[2023] UGHCLD 239

#### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MPIGI LAND CIVIL SUIT NO. 46 OF 2021

$5$ 1. NANTUMBWE DEZIRANTA (Administrator of the Estate Of the late Male Eneriko) 2. WASSWA CHARLES

.......... PLAINTIFFS

**VERSUS**

10 1. NAMAZZI MARY 2. KAYONGO DAN (Administrators of Daniel Patwe) 3. NANYONGA CHRISTINE 4. MUWANGA CHURCHILL 15 5. BIKUNDU JIMMY 6. NAMBALIRWA SARAH

......................................

10. NANTUMBWE JANE 11. SEBITENGERO SAMUEL

7. NANSEREKO ALLEN 8. NABABI NAOME 9. NASIMBWA CHRISTINE

## BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK

#### JUDGMENT

Introduction: 25

The plaintiffs' claim against the defendants is for; a declaration that the $1^{st}$ and $2^{nd}$ defendants are not Administrators of Daniel Patwe; the registration of the 1st and 2^nd defendants on the Mawokota Block 65 Plot 2 and 6 as Administrators of Daniel Patwe using Letters of Administration vide HC AC No. 505 of 2012 for the estate of the late Eric Kayongo was fraudulent and illegal; a declaration that the subdivisions for Mawokota Block 65 Plot 6 into Plots 203 – 223, the distribution and transfer among the defendants is illegal and fraudulent without a valid grant for the estate of the late Daniel Patwe; an order for cancellation of the subdivisions

for Mawokota Block 65 Plot 6 into Plots 203 – 223 the distribution and transfer of the said land to the defendants; an order for restoration of Mawokota Block 65 Plot 35 6 into Plots $203 - 223$ , and Plot 6 be restored into the estate of the late Daniel Patwe; and order that all the names of the defendants be cancelled from the register of Titles for Mawokota Block 65 Plot 6 into Plots 203 - 223 by the registrar of Titles; an order that the defendants deliver up and/or surrender all the Certificates of Titles for Mawokota Block 65 Plots 203 - 223 to court; a declaration that the 40

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late Asoni Eneriko Male owns 12 acres out of the 20 acres comprising the estate of the late Zakaliya Balemezi on Block 65 Plot 6; a declaration that the late Asoni Eneriko owns 12 acres out of the 20 acres comprising the estate of the late Zakaliya Balemezi on Block 65 Plot 6; a declaration the $2^{nd}$ plaintiff is entitled to 20 acres

- forming part of the estate of the late Alisitaliko Senvume out of Mawokota Plot 6 5 Block 65; a declaration that the estate of the late Asoni Male claiming 12 acres through Zakaliya Balemezi and Alisitaliko Senvume (20 acres) owned 32 acres out of the estate of the late Daniel Patwe out of land on Mawokota Block 65 Plot 6; an order that the 1^st and 2^nd plaintiffs each survey off their respective shares from - Mawokota Block 65 Plot 6 or any plot(s) arising there from; a declaration that the 10 plaintiffs illegally, fraudulently and unlawfully trespassed on the land comprising of the estate of the late Asoni Male and Alisitaliko Senvume comprising of 32 acres; an eviction order be issued against the defendants from trespassing on the land comprising of the estate of the late Asoni Male and Alisitaliko Senvume; a permanent injunction be issued against the defendants, their successors, assignees, 15 employees, restraining them against trespassing on the suit land; general damages;

#### **Brief facts:**

interest and costs of the suit.

- It is the plaintiffs' case that the 1^st plaintiff is a beneficiary and the Administrator of the estate of the late Asoni Male who was the customary heir of the late Zakaliya 20 Balemezi. That Zakaliya Balemezi acquired 20 acres of land at Kagezi from the late Daniel Patwe the grandfather to all the defendants which he took possession of, utilized, built a house that was destroyed in 1982 and the same land is used as his family's burial ground onto which he was buried. - That the estate of the late Zakaliya Balemezi comprising of 20 acres at Kagezi was 25 distributed whereof Asoni Male the customary heir got 12 acres and was issued with a certificate of succession No. 35955 dated 8th January, 1963. That the late Male sold Bibanja to some occupants who have utilized the land to date and thus the claim for 12 acres of Asoni Male arises from the estate of the late Zakaliya Balemezi and not from the estate of Daniel Patwe Block 65 plot 6. 30

That the $2^{nd}$ plaintiff is a beneficiary of the estate of the late Alisitaliko Senvume who acquired 20 acres of land at Kagezi from Patwe Daniel. That the late Zakaliya Balemezi and Alisitaliko Senvume both died without surveying off and obtaining the certificates of title in respect to their shares as obtained from the estate of Daniel Patwe.

The late Daniel Patwe was the father of the late Kayongo Eric who is the father of all the defendants. The said Kayongo Eric obtained Letters of Administration to the estate of the late Daniel Patwe and was registered as the Administrator on the

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Certificate of Title for Mawokota Block 65 plots 2 and 6 but died without distributing the same among the beneficiaries and claimants of the estate.

That the 1^st and 2^nd defendants then obtained Letters of Administration for the estate of the late Kayongo Erick whereof they illegally, unlawfully and fraudulently 5 claimed land comprised in Block 65 Plots 2 and 6. And got registered thereon as the Administrators of the late Daniel Patwe where upon they caused the subdivision of plot 6 Block 65 into several plots such as; 203 - 223, distributed and transferred them into the names of the 1^st to 11^th defendants as beneficiaries of the estate of the late Kayongo Eric.

The 1^st and 2^nd defendants however never surveyed off or excluded the 40 acres out of Block 65 plot 6 that belonged to the estate of Zakaliya Balemezi and Alisitaliko Senvume from whom the plaintiffs' claim arises. The 1st plaintiff was even evicted by the 3rd defendant claiming part of the land that belonged to the estate of the late Asoni Male being plots 218, 220 and 203.

The defendants on the other hand denied the contents of the plaint and contended that the plaintiffs had no locus standi to institute the instant suit against the defendants. That they have no known claim on the suit land comprised in former Mawokota Block 65 Plot 6 land at Kagezi and/or Mawokota Block 65 Plot 2 Land at Kagezi.

