[2024] UGHCLD 226

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

## (LAND DTVISION)

## CIVIL SUIT NO. 59 OF 2022.

WYCLIFFE SEBINA PLAINTIFF

VERSUS

## 1. MUSOKE HOSEA

2. KEEYA ROGERS

3. RICHARD GOLI MUWANGA

DEFENDANTS 4. SEREMBA STEPHBN::

# BEFORE: HON. MR. JUSTICE TADEO ASIIMWE

#### JUDGMENT

#### BACKGROUND

The plaintiff s claim against the defendants is for orders that the sale of the Suit property by the first defendant to the 2nd ' 4th defendants be nullified for lack of authority as a single adminis ingly exercising ato to

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powers vested in joint administrators in the estate of Katumba Bulasio without consent of the co administrator, an order that the suit property reverts to the estate of late Katumba Bulasio, an eviction order against 2nd 3'd and 4th defendants, damages, mesne proflts and costs.

on the other hand, the 1.1 defendant admitted having sold the suit land to the 2nd to 4th defendants but was not aware that he needed the consent of the plaintiff as a co administrator. That when he tealized his mistake in selling the land, he reached out to the 2d to 4'h defendants to refund their money but they refused.

The 2,,d to 4th defendants pleaded they that purchased the suit land from the l.t defendant between 2014 to 2016 and paid valuable consideration. that they are bonafide purchasers for value without notice of fraud having acquired the suit land from the I't defendant as an administrator and are in possession of the same. That the 1'1 defendant sold his beneficial interest distributed to him from the estate of the late Katumba Bulasio.

In a scheduling memo, the parties agreed on the following issues; -

- l. whether the sale of the suit property by the l't defendant to the 2ttd 1o 4th defendants was lawful. - 2. Whether the l'I defendant did not have powers as a single administrator to sigillary exercise powers vested on the joint administrators with respect to selling land belo ing to the estate

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of the late katumba Bulasio without express consent or authority of the plaintiff, a co-administrator

- 3. Whether the 2nd to 4th defendants are bonafide purchasers for value without notice. - 4. What remedies are available to the parties.

At trial the plaintiff was represented by Counsel Kabugo Sulaiman while the l't defendant by counsel Babirye Cleopatra and the 2nd to 4'h defendants were represented by Counsel Eva Kakwuma holding brief for Ayorekire Arthur.

At the conclusion of the trial, all Counsel for filed written submissions which I will consider in this Judgement.

# THE LAW

The general rule is that he or she who asserts must prove and the burden of proof therefore rests on the person who must fail if no evidence at all is given on either side. The standard of proof required to be met by either party seeking to discharge the legal burden of proof is on a balance of probabilities.

In Miller V Minister of Pensions ll947l2 ALL E R 372 Lord Denning stated:

"That the degree is well settled. It must carry a reasonable degree of probability but not too high as is required in a criminql case. If the evidence is such that the tribunal can say, we think it mor robable than e

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noL the burden of proof is discharged but if the probabilities are equal, it is not. "

It is also the position of the Law that the evidential burden does not shift to the defendant unless there is cogent and credible evidence produced on the issue for determination.

In a bid to proof their case, the plaintiffs led evidence of I witness while the defendants called 4 witnesses.

PWl, Wycliffe Sebina testified that himself and the I't defendant are administrators of the estate of the late Katumba Bulasio vide administration cause No. 254 of 201l. That the late Katumba Bulasio left a valid will which was proved before High Court of Uganda at Nakawa by then and hence the Court granted letters of administration with a will annexed to him and the l't defendant. That without his consent and or authorization, the l't defendant sold part of the estate land of land comprised in Kyadondo Block 236 Plot 99 to the 2nd, Jtd and 4th defendants. That at the time of purchase of the suit property by the 2ttd,3rrr and 4tr' defendants from the l't defendant the suit land was registered into his names and the l't defendant as administrators of the estate of the late Katumba Bulasio. That the 2nd, Jrd and 4tr' defendants bought land which he had caveated from the 1't defendant yet the said land as and is registered into his names and the 1't defendant as administrators of the estate of late Katumba Bulasio. That he came to know the existence of ruling vide

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Miscellaneous Application No. 582 of 2021 when the 2nd-3'd defendants filed their written statement of defence, since the same was delivered to the 1't-3'd defendants secretly and he has nothing to do since he was ^a defendant in High Court Civil Suit No.389 of 2018 which was filed against him and the l't defendant for failure to distribute the estate property. That the acts of the I't defendant of selling part of the suit land to the 2nd, 3'd and 4th defendants were illegal, unlawfully and therefore null and void. That the 2nd-4ttt defendants bought the suit land from which the l't defendant yet the land was registered into the names of both the plaintiff and the l't defendant as administrators of the estate of the Latumba Bulasio which had a caveat and therefore the 2d-4th defendants claim to be bonafide purchasers. That the suit at the Chief Magistrate Court of Kiira at Kiira was closed since the 2nd-4th defendants absconded from attending Court and the existence of a High Court Consent Judgment vide HCT-00-CV-ME-453 of 20156 couldn't allow them from proceeding with the matter. That the defendants' act caused him to suffer economically, financially, socially and mentally since he cannot execute my duties as an administrator of the estate of the late Katumba Bulasio. This witness was not cross-examined.

