[2024] UGHCLD 250

# TIIE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION)

### CryIL SUIT NO. 20 OF 2014

#### NAMAKULA MARIAM PLAINTIFF

#### VERSUS

## I. NAMTIKASA ALIWALI

2. NAMIYA MASTULA-= :=DEFENDANTS

# BEFORE: HON. JUSTICE PIIILLIP ODOKI JUDGEMNT

#### Introduction:

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[] The Plaintiff instituted this suit against the Defendants seeking for, a declaration that the kibanja located at Jinja Kalooli Village, Wamala Parish, Wakiso District (hereinafter referred to as 'the suit kibanja') belongs to the family of the late Nkambwe Muhamad; a declaration that the l't Defendant fraudulently and / or illegally sold the suit kibanja to the 2nd Defendant; general damages for inconveniences; costs ofthe suit; and any other reliefthat the Court may deem fit.

#### Plaintiff s case:

[2] The Plaintiff pleaded that she is the daughter and one of the administrators ofthe estate ofthe late Mohamed Nkambwe. According to the Plaintifl, the late Mohamed Nkambwe was the owner of the suit kibanja, having inherited it from a one Mukiibi Sirasi. Upon the death of Mukiibi Sirasi and Mohamed Nkambwe, they were both buried on the suit kibanja. The Plaintiffcontends that on the 196 November 2013, the 1\*t Defendant, together with her sister Mathilda Mbawomye, illegally and,/ or fraudulently sold the suit kibanja to the 2"d Defendant and exhumed 32 remains of her relatives from the suit kibanja.


#### The defendants' case:

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[3] The Defendants filed their Written Statement of Defence on the l3c May 2014 through Okecha Baranyanga & Co Advocates. They denied that the suit kibanja belongs to Mohamed Nkambwe. They pleaded that the suit kibanja belonged to Mukiibi Sirasi who passed it onto his 3 children, that is, Namukasa Nabisinde (the l"t Defendant), Mathilda Mbawonye and the late Benedicto Mukeeka. According to the Defendants, Mohamed Nkambwe was the son of late Benedicto Mukeeka. Mohamed Nkambwe was therefore a grandchild of Mukiibi Sirasi. The Defendants contend that following a family meeting of the beneficiaries of the estate of the late Benedicto Mukeeka and Mukiibi Sirasi, which was held on the 25e November 2013, it was agreed that the suit kibanja be sold to the 2od Defendant. The suit kibanja was sold to the 2nd Defendant on the 2nd December 2013.

[4] Strangely, on the 24th June 2014 the l"tDefendant filed another Written Statement of Defense through lWs Lukwago & Co. Advocates in which he pleaded that the suit kibanja belonged to her mother who previously resided on it- According to the l"tDefendant, after the death ofher mother, her father shifted and stayed on the suit kibanja until his death. She pleaded that Mohamed Nkambwe did not inherited the suit kibanja and therefore the suit kibanja did not belong to him. The 1"1 Defendant pleaded that part of the suit kibanja was lawfully sold and the remains of the PlaintifFs father was exhumed and transferred to Wakiso District.

#### Issues:

[5] The issues for the determination of this Court are,

l. Whether the suit kibanja belongs to the family of the late Nkambwe Muhamad.

- 2. Whether the sale ofthe suit kibanja by the I "t Defendant to the 2od Defendant was fraudulent and/ or illegal. - 3. What remedies are available to the parties.

#### Evidence adduced:

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[6] The Plaintiff testified as P. W.1. She adduced one witness Nawita Florida who testified as P. W.2. In addition, the Plaintiff adduced 4 documents which were admitted in evidence and marked as PEl - PE4. That is, letters of administration granted to the Plaintiff, Nakassi Halima and Mukiibi Ismail in respect to the estate of the late Mohamed Nkambwe (PEl), photographs of the exhumation and destruction on the suit kibanja (PE2), a letter from the Local Council ¹ Chairperson of Jinja Karoli village dated 8s December 2013 authorizing the transportation of remains of 14 people (PE4) and a sale agreement between the l"t Defendant and the 2'd Defendant dated l9e November 2013 (PE4).

[7] The l"r Defendant testified as D. W. l. She adduced Nalryobe Aisha who testified as D. W.2 and Babirye Naluyima Zainabo who testified as D. W 3. The 2nd Defendant testified as D. W. 4. She adduced Andrew Kasatiro Musisi who testified as D. W5 and Mamale Getruce who testified as D. W.6. In addition, the Defendants adduced 3 documents which were admitted in evidence as exhibits. That is, the sale agreement between l't Defendant together with 6 others and the 2nd Defendant dated 2nd December 2013 (DEl), minutes of a family meeting dated 25th November 2013 (DE2) and a Court order dated 6u December 20'13 authorizing exhumation (DE3).

