THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT

KAMPALA
CIVIL APPEAL NO.81 OF 2O2O
5 Corarn
[Barnugernereire, Kibeedi, Gashirabake JJA]
DR DIANA KANZIRA ::::::::::::::::::::::: ::::: ::::: APPELLANT
\rERSUS
IO I.HERBERT NATUKUNDARWANCHWENDE
z.ROBERT TUKAMUHABWA
RWANCHWENDE ::::::::::::::::: ::::: :::::: ::::: :: : RESPONDENT
(An appeal o,rising ou,t of tlrc Ju,d.gntent qrtd, Ord,ers of Joyce Kautt,ruo J, in
High Court Ciuil Suit No.61 of 2009 doted 1lth September 2019 ot Mbororo)
l5
Land Law - ualidity of a land transaction / contract with
someone who is allegedly merutally unsoLlnd.
Succession Law - undistributed estate; lack of inuen tory
Contract Law - conduct that ualidates a contract - specific
20 performallce -itlterest - costs.

JUDGMENT OF CATHERINE BAMUGEMEREIRE JA

Introduction
25 The 1.t respondent, Herbert Rwanchwende instituted HCCS
No.621 of 2007 in the Land Division of the High Court of
Uganda, disputing a land transaction between the appellant
and the 2"d respondent. This suit was later transferred to the
High Court circuit of Mbarara where it was registered as
30 High Court Civil Suit No.061 of 2009. The learned Justice of
the High Court found in favour of the 1.t respondent, hence
this appeal.

I
 Background
The l"t respondent, Herbert Rwanchwende is the
administrator of the estate of the late Eric Rwanchwende
while the 2"d respondent, Robert Rwanchwende is his brother
5 and of the beneficiaries of the same estate.It is alleged that
the 2"d respondent sold part of land comprised in FRV 41
Folio 10 Block 28 Plot 9 to Dr. Diana Kanzira, the appellant,
without the consent of the 1't respondent who is registered on
the land title as the administrator of the estate of the late
l0 Eric Kanchwende.

The 1"t respondent's claim at the High Court was that the 2"d
respondent Robert Rwanchwende had not been allocated his
part of the share of his late father's estate and had no
l5 authority to sell any part of it. He further asserted that the
2"d respondent was suffering from a mental illness at that
time and had no capacity to contract with the appellant.
In her defence, the appellant claimed to have validly bought
the land. She included a counterclaim not only against the 1"t
20 respondent but also against the 2"d respondent seeking an
order of specific performance to compel the 1't respondent to
effect a transfer of title into her names. The appellant made
an alternative prayer for a refund of the purchase price. At
the hearing of the suit, judgment was entered in favour of the
25 l"t respondent, the sale was rendered void, a permanent
injunction was issued against the appellant and the

q
2"d

respondent was ordered to refund the purchase price paid by

\3 2
 the appellant. The court also ordered the appellant to pay the
1"t respondent the costs of the suit. No costs were awarded to
the appellant in respect of the counterclaim against the 2"d

respondent. Dissatisfied with the above decision, the

5 appellant appealed on the following grounds;
1. The Learned. trial Judge erred in law and fact in
finding that the 1*t respondent did not give his consent
and or authorization to the sale between the appellant
and the 2"d respondent.
l0 2. The Learned trial Judge erred in law and fact when
the appellant failed to carry out due diligence before
entering into the sale transaction with the 2"d
respondent.
3. The Learned trial Judge erred in law and fact when
l5 she found and held that the relief of specific
performance was not available to the appellant in the
circumstances of the case?
4. The Learned trial Judge erred in law and fact and/or
exercised her discretion injudiciously in declining to
20 order payment of interest on the amount of UGX
30,000,000 payable by the 2"d respondent to the
appellant as money had and received ?
5. The Learned trial Judge erred in law and fact and"/or
exercised her discretion injudiciously in awarding the
25 full costs of the suit to the 1"t respondent?

Representation
The appellant was represented by Arthur Murangira; the l"t
respondent was represented by Ngaruye Ruhindi appearing
30 with Oscar Katusiima while the 2"d respondent was
represented by Ingrid Assau. Counsel made written
submissions which this court relied on to arrive at its
judgment.

J
 Subrnissions for the Appellant
Counsel for the appellant approached all grounds of appeal
separately. On the 1.t ground, regarding to the l*t
respondent's consent to the sale between the appellant and
5 the 2"d respondent. Counsel submitted that the learned trial
judge contradicted herself when she first found that "all
defenec witneeses admitted to the absence of coneent by the
plaintiff' and later contradicted thie by holding that "apart
from the testimonies of DW1 and DW2 there is no other
l0 evidence of consent."

Counsel faulted the learned trial judge for not weighing the
probative value of accounts rendered by both sides. Counsel
submitted that the l"t respondent consented to the sale by his
l5 conduct. He relied on the unrebutted evidence of DW2 who
had acted as the agent of the appellant throughout the sale
transaction.

On the second ground, it was submitted for the appellant

20 that the appellant acted through DW1 and DW2 who were
her agents and whose actions were binding on the appellant.
Counsel faulted the learned trial judge for treating the
appellant as one who did not inquire whether the disputed
Iand was registered in the name of the 1"t respondent as
25 Administrator of the estate of the late Ericsson
Rwanchwende.

4
 Counsel submitted that the appellant entered into the
transaction based on good faith believing that the necessary
formalities of sub-dividing the land to create a separate title
and transfer for the portion sold to her would be carried out
5 by the 1"t respondent shortly afber the negotiation and
completion of the transaction between her and the 2"d
respondent; a transaction which the 1"t respondent later
unjustifiably reneged on in, bad faith.

t0 Counsel also submitted that the 2"d respondent held and

passed on to the appellant his subsisting rights in the suit
property pending transfer thereof by completion of the
subdivision and creation of title in favour of the 2"d

respondent and/or the appellant. Counsel contended that

l5 such a transaction was upheld by the Supreme Court in
Halling Manzoor v Serwan Singh Baram SCCA No.9 of
2001.

The 3"d ground was that the relief of specific

20 performance was not available to the appellant in the
circurnstances of the case.
Counsel for the appellant contended that the lower court
failed to appreciate the conditions necessary for grant of the
relief of specific performance which conditions were present
25 in this case. Counsel also contended that the appellant had
been induced to enter into a transaction by the respondents'
own actions and representation and that they were therefore

oe
 estopped from denying the validity of the transaction which
had been entered into with the appellant for a good and
valuable consideration.

5 On the 4th ground, Counsel submitted that the learned trial

judge erred in denying the appellant an award of interest on
the sums ordered to be paid to her by the 2"d respondent.
Counsel further contended that the lower court failed to
appreciate that the 2"d respondent had received money for a
l0 commercial transaction and that the precedents set by the
highest appellate court of the land disputes dictate that a
commercial rate of interest ought to be awarded in such
cases, counsel relied on of Premchand Shenoi and Shivarn
M.K.P. Ltd v Maximo v Oleg Petrovich Supreme Court
ls Civil Appeal No. 9 Of 2003

The 5th ground of appeal, counsel faulted the learned

trial judge for directing the appellant to settle full
20 costs of the suit. Counsel argued that a more equitable
approach would have been for the learned trial judge to order
all parties to settle own costs. The appellant then sought
orders that the appeal be allowed, and Judgment set aside; a
declaratory order that the sale of the suit property between
25 the appellant and the 2"d respondent be validated; and an
order for specific performance of the contract of sale between
the appellant and the 2"d respondent. In the alternative but

6
 without prejudice to the relief sought above, an order that
interest at a commercial rate of l8o/o be paid on the amount
of UGX 30,000,000 payable as money had and received.
Counsel also prayed for costs.
5

1"t Respondent's Subrnissions

Regarding Ground No.1 counsel supported the findings of the
learned trial judge that the 1"t respondent, whose names
appear on the certificate of title as administrator of the estate
l0 of the late Eric Rwanchwende, did not give consent to the sale
transaction between the appellant and the 2"d respondent.

Counsel invited this court to find that the family members

unanimously agreed that the family land should remain
15 jointly owned and registered in the names of the 1.t

respondent as heir and administrator of the estate. Counsel

submitted that when the 1"t respondent heard that his
brother was advertising the land for sale, he placed
announcements on Radio West warning that the land in
20 question was not for sale. The appellant stayed on the land
amidst protests from the l"t respondent.

It was the submission for the respondent that the appellant's

continuous stay on the land was hostile. It was the evidence
25 of DW2 is that during her stay on the land she was under
constant harassment from the l.t respondent. Counsel also
submitted that the suit was barred by limitation.