The defendants by a Counter-claim sought orders that; the respondents' caveats lodged on the various properties comprised in Mawokota Block 65 Plots 203-223 vide Instrument No. MPI 00010828 dated the 7th June, 2021 be vacated; the

counter-claimants lawfully and rightfully own and hold title in the properties comprised in Mawokota Block 65 Plots 203 - 223 land at Kagezi; a declaration 25 that the respondent to the Counter-claim, as Administrator of the estate of the late Asoni Male and beneficiary of Alisitaliko Senvume has no interest; general damages and costs of the suit.

The counter-claimants averred that at all material times they are the beneficial owners and/or registered proprietors of the several properties comprised in the 30 suit land at Kagezi and that they derive their interest(s) in the property as legal and rightful beneficiaries in the estate of the late Eric Kayongo, their late father. That vide instrument No. MPI 00010828 dated 7th June 2021, the Respondents to the counter-claim, as the Administrator of Asoni Male and beneficiary of Alisitaliko Senvume caveated all properties comprised in Mawokota Block 65 Plots 203 -223 35 land at Kagezi, property of the counter-claimants.

Further, the counterclaimants contended that neither the respondents to the counter-claim, nor the estate of the late Asoni Male nor that of Alisitaliko Senvume

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have any interest in the properties subject of the counterclaim. That the respondents to the counterclaim wantonly moved to caveat all the defendants' properties despite having no interest therein.

#### Representation:

Mr. Kivumbi Ibrahim appeared for the Plaintiffs while Mr. Felix Ampire 5 represented the defendants. Both parties filed written submissions.

During the hearing of the suit the defendants raised preliminary objections to the effect that the plaintiffs had no locus standi to institute the suit and thus had no cause of action against the defendants. This court reserved the said objections for determination after trial during the resolution of the issues framed by the parties.

### **Issues for determination:**

- 1. Whether the plaintiffs have a cause of action against the defendants? - 2. Whether the $1^{st}$ and $2^{nd}$ defendants were fraudulently registered on Mawokota Block 65 plots 2 and 6 that was subdivided into plots 203 to 223 at Kagezi? - 3. Whether the defendants fraudulently, irregularly and illegally acquired the certificates of title on Mawokota block 65 plots 203 to 223 at Kagezi? - 4. Whether the 1^st plaintiff has caveatable interest in the suit land? - 5. What remedies are available to the parties?

#### Submissions: $20$

# Issue 1: Whether the plaintiffs have a cause of action against the defendants?

Counsel for the plaintiffs submitted that the plaintiffs have a cause of action against the defendants and relied on the case of Prof. George W. Kakoma v. A. G. H. C. C. S No. 197 of 2008, where a cause of action was said to mean the facts that entitle a

- person to sue. That the plaint must show that the plaintiff enjoyed a right, that the $25$ right has been violated and that the defendant is liable. (See: Auto Garage v. Motokov (No.3) [1971] E. A 514). And that to determine whether the plaint discloses a cause of action, the plaint must be perused together with its attachments as per the case of Jeraj Shariff & Co. v. Chotai Fancy Stores [1960] EA 374. - It was submitted that the 1^st plaintiff in the instant case sued the defendants as 30 Administrators of Asoni Male and a beneficiaries of the same. That the late Male was given 12 acres from the estate of Zakaliya Balemezi according to the succession certificate PEX4 in1963. Zakaliya Balemezi acquired 20 acres from Daniel Patwe.

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The 2^nd plaintiff sued the defendants in his capacity as a beneficiary of Alistaliko Senvume. PW2 is a son of the late Eseza Namale Nalongo who was a daughter of Alisitaliko Senvume. Alistaliko Senvume had acquired 20 acres from Daniel Patwe.

That the above information was corroborated by a letter dated 15^th March, 2021 PEX 3 from the Administrator General detailing the distribution of the estate of Daniel Patwe vide Succession Register Book No. 11 page 417.

Counsel submitted that it is an undisputed fact that the suit land on Mawokota block 65 plots 203 to 223 (formerly plot 6) and plot 2 formed part of the estate of Daniel Patwe whose distribution is represented by PEX3. That the plaintiffs and their predecessors never received the certificates of title for their respective Land, which makes the plaintiffs have a right over the suit Land. That PW1's predecessors partly received physical possession of the 12 acres and have a graveyard thereon but the titles are in the names of the defendants and are in possession of the other parts of the 12 acres. PW2's predecessors never received physical possession of the land nor the certificate of title for the same.

Counsel for the plaintiffs further submitted that when the defendant's father Kayongo Erica obtained Letters of Administration PEX 6, he was registered on the certificates of title for the Land comprised in Mawokota bock 65 plots 2 and 6 at Kagezi as evidenced by PEX7 and PEX 8. That the late Kayongo died when the suit land was still registered in his names as the Administrator of Daniel Patwe. He never allocated the suit land to himself. Thus, the suit land remained part of the estate of the late Daniel Patwe. It was therefore, erroneous for the defendants to allege that the suit land is part of the estate of the late Kayongo Erika and distributing it amongst themselves violating the plaintiffs' right.

- Furthermore, that the 1^st and 2^nd defendants fraudulently applied and were 25 registered on the certificate of title for Mawokota block 65 plot 6 and 2 as administrators of Daniel Patwe using a forged grant. That the defendants also admitted to the fact that the 1^st and 2^nd defendants were not Administrators of Daniel Patwe. That the defendants claim that the suit land forms part of the estate - of Eric Kayongo yet it is more than what Kayongo was meant to receive from the 30 estate of Daniel Patwe. According to PEX 3, Kayongo Erika the defendant's father was entitled to 220.80 acres from the estate of Daniel Patwe. This was corroborated by the petition for letters of administration for the Kayongo Erika PEX 9. That the Land claimed by the defendants on plots 2 and 6 to form Kayongo's estate is 229 acres more than what he was meant to receive. 35

Counsel concluded that the fraudulent registration and distribution of the suit Land as the estate of Kayongo Eric are sufficient facts to disclose a cause of Action

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against the defendants. That the plaintiffs therefore, have a right over the suit land and the right was violated by the wrongful and fraudulent acts of the defendants.

For the defendants counsel submitted that the plaintiffs had no locus standi and cited Black's Law Dictionary 9^th Edition; for the definition of locus standi to wit; the right to bring an action, it signifies the right of a party to institute proceedings in any court of competent jurisdiction for adjudication. That in an action for recovery of land on behalf of an estate of the deceased person, only one with Letters of Administration can institute such a suit or in exceptional circumstances where the person instituting the suit is proved to be a beneficiary of the deceased's estate as per Section 191 of the Succession Act. Counsel in support cited the case of Prince 10 Kalemera H. Kimera & Princess Nalinya Nandaula (Administrator of the Estate of the Late H. R. H Sir Daudi Chwa II) v. The Kabaka of Buganda & 3 Others, H. C. C. C No. 535 of 2017 where it was held that;

> "This Section fore stalls any right to claim for property of an intestate until Letters of Administration have been secured and granted. In other words Section 191 negates locus standi to claim for property of an intestate's estate from claims from persons that have been established as beneficiaries thereof."