#### Legal renresentation and submissions:

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[8] At the heanng, the Plaintiff was represented by Mr. Semboja Musa and Ms Zaina Nabukenya of lWs C. Mukiibi Sentamu & Co. Advocates. The l"r Defendant was unrepresented. The 2"d Defendant was represented by Mr. Oscar Onder of IWs Okecha Baranyanga and Co. Advocates. At the close ofthe hearing, the Court gave counsel directives to file wriuen submissions, which directives were duly complied with. I have taken into account the submissions of counsel in the determination ofthe issues before this Court.

#### Burden and standard of oroof:

[9] The burden of proof in civil matters lies upon the person who asserts or alleges. Any person who, wishes the court to believe the existence of any particular fact or desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts, must prove that those facts exist. (See seaion 101. 102 and 103 of lhe Evidence Act Cao 6 of the laws of Ueanda\. The opposite part can only be called to dispute or rebut what has been proved by the other party (See Sebuliba versus

[ 10] The standard ofproofrequired is on the balance ofprobabilities. ln Miller versus Minister of Pensiotts (1947)2 ALL ER 372 Lord Denning stated;

"That the degree is well setlled. Il must carry a reasonable degree ofprobability, but not so high as is required in a criminal case. If the evidence is such thut the tribunal can soy: 'we think it is more probable lhon not,' the burden o/ proof is discharged, f the probabilities are equal, il is not."

#### Ane lvsis and determinat tIl n nf lhe Corrrf :

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o [10] Before determining the issues, as noted in paragraph 3 and 4 above, on the l3t May 2014 the Defendants filed a joint WSD through Okecha Baranyanga & Co Advocates. On the 246 June 2014 the 1\$ Defendant filed another WSD through lWs Lukwago & Co. Advocates. The WSD filed on the 246 June 2014 is neither an amendment to the one filed on the 136 May 2014 nor did the ^I"t Defendant disown the joint WSD filed on the 136 May 2014 on her behalf. Order 6 rule ⁷ ofthe Civil Procedure Rules prohibit a party from raising any new ground ofclaim or raising any allegation of fact inconsistent with the previous pleadings of that party except by way of amendment. In my view, the WSD filed on the 246 June 2014 is improperly before this Court. It is accordingly struck out.

#### Issue 1: Whether the suit kibania belonss to the familv of the late Nkambwe Muhamad.

[11] Counsel for the Plaintiff submitted that the suit kibanja being the residential holding of the late Mukiibi Sirasi, it belonged to his heir Mukeeka Benedict. In addition, counsel submitted that since Mohamed Nkambwe was the heir of Mukeeka Benedict, the suit kibanja belongs to him. In support of his submission, counsel for the Plaintiffrelied on Section 26( I ) ofthe Succession Act.

[2] Counsel for the 2"d Defendant, on the other hand, submitted that the suit kibanja belongs to the estate of the late Mukiibi Sirasi and not the estate of the late Mohamed Nkambwe since the estate ofthe lato Mukiibi Sirasi has never been distributed. Counsel argued that Mukeeka Benedict was appointed the customary heir of Mukiibi Sirasi. He was supposed to obtain legal authority to deal with the property ofthe late Mukiibi Sirasi. In support of his submission, counsel relied on

Sections 2(5),24 and 27 of the Succession Act,Cao 162 and the case of 9!19\$99!-SSS@. Another HCCS No. 107 of2003 Another versus Matovu and

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[3] In rejoinder, counsel for the Plaintiff submiued that the suit kibanja constitutes the estate of the late Mohamed Mkambwe in the sense that his share in the event that it was rightly distributed would form part of his estate.

n4l It is common ground that the suit kibanja originally belonged to Mukiibi Sirasi. This can be deduced from the paragraph 4(a) ofthe plaint and paragraph 4 ofthe WSD filed on the 136 May 2014. This was confirmed in the evidence of P. W. l. I note that D. W. I testified that the suit kibanja was bought by Mukiibi Sirasi and his wrfe Ana Mana Nanyanzi in January 1930. However, she did not adduce any evidence to support that assertion. In any case, that evidence is a departure from her pleaded case in paragraph 4 ofthe WSD where she admitted that the suit land belonged to Mukiibi Sirasi. I further note that D. W.l testified that Mukiibi Sirasi left a will, However, she testified that she did not read that will. The alleged will has never been proved in Court. Therefore, it can be reasonably be infened that Mukiibi Sirasi died intestate.