C'tg
 In regard to the second ground of appeal, counsel was in
support of the finding of the learned trial judge that the
appellant failed to exercise due diligence before purchasing
5 the land. Counsel refuted as untrue, the appellant's
allegation that she acted with the consent of the 1't
respondent. He argued that by her own admission, the
appellant confirmed that she did not deal with the 1't
respondent. He submitted that the appellant was aware that
l0 the land was registered in the names of the 1"t respondent
but yet she did not get in touch with him before dealing with
the 2"d respondent. Counsel was critical of the conduct of the
appellant for not carrying out the necessary due diligence
before dealing with the 2"d respondent who was not only
l5 mentally impaired but was also had no authority to sell the
disputed land.
On the third ground, counsel contended that the learned
trial judge was correct in finding that the relief of specific
performance was not available since the purported sale
20 between the appellant and the 2"d respondent was void in so
far as the 2"d respondent had no authority and power to sell
communal land.

Regarding the fourth ground, counsel for the respondent

25 submitted that the learned trial judge correctly declined to
order payment of interest on the UGX30,000,000 payable to
the appellant as money had and received. Counsel argued

8
 that the learned trial judge took into consideration the fact
that the appellant had been in occupation of and using the
suit land without paying any rent for it. Counsel further
added that it was within the discretionary power of the
5 Iearned whether or not to award interest.

As regards the Sth ground, counsel for the 1"t respondent

argued that the learned trial judge correctly found the
appellant liable and imposed the full costs of the suit on the
l0 appellant.
2.,d Respondent's Written Subrnissions
Counsel for the 2"d respondent submitted that the 1.t ground
of appeal did not concern the 2"d respondent since the
appellant had the duty to seek consent from the 1"t
t5 respondent which she did not obtain considering the fact that
the 2"d respondent was at the time mentally unstable.

On the second ground, the 2"d respondent submitted that the

land in issue was registered in the names of the l"t
20 respondent and that the appellant ought to have done
sufficient due diligence to ascertain the rightful ownership
before entering the transaction.

On the 3"d ground, counsel for the 2"d respondent agreed that
25 the learned trial judge was right not to award an order for
specific performance against the l"t respondent who was a

C\LD
 stranger to the appellant and against the 2"d respondent who
was of unsound mind.
On the fourth ground, counsel argued that the court was
correct not to award interest to the appellant since she acted
5 fraudulently by purchasing land from a person who was not
the registered proprietor and who suffered a mental illness.
Counsel further argued that the learned trial judge took into
consideration the fact that the appellant was in possession of
the land for 15 years without paying any rent for it.
l0

On the fifth ground, counsel argued that the appellant had

not prayed for costs of the suit and that the appellant did not
succeed in her counterclaim for specific performance which
was denied and therefore could not base on this to claim to
l5 pray for award of costs. Counsel prayed that the entire appeal
against the 2"d respondent be dismissed with costs.

Appellant's Subrnissions in Rejoinder

Counsel addressed the 1"t and 2"d respondents' submissions
20 jointly. In rejoinder, the appellant approached all grounds
separately.
Regarding the 1't ground, the appellant contended that
consent need not to be expressly oral but can be inferred from
the conduct of the parties. The 1*t respondent consented to
25 the sale transaction between the appellant and the 2"d

respondent as can be drawn from the evidence of DW1 and

DW2.

% t0
 Counsel also argued that exhibit P4 was not binding on the
2nd respondent since, although he attended the family
meeting, he did not append his signature on the minutes. It
5 was also submitted for the appellant, in rejoinder, that the
exhibit P4 was an illegality that was in contravention with
section 278(I) of the Succession Act Cap.162 and is a criminal
offence of intermeddling under section 278 (4).

l0 Counsel contended that the law dictates that the estate of a

deceased to which a grant of letters of administration applies
must be collected, entered into the inventory and distributed
(accounted for) among the beneficiaries thereof within a
given time frame and an inventory returned to the court. Any
15 act to the contrary of what is set out in exhibit P1 (Letters
of Administration) cannot be disregarded or departed from
under guise of minutes of a family meeting.

Counsel for the appellant submitted that the 1"t respondent's

20 evidence on the issue of not giving consent to the transaction
was made up and should be discounted. He argued that
refusal of the appellant to sign the sale agreement did not
mean that he had not consented earlier. The appellant
averred that the consent of the 1"t respondent can be inferred
25 from a series of oral statements attributed to him as well as
his conduct before, during and immediately after the sale
transaction. Counsel argued that the 1.t respondent was

lt
 estopped from coming to court to claim otherwise. Counsel
further contended that the appellant acted through DWl and
DW2 as her agents for the purchase of the disputed property.

5 It was the submission for the appellant, that the Learned

trial judge either misapprehended or erroneously ignored the
evidence of the appellant. Counsel further argued that the
evidence of the 2"d respondent was an attempt to defeat the
transaction. This, he argued, was a mere afterthought and
l0 could not stand when contrasted with the 2'd respondent's
affidavit and a handwritten note he sent to court requesting
that the court come to the aid of the appellant by upholding
the transaction.

l5 On the second ground, the appellant submitted that DW1

and DW2's evidence proves that the 1"t respondent interacted
with the appellant's agents and discussed the transaction
with them and also gave his oral consent that he did not
object to the transaction. The appellant was emphatic that
20 carried out the requisite due diligence before entering into
the transaction with the 2"d respondent.

Consideration of the Appeal

This appeal is premised on 5 grounds of appeal. I have had
25 the privilege to study the file rigorously. I am thankful to all
parties for their well-thought-out submissions. This being a
first appeal, the law enjoins this court to review and re-
az]f
t2
 evaluate the evidence as a whole, closely scrutinize it, draw
its own inferences, and come to its conclusion on matters of
fact and law. This duty is recognized under rule 30 (1) (a) of
the Court of Appeal Rules and Directions. It stipulates that:
5 "30. Power to reappraise evidence and to take
additional evidence.
(1) On any appeal from a decision of the High Court
acting in the exercise of its original jurisdiction, the
court may-
l0 (a) reappraise the evidence and draw inferences of fact."

The same principle is pronounced in Pandya v R [1957] EA

336; and, in The Executive Director of National
Environmental Managernent Authority (NEMA) v
Solid State Limited SCCA No.15 of 2015 (unreported) and
l5 Kifamunte Henry v Uganda SCCA No. 10 of 1997.

Ground No.l
The Learned trial judge erred in law and fact in
finding that the 1"t respondent did not give his
20 consent and/or authorization to the sale between
the appellant and the 2"d respondent.
It is the appellant's contention that the learned trial judge
gave undue weight and importance to the lack of written
consent on the part of the 1*t respondent. In particular,
25 counsel submitted that it was an error on the part of the
learned trial judge not to take into consideration the evidence
of DW1, Enock Rutsibika and DWz Joy Twesheka Bujundira,

r3
 whose evidence established the involvement, knowledge, and
consent of the l.t respondent before the transaction was
entered.
At trial the evidence for the plaintiff, now respond.ent, was
5 given by four witnesses.
PW1, Herbert Rwanchwende, the 1"t respondent/plaintiff
testified that together with Francis N. Rwanchende, they
took over administration of their father's estate in 1997.
When Francis passed on Herbert R remained the sole
l0 administrator. The land in question is comprised in Plot 9
Block 28, at Kashaari and measures 66.84 Hectares which is
approximately 16l.162 Acres. He stated that Robert
Rwanchende, DW4, is his younger brother but not of sound
mind. He added that his brother has had a mental illness
l5 since 7992. His testimony included facts canvassing, among
others, the mental ailment of Robert until his sister had to
take him to Butabika hospital in Kampala. He stated that it
was fortuitous of Diana, DWB to buy land from a person who
had no mental capacity to sell. That sale was for about 30
20 acres out of 161.162 acres. It was his evidence that in 2007
Diana forcibly entered the land, brought armed-guards and
occupied it. That the President of Uganda tried and failed to
reconcile the two parties. He decided to sue Diana first, at
the land tribunal and then in the High Court.
25

PWz Charity Agaba testified that she is a maternal cousin of

the Rwanchwende children. Her evidence was that she grew
l-a1-
--
\€
t4
 up in that home and was aware of the mental illness that
struck Robert. She was one of those who took him to Butabika
Mental Hospital on more than one occasion. Her evidence
was that each of the brothers has usage rights over their
5 individual portions of the land. She stated that they had
earlier agreed among themselves how to utilize their
respective pieces.

PWB Ruthra Agaba Kamukama is a sister to Robert and

r0 Herbert. She stated that when their brother Francis passed
on they agreed to let Herbert become the sole administrator.
Her evidence was that Robert does not own his own land. The
land is family land. Her evidence was that on selling the land
for UGX 30,000,000, Robert bought a vehicle for UGX
l5 12,000,000 but eventually lost both the money and the
vehicle.