Counsel further submitted that in the instant case the plaintiffs brought the suit in their individual capacities as per the amended plaint while the 1^st plaintiff claimed 20 to be a beneficiary and Administrator of the estate of the late Asoni Male, who was the customary heir of the late Zakaliya Balemezi. That the 1^st plaintiff is not a beneficiary to the estate of Zakaliya Balemezi and she therefore, has no locus standi to bring the instant suit.

Counsel added that the 1^st plaintiff acknowledged that she did not have Letters of 25 Administration for the said estate and did not come to court as a beneficiary of the said estate. Thus, she cannot allege to have any personal shares in the estate of the Late Daniel Patwe or shares in the estate of the late Asoni Male.

In regard to the $2^{nd}$ plaintiff, counsel submitted that he must prove to have sufficient interest in the property as was held in the case of Dima Dominic Poro v. $30$ Inyani Godfrey & Apiku Martin, H. C. C. A No. 0017 of 2016. That all the evidence as adduced by the 2^nd plaintiff was hearsay as he told court that the 1^st plaintiff was the one who told him that his grandfather Alisitaliko Senvume had land measuring 20acres in Kagezi which information he got in 2021 and had no documents to prove how his grandfather acquired the said 20 acres. 35

It was further submitted that he did not know the defendants and during the locus in quo visit PW2 that is the 2^nd plaintiff confirmed to court that he did not know

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where the land he claims is and no sale agreement to show that the late Alisitaliko Senvume bought land from Daniel Patwe. That he also told court that it was the 1^st plaintiff that told him that his late mother Eseza Nalongo had 20 acres of land that she had been given by her late father Alisitaliko Senvume but she never showed him the land. That in the circumstances the 2^nd plaintiff has no locus standi to institute this case. Counsel made reference to Section 103 of the Evidence Act which provides that the burden of proof as to any particular fact lies on that person who wishes the court to believe its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

In regard to cause of action counsel relied on the case of Auto Garage v. Motokov 10 (No.3) [1971] E. A at 514 to submit that it is a requirement for the plaintiffs to prove an actual interest in the suit property for an action of recovery of land. That the 1^st plaintiff sought to rely on PEX3 a letter from the Assistant Administrator General to the Resident District Commissioner dated 15^th March 2021 to support

her claim that the late Zakaliya Balemezi bought 20 acres from the late Daniel 15 Patwe. However, the exhibit had no background, the author was not brought to court nor was it addressed to PW1.

Counsel prayed that this court under Sections 63 and 64 of the Evidence Act disregards the document for lack of any evidential value and the fact that no certified copy of the same was ever submitted in court.

Further, that the 1^st plaintiff sought to hinge her claim for recovery of the land of the estate of late Zakaliya Balemezi upon a Will of the late Balemezi which she did not tender in court. During the locus in quo visit, PW1 stated that she did not have documents to prove that her grandfather purchased the land. That the plaintiffs only started tracing for the land after the discovery of the Will of Zakaliya Balemezi. That her father had been staying on the burial grounds around 1988. However, did not show her the land before his death. Counsel argued that this can

only mean that the 1^st plaintiff was not aware of the land she was claiming.

Secondly, that during locus, she implored Court to disregard the Will entirely meaning she invited court to disregard all her claims that were hinged on the Will. 30

Counsel noted that the plaintiffs both had no documentary proof for their alleged claims and even during the locus in quo visit, could not show court their alleged land. That this is an indication that they did not prove to court the existence of the right they enjoyed which they claim was violated by the defendants. Thus, the

plaintiffs did not prove the existence of the estates of the late Zakaliya Balemezi 35 and the late Alisitaliko Senvume for which they claim 40 acres of land. Therefore, the defendants cannot be held responsible for violating what is non-existent as the plaintiffs have no cause of action against the defendants.

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Counsel for the plaintiffs in rejoinder submitted that according to the records from the Administrator General, both estates were given land but the certificates of title and physical possession was not given. That the suit is for recovery of land and claiming the certificates of title. The letter from the Administrator General PEX3 was admitted without objection from counsel for the defendants who also relied

on the same as DEX1. Thus the document is authentic and what it represents is the truth.

Issue 2: Whether the 1^st and 2^nd defendants were fraudulently registered on Mawokota Block 65 plots 2 and 6 that was subdivided into plots 203 - 223 at Kagezi?

Counsel for the plaintiffs quoted the definition of Fraud as per the case of Yakobo M. N. Senkungu v. Cresencio Mukasa, S. C. C. A No. 17 of 2014. He went on to submit that the 1^st and 2^nd defendants did not dispute their signatures on the application PEX 19 dated 4^th November, 2011 to be registered on the certificate of

- title. Thereof, the 1^st and 2^nd defendants were registered as administrators of Daniel 15 Patwe by the registrar of titles pursuant to the wrong information provided by the said defendants that they were administrators of Daniel Patwe whereas not as admitted in paragraph 7 of their amended written statement of Defence. That the subsequent conduct of the 1^st and 2^nd defendants signing the mutation form PEX - 20 16 to subdivide plot 6, signing transfer forms in order to transfer the land in their names as Administrators of Daniel Patwe to the defendants as beneficiaries of Kayongo Erika.

That the application to register the $1^{st}$ and $2^{nd}$ defendants **PEX 19** as Administrators of Daniel Patwe and the forged grant **PEX 20** were both obtained from the land 25 office. And this evidence was not challenged throughout the trial which implies that it is what they used to register the $1^{st}$ and $2^{nd}$ defendants. Thus, the $1^{st}$ and $2^{nd}$ defendants were fraudulently registered on the title for Mawokota block 65 plot 2 and 6 since they hold no genuine grant to the estate of the late Daniel Patwe duly issued by Court.

Issue 3: Whether the defendants fraudulently, irregularly and or illegally acquired 30 the titles in Mawokota block 65 plots $203 - 223$ Land at Kagezi?