DWl, Musoke Hosea a land broker by profession testified that he is an administrator of the estate of late Katumba Bulasio together with the plaintiff. That he sold the suit land to the 2nd-4th defendants and was not aware of prior consent from the plaintiff. That when he realized his mistake he reached out the znd-4th defendants to refund their money but they refused. This witness was not also cross-examined.

DW2 Seremba Stephen testified that he purchased part of the suit land from the l't defendant and paid all the consideration in instalments and did not know the plaintiff as a co-administrator but bought the l't defendant's share which he is currently occupying.

ln cross examination he confirmed that he knew the suit land had a title in the names of the administrators of late Katumba Bulasio before purchase. That he bought land measuring 50x100ft. That he did not get a distribution list of the estate properfy but only saw the willof the deceased where the 1.t defendant had been given land measuring one acre out of five acres. That he proceeded to buy the land because there was no caveat.

In re-examination he confirmed that he dealt with only one administrator because the other (plaintiff), was not available'

DW3, Keeya Rogers testified that he purchased part of the suit land from the 1.t defendant and paid allthe consideration in different amounts as per the agreements on record (DE1-DE9). The 1't defendant told him he was selling his beneficial interest from the estate of his late father and he was given vacant possession of the land bought which is fenced with clear demarcations.

In cross-examination he confirmed that he purchased 3 plots from the I'I defendant between 2015 and 2016 totaling to 36 deci s which was

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measured by a surveyor of the seller. That at purchase he carried out ^a search and found that the land was registered in the names of two administrators (plaintiff and l'I defendant) and had a caveat. That however the plaintiff was not involved in the sale transaction and it was not necessary to trace him since the l't defendant had promised to bring him in vain. That eventually when he met the plaintiff, he refused to recognize the sale agreement.

DW4 Richard Goli Muwanga testified that he acquired the portion of the suit land from the I't defendant. That the l't defendant told him that he had obtained permission from his co-administrator, the plaintiff to dispose of his beneficial interest from the estate of his late father that he is currently in possession with cultivation and construction of houses.

In Cross-examination, he confirmed that he did not obtain permission from the plaintiff before purchase since the plaintiff had told him he would only sign on the transfer forms. That he purchased land equivalent to l3 decimals.

## RESOLUTION

The first three issues are related and will be resolved together and the 4th issue will be resolved alone.

#### ISSUES 1,,2 &3

1. Whether the sale of the suit property by the lst defendant to the 2nd to 4th defendants was lawful.

- 2. Whether the lst defendant did not have powers as a single administrator to sigillary exercise powers vested on the joint administrators with respect to selling land belonging to the estate of the late Katumba Bulasio without express consent or authority of the plaintiff, a co-administrator - 3. Whether the 2nd to 4th defendants are bonafide purchasers for value without notice.

To begin with, it is an agreed fact as per the joint scheduling memorandum on record dated310812022lhat the plaintiff and the l't defendant are joint administrators of the estate of the late Katumba Bulasio vide administration cause no. 254 of 201 I and that the estate has never been distributed to the beneficiaries. Further that the 2nd to 4tt1 defendants purchased porlions ofthe estate land from the l't defendant.

The only question for court's determination is whether single administrator can singly pass interest in the deceased's property without consent of a co administrator.

Section 272 ofthe succession act cap 162 provides that;-

Ihhen there are several executors or administrators, the powers of all may, in the absence ofany direction to the contrary, be exercised by any one of them who has proved the will or taken out administra on

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The above section allows any the executors of a will or selected administrators to take out letters of probate or letters of administration in the estate ofthe deceased.

However, once letters of administration or probate are taken out by more than one person, they must act together while dealing with all the estate issues including sale and distribution.

The above position is set out clearly under section 134(3) RTA CAP 230 which statcs that; -

(3) If in any case probate or administration is granted to more persons than one, all of them for the time being shall ioin and concur in every instrument, surrender or discharge relating to the land, lease or mortgqge.