PW4 was Simon Ndyamuba, the LCl Chairman of Ruyoruza

cell, where the disputed land is found. He declined to sign as
20 a witness to the sale agreement once he heard the Radio West
announcement by Herbert Rwanchwende. His evidence was
that Herbert Rwanchwende complained about Diana's
presence on the land. He stated that he knew Robert as an
individual with mental instability.
25

For the appellant who was the defendant in the lower court,
evidence was led to show that DW1, Enock Rutsibika, was an

l5
 uncle to the appellant. He was approached by Robert
Rwanchwende about the possibility of buying the disputed
piece of land. He then interested the mother of the appellant,
who in turn, informed the appellant of the possibility of
5 buying the land in question. It was he that introduced the
appellant as a prospective purchaser. His evidence was that
when the l"t respondent, Herbert Kamachwende, was
consulted, and gave a nod to the transfer of land and that the
respondents went to inspect the land went with Joy
l0 Bujundira, mother to the appellant.
He stated as follows:
. "I consulted Herbert Rwanchwende. Herbert was
aware of what we were doing...I introduced the
topic to Herbert that Robert wanted to sell part of
15 his land which was close to me.
. Herbert told Robert that he has his own home,
Iand, cows and he is a complete man who can sell
his own land. Herbert had no objection.
. As a neighbour the defendant took possession
20 immediately after 2004, when she first came, she
introduced cows, goats and (the) sic structure we
see here. And put a banana plantation.

DW2, Joy Twesheka Bujundira, is the appellant's mother.

25 She testified that she had an opportunity to be taken around
the land by the 1"t respondent. She lived briefly on the said

a- land before hostility by the 1't respondent drove her away.

€
l6
 During her short sojourn on the land, she was permitted to
use the 1.t respondents wells to water her cows. Counsel for
the appellant argued that the evidence of DW1 and DW2 who
acted as the agents of the appellant was largely ignored by
5 the learned trial judge.

The 1*t respond.ent denied meeting with DW1 and DW2. He

denied visiting the land with them the land and consenting
to any sale between the 2"d respondent and the appellant. He
l0 stated that when he heard rumours of the sale, he aired
announcements on the radio stopping any intending
purchaser.

The evidence of PW4 Simon Ndyamuba LC1 Chairman of

15 Ruyonza cell was that Robert Rwanchwende (the 2"d
respondent) brought him an agreement to sign but he
declined to sign because there were radio announcements
warning the public against the purchase of that land. At the
time the hearing of this appeal took place, the appellant's
20 agents were still occupying the land.

The evidence for the 2"d respondent was that the 2"d

respondent could not have validly entered a contract with the

appellant on account of being of unsound mind.
25

The 1"t respondent testified that he became the sole

administrator of his late father's estate when the second

l7

0[$
 administrator passed on. He stated that the land has never
been distributed. He seemed not to have an idea what an
inventory means. It was his evidence that the questioned
piece of land was the one on which he often grazed his cattle.
5 He stated that at all times material to this case, the 2"4

appellant had been diagnosed with mental illness, but he also

had lucid moments. He denied knowledge of the land sale
that took place between appellant and the 2"d respondent.

l0 The 1"t respondent stated that the appellant should have

done due diligence prior to purchase of the disputed land.
And it was also his evidence that the appellant should never
have dealt with the 2"d respondent since he had no authority
on the land, was of unsound mind and was not a registered
l5 proprietor of the land.

PW3 Ruthra, sister of the 1"t respondent testified that it was

erroneous of the appellant to deal with a sick man whom she
had often take to Butabika hospital. She stated, just like
20 DW1 did that the President of Uganda had ofben tried to
intervene in this matter. It was her evidence that the
appellant did not deserve to be refunded the purchase price
of UGX 30,000 back since she had dealt with the wrong
people.
25

I have carefully considered the evidence that was adduced at

trial by both sides. There are some agreed facts. It is a fact

l8
 that a land sale took place between the appellant and the 2"a
respondent. There was no denial that DW2 moved onto the
Iand after the sale.
The learned trial judge ought to have considered evidence
5 beyond the testimony of the respondents. The appellant was
aggrieved that the evidence of the respondents was
blindsided by the trial Judge.
Regarding the question whether the learned trial
judge erred in law and fact when she ruled that the
t0 appellant failed to carry out due diligence before
entering into the sale transaction with the 2"d
respondent brings up issues of the validity of the
contract.
The question in this case is whether there is a valid contract
l5 between the appellant and the 2"d respondent? This question
is two-pronged. The first leg is whether the 2"d respondent,
being a person who was known to have a mental illness, had
capacity to contract. The second l"g is whether the 1*t
respondent, by conduct, acquiesced to the entering in of the
20 contract.
Whether the 2"d respondent was of unsound rnind.
The general rule is that any person is competent to bind
himself to any contract he chooses to make, provided that it
is not illegal or void for reasons of public policy. Capacity to
25 contract means the human being or other juridical person
you are contracting with has the legal ability to enter into a
contractual relationship. The law recognises a person as

t9

CY
 having legal capacity only when that person understands and
appreciates the consequences of their actions. A person
contracting is under obligation to prove that they understood
that there was an offer, or they made the offer. There must
5 be evidence that the offer was accepted. There must be proof
that basing on that offer, valuable consideration passed.

Where those three considerations exist, there will be a valid

contract.

l0 In this case the appellant's claim was that the 1"t respondent
in a bid to sell the disputed piece of land, approached Enock
Rutsibika, a brother of Joy, which Joy is the mother of the
appellant. Enock, the appellant's maternal uncle sent a

message to Joy stating that she had learnt of land which

ls might be on sell.

Acting on this offer the appellant entered into a written

contract with Robert and after paying some instalments, she
eventually paid the contract sum in full. The appellant
20 testified that at the point of contracting with the appellant,
he was of sound mind. This evidence was supported by the
evidence of DWl and DW2.

Both respondents agree that Robert has a chronic mental

25 illness which besets him now and again. However, it was
clear from the evidence that Robert is not completely "off the

a* 20
 rockers," so to speak. It was mentioned that he is mostly of
sound mind.
Lucidity refers to a brief period during which an insane
person regains sanity that is sufficient to regain the legal
5 capacity to contract, make a will and to act on his/her own
behalf.It is that period of time during which a person who is
otherwise incompetent returns to a state of true, rational
comprehension and may possess testamentary capacity and
pass on property.
l0 I therefore find that this is a good case to conclude that
Robert, though said to be of unsound mind, there is no clear
scientific or medical proof which was relied on to declare that
the 2"d respondent is a certified mentally unstable person.
From the look of things, he was of sound mind at the time of
15 entering into the contract. He was of sound mind when he
bought a motor vehicle and drove it around. At all those
moments he was capable of understanding the contracts and
of forming a rational judgment as to their effects upon his. I
therefore find that the learned trial judge erred in concluding
20 that Robert was a person of unsound mind and incapable of
contracting. He entered this contract as a person of sound
mind. He is a rational human being who has interest in
disposing of part of his inheritance to meet his needs and
should not be blocked from so doing.
25

2l
 The second leg of the argument is whether the 1*t respondent,
by conduct, acquiesced to the entering of the contract and
should not renege on his promise.

5 DW1 also stated that the 1"t appellant was present and
positively allowed DW4 to sell the land and that he
participated in walking them around the farm. He did not at
that point bring out the incapacity of the 2"d respondent to
contract by reason of unsound mind.
r0

Based on those promises, the appellant accepted the contract

and paid a substantial consideration. She later paid the fuII
consideration of UGX 30,000,000. It was her evidence that
the land was handed over to her and that, based on the
15 promise, her mother, Joy, entered on the land and began
graztrrg cattle for some months. Joy's evidence was that she
ofben watered her animals in the waterpoint on the 1't
respondent's side of the land. Somewhere along the way the
1"t respondent withdrew his promise. He opted out. The
20 conduct of the l*t respondent could be referred to as estoppel.
Estoppel is a legal principle that prevents someone from
asserting a right that contradicts what they previously said
or agreed to by law. Put simply, estoppel prevents one person
from contradicting an action or statement from the past.
25 Promissory estoppel operates to ensure a party does not go
back on their promise when another party has relied upon
that promise. Within contract law, promissory estoppel

22
 refers to the doctrine that a party may recover on the basis of
a promise made when the party's reliance on that promise
was reasonable, and the party attempting
to recover detrimentally relied on the promise.
5

Clearly, consideration relates to the exchange of promises,

therefore it becomes an extremely useful tool in providing a
remedy for aggrieved parties. Promissory estoppel will have
the effect of stopping the party who attempted to go back on
l0 their promise to do so. See Earl of Plyrnouth v Rees Earl
of Plyrnouth v. Rees l2021-l EWHC 3180.

a This principle of promissory estoppel may be seen to

operate as a way in which the requirement of
l5 consideration is removed altogether and instead as long
as there in reliance on a promise, the agreement can be
binding. The doctrine is a shield and not a sword. While
a cause of action may not be founded on an estoppel,
one can succeed on a cause of action in which, without
20 the estoppel, he wiII fail.