Counsel for the plaintiffs submitted that all the defendants knew very well that the 1^st and 2^nd defendants were not administrators of Daniel Patwe whereof they distributed the Land on plot 6 (divided it into plots $203 - 223$ ) amongst themselves. That DW1 stated that they distributed the suit land amongst the defendants as 35 beneficiaries of Kayongo Erika. The suit land however, was not registered in the names of the defendants as the administrators of Kayongo Erika which makes the distribution fraudulent and illegal. That it is trite that the fraud must be attributed

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$5$ to the transferee. (See: Kampala Bottlers v. Damanico (U) Ltd SC CA No. 22 of 1992).

Counsel additionally submitted that the defendants were directly involved in the fraudulent scheme taking a benefit from the $1^{st}$ and $2^{nd}$ defendant's fraudulent action of claiming to be Administrators of Daniel Patwe using a forged grant PEX20 whereas not. That the Land on Mawokota block 65 plots 2 and 6 was registered in the names of the late Kayongo Erika, as the administrator of Daniel Patwe and not as his personal property. He was therefore a trustee who was supposed to distribute the estate amongst its rightful owners. (See: Nabanoba Dezilanta & another Vs Kayiwa Joseph & another HCCS No. 497 of 2005). 10

Counsel further submitted that the defendants are not bonafide purchasers for value without notice of the fraud. That the defendants never purchased the suit land or paid any consideration for the same. Counsel relied on the case of S. M. Sekabanga v. A. Sajjabo & 3 others, (1983) HCB 54, where it was held that;

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"The plot which belonged to the plaintiff and which was given away as a gift was not paid for so the donee and his successors were not bonafide purchasers for value and would not be protected under section 184 (c) of the Registration of titles Act".

Thus, the registration of the 1^st and 2^nd defendants in the instant case on the certificate of titles for Mawokota Block 65 plots 6 and 2 without a valid grant to 20 the estate of the late Daniel Patwe was void, illegal and fraudulent and a nullity contrary to the provisions of section 134 (1) and (2) Registration of Titles Act which only requires an administrator with valid letters of administration to be registered and entered in the register book.

Counsel quoted the case of UBC v. Simba (K) Ltd CACA No. 12 of 2011, to support 25 his submission that Titles obtained through illegality ought to be cancelled. Counsel concluded that the defendants fraudulently, irregularly and illegally acquired the suit land and are not bonafide purchasers for a valuable consideration and their certificates of title can be cancelled as they are not protected by the Registration of Titles Act. 30

Counsel for the defendants on the other hand submitted that it was the defendant's evidence that the suit property is their late father's share in the estate of the late Daniel Patwe who owned and distributed it amongst his children.

DW1 stated that the defendants and their late father Eric Kayongo lived and utilized the suit land before he passed on in 2009 and to date are still on the land 35 as direct beneficiaries and children of the later Eric Kayongo. That they distributed the land amongst all the children and the required documents and Letters of

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Administration were given to the lawyers to process Certificates of Title which evidence was corroborated by DW2 and DW3.

Counsel added that the defendants honestly obtained Letters of Administration for the estate of their late father Eric Kayongo with an honest intention to distribute their father's land to its beneficiaries. That there was no fraud committed by the defendants in acquiring the certificate of title in the instant case and the plaintiffs were not deprived of land that belongs to them.

Counsel for the plaintiffs in rejoinder submitted that the suit land does not form part of the estate of the late Eric Kayongo until the legal procedures of allocating the same are complied with. Merely occupying and utilizing the same does not make it his estate. He died when the land was registered in his name as an administrator. That Kayongo's letters of administration could not be registered on the titles for the suit land because it was not his estate. Thus, the titles were fraudulently acquired by the defendants.

Issue 4: Whether the defendants are trespassers on the land comprising of the $15$ estate of Eneriko Male and the estate of Alisitaliko Senvume?

Counsel for the plaintiffs submitted that the defendants occupy land more than 200.80 acres entitled to their father from the estate of Daniel Patwe. That the total acreage of both plots 2 and 6 according to the area schedule PEX 5 is 229 acres

which means the defendants occupy the land more than they are entitled to which 20 makes them trespassers to any portion not belonging to their estate. That in the instant case the late Kayongo Eric was an administrator of Daniel Patwe in respect of land comprised in Mawokota block 65 plot 6 and 2. And upon his death a new legal representative in respect of Daniel Patwe's estate had to be appointed to administer the suit land and distribute the same under Section 229 of the 25 **Succession Act**

Counsel went on to submit that the suit land still forms part of the estate of Daniel Patwe and currently there is no valid grant or a duly appointed administrator of the estate. That the defendants have no legal authority from any administrator the estate of the late Eric Kayongo. He added that the defendants trespassed on the land 30 that forms part of the estate of the late Male Eneriko and Alisitaliko Senvume, as Male Eneriko's land is known physically by the family of PW1 who has a grave yard. But in the purported distribution of the suit Land by the 1^st and 2^nd defendants part of late Male Eneriko's land was given to the 3^rd defendant which she physically occupies. That in the instant case the buyers take precedence in distribution of the estate and the beneficiaries follow.

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Counsel concluded that in the instant case, the defendants illegally occupy and possess and utilize the 12 acres claimed by the 1st plaintiff and the 20 acres claimed by the $2^{nd}$ plaintiff out of the 229 acres available.

Counsel for the defendants on the other hand cited Salmond & Houston on the Law of Torts, 19^th Edition, (London: Sweet & Maxwell, (1987) 46, and the case of Justine E. M. N Lutaaya v Stirling Civil Engineering Company Limited, S. C. C. A No. 11 of 2002 on the definition of trespass to land and the fact that only a person in possession of the suit land has the capacity to sue in trespass.

Counsel for the defendants added that the plaintiffs did not prove that the land forming the estates of the late Zakaliya Balemezi and Alisitaliko Senvume in issue 10 exist. That their claim in the estates of Zakaliya Balemezi, Asoni Male and Alisitaliko Senvume as having never been given their land from the estate of the late Daniel Patwe puts them out of the claim for trespass because they themselves do not know the said land to date as testifies in court and at locus. Nor did the plaintiffs prove their possession of the land. 15

PW1 at locus could not even show court the boundaries of her 12 acres of the land and confirmed that she was only sketching for the land.

PW2 stated that he did not know the land and had never been on the land in issue. That from the testimonies of PW1 and PW2, it shows that the plaintiffs have never been in possession of any land as they claim and thus the defendants cannot be said to have trespassed on the suit land.

