[1995] UGHC 62

## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA.

## H. C. C. S. NO. 127/?\*)-

NOAH PATRICK MUWANGA : PLAINTIFF

## VERSUS

| 1* | MUKAJANGA<br>YESERI | WASSWA | I | J:<br>? 5 s s | DEFENDANTS | |----|---------------------|--------|---|---------------|------------| | 2. | EDITH<br>NAMPEWO | | | | | | | | | | | |

BEFORE: THE HONOURABLE MR. JUSTICE F. M. S. ffGONDA NTENDE

## RULING

When this suit was called for hearing, learned counsel for the raised a preliminary objection that this action was not maintainable at law for various reasons\* Executor/Administrator of the plaintiffs fatherJs Estate would have been the proper plaintiff and not the current plaintiff\* In addition^ he maintained that the so called succession certificate granted to the plaintiff had no legal effect to authorise the plaintiff institute and maintain an action such as the present one\* He prayed that this suit should be dismissed with costs\* Firstly, that the suit was barred by section 6 of the Limitation Act\* Secondly^ and in the alternative, that the Administrator General being the ^k <•\* \**³ -■\** ^r defendant Mr\* Kulumba Kiyingi

Mr. James Mukasa, learned counsel for the plaintiff opposed the limitation as the plaintiff only discovered the fraud in 1993• Secondly, he stated that though he was unable to provide any authority, **He** further submitted that the issues of law are so entangled with the issues of fact that it is better to hear the suit and, then arrive at a decision. the succession certificate conferred authority on the plaintiff to commence this action to recover his 'bequest, now the suit land\* preliminary objection and asserted that the suit was not barred by

It is useful to set out the relevant portion of the Plaint at the outset\*

- "4\* • The plaintiff6 claim against fraudulent transfer of his property of the 2nd defendant and for illegal transfer based obtained documents and as lawful proprietor, cause of action arises the defendants is for into the names cancellation of this on forged and fraudulently reinstatement of the plaintiff The facts upon which the jointly and severally against the defendant is as follows - 5« That at all material times before 1977\$ the plaintiffs father Kulisipo Senkole was the registered proprietor V • ⁺ • \*' ' • \_. ' ~of land comprised on Plot 6 Block 227 land at Bweyogerere. - 6. That upon the death of the plaintiffs father, the Administrator General applied for Probate Administra< tion of the Estate on the basis of the plaintiffs •late father's will and the said grant was made on the 1st day of July 1976 by the High Court of Uganda# Attached and marked Annexture ,"An. - ,7. That in pursuance of the plaintiffs lawful claim to cho Estate he applied for a succession certificate as to his interest in the Estate and-the same was Chanted to him on 25th February 1993, by the Administrator Generals See Annexture "Bn» - 8. That upon attempting to register his lawful interest in land comprised in Plot 6 Block 227 Bweyogerere which the succession certificate indicated as the plaintiffs interest in the Estate, he discovered that the land was registered in the names of one Edith Nampewo under Instrument No. 102685 on 25th May 1982 and that the same had earlier been registered in the names of one Yeseri Mukajanga Wasswa on 28th January 1977\* See Annexture."

It is clear from the Plaint that the suit land ^J 5 be 1st duly 1976a to the events complained of registered in the the father of the plaintiff. Will on was, prior names of Kulisipo On his death, the Administrator General succeeded him vhen it obtained a grant of Probate of the deceased'

as he was infact, obliged to do, apply under section 145 of the It would appear that the Administrator General did not, entitled,

Registration of Titles Act to be entered on the Register as **an** Execute of Administrator of the Estate of the plaintiffs father• It would appear to me that not until the Administrator General has been entered in the Register Book as Executor or Administrator of the Estate of **the** deceased and holder of the land in that capacity under S. 14? of beneficiary by the Administrator General. not section 264 of the Succession Act provides Registration of Titles Act would such land be transferred to the i Notwithstanding whether **that** has been done or

> "After any grant of Probate or letters of Administration, no person other than the person to whom the same has been granted shall have pow>r to sue or prosecute any suit or otherwise act as representative of the deceaseduntil such Probate or Letters of Administration has or have been recalled or revoked".

The Plaint alleges that the Administrator General is holder of a **grant** of "Probate/Administration" of the Estate of the plaintiff's father# Para 6 thereof refers. The said grant has not on the face of the Plaint been recalled or revoked. The Administrator General has not dealt with the suit property in accordance with section 14J of the Registration of Titles Act so as to^f in due course: sever it from the Estate of the deceased. I find that in the premises the Administrator General is the only competent person to bring this suit. Any other person including the plaintiff is barred by section 264 of the Succession Act. This suit is accordingly struck out with costs.

F. M. S. GONDA NTEND:

J U D G E 6/03/1995

9:06 a.m. 6/3/1995 Present

Kihika holding brief for Kulumba Kiyingi, counsel for defendant. Muhanguzi holding brief for James Mukasa.

Muyanja court clerk.

**4**

Absent

Noah Patrick Muwanga plaintiff• Yeseri Mukajanga Wasswa defendant No»1» Edith Nampewo defendant No.2<

Ruling delivered\*

" vvct \* • 4. M. S. EGONDA NTENDE '

JUD GE 6/03/1995