In Arnalgarnated Investrnent v Texas Comrnerce,

[1982] QB 84 Lord Denning MR held as follows:
'The doctrine of estoppel is one of the most flexible and
25 useful in the armoury of the law. But it has become
overloaded with cases. That is why I have not.gone
through them all in this judgment. It has evolved

23

cus
 during the last 150 years in a sequence of separate
developments: proprietary estoppel, estoppel by
representation of fact, estoppel by acquiescence, and
promissory estoppel. At the same time it has been
5 sought to be limited by . series of maxims: estoppel is
only a rule of evidence, estoppel cannot give rise to a
cause of action, estoppel cannot do away with the need
for consideration, and so forth. AII these can now be
seen to merge into one general principle shorn of
l0 Iimitations. When the parties to a transaction proceed
on the basis of an underlying assumption----either of fact
or of law-whether due to misrepresentation or
mistake makes no difference-on which they have
conducted the dealings between them-neither of them
t5 will be allowed to go back on that assumption when it
would be unfair or unjust to allow him to do so. If one
of them does seek to go back on it, the courts will give
the other such remedy as the equity of the case
demands.'
20

However, there are restrictions to promissory estoppel; a

legal relationship must exist between the parties; there must
have been a detrimental reliance on the promise; promissory
estoppel can only be used as a defence; it must be inequitable
25 to allow the promisor to go back on the promise.
In the first place the 1"t respondent, successfully, sued the
appellant for recovery of land. The appellant's immediate

24
 defence given through the evidence of her uncle, Enock and
her mother, Joy, was that the 1't respondent actively
participated in the parceling off of the land which was to be
sold and allowed the appellant's agents to live on the land.
5 There is evidence that before, at the point of sell and
immediately after the sell, Herbert Rwanchwende did not
object to the sale.

I find that the learned trial judge based her judgment on the
l0 latter behaviour of Respondent No. 1. Had the learned trial
judge questioned the behavior of Respondent No. 1 prior to
the sell, she would have found that he actively participated
in the offer process, a conduct which the appellant
detrimentally relied upon leading to not only loss of the
l5 money but also loss of the land. It is my considered view that
by his conduct, Respondent No. 1 acquiesced to the sale.

I therefore find that the learned trial judge erred in fact and
in law when she determined this matter based only on the
20 evidence of respondents. I agree with learned counsel for the
appellant that the learned trial judge erred by not weighing
the probative value of accounts rendered by both sides.
Ground No. 1 succeeds.

25

Ground No.2
The Learned trial judge erred in law and fact

25

c/,b
 when he found that the appellant failed to
carryout due diligence before entering into the
sale transaction with the 2od respondent.

Firstly, I will address the issue of administration of the estate

5 of the late Eric Rwanchwende. The appellant avers that the
2"d respondent sold the land in his capacity as a beneficiary
of the estate of Eric. Rwanchwende. The land was
administered by the Herbert, as the administrator.

l0 The land in question was part of the sixty-five hectares of

land which were not parceled out by the administrator. The
family members had, in a meeting held on 5th September
2000, agreed that all land which formed part of the
to be held together and registered
deceased's estate was
l5 under the names of the Herbert Rwanchwende as the
administrator of the estate as seen in exhibit P4. In his
submissions, counsel for the appellant contended that
exhibit P4 was an illegality that was in contravention with
section 278(l) of the Succession Act Cap 162 and is a criminal
20 offence under section 278 (4) of the same law.

Counsel contended that the law dictates that the estate of a

deceased to which a grant of letters of administration applies
must have an inventory and be accounted for within a given
25 time frame.
On the issue of administration, the learned trial judge found

a* that,

26
 "Herbert Rwanchwende claimed that he fiIed an
inventory but no evidence of this was produced in court.
In the Civil Suit No.45 of 2010 Robert Rwanchwende
lodged a suit in court regarding the mismanagement of
5 the estate by the plaintiff. He later withdrew the suit.
Although this court is dealing, primarily, with the validity of
a land-sale agreement, issues of administration including
failure to file an inventory have emerged. This court is
concerned that the administrator of an estate over-reaches
l0 his mandate, bullies and takes advantage of vulnerable
benefi.ciaries.

From the record, it is clear that the estate of the deceased,

although it was not distributed, guaranteed each member
l5 clarity about what portion of the land belongs to them.
Ruthra, a sister to the respondents, testified as much. It is
trite that though section 180 of the Succession Act grants the
administrator powers to manage the estate of a deceased
person including authorising the beneficiaries thereof, it does
20 make him a sole-owner. The administrator only holds the
land in trust.

Section 180 of the Succession Act did not envisage that the
administrator would act like a private proprietor of the
25 deceased's estate and turn the said property into his own. He,
at all times, acts on behalf of the beneficiaries. It is either
out of sheer ignorance or lack of knowledge that family of the

27

0Ig
 late Eric Rwanchwende have allowed one person monopoly of
power. Where a family has decided to apportion and allot
each member a part of the whole estate, it is envisaged that
the beneficiary, aware of their rights and interests, may deal
5 with the land as he or she wishes. However, the high-handed
methods by which the late Eric Rwanchende's estate is
borders on illegality.
The legal proposition for the above assertion is as laid down
in Volume 48, Halsbury's Laws of England, 4tt' edition,
l0 Butterworths, London,1984, page 349 - 350 thus:
"I paragraph] 6262 Power of alienation. A
beneficiary under a trust possesses the same power of
alienation or disposition with respect to his equitable
estate or interest under the trust as a legal owner has
l5 over his legal estate or interest in the property, and he
can exercise it by similar instruments and with similar
formalities."

I am inclined to agree with counsel for the appellant that any

20 act contrary to what is expected of the administrator under
the letters of administration cannot be disregarded or
departed from under guise of minutes of a family meeting.
The majority cannot agree to oust the law.

25 I find that although the

Though like the learned trial judge,
appeal is mostly about the validity of a land transaction

28
 rather than letters of administration, the issue of
administration is at the core of this land transaction.

The facts present the 1"t respondent as the administrator of

5 the estate of the Iate Eric. Rwanchwende's. I have taken note
of the finding in John Kihika & Anor v Absolom
Tinkamanyire, CACA No.86 of 20L4 where this court
ruled that without grant of letters of administration, no
person has any right whatsoever to seII or otherwise deal
t0 with property of a deceased person.

Be that as it ffi&y, my understanding of the facts of this

transaction is that they are distinguishable from Kihika v
Kamanyire (supra) since the 2"a respondent was at aII times
l5 abundantly aware that he was not the administrator of the
estate. He was also aware that he had beneficial interest in
the land. This is why he courteously sought the permission of
the 1st Respondent to complete the sale. From the look of
things, Herbert gave a nod to the transaction. The consent of
20 the 1"t Respondent was expected and hence he was added on

the sale agreement. As it turned out, the latter gave and then
withdrew his consent. I do find that Herbert gave and
retracted his consent orally and by his conduct. The learned
trial Judge appears to have been swayed by the thinking in
25 John Kihika & Kaidoli Williarn Vs Absolom
Tinkamanyire, Civil Appeal No. 0086 of 20L4, to
conclude that "without a grant of letters of administration,

29

0{g
 no person has any right whatsoever to sell or otherwise deal
with property of a deceased person. It is trite law that
property of a deceased person cannot be dealt with or
otherwise transferred without the grant of letters of
s administration. We must note that according to Section 180
of the Succession Act, an administrator of a deceased person
is his or her legal representative for all purposes, and all the
property ofthe deceased person vests in him or her as such.
Letters of administration entitle the administrator to all
l0 rights belonging to the intestates as effectually as if the
administration has been granted at the moment after the
death of the deceased, all that the grant does is give the
administrator the legal power necessary to deal with the
assets.
15 The above assertion is true but does not vitiate the rights of
the beneficiaries of an estate.

And yet the learned trial Judge was of the view that the
appellant erred when she did not get out of the transaction
as soon as the administrator was not willing to transact. The
20 learned trial Judge referred to it as doing due diligence. The
trial judge arrived at the conclusion that the appellant did
not do due diligence.