# Further, hulsburys laws of England 4th edition volume 17 page 562 paragraph 1082 is to the effect that;-

all rov in executors or all administr qtors or an order o urt one o " 1082. Joint representation. A ioint representation is 20 regarded as ^a single person. Accordingly, one of the several executors may give good discharge fo r a debt due to the estate and settle accounts with a person accountable to the estate, even if it would appear against dissent of the co-executors and it seems the same 25 principle applies to joint administrators. A convqtance of real estate requires the concuryence o-f

two Dersonal representatives contracts to sell real estate expressly pn behalf of both. he seems to have authoritv to bind the other personal re resentative but i ln ct the ex ress authori is lackin he will not obtain ^s ci ^c r rmance o the contract because the contract tnp' to be made by two executors iointlv cannot be enforcedasifit were a contract bv one executor severallv.

This was emphasized in the supreme court case of Silver Byaruhanga V Fr. Emmanuel Byaruhanga & Rudeja (Civil Appeal No.09 of 2014), where court held that; -

A single executor or administrator cqnnot convey land of a deceased personwithout the express consent or authority ofthe co-executors or coadministrators. Section 272 of the Succession Act does not confer powers on a single executor or administrator to singularly exercise powers vested in the joint executors or administrators with respect to conveyancing of land belonging to the estate of a deceased without the express consent or authority of the co-executors or co-administrators. Where executors or edministrqtors jointly applyfor probate or letters of administration and a grant is obtained simultaneously or together, they must act jointly at all times. The section 272 above is read together with Section 134 of the Registration of Titles Act which states that where Probate is granted to several executors, all ofthem must concur in every instrument, surrender or discharge relating to the land, lea'se or mortgage.

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I agree with the supreme court decision above. In this case it is clear that the plaintiff and the 1't defendants are joint administrators in the estate of the late Katumba Bulasio as per the letters of administration with a will annexed PEXI.

It is also not in dispute that the suit land that was sold to the znd,,3'd and 4th defendant by the l't defendant belongs to the estate of the lateKatumba Bulasio as per PEX4, the land tittle of land comprised in block 236 plot 99.

Further according to all the sale agreements on record as per PE3 regarding the suit land, the I't defendant signed as a single seller of the suit land without consent of his co- administrator. I find his actions to be contrary to the law for reasons that in matters of joint administration of estates of deceased persons, one administrator does not have powers to act alone.

The and to 4th defendants in their submissions submitted that they were convinced that the l't defendant was selling his share. I have perused PEX2, a will of the late Blasio katumba and indeed the I't defendant was give land on the side of Mugizi and I will quote the said will verbatim.;- 'o.......... SEKITOLEKO ON HOSEA(the 1't defendant) MUGIZI)........." THE SIDE OF LATE MUGIZI, ON THE SIDE OF LATE

To begin with there is no evidence on an inventory to prove that indeed land was distributed as according to the will.

Secondly the l't defendant was given an acre of land on a big chuck of land without marking out boundaries to be specific. The I't defendant could not have just picked on any acre on the side of Mugizi without proper distribution by both administrators.

The laws of succession were specifically crafted to sort such confusion and therefore to hold that the 1't defendant had powers to sell the suit land without proper distribution to identif'the one acre given to him in the will would be to abuse the laws of succession'

The I't defendant therefore could not pass any better title to the 2nd - 41r' defendants unless they can prove that they are bonafide purchaser for value without notice of fraud.

In is therefore relevant for this court to determine whether the 1't to 4tl' defendants are bonafide purchasers for value.

The onus of establishing the plea of a bona fide purchaser lies on the person who sets it up; David Sejjaaka Nalima Vs Rebecca Musoke lt992l KALR ⁷³⁶

"Purchaser for value" as defined in Grace Asaba Vs. Grace Kagaiga S. C. C. A. No. 14 of 2014 is "purchase of value means that valuable consideration must be given to eqrn immunity from equitable claimants Value means any consideration in money or money w orth ... )t La od

## faith" as defined in Obira & 6 Ors Vs. Okumu & Ors H. C. C. A. No.43 oI2018 is -

"A person is considered a purchaser in goodfaith if he or she buys the property without notice that some other person has a right to or interest in such property and pay itsfair price before he or she has notice of the adverse claimants and interest of another person's in the same property

"Without Notice" means that the purchase must have no notice of

the existence of any equitable interest. He or she must have neither actual, or constructive notice nor imputed notice; Grace Asuba vs. Grace Kagaiga (Supra)

In this case the 2nd to 4th defendant's evidence is that they were sure that the suit land was a share of the l't defendant.

Ideally by the time they knew that the suit land was a share of the l't defendant from his father, it was definite that it was part of an estate property under administration of administrators or executors of the deceased's will. It was upon then to make an effort to look at the grant over the estate and establish who exactly to deal with as an administrator.

