[2024] UGHCFD 29

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA (FAMILY DIVISION) CIVIL SUIT NO. 0045 OF 2021**

#### **1. NAGADDYA WINFRED**

**2. NAKAZZI MONICA =========================== PLAINTIFFS**

**VERSUS**

**ADMINISTRATOR GENERAL ====================== DEFENDANT**

## **BEFORE: HON. LADY JUSTICE ALICE KOMUHANGI KHAUKHA JUDGMENT**

#### **Introduction**


20 executing his statutory duty by negligently giving out the estate to illegitimate beneficiaries; the Defendant should furnish a true account and inventory of the administration of the estate of the deceased; the Defendant should be directed to renounce the Letters of Administration that were granted to him and the same be granted to the Plaintiffs; that estate of the deceased should be managed by the 25 Plaintiffs; the Defendant is directed to produce records from the Succession Register

Book of the pages for the information about the deceased; the Defendant is directed to produce the original copy of Letters of Administration for revocation; the

Defendant is directed to adequately compensate at the current value the Plaintiffs and beneficiaries for the loss of 960 acres of land of the estate to Loy Mirembe due to its negligent acts and all such other land that was given to Kantu Charles, Museveni Erifazi and Nakatte Ruth; the Defendant pays general and punitive 5 damages for the loss caused to the estate of the deceased; interest on the general and punitive damages at court or commercial rate from the date of the grant of Letters of Administration to date and costs for the suit.

#### **Representation**

10 At the hearing, the Plaintiffs were both represented by Counsel Sseggwanyi Ssakka of M/S Sseggwanyi Ssakka & Co. Advocates while the Defendant was represented by Mr. Henry Kuloba Wesaka, Senior State Attorney for the Administrator General.

At the time of writing this Judgment, none of the parties had filed written 15 submissions despite the Court's directives and scheduled timelines that were given in the presence of both Counsel. This Judgment, therefore, has not considered any submissions from either party.

#### **Facts**

since 27th September 2000.

20 The Plaintiffs are said to be daughters of the late Dimintiriya Najuuma, a sister of Yowana Ssemakula Gwotayisenaye (**deceased**). The deceased died childless and intestate on 10th September 1939. He had inherited property from his late father, a one Fuluderi Kikwabanga to wit: 18 cows, 3 sheep, and 6 square miles of land that was situate at Kafundeezi, Kabbokasa and Kalama in Kasambya Sub-County, 25 Buwekula County in Mubende District. At the time of his demise, the deceased had sold and given out part of his land and had remained with 4 square miles and 211 acres of land (**suit land**) which has been administered by the Administrator General

The plaintiffs allege that in 2012, they discovered that several transactions had been made on the suit land and several people such as: Loy Mirembe, Kantu Charles, Museveni Erifazi and Nakate Ruth had been registered on the suit land and they 5 possessed Certificates of Title too. In particular, the Plaintiffs discovered that the Defendant had transferred land measuring 388.5 hectares to Loy Mirembe who claimed that her father had bought that particular land from the deceased on 25th February 1954 and yet the deceased had died way back in 1939. The Plaintiffs notified the Defendant of the said anomalies and asked them to investigate and 10 rectify the said illegalities but it was in vain. It is then that the Plaintiffs asked the Defendant to renounce the Letters of Administration they had obtained and instead issue them with a Certificate of No Objection (**CONO**) so that they could administer the estate of the deceased.


- 15 On the other hand, the Defendant contested the competence of this suit on ground that the Plaintiffs have no locus to institute the suit; the reliefs sought against the Defendant are legally and factually untenable and that the suit is barred by the Statute of Limitation. That the Defendant is the duly appointed administrator of the estate of the deceased who died intestate and as an office, the Defendant legally 20 administered the estate of the deceased within its mandate; the 388.5 hectares of the suit land were transferred by the Defendant to Loy Mirembe pursuant to a Court Order in HCCS No. 52 of 2005; that the Defendant deemed it necessary to conduct further investigations to verify the true relationship of the Plaintiffs to the deceased in accordance with their records in the Succession Register which is why they have 25 not issued a CONO to the Plaintiffs. - It is against that background that this suit was instituted.

#### **Issues**

During Scheduling, Counsel for the parties raised the following issues for determination by this Court:

- 1. Whether the Plaintiffs have locus to institute this suit; - 5 2. Whether there are grounds for revocation of the Letters of Administration to the estate of the late Yowana Ssemakula Gwotayisenaye; and - 3. Whether the Plaintiffs are entitled to any of the prayers made in the plaint.