For the appellant, it was submitted that she acted through

DW1 and DW2 who were her agents and whose actions were
25 binding on the appellant. Counsel faulted the learned trial
judge for treating the appellant as one who did not bother to

t@ make any query on whether the disputed land was

30
 registeredin the name of the l"t respondent as
Administrator of the estate of the late Ericsson
Rwanchwende. Counsel submitted that the appellant was
abundantly aware that Herbert was the administrator in
5 whose names the land was registered. He submitted that
she entered into the transaction based on good faith; that
the necessary formalities of sub-dividing the land to create
a separate title and transfer for the portion sold to her would
be carried out by the l.t respondent shortly after the
l0 negotiation and completion of the transaction between her
and the 2"d respondent; a transaction which the 1"t

respondent later unjustifiably reneged on in, bad faith.

In his submissions, Counsel for the appellant contended

that the Supreme Court upheld a transaction with facts
l5 similar to this case in Halling Manzoor v Serwan Singh
Baram SCCA No.9 of 2001. Although the seller was not in
actual possession of the property and both parties were
residing in London; they entered into an agreement
concerning the property. In the matter before us, the 2"d
20 respondent(seller) was not the registered proprietor for the
suit property and therefore had no interest to transfer from
the onset. The Court reasoned that,

"The Court of Appeal upheld these findings. The

Learned trial judge's conclusion was premised on the
25 legal principle that a person cannot pass title that he
does not have. In the context ofthe law ofcontract, the
premise would be that no consideration proceeded from
the respondent. With due respect, however, that was an
erroneous premise arising from misconstruing the
3l
 agreement to be a sale agreement rather than an
agreement for sale subject to a condition precedent. As
t have already stated, the respondent did not, by the
agreement sell or transfer the property'. Nor did he
5 purport to do so. He did not attempt to pass title which
he did not have. He obviously agreed to sell but
undertook to pass the title if and when he got it after
repossession. That can be likened to the contract
between a car dealer and a buyer who places an order,
l0 and pays the price in advance, for a car to be delivered
in a month's time after it is imported. Conversely, it is
comparable to a consumer taking groceries on credit
and promising to pay for them at the end of the month,
when he expects to receive his salary. The respondent's
l5 undertaking to assist the appellant to acquire the suit
property' in the instant case, is in law, as good a
consideration, as the car dealer's promise to deliver the
car, and the consumer's promise to pay for the groceries
in the examples I have given."
20

I am persuaded by the ruling in Mansoor that a party's

undertaking to assist the client to acquire the land is in law,
as good a consideration as the car-dealer's promise to deliver
the car. The learned trial judge ruled that there was no

25 contract entered. It was an erroneous premise arising from

misconstruing the agreement to be a sale agreement rather
than an agreement for sale subject to a condition precedent.
In conclusion, the appellant was fully aware that the land
title was in the names of the 1"t respondent as a registered
30 proprietor and that he had the last right to complete a
transfer of the land. As noted earlier above, the appellant,
who was working through her agents, seemed to honestly
believe that the 1"t respondent was on her side and working

)/.
 in her interest. No amount of due diligence would have
prepared them for a turnaround. I earlier found that the
doctrine of estoppel applied. By his own conduct the 1.t

respondent could not claim that he was unaware of the sale.

s The above sequence of events needs to be read together with

the right of the l*t respondent to deal with his share of the
estate as his beneficial interest. A beneficiary has legal
capacity to validly dispose of his/her beneficial interest
without the notice or prior consent or authorisation by the
l0 holder of letters of administration.

I agree with the appellant that she accepted to go ahead

with this transaction in good faith based on the prevailing
relationships on the land which gave her assurance. She
entered into Iegal and enforceable contract.

15 Ground No.2 of this appeal succeeds.

Ground No.3

The Learned trial judge erred in law and fact

when she found and held that the relief of
specific performance was not available to the
20 appellant in the circumstances of the case?

Ground No.4

The Learned trial judge erred in law and fact

and/or exercised her discretion injudiciously in
declining to order payment of interest on the

JJ
 amount of UGX 30,000,000 payable by the 2"d
respondent to the appellant as money had and
received ?

Ground No.5

5 1. The Learned trial judge erred in law and fact

and/or exercised her discretion injudiciously in
awarding the full costs of the suit to the 1"t
respondent.

The basic rule is that specific performance wiII only be

l0 advised where a common law remedy is unavailable. Where

damages adequately place the plaintiff in the position she
would have been but for the breach, specific performance
will not be advised. Manzoor v Baram [2003] 2 EA
See

580. The law on specific performance was propositioned in

l5 the following terms:

Specific performance is an equitable remedy grounded

in the equitable maxim that'Equity regards as done,
tltat u;hich ought to be done'. As an equitable remedy,
it is decreed at the discretion of the court. The basic
20 rule is that specific performance will not be decreed
where a common law remedy, such as damages would
be adequate to put the plaintiff in the position he
would have been but for the breach. In that regard, the
courts have for long considered damages inadequate
25 remedy for breach of a contract for the sale of land, and
they more readily decree specific performance to
34
 enforce such contract as a matter of course.

In the instant case the respondents allowed the appellant to

move on to the land upon payment of the agreed amounts.
5 Her family and cattle have been on that land for some time.
Land is unique and, in this case, I see no other legal remedy
available to put the appellant, who is the non-breaching
party in the same position had the contract been performed.
Being placed back on the land in question, rather than
l0 damages, better serves the ends of justice in the
circumstances of this case.

In the same vein, an award of interest is discretionary;

Harbutt's Plasticine Ltd v Wyne Tank & Pump Co.
Ltd, [1970] t Ch 447.

l5 This is a matter in which a witness , DW2, testified that she

Iived on the land. Indeed, the respondent's claim was that
the appellant Iived on the land for 15 years. She also
testified that she experienced hostility from the 1"t
respondent. There was factual basis from the evidence of
20 the respondents to prove that this part of the land was
indeed set apart for the 2"d respondent.

I take judicial notice of the fact that the 1"t respondent

continues to hold out as an administrator without properly
distributing or for that reason, causing an equitable
25 management of the estate of his late father. This is a good

35
 case for the 1't respondent to pass title in the disputed land
to the appellant.

1"t Respondent's Cross-Appeal.

5 The 1.t respondent filed a cross appeal on two grounds only:
1. The Learned trial judge erred in law and fact when she
declined to award the 1't respondent/cross appellant
general damages and interest thereon which had been
pleaded and proved in evidence.
l0 2. The Learned trial judge erred not to order the removal
of the caveat which the appellant had lodged against
the certificate of title afber finding that the sale was
invalid and after directing that the purchase price be

refunded to the appellant.

l5

1"t Respondent's Subrnissions on Cross-Appeal

On Ground No.1, Counsel faulted the learned trial Judge for
not awarding to him general damages. He reasoned that the
cross-appellant had proved and prayed for them. Counsel
20 contended that it was unfair to the cross-appellants since the
rest of the beneficiaries had suffered loss and damage having
been deprived of the use of the suit land for 15 years. On the
2"d ground, Counsel also faulted the learned trial judge for
failing to order for the removal of the caveat which the cross
25 respondent had lodged against the certificate of title. Counsel
prayed that the cross appeal be allowed.

As 36
 Appellant's Submissions in Reply to the l"t
Respondent's Cross-Appeal.
Counsel for the appellant approached both grounds of the
cross-appeal separately. On the first ground, he argued that
5 the general damages claimed by the 1"t respondent were
improperly pleaded as though they were special damages
with particulars given which in his view was a defect in the
pleadings. Counsel further argued that general damages are
discretionary to the court and that an appellate court will not
l0 normally interfere with the lower court's findings on the
issue of damages unless it can be shown that the lower court
acted on a wrong principle and in the circumstances has not
been shown that the lower court acted on a wrong principle.
On the second ground, counsel argued that the 2'd cross-
l5 appeal ground was misconceived in law and ought to be
dismissed since it wasn't adjudicated before the lower court.

Cross-Appellant's Rejoinder on Cross-Appeal.

In rejoinder, counsel insisted that the lower court erred in
20 not granting general damages to the l"t cross appellant. On
the second ground of the appeal, counsel argued that the
court had the power to address the caveat at the lower court
and since the caveat is still existent on the suit land, this
court has power to order its removal under section 11 of the
25 judicature act and rule 32 ofthe rules of this court.

37

ryB
 Consideration of the l"t Respondents Cross-Appeal

On ground No.1 regarding general damages and interest, it

is on record that the l*t respondent prayed for general
damages worth UGX 200,000,000. The learned trial judge
5 found the figure of UGX 200,000,000 speculative and
disallowed it. The cross appeal failed to prove loss of
business or any earnings on the suit land. There is no proof
that the learned trial judge erred. On the contrary the cross-
appellant failed to specifically set out the general damages.
l0 Ground No.1 of the 1't respondent's cross appeal fails.