Counsel for the plaintiffs in rejoinder submitted that the 1^st plaintiff at locus showed court where the 12 acres were meant to be. The family grave yard. That the said land is partly occupied by the 3^rd defendant. And the 2^nd plaintiff is entitled to possession for the 20 acres of the estate of the late Senvume.

Issue 5: Whether the counter defendant has any caveatable interest in the suit Land?

Counsel for the plaintiff submitted that it is trite Law that for a caveat to be valid, the caveator must have caveatable interest, legal or equitable in the Land. (See: Nakabuye Agnes v. Martin Stokes and Edward Kato C. Stokes HC MC No. 38 of

30 2021). Counsel cited Section 139(1) Registration of Titles Act which provides that; any beneficiary or other person claiming any estate or interests in Land may lodge a caveat forbidding the registration of any person as transferee or proprietor. That the 1st plaintiff has beneficial interest in the suit land and thus has a caveatable interest derived from the estate of Male Eneriko which is entitled to the certificate

35 of title for the 12 acres. That the 1^st and 2^nd defendants fraudulently registered the

suit Land into their names and equally fraudulently transferred the same to other defendants as beneficiaries of Kayongo Erika.

Counsel for the counterclaimants submitted that they seek the caveat lodged on the properties comprised in Mawokota Block 65 Plots 202-223 vide instrument No. MPI 0010828 be vacated. That it is an admitted fact by the respondent to the counterclaim lodged a caveat on all the plots because she could not tell on which exact plot her interest was on. That pursuant to Section 57 of the Evidence Act, this is an admitted fact that need not be proved. That the 1^st plaintiff failed to prove in the instant case that she had any interest in the suit land, or justify why she lodged

the caveat as the caveat was lodged out of uncertainty. Since the respondent to the 10 counterclaim could not demonstrate her interest in the suit properties and did not even know where her claim lay, the caveat on all the plots should be vacated.

Counsel for the plaintiffs in rejoinder submitted that it is not in dispute that the 1^st plaintiff lodged a caveat on the certificates of title for the suit land but what is in dispute is if she has caveatable interest. That the court can only make that 15 assessment upon looking at the evidence which is the copy of the caveat to determine the caveatable interest. That the defense failed to prove the counter claim for failure to attach the caveat.

## Issue 6: What remedies are available to the parties?

Counsel for the plaintiffs submitted that the a Declarations that the 1^st and 2^nd 20 defendants are not administrators of Daniel Patwe and their registration on the certificates of title for Mawokota block 65 plot 2 and 6 was illegal and fraudulent.

In the case of Yakobo M. N. Senkungu v. Cresencio Mukasa SC CA No. 17 of 2014 Court held that the effect of a certificate of title obtained by fraud according to Section 77 of the Registration of Titles Act is that the certificate is considered void 25 against all parties to the fraud. In other words, the title of transferees guilty of some fraudulent act or who came to know of such act by somebody else and took advantage of such act, are void.

Counsel prayed that all titles/ subdivision / $1$ ^st and $2$ ^nd defendant's registration on the certificates of titles, the transfer the suit Land to the defendants be cancelled 30 and the land restored back to the estate of Daniel Patwe through its original plots 2 and 6 at Kagezi. And the names of all defendants be cancelled from the register.

That consequent upon the cancellations, the defendants be ordered to deliver up to the plaintiff the certificate of titles within 7 days from the date of delivery of the judgment for cancellation to the commissioner Land registration.

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The plaintiffs for a declaration that the late Asoni Male aka Eneriko Male owns 12 acres from the estate of Zakaliya Balemezi from the estate of Daniel Patwe and a declaration that the estate of Alistaliko Sevume is entitled to 20 acres from the estate of Daniel Patwe. My Lord the estate of Alistaliko Sevume has never received the certificate of title for the 20 acres.

The plaintiffs submitted that they are entitled to 32 acres from the land comprised in Mawokota Block 65 plot 2 and 6 but the estate of Daniel Patwe has no administrator. In the circumstances, it is only proper that the defendants be ordered by this court to survey off their land using the court order without having

10 to wait for the defendants to get the letters of administration. The plaintiffs also prayed for an eviction order, permanent injunction, general damages, interest and costs of the suit.

Counsel for the defendants on the other hand prayed that the plaintiffs' suit be dismissed for having no cause of action against the defendants, being bad and barred in law. That they had no locus to institute the suit.

Counsel relied on Order 7 Rule 11 (a) (e) of the Civil Procedure Rules on rejection of a plaint that does not disclose a cause of action and the cases of Nabonzi Racheal v. Namiiro Suzan & Nakagwa Eva, H. C. M. A No. 882 of 2020 and Zachary Olum & Another v. Attorney General, Constitutional Petition No. 6 of 1999, on dismissal of suits for being frivolous and vexatious.

Counsel concluded that the plaintiffs' evidence did not show any basis for their alleged claims for the estates of the late Zakaliya Balemezi and the late Alisitaliko Senvume as against the late Daniel Patwe through the defendants.

The counterclaimants sought a declaration that they lawfully and rightly hold title in the properties comprised in Mawokota Block 65 Plots 203-233 land at Kagezi. 25 They prayed for court to grant the same prayer.

The counterclaimants further sought a declaration that the 1^st respondent to the counter claim as an Administrator of the Estate of the late Asoni Male & beneficiary has no interest in the suit property. That from the evidence of PW1 there is absolutely no valid claim in the suit property either in her individual capacity or for the benefit of the estate of the late Asoni Male or Zakaliya Balemezi.

Counsel for the counter claimants prayed for an award of general damages. That as far as damages are concerned, it is trite law that general damages are awarded at the discretion of court. That the respondents to the counterclaim caveated the properties on 7^th June 2021 to date albeit without any justified cause but rather

35 sketching for the land and this has crippled and denied the counterclaimants the

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right to use the suit property. Counsel prayed for UGX $100,000,000/$ = in general damages as justifiable in the circumstances and costs.

## Analysis of court:

The law:

**Section 101** of the Evidence Act provides that; 5

> "Whoever 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. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

The burden of proof according to Section 102 of the same Act lies on that person 10 who would fail if no evidence at all were given on either side.

Section 103 of the Evidence Act provides that; the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

In the instant case the plaintiffs have the burden to prove their allegations as against the defendants on a balance of probabilities.