U5] The process of devolution (transfer) of property of any person who dies intestate to another person is regulated by the relevant law ofdescent and distribution which may be either customary, statutory orboth. See . Under the legislative regime, Section 25 of the Succession Act provides that all property in an intestate estate devolves upon the personal representative of the deceased upon trust for those persons entitled to the property under this Act. Section 2 (r) of the same Act defines a personal

representative to mean, the person appointed by law to administer the estate or any part of the O estate ofa deceased person. In addition, Section 191 oFthe same Act provides that no right to any part of the property ofa person who has died intestate shall be established in any court ofjustice, unless letters of administration have first been granted by a court of competent jurisdiction.

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[16] In the present case, both P. W.l and D. W.l testified that after the demise of Mukiibi Sirasi, no body took out lefters of administration to his estate. Therefore, Mukeeka Benedicto and subsequently Mohamed Mkambwe could not have acquired the suit kibanja from the estate of the late Mukiibi Sirasi through that process.

[7] That leaves only one other possibility, which is, inheritance by custom. Considering that the customary rules, formalities and rituals involved in general inheritance ofproperty and specifically to inheritance of land may vary from community to community, a person asserting that he or she inherited land in accordance with the applicable customary rules must prove it as a fact by evidence in the event that such rules are not documented. The burden was therefore on the Plaintiffto prove that Mukeeka Benedicto and subsequently Mohamed Mkambwe acquired the suit kibanja following rules that govem the devolution and administration ofa deceased person's estate under a specific customary law, by adducing evidence clarifoing or defining what those rules are within the customary context.

[ 8] The Plaintiff alleged that Mohamed Mkambwe inherited the suit kibanja from Mukeeka Benedicto who also inherited it from Mukiibi Sirasi. She testified that out of the 3 children of Mukiibi Sirasi, that is, the l"t Defendant, Mathilda Mbawonye and Mukeeka Benedicto, it is only Mukeeka Benedicto who inherited the suit land. In support her assertion that il is only Mukeeka O Benedicto who inherited the suit kibanja, she testified that Mukeeka Benedicto was the heir of Mukiibi Sirasi, he grew up and was buried on the suit kibanja. She later contradicted herselfwhen she testified that in Buganda, the heir is appointed to take care of property ofthe deceased in trust for all the beneficiaries. She testified that the other children of Mukiibi Sirasi, that is the l"t Defendant and Mathilda Mbawonye were also entitled to the suit kibanja. She testified that the suit kibanja has never been divided.

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[9] The Plaintiff did not adduce any evidence to prove that in their clan (lugave clan) mere occupation and the fact that one is buried on land belonging to a deceased person would be proof of inheritance. In any case, she testified that the suit kibanja was the burial ground for all the descendants of Mukiibi Sirasi. Although P. W.l testified that the 1"1 Defendant was not staying on the suit land, but was staying in Byeyogerere and that Mathilda Mbawonye was not staying on the suit land but was staying in Gomba, P. W.2 contradicted her evidence. She testified that Mathilda Mbawonye was staying on the suit land. D. W.l testified that she was married in Sumbwe, Busiro but when her husband died, she went back to stay on the suit kibanja.

[20] D. W.1 on the other hand testified although Mukeeka Benedicto was the heir of Mukiibi Sirasi, he sold part ofthe suit kibanja which was given to him as heir to a one Katongole and the balance of the suit kibanja was for herself and Mathilda Mbawonye. I have found that piece of evidence unbelievable. Had the remaining suit kibanja been for only D. W.1 and Mathilda Mbawonye, then the children of Mukeeka Benedicto (Babirye Naluyima Zainabu, Nantaba Imeridah, Nabunya Monica, Naluyima Margaret and Nambawa Janet) would not have been part of the sellers of the

suit land to the 2nd Defendant as per DE 1 . In addition, D. W. 1 testified that after the sale of the suit kibanj4 they gave the children of Mohamed Mkambwe a share of the proceeds which clearly shows that they recognized that they were entitled to a share ofthe suit kibanja. D. W2 testified she attended a meeting where the children of Mukeeka Benedicto were to be given a portion of the suit kibanja. If indeed Mukeeka Benedicto had sold his share, why were his children being given ^a share ofthe suit kibanja.