On ground No.2 regarding the caveat, this court in

Rutungu properties Ltd v Linda Harriet Carrington
& Harriet Kabagenyi, CACA No.61 of 2010 cited with
approval Boynes v Gather, [1969] EA 385 and found that
l5 "The primary objective of a caveat is to give the caveator
temporary protection. It's not the intention of the law that
the caveator should relax and sit back for eternity without
taking steps to handle the controversy, so as to determine
the thought of the parties affected by its existence".

20 I find that given the circumstances of this case, it is only

equitable and appropriate that a caveat continues to be
Iodged on the title as a mode of preserving the rights of a
party who would be prejudiced if it was removed. I have
found that the 1"t respondent in the main appeal has a duty
25 !o transfer title in the land in question to the appellant For
as long as the 1't respondent has not transferred the rights

Cq 38
 in land to appellant a caveat shall remain in place to protect
the caveator. Once land in dispute is transferred to the
appellant, the caveat shall be removed. Ground No.2 of
the Cross appeal fails.

5 On cross appeal, the cross appellant faulted the

Learned trial judge for holding that there was no
evidence on the court record of the cross appellant's
mental illness. This issue has been exhaustively examined
and concluded.
l0

In conclusion, I find that the learned trial Judge erred in

finding that there was no contract entered. I find that that
the appellant has on the balance of probabilities, proved that
she entered into a contract for seII of land with the 2"d and
15 that the 1.t Respondent. Indeed the 1't Respondent is
estopped by his own conduct. No better legal remedy other
than specific performance is available to put the appellant,
who is the non-breaching party in the same position had the
contract been performed. Being placed back on the land in
20 question, rather than damages, better serves the ends of
justice in the circumstances of this case.

Since both my brothers, Muzamiru Kibeedi and Christopher

Bashirake: JA, agree, this appeal succeeds with the following
25 orders.

39
cLb
 1. This appeal is herewith allowed. The Judgment, Orders
and Decrees in HCCS No. 61 of 2009 are hereby set
aside.
2. The Cross-Appeal is hereby dismissed.
5 3. I declare that the appellant entered into a contract for
sale of land with both Respondents and the contract is
enforceable as against the Respondents.
4. I direct that within 60days of the 1't respondent
receiving a copy of a decree extracted by the appellant
l0 from this Judgment, he shall sign and deliver to the
appellant transfer forms and any other documents
required to effect the subdivision of the land which
forms the subject of this appeal from the whole in order
to vest ownership in the appellant. The appellant shall
l5 obtain a certificate of title in her names. The costs of
the subdivision and transfer shall be met by the
appellant.
5. In order not to exacerbate further animosity on this
land, the parties being neighbours, it is hereby ordered
20 that each party shall bear own costs.
Date dthis jLn4 day of 2023.

25

Catherine Bamugernereire
JUSTTCE OF APPEAL
40
5 THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

(Coram: Catherine Bamugemereire, Muzamiru tt. Kbeedi & Christopher Gashirabake, JJA)

CIVIL APPEAL NO.81 OF 2O2O

APPELLANT
10 DR DIANA KANZIRA ::::::::
VERSUS

l.HERBERT NATUKUNDA RWANCHWENDE ]

2.ROBERT TUKAMUHABWA I RESPONDENTS

15 JUDGMENT OF MUZAMIRU MUTANGULA KIBEEDI. JA

Introduction
my learned Sister,
I have had the benefit of reading in draft the Lead Judgment prepared by
Hon. Lady Justice Catherine Bamugemereire, JA. I agree with the orders
and remedies

proposed for the resolution of this matter. However, I prefer to set out the reasons for my
and the arguments of
20 decision in my own words, Since the background facts to the appeal

Counsel have been set out in detail in the Lead Judgment, I need
not repeat the same in my
and
judgment save in so far as it is absolutely necessary for purposes of advancing my analysis

resolution of the issues involved in this appeal.

namely, the validity of a

The instant appeal raises a very important matter of public importance

25 sale of land by a beneficiary who is not a holder of letters of administration.

and, together with other

From the evidence before the trial court, the respondents are siblings
of their father, the late
siblings who are not party to this appeal, the beneficiaries of the estate
included land comprised
Ericsson Rwanchwende (deceased). Part of the estate of the deceased

in FRV 41 Folio 10 plot g Block 28 at Ruyonza, Kashari county, Ankole measuring

30 approximately 66.g hectares (Main land) which, at the times material
to this appeal, was

registered in the names of the 1't respondent as the administrator of

the estate of the deceased

Poge 7 of 72
 On lgrn June 2004, the 2nd respondent sold part of the said main land to the appellant for the
and fully cleared on
consideration of Ugx. 30,000,000/= which was paid to him in instalments

10m September 2004 as per the acknowledgment signed by

him which was admitted in evidence
,,DE1".ln my judgment, the portion sold to the appellant by the 2nd respondent will be
35 as exhibit

referred to as the "sttit land".

in so far as the seller
The l,rrespondent challenged the sale in the High Court for being invalid
(now 2no respondent) neither had letters of administration to the estate of
their deceased father,

to the deceased's estate and

nor his consent to the sale as the holder of letters of administration

40 the registered proprietor of the main land. The 1st respondent also sought to nullify the sale on

the additional ground that that the seller (2no respondent) "was suffering from mental illness and

was of unsound mind'and incapable of entering into a valid sale'

Findings of the High Court

that "as /ong as the [1st

The trial Judge entered judgment in favour of the 1't respondent holding
had no legal right to engage
45 respondenu held the letters of administration, [the 7a respondent]
respondent]".
in any dealings on the suit land without any authorization from the [1st

With regard to the claim of mental illness on the part of the 2no respondent, the trial Judge found
mental
that,,there [was] no evidence [adduced before the trial court] as to [the 2nd respondent's]

sfafus at the time of entering into the agreement,..Therefore [the 2'd respondent] is bound by the
50 agreement between him and the [appellant]'

the costs of the suit

The High Court issued an eviction order against the appellant and awarded

to the 1't respondent,

30,000,000/= as money had

Lastly, the 2no respondent was ordered to refund the sum of Ugx

and received from the aPPellant.

55

Poge 2 of 72
 Grounds of Appeal

The appellant was dissatisfied with the decision of the High Court, and she appealed to this

60 court on the basis of flve grounds of appeal which were set out in the Memorandum of appeal as

follows:-

1. The Learned trial Judge erred in law and fact in finding that the 1't respondent did not
give his consenf and or authorization to the sale between the appellant and the 2'd
respondent.

65 2. The Learned triat Judge erred in law and fact in finding that the appellant failed to
carryout due diligence before entering into the sale transaction with the 2'a respondent.

3. The Learned triat Judge erred in law and fact when she found and held that the relief of

specific performance was not available to the appellant in the circumstances of fhe case,

4. The Learned trial Judge ened in law and fact and/or exercised her discretion iniudiciously

70 in declining to order payment of interest on the amount of UGX 30,000,000 payable by

the 2nt respondent to the appellant as money had and received.

5. The Learned trial Judge erred in law and fact and/or exercised her discretion iniudiciously

in awarding the ful/ cosfs of the suit fo the 1't respondent.

Cross Appeal of the 1st respondent

75 The 1st respondent filed a Notice of Cross Appeal by which he contended that the decision of the

High Court ought to be varied to the extent and in the manner set out therein on the following

grounds:

1) That the triat Judge erred in law and fact when she declined to award the 1't respondent/

cross appellant general damages and interest thereon which had been pleaded and
80 prayed for and which had been proved in evidence.

2) The learned trial Judge erred when she did not order the removal of the caveat from the
certificate of title after finding that there was no valid sale of the suit land to the appellant'

Poge 3 of 72
 The cross appellant sought orders that:

1) Ihe cross appeat be allowed, and the iudgment of the lower couri be varied to the ertent

8s that the appellant/ Cross respondent be ordered to pay general damages with interest
thereon as had been prayed for in the submlssions of the l't respondent/ cross appellant.

2) The caveat that had been lodged on the 1't respondent/ Cross appellant's Certificate of

titte and which was disc/o sed during the hearing of the suif be removed.