## Issue 1: locus standi and cause of action.

Locus standi essentially means a right to appear in a court or before any body on a given question: a right to be heard. The term locus standi therefore, means a place 20 of standing. It means a right to appear in court, and, conversely, to say that a person has no locus standi means that he has no right to appear or be heard in a specified proceeding. (See: Njau and others v. City Council of Nairobi [1976-1985] 1 E. A 397 at 407). Thus, to say that one has no locus standi means the person cannot be heard, even on whether or not he has a case worth listening to. 25

In the instant case the defendants contended that the plaintiffs did not have locus standi to institute the suit because that the 1^st plaintiff did not have Letters of Administration for the Estate of Zakaliya Balemezi. Whereas, the 2^nd plaintiff was said not to have proved sufficient interest in the 20 acres he was claiming from the estate of Alisitaliko Senvume since he did not adduce in court the sale agreement under which the said land was bought.

The 1^st plaintiff in the instant case sued the defendants as an Administrator of the Late Asoni Male's estate and a beneficiary of the same stating that the late Male was given 12 acres from the estate of Zakaliya Balemezi according to the

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succession certificate PEX4 in1963. That Zakaliya Balemezi acquired 20 acres from Daniel Patwe upon purchase.

The 2^nd plaintiff sued the defendants in his capacity as a beneficiary of Alistaliko Senvume. PW2 is a son of the late Eseza Namale Nalongo who was a daughter of Alistaliko Sevume. Alistaliko Senvume had acquired 20 acres from Daniel Patwe upon purchase.

The plaintiffs relied on a letter dated 15^th March, 2021 PEX 3 from the Administrator General detailing the distribution of the estate of Daniel Patwe vide Succession Register Book No. 11 page 417 to support their claim.

It is my considered view from the perusal of the pleadings, their annextures and $10$ consideration of the submissions for both parties, that the 1^st plaintiff sued as the Administrator and beneficiary of Asoni Male according to paragraph 4 (a) of the amended plaint and much as her claim arises from the estate of Zakaliya Balemezi she is not suing as a would be Administrator of the said estate. Zakaliya Balemizi 15

merely bought 20 acres from Daniel Patwe, and gave Asoni Male 12 acres as his heir which the 1^st plaintiff seeks to recover from the land at Kagezi.

Section 180 of the Succession Act provides that; an Administrator of a deceased person is his or her legal representative for all purposes, and all the property of the deceased person vests in him or her as such. Letters of Administration entitle the

Administrator to all rights belonging to the intestate as effectually as if the $20$ administration has been granted at the moment after the death of the deceased. Hence, after a grant of Letters of Administration, no person other than the person to whom the same has been granted has the power to sue or prosecute any suit. (See: Anecho Haruna Musa v. Twalib Noah, Civil Suit No. 0009 of 2008).

The 1st plaintiff claims that land was given to the estate of Asoni but physical 25 possession was never taken nor was a certificate of Title issued.

I find and hold that the 1^st plaintiff as the Administrator of the estate of Asoni Patwe and beneficiary; rightly sued the defendants to protect her alleged claim.

The 2^nd plaintiff sued as a beneficiary of the estate of Alisitaliko Senvume being a 30 son to Eseza Namale Nolongo who was a daughter of Alisitaliko Senvume. The 2^nd plaintiff sued as a grandchild of Alisitaliko Senvume therefore a lineal descendant and as such a beneficiary of the said estate.

Although, the term "lineal descendant' is not defined in the Succession Act, the definition of lineal consanguinity in Section 20(1) of the same Act is instructive on

the meaning. (See: Kenyenya Wanjala Herbertand ors v. Robinah Nabikolo, H. C. C. S 35 No. 771 of 2007).

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Section 20 (1) of the Succession Act provides as follows;

"Lineal consanguinity is that which subsists between persons, one of who is descended in a direct line from the other as between a man and his father, grandfather, great grandfather and so upwards in the direct ascending line, or between a man, his son, grandson, great grandson and so downwards in the direct descending line."

The 2^nd defendant is a direct lineal descendant of Asilitaliko Senvume and a beneficiary of the said estate within the precincts of Section 27(1) of the succession Act.

It is trite that a beneficiary can sue at law even without Letters of Administration 10 as per the case of Sarah Natolo v. Nsubuga Tsamers & 2 others, H. C. C. S No. 412 of 2018, quoting the case of Israel Kabwa v. Banoba SCCA. No. 52 of 1995, where it was held that;

> "A beneficiary of an estate can sue to protect his or her interest before obtaining letters of Administration" it was further held that this position is only useful in determining whether a beneficiary has locus.

The $2^{nd}$ plaintiff in the instant case claims to have an interest as a beneficiary in the estate of Alisitaliko Senvume who bought 20 acres from Daniel Patwe.

I disagree with the submissions of the defendants that the $2^{nd}$ plaintiff has to prove sufficient interest in the estate in order to sue, that since he did not produce a sale $20$ agreement he cannot make a claim in the said estate through bringing this suit.

The 2^nd plaintiff by virtue of being a lineal descendant of Alisitaliko Senvume has locus standi to institute this suit. The defendants do not dispute the fact that he is a beneficiary and instead choose to rely on the fact that he had no sale agreement to prove that there was indeed a sale between Alisitaliko Senvume and Daniel

Patwe.

I hereby find and hold that the 1^st and 2^nd plaintiffs have locus standi to bring this suit in their capacity as Administrator and beneficiary respectively.

In regard to whether the plaintiffs have a cause of action; the provision that the plaint shall be rejected for failure to disclose a cause of action is Order 7 rule 11 30 of the Civil Procedure Rules.

The Supreme Court defined a cause of action in the case of Major General David Tinyefunza v. Attorney General of Uganda Constitutional. Appeal No. 1 of 1997 and cited with approval the definition in Mulla on the Indian Code of Civil Procedure, Volume 1, and 14th Edition at page 206 that:

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"A cause of action means every fact, which, if traversed, it would be necessary for the Plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the Plaintiff a right to relief against the Defendant... But it has no relation whatever to the defence which may be set up by the Defendant, nor does it depend upon the character of the relief praved for by the Plaintiff. It is a media upon which the Plaintiff asks the court to arrive at a conclusion in his favour. The cause of action must be antecedent to the institution of the suit."

In determining whether the plaint discloses a cause of action, the East African $10$ Court of Appeal case of Jeraj Shariff & Co v. Chotai Fancy Stores [1960] 1 E. A **374,** Windham JA at page 375 held that:

> "The question whether a plaint disclose a cause of action must be determined upon a perusal of the plaint, together with anything attached so as to form part of it, and upon the assumption that any express or implied allegations of fact in it are true."