#### **Resolution of the issues**


## 10 **Issue 1:** *Whether the Plaintiffs have locus to institute this suit.*

The Plaintiffs' claim is that they are the only surviving relatives of the deceased, who died childless and was a biological brother to their mother, one Najjuma Dimintiriya. As such, the deceased is the Plaintiffs' maternal uncle.

- 15 The Defendant's claim is that Najjuma Dimintiriya and Nabukalu Anna whom the Plaintiffs claim to be the deceased's biological sisters are not mentioned in the Succession Register either as siblings or beneficiaries of the deceased. That the Succession Register mentions a one Nabukalu Natuliya who is a different person from the one stated by the Plaintiffs, that is, Nabukalu Anna and that even Nabukalu - 20 Natuliya was never given any land but rather personal property of the deceased.

#### **Court's Consideration**

I need to observe from the onset that this matter relates to an estate of a person who died in 1939 and therefore administered under the Buganda Land Succession Law

25 of 1912 which provided for the Succession Registers and the Certificates of Succession. In 2020, it was observed by the then Justice Law and Order Sector (JLOS) that matters related to Succession Registers and Succession Certificates posed a lot of challenges to the justice, law and order actors. In order to address those challenges, a Joint Working Committee was constituted in May 2020 at the instruction of the Sector Stakeholders. It comprised of twenty-three (23) members drawn from the Judiciary, Administrator General/Public Trustee, Ministry of Justice

- 5 and Constitutional Affairs (Departments of Civil Litigation, Legal Advisory Services and First Parliamentary Council), Commissioners for Land Registration, Land Administration and Management and Surveys and Mapping in the Ministry of Land, Housing and Urban Development (MoLHUD), Justice Law and Order Sector (JLOS) Secretariat and the Buganda Kingdom. - 10

The Report of the Joint Working Committee on Succession Registers and Certificates of Succession, April 2023, gives a historical background of Succession Registers and Certificates of Succession in Uganda. The Report revealed that in Uganda, the Succession Registers and Certificates of Succession are only peculiar

to the Kingdom of Buganda which came into force on 31 15 st October 1912 under the Kingdom of Buganda Succession Law.

## Section 2 of the Succession Law of Buganda provided that:

**"***When a person dies having land in Buganda, no one shall be allowed to deal with that land in* 20 *any way at all except after obtaining from the Lukiiko a Certificate of Succession which says that he is entitled according to law to have control of it."*

## Section 3 thereof provided that:

**"***Certificates of Succession can be given to the man who has had the land left to him by will, or,*

25 *if there is no will, they shall be given according to the customs of succession in Buganda, or they shall be given to a guardian, or another person on behalf of the person who is entitled according to law to have possession of the land."*

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Section 4 provided that:

**"***Th***e** *man spoken of in any Certificate of Succession shall be able to do to any land or part of it spoken of in the Certificate of Succession as he shall please, but he shall not be allowed to break any law which forbids land to be sold***."**

5 The Joint Working Committee Report revealed that in order to implement the details in a Succession Register, a beneficiary was issued with a Certificate of Succession by the Lukiiko. Under Section 1 (j) of the Registration of Titles Act, a Certificate of Succession was defined to mean Letters of Administration. A Certificate of Succession operated in the same way as a transfer of land and also had the same 10 effect as a limited grant of Letters of Administration concerning that specific beneficial share of the deceased's estate. The beneficiaries of a deceased person's estate were issued with a Certificate of Succession pertaining to their share of the deceased's estate. The beneficiary would use the Certificate to acquire his share of the deceased's estate as stipulated in the Succession Register. (*Report of the Joint*

## 15 *Working Committee on Succession Registers and Certificates of Succession, April 2023 at page 7*).

In 1966, the traditional institutions were abolished including the Buganda Kingdom government which was involved in the processing and issuance of the Certificates 20 of Succession. Owing to the realization that there were persons in Buganda who had not effected the transfer of their entitlement under the Succession Registers, in 1967, the Government of Uganda enacted Local Administrations (Performance of Functions) Instrument, S. I No. 150 of 1967 to empower the Administrator General/ Public Trustee to take over the role previously reserved for the Lukiiko. Paragraph

25 2 thereof provided that:

**"***The power vested in the Lukiiko by Section 2 of the Land Succession Law to issue Certificates of Succession in respect of estates administered according to customs of succession in the Kingdom of Buganda prior to the 18th August, 1967, shall be exercised by the Administrator General/ Public Trustee."*

Under the above law, the mandate to issue Certificates of Succession was transferred from the Lukiiko to the Administrator General/ Public Trustee in August 1967. The Administrator General/ Public Trustee would issue a Certificate of Succession to the beneficiary in respect of the beneficial share as stipulated in the Succession Register.