3) The appelant/ Cross respondent be ordered to pay the cosfs of this cross appeal to the

e0 1't respondent/ Cross appellant'

Analysis

ln my view, resolution of the grounds of dissatisfaction as set out in the Memorandum of Appeal

and the 1s respondent's Cross-appeal revolves around the question of validity of the
sale of the

suit land by the beneficiary without the consent or authorization of the holder of letters of
es administration to the deceased's estate.

occasion
This court (Geoffrey Kryabwire, Ezekiel Muhanguzi & Christopher itladrama, JJA)had

to consider the above issue in the case of John Kihika & Kaidoli William Vs Absolom
Tinkamanyire, Civil Appeal No.0086 of 2014, and held that "wlfhout a grant of letters of
propefty of a
administration, noperson has any right whatsoever fo se// or otherwise deal with

1oo deceased Person".

Justice Ezekiel Muhanguzi, JA (as he then was) who wrote the Lead Judgment in the said

appeal elaborated the legal position thus:

,,lt is trite law that propefty of adeceased person cannot be dealt with or otherwise
transferred without ihe grant of letters of administration. We must note that according to
105 Secfion 180 of fhe Sucies sion Act, an administrator of a deceased person is his or her
person vesfs
legal representative for atlpurposes, and altthe property of the deceased
in him'or her as such. leffers of administration entitte the administrator to all rights
granted at the
betonging to the rntestafes as effectuatly as if the administration has been
momint-after the death of the deceased, att that the grant does is give the administrator
110 the legat power necessary to dealwith the assefs'

Poge 4 of 72
 a grant of letters of administration, no person has any right
Therefore, without
' whatsoeyer fo sell or otherwise deal with property of a deceased person".
[Emphasis added]
Section 180 of the Succession Act, Cap. 162 which was relied upon by the court in the above

11s matter is couched as follows:

"180. Character and property of executor or administrator.

The executor or administrafor, as the case may be, of a deceased person ls hls or her
legal representative for allpurposes, and allthe propely of the deceased person vesfs
in him or her as such."

t2o The application of the above provision of the law by this court in the case of John Kihika &

Kaidoli Wittiam Vs Absolo m Tinkamanyire (op cff) should be understood in the context of the
particular facts that were before the court in the matter, including the finding therein that there

was no evidence adduced of the existence of letters of administration. ln the instant case, there

is uncontested evidence that was adduced before the trial court to the effect that at the time of

tzs the sale of the suit land by the 2nd respondent to the appellant, the 1't respondent was the holder

of letters of administration of the estate of the deceased, and that his name was already
registered on the certificate of title to the main land as such administrator. ln the circumstances,

an appreciation of the rights and limitations of the different stakeholders or interests in the suit
Act
land dictates that the court extends its consideration beyond Section 180 of the Succession

130 and also considers the other provisions of the law relevant to the subject. Of particular
significance is Section 25 of the Succession Act which provides as follows:

"25. Devolution of property of a deceased dying intestate

A1 property in an intestate esfate devolves upon the personal representative of the
deceased upon trust for those persons entitled to the
propertv under this Act'' [Empasis
13s addedl

The import of the underlined words is that the distinguishing feature of the title conferred upon a
of the
holder of letters of administration is that of a "trustee" while the beneficiaries of the estate

deceased are conferred the title "beneficiaries". As such, when Section 180 of the Succession

Act is read alongside Section 25 of the Succession Act, it becomes apparent that two distinct
letters of
140 tifles or interests were simultaneously created in the same land upon the grant of the

Poge 5 of 72
 administration to the deceased's estate to the 1't respondent. The first title is the legal title to the
_
property which was vested in the 1't respondent in trust for the beneficiaries of the deceased's

estate. The second title is an equitable title termed as "beneficial interest or estate" in favour of

the beneficiaries of the estate of the deceased in whose trust the 1't respondent holds the land'

1.4s The two interests are distinct and recognized by the law of trusts and administrators.

This leads to the next question, can a beneficiary sell or otherwise assign his or her beneficial

interest without the consent or authorisation of the trustee or the holder of letters of
administration?

The Succession Act does not set out the detailed rights and restrictions arising from the trust
by
1so relationship created between the administrator of the deceased's estate and the beneficiaries
Law
section 25 of the Succession Act. As such, resort must be made to the English common

and princiPles of equitY.

The legal position is stated in Volume 48, Halsbury's Laws of England, 4th edition,
Butteruorths, London, 1984, page 349 - 350 thus:
155 ',[paragraph] 626. Power of alienation. A beneficiary under a trust possesses fhe
same power of atienation or disposition with respect fo his equitable estate or interest
propefty, and
under the trust as a legal owner has over his tegatestafe or interest in the
he can exercise it by similar instruments and with similar formalities"
the frusfee of a disposition
[paragraphl62T.IrJotrce to the trustee. Although notice to
160 of an-eqiitiOte esfafe or interestis nof essenfia/ to the validity of the disposition such
proceeds of
notice has, as regards an equitable interest in pure personality or in the
sa/e of tand hetd upon trust for sale, for many years regulated the priority of competing
claimants to that interest, and, since 1925, has regulated also the
priority of equitable
rnteresfs in land (even though not held upon trust for sale) and in capital money arising
165 under the Settle,d Land Ait 1925 and fhe Acfs superseded by that Acfl Under this
doctrine of priori$ by notice, as modified by statute, where two or more
persons claim to
be assign ees of an equitable interest in property they are entitled as between
fhemse/yes to priority in the order of time in which effective notice in writing is received
or deemed to have been received."
interest
170 Said differenly, a beneficiary has legal capacity to validly dispose of his/her beneficial
ln a
without the notice or prior consent or authorisation by the holder of letters of administration'

family setting, for the beneficiary to first seek the consent or authorization from the administrator

Page 6 of 72
 before disposing of or otherwise dealing with his interest is simply a mirror of mutual respect and
_
courtesy on the part of the family or individuals involved. Unfortunately, in law, the failure on the

t7s part of the beneficiary to behave courteously and respectfully towards the administrator does not

ipso facto render invalid the disposition'

ln the matter before us, the evidence before the trial court indicated that the deceased was
survived by more than one beneficiary. According to PW1 Herbert Natukunda Rwachwende, the

deceased was survived by five children, namely: himself (Herbert Natukunda Rwachwende),

180 Francis Nuwagaba (now deceased), Ruthra Agaba Kamukama (PW3), Rosebell Kyomuhendo

Rwanchwende and Robert Rwanchwende. ln such a situation, it is incumbent upon this court to

establish, as a matter of fact, whether the portion of land which the appellant bought from the 2no

respondent (suit land) was indeed part of his inheritance or share in his father's estate. And this,

in turn, boils down to whether by the time the sale took place, the deceased's land had been

18s distributed to each beneficiary, with the consequence that the portion sold by the 2no respondent

to the appellant was part of the 2nd respondent's share in the estate of his father.

The appellant's evidence before the trial court was that the portion of land which she bought
(suit land) was out of the portion given to the 2nd respondent as his share in his fathe/s estate.

This was contained in the evidence of DW1 Enoch Rutsibika and the appellant's mother, DW2

1eo Joy Bujundira Twesheka, DW1 was the immediate neighbour to the portion sold to the appellant.
He had known the Rwanchwende family and the 2nd respondent since 1990, He knew the 2no

respondent's share in his father's land (main land) as having been separated by barbed wire and

boundary plants known in the local dialect as "oruyenie" and that the 2nd respondent was rearing

cows and growing crops on it. DW1 is the one to whom the 2no respondent first approached with

1ss a request to assist him look for a buyer for part of his land. The reason for the intended sale was

that the 2nd respondent had got a new wife and wanted to start a business in Mbarara town as

he could no longer survive on rearing cattle and crop farming. DW1 is the one who
communicated the offer to his cousin (DW2) who, in turn, brought her daughter (the appellant)

on board. DWI and DW2 did inspect the portion to be purchased, were satisfied, and left the

Page 7 of 72
200 finalisation of the purchase to the appellant. The Purchase agreement (exhibit DE1) described

the land purchased as lying between Silver Kishunju and Enock Rutsibika. DW1 also signed as

witness to the purchase agreement.

The appellant's other evidence consisted of the Affidavit of the 2nd respondent which he swore

on 29th September 2004 in support of the caveat which was lodged by the appellant on the main

205 land. The Affidavit was exhibited in evidence as "DE9". ln the said Affidavit, the 2no respondent

stated that he was one of the beneficiaries of his late father's estate. That he occupies a portion

of the main land which he got as his share after the death of his father - the same way his other

brother [1st respondent] did - and he was living on it. That he had been attempting to obtain his

separate title to his portion and the process of demarcation by the surveyor was complete. He

2LO then confirmed having sold a portion of his land to the appellant and receipt of the sale price of

Ugx 30,000,000/=.