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[21] From the evidence adduced on the Court record, it is very clear to me that the suit kibanja belonged to Mukiibi Sirasi who died intestate. The suit kibanja has never devolved through statutory law or customary law or both. It has never been divided. Mukeeka Benedicto could not have passed the suit kibanja to Mohamed Mkambwe when he himself had not yet got his share in the estate. Therefore, the suit kibanja does not belong to the estate of the late Mohamed Mkambwe. It instead belongs to the estate of the late Mukiibi Sirasi. Issue 1 is therefore resolved in the negative.

Issue 2: Whether the sale of the suit kibania bv 1"1 Defendant to the 2'd Defendant was fraudulent a or illeeal

[22] Counsel for the Plaintiff submitted that all witnesses testified that the suit kibanja originally belonged to Mukiibi Sirasi and that upon his demise no body took letters of administration to his estate and yet the I "t Defendant together with others sold the suit kibanja as lawful owners. Counsel for the Plaintiff argued that any dealing with the estate of Mukiibi Sirasi without letters of administration was illegal. In support of his argument, counsel relied on Sections 25 and l9l of

the Succession Act, CaD 162 andthe case of Harriet Babirve Kvevune and 3 others versus Pascal Mbabazi CACA No. 77 of 2012.

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[23] Counsel for the 2'd Defendant on the other hand submitted that the 2nd Defendant rightfully purchased the suit land from the beneficiaries ofthe estate ofthe late Mukiibi Sirasi following a meeting between the children of Mukiibi Sirasi and those of Mukeeka Benedict. In the alternative, counsel for the Defendant submitted that the 2'd Defendant is a bona fide purchaser for value without notice. ln support of his submissions, counsel relied on the case of H,gii!@l Kalendc versus Vithalidas Haridas and Co, Ltd CACA No. 84 of 2003; Semoa Mbabali versus W:K Kidzo and othets 985I HCR 6 and Haruinston Niuki versus W'illiam Ntanzi HCCS No. 434 of 1996.

[24] In rejoinder, counsel for the Plaintiffsubmitted that the sale ofthe suit kbanja was illegal due to the fact that the suit kibanja was estate property which could only be dealt with by an administrator of the deceased. In the absence of the adminisfiator the transaction is void. Counsel relied on the case of Eauiet Babine Kvevune and 3 others versus Pascal Mbaziira CACA No. 77 of 2012, Counsel further submitted that the altemative submission by counsel for the 2'd Defendant that the 2nd Defendant is a bona fide purchaser for value without notice is a departure for the 2'd Defendant's pleaded case. In addition, Counsel for the Plaintiff submitted that the defence ofbona fide purchaser is a statutory defence only available under the Registration of Titles Act in respect of registered land and not kibanja holding. Counsel relied on the case of SenundS.

Kironde versus Safari Phillio CACA No. 23 of 2012,

[25] I have already held in issue I that the suit kibanja has never devolved through statutory law or customary law or both. Therefore, the l"tDefendant and all the persons indicated to have sold the suit land to the 2"d Defendant did not have any legal authority to sell the suit kibanja and consequently the 2nd Defendant did not get any title on the suit kibanja. The argument by counsel for the 2'd Defendant that the sale was legal because some ofthe children of Mukiibi Sirasi and those of Mukeeka Benedict attended the meeting which resolved to sell the suit kibanja to the 2nd Defendant is without any legal merit. The action of the 1\$ Defendant and all the persons who sold the suit kibanja to the 2nd Defendant and the action of the 2"d Defendant to purchase the suit kibanja, from persons who did not have any legal authority to sell, amounts to intermeddling with the estate ofthe late Mukiibi Sirasi under Section 268 of the Succession Act. It also amounts to a criminal offence under Section I I Administrator General's Act. The sale of the suit kibanja was therefore illegal.

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[26] I agree with the submission of counsel for the Plaintiff that the altemative submission by counsel for the 2nd Delendant that the 2'd Defendant is a bona fide purchaser for value without notice is a departure for the 2'd Defendant's pleaded case. The law is very clear, a party will not be allowed to succeed on a case not set up by that party's pleadings. That party will not also be allowed at the trial to change his or her case or set up a case inconsistent with what he or she alleged in his pleadings except by way of amendment of pleadings. See: -h!2tpiillW.

