppeI or conc[usion, because a man's own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth. ln using the term'estoppell one is of course aware of its kateidoscopic varieties. One reads of estoppet by ilte ¹⁰IL

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conduct, by deed, by [aches, by misrepresentation, by negtigence, by silence, and so on. There is atso an estoppet by judgment and by verdict. However, what we are concerned with in this appeal is Estoppel by Acquiescence or silence.

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Black's (suprd at page 69 also defines " acquiescence!' as a person's tacit or passive acceptance; imp[ied consent to an act. ln simp[e terms, EstoppeI by Acquiescence or silence prevents someone from assefting something when that person had both the duty and the opportunity to speak up earlier, and his or her silence led another person to believe a fact with the effect that such person woutd be prejudiced by raising or assefting the facts withhetd.

The doctrine of estoppel is provided for under Section LL4 of the Evidence Act, Cap 6 which provides thus:

## '114. Estoppel

When one person has, by his or her declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon that belief neither he or she ¹¹'"'(", "k

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her representative shall be allowed, in any suit or proceeding between himself or herself and that person or his or her representative, to deny the truth of that thing."

From the evidence on record, it is an undisputed 285 fact that the 1^st respondent [Administrator General] took over the administration of the estate and distributed the property of the deceased between the appellant and Miriam Namusoke *(now deceased)* before obtaining Letters of Administration. At the 290 time of distribution of the estate, the second respondent was excluded from the distribution save for money in the deceased's account, because it was perceived that the suit property had been given to her by her late father as a gift inter vivos and 295 therefore did not form part of the estate. The trial Judge however held, and rightly so, that this property was never a gift *inter vivos* because its transfer was ineffectual. Counsel for the appellant conceded that the trial Judge properly evaluated the 300 evidence and rightly over ruled the second respondent on this issue. We shall therefore not $\mathcal{C}^{\mathcal{C}}$ pursue that point.

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Counsel for the first respondent submitted that the trial Judge erred in going ahead to rule that the second respondent shou[d retain the property since the appellant had acquiesced this fact and was estopped from claiming the suit propefty. ln dec[ining to grant any reliefs sought, the trial Judge relied on a number of authorities which expound the doctrine relied upon.

We agree with the position of the law stated by the trial Judge. According to Halsbury's Laws of England, Vo[ 16, Para 1055, page 917:

"The question whether a course of conduct, negligent or otherwise, amounts to a representation, or ts ³²⁰ witb unequiwcal. "(E m p h a s ⁱs a d d e d)

> ln this appeat, counsel for the appe[[ant also that the trial Judge relied on extraneous matters in hotding instance, that the arriving at that conclusion, for appe[[ant argued factors the \e WAS ',"'""f[:"'

> > 13

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being conducted by distribution was the first respondent, whereas it is a fact that at the time. the appellant was only a boy of 17 years. At page 344 of the record, the trial Judge considered all the arguments presented by the appellant and came to conclusion that even the when the appellant obtained the age of majority, he did not raise any objections as to the status or ownership of the suit property. We are thus inclined to agree with counsel for the second respondent that the appellant brought this claim after prodigal. inefficient management and depletion of almost 95% of his entire share of the estate. He now seeks to benefit from the suit property which the second respondent has maintained and developed.

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The matters considered by the trial Judge were and material in determining this relevant case because they point to the appellant's acquiescence. As a rule of evidence, estoppel need not have been pleaded as argued by counsel for the appellant. Rather, the evidence must show, like in this case. that there is a tacit, passive or implied consent to an act. Estoppel was highlighted by the Court of ß

Appeal for Eastern Africa in **NURDIN RANDALI** v. LOMBANK LTD (1963) EA 304, where Newbold J. A. (as he then was) held at p. $314$ :

"... Estoppel, on the other hand, is primarily a rule of evidence whereby a party to litigation is, in certain circumstances, prevented from denying something, which he had previously asserted to be true. Estoppel... can never found a cause of action, though it may enable a cause of action, which *would otherwise fail, to succeed. (Emphasis added)*

## At page 188 of the record, the second respondent 365 testified:

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"... I took over the suit property after it was bombed." I have since repaired it and improved it. I paid off the over draft and took another loan from National Insurance Corporation to repair it. I repaired the building after the death of my father. **Nobody was** raising a finger until the buiding was fully refurbished. The dispute was brought up after 11 **years.**" (*Emphasis added*)

Clearly, the above are compelling circumstances against the appellant for estoppel stopping him from claiming the suit property after 11 years of its ownership, management and control by the second $\sqrt{8}$ respondent. $\int_{\mathbb{R}}$

For a[[ that time the appetlant looked on as his sister (2"d respondent) repaired and improved the suit [and by borrowing from financial institutions. To underscore the above point the learned Judge quoted the decision of COTTENHAM, L. C in Duke of Leeds VS Amherst 1846, 78 RR 47. Phittips 117.

"lf a part, having a right, stand by and sees another party dealing with the property in a manner inconsistent with that right, while the act is in progress, he cannot afterwards complain. This is the proper sense of the word acquiescence"

ln the result, we dismiss this appeal for [ack of merit but since this is a family issue we would make no order as to costs.

We so Order

3A L Dated at Kampata, this day qt '2015.

Hon. Mr. Justice Rubby Aweri Opio, JA

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Hon. Lady Justice Sotomy Batungi Bossa, JA

Hon. Mr. Justice Ke lhuo," nneth"Kak uru, JA

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