- 5 The beneficiary, in case of land, would present the Certificate of Succession to the Registrar in the respective land office. The Registrar would then make a transfer in the name of the person who appears on the Certificate of Succession, or a purchaser of land prescribed under a Certificate of Succession. - 10 The Working Group further observed that the administration of the estates under the Succession Register continued to pose challenges to the Administrator General, the Courts of Judicature and the Land Office because whereas those estates are deemed to have been fully administered upon acquisition of a Certificate of Succession, the Office of the Administrator General continued to either obtain Letters of 15 Administration in respect of the said estates or gave Certificates of No Objection to other people who claimed to be beneficiaries of the estate.

Following the findings and recommendations of the Working Group, on September 22, 2023, the Attorney General wrote to the Hon. The Chief Justice and advised that 20 the Local Administrations (Performance and Functions), Instrument S. I No. 150 of 1967 was deleted from the Law Revised Edition and therefore, has no force of law in Uganda. He further advised that the Office of the Administrator General no longer has jurisdiction over estates under Succession Registers and Certificates of No Objection and Letters of Administration cannot be issued in respect of estates under 25 the 1912 Buganda Succession Law. It was also the advice of the Attorney General that Courts should not renew the Letters of Administration held by the Administrator General and private persons in respect of the estates under the Succession Registers once they expire within the timelines in the Succession (Amendment) Act No. 3 of 2022.


- In the case of *Paulo Kawesa versus the Administrator General and 2 Others, Civil Suit No. 918 of 1993*, by a Judgment delivered on 19th 5 June 2012, it was held that in the estates administered under the Succession Registers, the estate was deemed fully administered upon confirmation by the Lukiiko and the Kabaka and upon issuance of the Certificates of Succession. The Administrator General had no power at all to either administer or distribute what had already been administered. The power 10 transferred to the Administrator General by S. I. 150 of 1967, only related to issuance of Certificates of Succession in respect of the estates already administered and distributed before 18th August 1967. That is merely an implementation function. - In light of the above revelations, it is my finding that the estate of the late 15 **SSEMAKULA YOWANA GWOTAYISENAYE** was already administered as per the Succession Register which was admitted as DEX2. The Paintiffs' claim in the deceased's estate is through their mother Dimintiriya Najjuma who was said to be a sister to the deceased. However, upon studying DEX 2, I find that the said Dimintiriya Najjuma is not mentioned anywhere as having been given anything of 20 the deceased's estate by the clan. Only men were given land and the women mentioned on the Succession Register were only given one cow each.

This therefore means that they are not beneficiaries of the deceased's estate as per the Succession Register. Even if they were, they would be entitled to receive the 25 Certificate of Succession in respect of only their share from the Administrator General if they had not received the same as at 18th August 1967. They would not be entitled to apply for a Certificate of No Objection to administer the entire estate of the deceased. It is also important to note that the Succession Register (DEX2) is

dated 1940 implying that the estate was administered as at that time and I believe that all the beneficiaries mentioned therein already took possession of their beneficial share. It would be absurd for this Court to make a finding that the Plaintiffs are the right beneficiaries of the estate of the deceased. What then happens to the 5 people who were given land as per the Succession Register?

I have taken note of the fact that when the Plaintiffs reported to the Defendant, in a letter dated August 2014 (PEX3), the Defendant instructed the Chief Administrative Officer- Mubende to convene a family meeting with a view of establishing the relatives of the deceased. In response, in a Report dated 15th 10 September 2014, the Sub County Chief Kasambya revealed that he had conducted a family meeting as per the instructions of the Chief Administrative Officer and had confirmed that the Plaintiffs were the surviving relatives of the deceased.

15 Be that as it may, it is the finding of this Court that though the Plaintiffs may be the surviving relatives of the deceased, they are not the beneficiaries of the estate of the deceased because neither themselves nor their mother was mentioned among the beneficiaries in the Succession Register. It is also my finding that the Defendant acted in error in attempting to conduct the meeting of the family of the deceased with 20 a view of ascertaining the rightful beneficiaries of the deceased's estate in light of the Succession Register in their possession. **(See: The decision in the case of** *Paulo*

*Kawesa (supra)* **and the findings and the recommendations of the Working Committee).**

25 In light of the above therefore, it is my finding that the Plaintiffs have no locus standi in this matter and this issue is answered in the negative which disposes of this matter substantively.

I also note that in light of the above said revelations as already pointed out, the Administrator General has no jurisdiction over this estate and the Grant that was previously issued to him lapses.

5 Consequently, this suit fails and is accordingly dismissed and each party will bear its own costs.

**Dated at Kampala this 27th day of June 2024.**

10 ………………………………..

Alice Komuhangi Khaukha **JUDGE** 27/06/2024

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