The plaintiffs in the instant case are claiming 32 acres from the estate of Daniel Patwe that were purchased by Zakaliya Balemezi and Alisitaliko Senvume. The 1^st plaintiff claims 12 acres from the estate of Asoni Male arising from the estate of Zakaliya Balemezi as per the succession certificate PEX4 while the 2^nd plaintiff 20 claims 20 acres through the estate of Alisitaliko Senvume. It is on that basis that plaintiffs claim to have locus standi and a cause of action against the defendants.

According to PW1, her predecessors partly received physical possession of the 12 acres and have a graveyard thereon but the titles are in the names of the defendants who are also in possession of the other parts of the 12 acres. That PW2's

predecessors never received physical possession of the land nor the certificate of title for the same. So, they are claiming for the recovery of the 32 acres.

The plaintiffs allege that the 1^st and 2^nd defendants fraudulently applied and were registered on the certificate of title for Mawokota block 65 plots 6 and 2 as Administrators of Daniel Patwe using a forged grant. Whereof, the defendants 30 claim that the suit land forms part of the estate of Eric Kayongo yet it is more than what Kayongo was meant to receive from the estate of Daniel Patwe.

According to PEX 3, Kayongo Erika the defendant's father was entitled to 200.80 acres from the estate of Daniel Patwe. This was also indicated in the petition for

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letters of administration for the estate of Kayongo Erika PEX 9. The Land claimed by the defendants on plots 2 and 6 to form Kayongo's estate is 229 acres more than what he was meant to receive.

Having carefully perused the plaint and its attachments, it is indeed true that the defendants' land is covering more than what their father's estate was entitled to. The defendants while applying for Letters of Administration indicated that their father owned 200 acres, however, Block 65 plots 2 and 6 as claimed to be the land that belongs to the defendants is a total of is 228.8 acres as evidenced by the area

schedule **PEX5** and not 200 acres making it excess by 28 acres.

PEX3 also indicates that the late Kayongo Erika was given 200.8 acres. The same document shows that Asoni Male was issued with a Succession Certificate No. 35955 giving him 12 acres at Kagezi Mawokota F. C. 14499 Vol. 124 Fol. 21 from the estate of the late Zakaliya Balemezi who purchased 20 acres from Daniel Patwe. While Alisitaliko Senvume purchased 20 acres. The plaintiffs seek to recovery land from the estates the estates of Asoni Male and Alisitaliko Senvume.

It is my finding that the plaint and its annextures do disclose a cause of action. Thus, the plaintiffs have a cause of action against the defendants.

This issue is hereby resolved in the affirmative. 15

## Issues 2 and 3: Fraud

In the case of Zabwe Fredrick v. Orient Bank and Others, S. C. C. A No. 4 of 2006, fraud was defined as;

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"An intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which deceives and is intended to deceive another so that he shall act upon it to his legal injury."

- In order to succeed in an action based on fraud, the plaintiff must attribute the 25 fraud to the transferee that is; by showing that the defendant is guilty of some dishonest act or must have known of such act by somebody else and taken advantage of such act. (See: Kampala Bottlers ltd v. Domanico (U) Ltd S. C. C. A No. 22 of 1992). - Upon perusal of the court record, there are two Letters of Administration that were 30 submitted by both parties. The defendants tendered in evidence, DEX4 which was also tendered by the plaintiffs as PEX13, being Letters of Administration dated 20^th December, 2012 in respect of the estate of late Eric Kayongo granted to the 1st and $2^nd$ defendants.

The plaintiffs tendered another grant of Letters of Administration PEX20, in respect of the estate Daniel Patwe in the names of the 1^st and 2^nd defendants with the same date and Cause No. as PEX13 which was admitted and marked DEX4.

According to PEX 9 the 1^st and 2^nd defendants applied to be made Administrators of the estate of Eric Kayongo. However, when it came to applying to be registered $5$ on the certificates of Titles for purposes of distribution of the estate of Eric Kayongo; the 1^st and 2^nd defendants according to PEX19 applied stating that they were Administrators of the Estate of Daniel Patwe relying on PEX20, and were registered as such. All the transfers that took place after registration were effected by the 1^st and 2^nd defendants as Administrators of the Estate of Daniel Patwe as opposed to 10 the estate of Eric Kayongo for which they had applied for Letters of Administration are null and void.

The 1^st and 2^nd defendants denied being administrators of the Estate of Daniel Patwe, so how then did they obtained Certificates of Title for Mawokota Block 65 Plots 2 and 6 if there was no fraud involved? The documents as submitted by the 15 plaintiffs to wit PEX19, PEX 26, PEX 27 all bear the signatures of the 1^st and 2^nd defendants dealing in the suit property as Administrators of Daniel Patwe which is not true. The 1^st and 2^nd defendants only have powers to deal with the estate of Eric Kayongo. Thus, the 1^st and 2^nd defendants fraudulently and illegally got registered on the Certificates of Titles for Plots 203 - 233 using a forged grant PEX 20 to get 20 registered as Administrators of the Estate of Daniel Patwe well knowing that not to be the case.

The registration of the 1^st and 2^nd defendants in the instant case on the certificate of titles for Mawokota Block 65 plots 6 and 2 without a valid grant to the estate of

- the late Daniel Patwe was illegal and fraudulent contrary to the provisions of 25 section 134 (1) and (2) of the Registration of Titles Act. And this court cannot close its eyes to this illegality that has been brought to its attention. (See: Makula International Ltd v. His Eminence Cardinal Nsubuga Wamala, [1982] H. C. B 11). The transfers made by the 1^st and 2^nd defendants under Certificates of Title where - there are registered as Administrators of the Estate of Daniel Patwe are equally 30 illegal. The defendants claim to all be beneficiaries of the estate of Eric Kayongo, hence not purchasers of the suit property and they cannot be said to be bonafide purchasers of the suit property for value without notice of fraud. - I therefore, find and hold that the 1^st and 2^nd defendants were fraudulently registered on Mawokota Block 65 plots 2 and 6 from which subdivisions were 35 made for Plots 203 - 233 to the beneficiaries of the estate of Eric Kayongo while the 1^st and 2^nd defendants were registered as Administrators of the Estate of Daniel

Patwe. The defendants also fraudulently, irregularly and or illegally acquired the titles in Mawokota block 65 plots 203 - 223 Land at Kagezi.