The fact that they chose not to dig deep in who the administrators were for purposes of dealing with all concerned was deliberate refusal to find out information. They therefore out to have known that the plaintiff was ^aco administrator of the I't defendant and that they toge er if they \

had done due diligence. Even a mere search would have revealed that both the plaintiff and the I'I defendant are registered on tittle of the suit land as co- administrators of the estate of the estate of the late Blasio katumba.

I therefore find that the 2nd defendant to the 4tr' defendants had implied notice that the plaintiff was a co administrator and should have been part of the transactions over the estate of the late Blasio katumba. They therefore cannot be found to be bonafide purchaser for value.

### Issue 4; What remedies are available to the parties.

The plaintiff sought for the following orders, -

# l, Nullification of the sale transaction between the l't defendant the znd-4th defendants.

Having found that their transactions were contrary to the law, the said transactions relating to sale of the suit property are hereby nullified.

## 2. A declaration that the l't defendant does not have powers to act singularly to sale the estate property.

I have already found that the lst defendant does not have powers to act singularly to sale the estate property in this judgement. I so declare.

## 3. That the suit property reverts to the estate late Katumba Bulasio.

Having nullified the transactions between the defendants, it is declared reverts to the estate of the late accordingly. \ that the suit property

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#### 4. An eviction order against the 2nd -4th defendant.

This order is granted against the 2nd -4rh defendants to peacefully handover the suit land to the administrators of late Katumba Bulasio's estate within 90 days from the date of this Judgement.

#### 5. General Damages.

In this case, the plaintiff sought that each defendant pays to the plaintiff damages amounting to Ug.shs. 50000000./: (fifty million) since during cross examination the defendants admitted that they knew the land was registered in the names of the administrators but they decided to deal with l't defendant and also rejected the I't defendants offer to compensate them.

The law on general damages is that the damages are awarded at the discretion ofthe Court and the purpose is to restore the aggrieved person to the position they would have been in had the breach or wrong not occurred. See: Hadley v. Baxendale (1894) 9 Exch 341; Charles Acire v. M. Engola, H. C. Civil Suit No. 143 of 1993 and Kibimba Rice Ltd v. Umar Salim, S. C. Civil AppealNo. l7 of 1992.ln the assessment of general damages, the court should be guided by the value of the subject matter, the economic inconvenience that the plaintiff may have been put through and the nature and extent of the injury suffered. See: Uganda Commercial bank v. Kigozi 120021I EA 305).

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From the above general damages must be pleaded and proved unless they are for trespass which are perse. This having been a case for recovery of land it is not enough to claim general damages on the basis that the defendants admitted that they knew the land was registered in the names of the administrators but they decided to deal with I't defendant and also rejected the I't defendants offer to compensate them.

The plaintiff no further evidence to show any economic inconvenience he suffered beyond costs ofthis suit. Further he led no evidence to show that an eviction order against the 2nd to 4tl' is not enough to restore the him to the position he would have been in had the defendants dealt with the suit land.

I therefore find no basis to award General damages in this case and the same shall not be granted.

#### 6. Mesne profits.

In this case the plaintiff sought for mesne profits of ug.sL.s.100,000,000/: (one hundred million) since they have been in occupation of the land illegally for a period of more than five (5) years

Section 2 of the Civil Procedure Act (CPA). Mesne profits are defined in section 2(m) of the CPA as 'those profits which the person in wrongful possession of the property actually received or might with ordinary diligence have received from it, together with interest on those profits, but

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shall not include profits due to improvements made by the person in wrongful possession.'

I have carefully considered the Plaintiff s evidence. I find no evidence of the profits which the occupants of the suit premises actually received. I do note that PW1 did not attest to the eamings from the suit land which would be a possible indicator of the monies the occupants of the suit premises might with ordinary diligence received from the premises.

In the premises, I find that the evidence on record does not sufficiently justify a claim for mesne profits. I therefore shall not grant the same.

#### 7. Costs.

Ordinarily, costs follow the event and are discretionary as per section 27 of the CPA. In this case the plaintiff being the successful party, he would be entitle granted costs against the l't defendant since the other defendants were misled by the l't defendant. However, since the l't defendant is his brother, I shall not grant costs ofthis suit to foster reconciliation.

In conclusion this case succeeds with the following orders.

- 1. A declaration that the lst defendant does not have powers to act singularly to sale the estate property. - 2. An order Nullifuing the sale transactions between the I st defendant the 2nd-4th defendants as per PE3 is hereby issued. - 3. A declaration that the suit property reverts to the estate ofthe late Bulasio Katumba accordingly.

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- 4. An order of eviction is granted against the 2nd -4th defendants to peacefully handover the suit land to the administrators of late Katumba Bulasio's estate within 90 days from the date of this Judgement. - 5. No orders as to general damages. - 6. No orders to mesne profits - 7. No orders for costs.

^Iso ord t TAD AS WE

JUDGE

a

2010812024.