The last evidence of the appellant is exhibit DE10 which is a handwritten note of the 2no

respondent ostensibly addressed to court around the 16m November 2016 confirming that he

sold his land to the appellant and requesting that he "be removed from [the]case of Herbeft and

275 Dr. Dianah". He further appealed to court that the title to the land be given to the appellant.

The 2no respondent gave oral evidence in support of the 1't respondent's defence against the

counter claim filed against them by the appellant. ln the oral evidence he stated that he could

not remember having sold the land to the appellant. Neither could he remember having signed

the sale and purchase agreement nor the Affidavit in support of the appellant's caveat. He also

220 stated that he did not know the properties left behind by his late father and could not recall

owning land in 2004. He attributed all the aforesaid memory loss to the health problems he was

experiencing, However, he stated that he was aware that the 1st respondent was the

administrator of the deceased's estate. That the estate was never distributed. That it is

communal land and all of them use it for cultivation and rearing animals to get an income from it.

225 That the 1't respondent was the one using his [2no respondent's] land and getting him money out

Poge 8 of 72
 market price for the
of it. He further stated that the price paid by the appellant was below the
land purchased.

on the one hand

ln the face of the contradiction between the oral evidence of the 1't respondent
person in respect of the
and, on the other hand, the documents previously authored by same

same subject, namely the Affidavit of the 2no respondent (Exhibit DEg)
and exhibit DE10, this
230
than the oral testimony'
court is enjoined to attach greater weight to the documentary evidence

Volume 1, Sarkar's Law of Evidence in lndia, Pakistan, Bangtadesh,

Burma & Ceylon, 14n

edition 1993, reprint 1997, page 924 states the position thus:
,,ln the contradiction of oral testimony which occurs almost in every case, the
side the truth
23s documentary evidence must be looked to in order fo see on which
alleged words,
lies...Much'greater credenceis fo be given to men's acts than to their
which are so easily mistaken or misrepresented"'"
to the
The 1s respondent's case was that the deceased's land has never been distributed
Rwachwende stated that he
respective beneficiaries. ln his testimony, PWI Herbert Natukunda
he had not yet distributed
240 was registered on the Certificate of title of the main land in 1986. That

the land and was keeping it as a family land. However, the evidence of
PW1 during cross

stated:
examination appeared to contradict his earlier evidence when he

,,1
grazing land and plantation exclusively for my household. The same is true
have my
for Robert i2ro rispondentl. The land is demarcated and each grazes from separate
paft
245 [paddocks]'for each of theiour chitdren [of the deceased]... Dr. Diana is occupying
'of
that poiion that had been given to Robert to use for his sttrvival."
brought a surveyor to
During re-examination pW1 confirmed that the 2nu respondent indeed

demarcate his land. But that this was without the 1st respondent's
authority'

pW1 also relied on Exhibit pE4 - Minutes of the Family Meeting held in 2000 in support of his
family meeting thus:
250 case. ln the said minutes it is stated that it was resolved during the said

"that for purposes of keeping family property together, and the benefit of all familY
members, land should remain registered under the names of Herbert
Rwachwende
(administrator) but it should remain jointly owned bY all the beneficiaries
under the
n
supervision of the same heir and administrator.

Poge 9 of 72
255 I have reviewed the list of the members who attended the meeting at which the above resolution

was passed. The 2no respondent's name and signature is not on the said attendance list. As

such, resolutions passed at the meeting cannot bind him'

Needless to add, the resolution contravened the rule against perpetuity of administration of the

estates of deceased persons which is contained in sections 101 and 278(1) of the Succession

260 Act. The office of administrator is transitory and intended to enable the legal title transition from

the deceased to the beneficiaries after temporarily residing in the administrator for a period not

exceeding one year, unless extended by court under section 278 of the Succession Act.

The other evidence in support of the 1s respondent's case was contained in the testimony of
pW2 Charity Agaba. She is a maternal cousin of the respondents and grew up with them as part

265 of the Rwachwende family. She testified that the respondents have different homes but stay in

the same homestead. That their houses are separated by a few metres. That when it comes to

usage of the main land, everyone has their separate portions where they respectively Waze

cattle and plant crops. She confirmed that the different portions were created by agreement

amongst themselves.

270 The last evidence in support of the 1't respondent's case consisted of the oral testimony of PW3

Ruthra Agaba Kamukama. She stated that she is one of the children of the deceased. She

attended the family meeting of 05th September 2000 in which they agreed to leave the 1st

respondent as the sole administrator of the deceased's estate, and to have the main land owned

by the family joinfly. She stated that the 2nd respondent does not own land on his own. That in

275 July 2004 the 2no respondent told her when he visited her in Kampala, that he had sold family

land and bought a car which was later stolen from him.

probabilities,
After a close review of the evidence on both sides, I am satisfied, on a balance of

that at the time of sale of the suit land to the appellant by the 2'd respondent, his share out of the

main land had already been defined through mutual agreement within the family, given to him
portions
280 and he was using it exclusively. The same applies to the 1't respondent. The different

were definite and separate on the ground and the 2no respondent had taken a step further by

Poge 70 of 72
 pave the
engaging a surveyor to sub divide his portion from the rest of the main land in order to

way for him to obtain a separate title. The land sold by the 2,d respondent to the appellant was

out of his designated share. The 2nd respondent was entitled to sell his land as a beneficiary

285 thereof. He exercised that right in favour of the appellant. This was to the chagrin of the 1't

respondent and his sister, PW3 Ruthra. They appear not to have come to terms with the reality

that even if the 2nd respondent was their younger brother and depended on them in several

aspects, the law still respected his decisions with regard to his beneficial interest in their fathe/s

estate. Matters appear to have been made worse by the events that unfolded after the sale.

290 After losing the land through its sale to the appellant at a price which his siblings thought was

below the market price, the 2no respondent appears to have lost both the money and vehicle
he

got from the sale. lnstead of the 2nd respondent's siblings allowing him to take responsibility for

the adverse consequences of his decision, they sought to enlist court in their scheme. This
cannot be allowed by this court. Accordingly, the appeal succeeds.

295 Remedies

I would allow the appeal in the terms set out in the Lead Judgment. However, I desire to make
of
some additional remarks about the remedies of specific performance and costs in the context

this case

Order of specific Performance

I note that since the suit land is part of the main land whose certificate of title is still registered
in
300

the name of the 1't respondent, then the appropriate person to execute the actions and deeds
needed to achieve the purpose of the court order of specific performance is the 1't respondent.

Such actions and deeds include signing mutation forms and transfer forms in the appellant's
favour and delivering the same to the appellant, together with the Certificate of Title, to enable

the appellant to acquire a separate title to the land she purchased from the 2no respondent (suit
305

land), The 1st respondent as the registered proprietor of the main land and administrator/trustee
purchase of the
owes this duty to the appellant as an assignee of the beneficiary following the

Poqe 77 of 72
 suit land from the 2nd respondent. This duty is summarised in Volume 48, Halsbury's Laws of

England, 4u edition, Butterworths, London, 1984, page 350 thus:

310 "fParagraphl 625. Irusfee's du$ towards assrgns and incumhrances. A trustee
siandsln thssame fiduciary relation and has the same duties towards the assigns of a
beneficiary or towards persons in whose favour a beneficiary has given a charge on the
same property as towards the beneficiary himself."

It is in that context that I agree that this is a fit and proper case for this court to
grant the order of

315 specific performance in the terms set out in the Lead Judgment.

Costs of the appeal and cross'appeal

The evidence before the court is that the parties to this appeal and cross-appeal are neighbours.

The animosity and hostility generated by the litigation involving these neighbours is the very

antithesis of what neighbourhood entails. As such, awarding costs in such a situation would
proposed in
320 inevitably exacerbate the hostility between the neighbours. The order as to costs as

the Lead Judgment becomes appropriate in the circumstances so as to assist the neighbours
journey
bury the rather ugly historY between them and embark on the healing

Delivered and dated at Kampala this .9d.o.yor.. .,2023

MUZAMTRU MUTANGULA KIBEEDI

Justice of Appeal

Poge 72 of 72
 THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

(Corom: Bomugemereire, Kibeedi and Gashirobake, IJA)

CIVIL APPEAL NO. 81 OF 2O2O

DR. DIANA KANZI APPELLANT

VERSUS

1. HERBERT NATUKUNDA RWANCHWENDE

2. ROBERT TUKUMUHABWA
RWANCHWENDE RESPONDENTS

JUDGMENT OF CHRISTOPHER GASHIRABAKE, JA.

I have had the benefit of reading in draft the judgment of Hon. Lady
Justice Catherine Bamugemereire, JA.

I concur with the judgment and the orders proposed and I have nothing
useful to add.

Dated at Kampala the r -1

day of ... .2023

(- t

Ch r stopher Gashirabake
JUSTICE OF APPEAL.