[2021] UGHCCD 118

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KABALE CIVIL APPEAL NO.0049 OF 2019**

**MUGABI WILLY**======================**APPELLANT**

#### VERSUS

**MUBONEHE LILLIAN**=================**RESPONDENT**

## **BEFORE: HON. JUSTICE MOSES KAZIBWE KAWUMI**

#### **JUDGMENT**

This Appeal arises from the judgment of the Magistrate Grade 1 at Kabale delivered on 26th November 2019. The suit in the lower court was filed by the Appellant against the Respondent for recovery of a piece of land at Burungu village, Nyanja Parish, Maziba Sub County in Kabale District. The Appellant lost the suit hence this Appeal.

#### **Background.**

The suit land was owned by Mutohire Zadoki the Appellant's father and a father in law to the Respondent who died in 1980. The Appellant's claim is that he inherited the suit land from his father and his mother who later died in 2009. The gist of the evidence led by the Appellant to prove the claim was that Mutohire who had three wives distributed land to each of them and the suit land was donated to his mother and it thus became his on her demise.

The Respondent on the other hand contends that her late husband Mubonehe John, a step brother to the Appellant had a share in Mutohire's estate which included the suit land. The Respondent disputes the suggestion that the land was distributed to co-wives by Mutohire and asserts that all descendants had a stake in it.

All the parties concede that none of the beneficiaries acquired Letters of Administration to the estate of Mutohire or that of Mubonehe John. The Appellant did not also produce any Deed of Distribution to show that Mutohire donated land to his three wives.

The trial Magistrate framed two issues for resolution by the court:-

- 1. Whether the Plaintiff is the lawful owner of the suit land? - 2. What remedies are available to the parties?

It was held that the suit land is still part of the undistributed estate of the late Mutohire and the Appellant despite having beneficial interest in it was not the exclusive lawful owner of the same. The suit was dismissed with costs.

The Memorandum of Appeal raises two grounds for determination by this court:-

- 1. The learned trial Magistrate erred in law and fact in holding that the suit land forms part and parcel of the undistributed estate of late Mutohire Zadoki. - 2. The learned trial Magistrate did not make a proper scrutiny and perusal of the evidence of both parties and reached a wrong decision.

# **Legal representation.**

M/S Beitwenda & Co. Advocates represent the Appellant while M/S Bikangiso & Co. Advocates represent the Respondents.

Counsel filed submissions which have been considered but not reproduced as they form part of the record.

The mandate of this Court is to fully and exhaustively scrutinize the evidence on record and to make decisions both on the law and the facts bearing in mind that the court did not observe the witnesses during the trial.

## **Analysis of the evidence.**

The Appellant stated in court that his mother was using the land as far back as 1973 when he was born and no one laid claim to it in her life time. That before the death of his father in 1980 he distributed land to his wives and the suit land was given to his mother and it is not where she had her residence. Bututura (PW2) told court that Mutohire distributed land to his wives but he did not invite anybody to witness.

PW2's proof of the alleged distribution was that he saw the wives using separate pieces of land. The suit land was used by the Appellant's mother but when his father died they stopped using it. In cross examination PW2 confirmed that when his father who had passed on the land to Mutohere died the land remained uncultivated and all the three wives were not using it but relatives were using it for grazing.

It was PW2's evidence that relatives stopped grazing on the suit land when the Appellant's elder brother dug a foundation on it to build a house. That the LC111 attempted to distribute it among the three wives. Burasidia (PW3) confirmed that the land was given to the Appellant's mother by her husband and she witnessed it being a co-wife to the Appellant's mother.

According to PW3 local residents and the other two wives used to graze on the suit land.

The Respondent married into the family in 1979 and the suit land was used by Mutohire. In 1987 the Appellant's elder brother attempted to build on it but was resisted by the Respondent's husband. The Parish Chief, the Appellant's mother, the Respondent's mother in law and PW2 were called in to mediate. The disputants were advised to share the land but refused. It was her evidence that the suit land remained for grazing and none of the three wives used it independently until the Appellant claimed it in 2011.

The Respondent was not challenged on her evidence about the 1987 dispute between her late husband and the Appellant's elder brother. If the Appellant's mother indeed had exclusive ownership to the suit land at the time, she would have objected to the suggestion to share it out but it is nowhere in evidence.

The fact that the suit land was used for grazing by the relatives and village mates further defeats the argument that it was exclusively owned by the Appellant's mother and especially when there is no documentary evidence to support the donation. The only allusion to the distribution according to PW2 was that each wife tilled her piece of land which per se does not amount to gifting the land by Mutohire.

One of the characteristics of a gift inter vivos is that the donee must take possession which appears not to be the case in regard to the suit land that was open to all family members for grazing. PW2 and PW3 corroborated the Respondent on this fact.

## **Joy Mukobe V Willy Wambuwu. HC Civil Appeal No.51 of 2002; Pellagia Kakuliremu V Paulini Manyindo. HCCS No.29/1990**

The fact that no one took out Letters of Administration to the estate of Mutohire implies that his estate remained undistributed. The Appellant like his other siblings and descendants are beneficiaries and he has no exclusive right to the suit land.

I note that Counsel for the Appellant relies on **Israel Kabwa V Martin BanobaMusiga** for the argument that as a legitimate beneficiary the Appellant has a right to protect his interest without Letters of Administration. I believe the authority was cited out of context. The principle therein s that a beneficiary of an estate has locus standi to institute legal proceedings for purposes of protecting or preserving an estate. It was never in contention that the suit was wrongly filed.

The gist of the claim is that the Appellant seeks recovery of what he claims to be his for exclusive ownership yet the estate was not distributed. His beneficial ownership is not contested and the Respondent's contention is that the suit land should be distributed to all the beneficiaries.

The trial Magistrate correctly analyzed the evidence and came to the proper conclusion that the suit land still forms part of the undistributed estate of the late Mutohire Zadoki. The family should take out Letters of Administration to enable distribution of the suit land to the three families deriving from the co-wives Mutohire married.

I do not find merit in the Appeal which I accordingly dismiss. The protagonists are family members with a duty to ensure that the suit land is equitably distributed. I order that each party meets its costs in this court.

## ................................ **MOSES KAZIBWEKAWUMI JUDGE 26TH OCTOBER 2021**