The certificates of title for plots 203 - 233 as obtained by the $1^{st}$ and $2^{nd}$ defendants are therefore tainted by fraud and should accordingly be cancelled under Section 177 of the Registration of titles Act which provides that;

"Upon the recovery if any land, estate or interest by any proceedings from the person registered as proprietor thereof, the High Court may in any case in which the proceedings is not herein expressly barred, direct the Registrar to cancel any certificate of title or instrument or any entry or memorial in the Register Book relating to that land, estate or interest, and to substitute such certificate of title or entry as the circumstances of the case require and the registrar shall effect to that order."

These issues are hereby resolved in the affirmative.

## <u>Issue 4: trespass by the defendants</u>

Trespass to land occurs when a person makes an unauthorized entry upon land, 15 and thereby interferes, or portends to interfere, with another person's lawful possession of that land. Needless to say, the tort of trespass to land is committed, not against the land, but against the person who is in actual or constructive possession of the land. At common law, the cardinal rule is that only a person in possession of the land has capacity to sue. (See: Justine E. M. N. Lutaya v. Stirling $20$ Civil Engineering Company Ltd, S. C. C. A No. 11 of 2002).

The defendants in the instant case are said to be trespassers on land that is beyond the 200.8 acres that the late Erika Kayongo was entitled to from the estate of Daniel Patwe and are thus trespassers on the extra acreage that does not belong to the said estate.

The plaintiffs contend that the defendants trespassed on the land that forms part of the estate of the late Male Eneriko and Alisitaliko Senvume, as Male Eneriko's land is known physically by the family of PW1 who has a grave yard and during distribution it was given to the 3^rd defendant who physically occupies it.

- The defendants on the other hand denied being trespassers and contended that the 30 plaintiffs did not prove that the land forming the estates of the late Zakaliya Balemezi and Alisitaliko Senvume in issue exists as they have never been in possession of the same. - During the locus visit PW1 showed court where she had been utilizing and where the grave yards were albeit the fact that one could not make out which grave yard 35 belonged to who. However, she was unable to show court the extent of the 12 acres

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she was claiming, thus, she did not know the boundaries to her land. She was able to show court where the 3^rd defendant had trespassed.

PW1 therefore, showed court where her land was but not the boundaries, because she was not certain of the same. She only confirmed that the 3rd defendant had trespassed on part of the 12 acres whose title she was claiming and physical possession thereof.

PW2, was unable to identify his land at all during the locus visit. He said he did not know where the land was. That he was merely told by the 1^st plaintiff that he was a beneficiary of the estate Alisitaliko Senvume in 2021. The $2^{nd}$ plaintiff had nothing to show to support his claim, neither documentary evidence or physical land during the locus visit. The 2^nd plaintiff also told court that he relied on what he brother and the 1^st plaintiff told him to pursue his claim. Thus, the 2^nd plaintiff could not bring an action in trespass since he was not in active or constructive possession of the land he is claiming.

- Both plaintiffs could not confirm to court the physical extent of their claims. It was 15 however, found that only the 3^rd defendant had trespassed on the part of the estate of Asoni Male as was shown to court by the 1^st plaintiff. The defendants are also found to be occupying land that is larger than what their father's estate is entitled to being 200.8 acres. - I hereby find and hold that only the 3^rd defendant is a trespasser on the estate of 20 the late Asoni Male. The defendants are also trespassers on 28 acres in excess of the 200.8 acres the estate of Eric Kayongo is entitled to.

This issue is resolved in the affirmative.

## Issue 5: Caveatable interest

In the instant case the 1^st plaintiff lodged a caveat on all the plots belonging to the 25 defendants because she does not know on which plot her interest lay.

A caveat is a measure used to protect one's interest. The 1^st plaintiff in the instant case does not know where exactly the estate from which she derives her interest is in terms of the plot numbers as per her evidence. It is therefore, unfair for one to lodge caveats generally at the inconvenience of the property owners all in the name 30 of protecting one's right, which cannot be ascertained. Whereas, the 1st plaintiff may have a caveatable interest I find it wrong and unjust that she lodged caveats on all the suit properties.

The 1^st plaintiff had a duty to ascertain where exactly her 12 acres are located and lodge a caveat on the affected plots and not all the plots created from Mawokota 35 Block 65 Plots 2 and 6.

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However, having already found that Plots 203 – 233 were fraudulently registered and should be cancelled, I see justification in ordering for the vacation of the caveats since the caveats will be rendered in operative upon cancellation of the said titles.

I hereby resolve this issue in the negative. $5$

## **Issue 6: Remedies available**

In the instant case I find that the plaintiffs have proved their case as against the defendants on a balance of probability

Judgment is hereby entered in favour of the plaintiffs in the following terms;

- 1. A Declaration that the 1^st and 2^nd defendants are not Administrators of Daniel Patwe and their registration on the certificates of title for Mawokota block 65 plot 2 and 6 was illegal and fraudulent. - 2. A declaration that all the titles, subdivisions, transfers effected by the 1^st and 2^nd defendants as Administrators of the Estate of Daniel Patwe comprised of Plots 203 - 233 originating from Mawokota Block 65 Plots 2 and 6 be cancelled and be restored back to the estate of Daniel Patwe through its original plots 2 and 6 at Kagezi. - 3. A declaration that the 3^rd defendant is a trespasser on the estate of Asoni Male. - 4. A declaration that the defendants are entitled to 200.8 acres and are trespassers on the extra 28 acres that do not belong to the estate of Eric Kayongo, their late father. - 5. A declaration that the late Asoni Male aka Eneriko Male owns 12 acres from the estate of Zakaliya Balemezi from the estate of Daniel Patwe and a Certificate of Title be delivered to that effect. - 6. An order that from the extra 28 acres as occupied by the defendants, 12 acres go to the $1^{st}$ plaintiff and 16 acres be given to the $2^{nd}$ plaintiff. - 7. An order that the plaintiffs are entitled to certificates of title for the above land from the $1^{st}$ and $2^{nd}$ defendants at their own cost. - 8. That an Administrator be appointed to administer the estate of Daniel Male and cause the proper subdivision of the estate amongst the beneficiaries and the claimants. - 9. The counter claim is hereby dismissed. - Costs of the suits are awarded to the plaintiffs to be paid by the $10.$ and $2^nd$ defendants.

I so order. Right of appeal explained.

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⁵ OYUKO ANTHONY OJOK **JUDGE** 19/06/2023

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