## (Ul Limited versus East African Develooment Bank SCCA No. 33 of 1993.

[27] I also agree with the submissions of counsel for the Plaintiff that the defence of bona fide purchaser of land is a statutory defence only available under the Registration of Titles Act in respect ofregistered land and not kibanja holdtng.ln Nditmvibo Sande and 3 others versus Allen CA No. 65 of 20l/ the Court ofAppeal held that Peace Amoaire CA

"lt appears clearly lo us that the doctrine of bonafide purchctser for value wilhout notice is a statutory defence available only to the person regislered as proprietor uruler the RT'A It is not an equitable remedy although its history stems from the common law. It would not even qualifl as a remedyfor it is only a defence, by a person registered as proprietor under the RTA."

## Issue 3: What remedies are available to the parties.

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[28] The Plaintiff having failed to prove that the suit kibanja belongs to the estate of the late Mohamed Mkambwe, I accordingly decline to gant the Plaintiffs prayer the suit kibanja should be declared to belong to the family of Mohamed Mkambwe. It is instead declared that the suit kibanja belongs to the estate ofthe late Mukiibi Sirasi. On the prayer that a declaration should be made that the sale ofthe suit kibanja was illegal, I have found that the sale ofthe suit kibanja by the l"tDefendant and others to the 2nd Defendant was illegal, a declaration to that effect is accordingly made.

[29] Counsel for the Plaintiffprayed that the Court should make an order that the 2nd defendant be evicted from the suit land. This prayer was not prayed for in the plaint. In addition, the Plaintiff (P. W. I ) testified that by the time this suit was instituted, no one was on the suit kibanja. She further testified that the suit kibanja was sold to many people who came on the suit land in 2014 after this suit was filed. She further stated that she will sue them separately. Her evidence was confirmed by the 2'd Defendant (D. W.4) who testified that she subdivided the suit kibanja and sold it to different

people. Given that the 2nd Defendant is not on the suit land, an eviction order against her would be in vein. The new buyers of the suit kibanja were not made party to this suit. This Court cannot issue an eviction order against them without according them an opportunity to be heard.

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[30] The Plaintiffalso sought for general damages for inconveniences; costs ofthe suit; and any other relief that the court may deem fit. According to Halsbury's Laws of Ensland. 4th Edition reissue Volume I I ) narapranh 812 general damages are defined as

"... those losses, usually bul not exclusively non pecuniary, which are not capable of precise quantification in monetary lerms. They are those damages which will be presumed to be natural or probable consequence ofthe wrong complained of; with the result that the Plaintiff is only required to assert that damage has been suffered. "

[30] P. W.1 testified that she has been greatly inconvenienced and suffered loss and mental anguish. She spent a lot of money in form of transport to different offices for about a year. She further testified that the house which was built by her father where she was living was demolished by the 2"d defendant who did not allow her to take anything. On her part, the 2nd Defendant (D. W.4) testified that after purchasing the suit land, she took possession. She did not deny or challenge the evidence of the Plaintiff that she demolished the house where the Plaintiffs was staying. It can therefore be reasonably presumed that she accepted evidence of the Plaintiffthat the house where she was staying was demolished. There is no doubt that the Plaintiff had the right to occupy the suit kibanja since her father occupied the same as the son of Mukeeka Benedict who was the son of Mukiibi Sirasi. It was as a result of the illegal sale/ purchase of the suit kibanja" that the Plaintiff s right to occupy the suit kibanja was infringed. I accordingly award the Plaintiffgeneral damages of Ug. Shs. 20,000,000/: (Uganda Shillings Ten Million Shillings).

[31] On the prayer for the costs of this suit, the general rule is that costs follow the events and ^a successful party should not be deprived ofcosts except for good cause. See section 27 ofthe Civil procedure Act. I have not found any good cause in this case why I should deny the Plaintiff the costs in this matter. The Plaintiffis accordingly awarded the costs of this suit.

## Orders:

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[32] In the end, having carefully considered the merits ofthis case, the following orders are hereby made.

- ¹. ^Adeclaration that the suit kibanja belongs to the estate of the late Mukiibi Sirasi. - 2. A declaration that the sale of the suit kibanja by the 1"1 Defendant and others to the 2'd Defendant was illegal. - 3. The Defendants are ordered to jointly and severally pay the Plaintiff general damages of Ug. Shs. 20,000,000/: (Uganda Shillings Ten Million Shillings). - 4. The Defendants are ordered to jointly and severally pay the Plaintiff the costs of the suit.

I so order.

Dated and delivered this 2'd October 2024

I r11r ii1

Phillip Odoki Judge.

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