THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT MPIGI
CIVIL SUIT NO. 76 OF 2021
1. KABUGO HARUNA
5 2. ASUMANI MULINDA …………………………………………PLAINTIFFS
3. BADRU MUWEBYE
4. JAMILU MULINDA
VERSUS
1. HASIF NAMAGEMBE
10 2. SIRAJ NSEREKO …………………………….DEFENDANTS
3. HAJI ERIAS MULIMILA
4. THE ADMINISTRATOR GENERAL
BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK, JUDGE
15 Judgment
The plaintiffs brought the instant suit against the defendants jointly and severally
for; a declaration that land comprised in mailo Register Butambala Block 130 Plot
32 forms part of the estate of the late Ahmadah Senkaayi; declaration that the 4 th
defendant applied for Letters of Administration of the estate of the late Yusufu Kato
20 fraudulently; revocation of the Letters of Administration granted to the 4 th
defendant; an order compelling the 4 th defendant to file a comprehensive statement
of account of dealings with the estate of the late Yusufu Kato; an order of
cancellation of the 1 st defendant’s name from the duplicate Certificate of Title of
land comprised in Butambala Block 130 Plot 32; an order compelling the 4th
25 defendant to execute his duties and or obligation as the administrator of the estate
of the late Yusuf Kato; special damages; general damages and costs of the suit.
Brief facts:
It is the plaintiffs’ case that the suit land is comprised in mailo Butambala Block
130, Plot 32 land at Nakasozi measuring approximately 8 acres registered in the
30 name Kasifa Namagambe formerly registered in the name of the late Yusufu Kato.
1
That the Late Yusufu Kato died intestate on 8/3/1989 and before his demise had
sold the suit land on the 17/04 /1983 to his only son the late Ahmadah Senkaayi
who took immediate possession.
Upon the demise of the late Senkaayi Ahmadah on 1/12/1988, a family meeting
5 was held and the 3 rd defendant was given the land title for safe custody. That
unfortunately, also late Yusufu Kato died on 8/3/1989 before he could transfer
the suit land into Senkaayi’s name whose family remained in possession of the suit
land to date.
Consequently, the 1 st defendant petitioned the 4 th defendant to administer the
10 estate of the late Yusufu Kato, which it did and Letters of Administration were
granted to it in 1994. However, it is alleged that some information was
fraudulently concealed and the suit land included as part of the estate of the late
Senkaayi.
That the 3 rd defendant conspired with the 1 st defendant and handed over the
15 duplicate certificate of title to the 2 nd defendant in order to mortgage the suit land
to Equity Bank which advanced the UGX 16,000,000/=.
That the 1 st, 2nd and 3 rd defendants shared the said loan and did not pay the same
until the bank wanted to sell the suit land to recover the loan. That the plaintiffs
being sons of the late Senkaayi Ahmadah agreed with the bank to pay the loan with
20 its interest. The plaintiffs then engaged Musoke Ismael who helped them to pay the
loan.
The 1 st – 3rd defendant’s did not file Written Statements of Defence despite being
served.
It was the 4 th defendant’s case that it is the administrator of the estate of the late
25 Yusufu Kato who was the original proprietor of the suit land comprised in
Butambala Block 130 Plot 32 land at Nakasozi. That the report of death of the late
Yusufu Kato was made to the 4 th defendant by the 1 st defendant on 3/12/1993
who indicated that the deceased had two children to wit Kasifa Namagembe and
Ahmadah Senkaayi, the latter having since died. That this information was
30 confirmed by the deceased’s heir Muhamudu Lutakome a.k.a Lutakome Abdu.
That following the report of death, the 4 th defendant conducted preliminary
investigations to establish the true, number of beneficiaries through interviewing
a clan leader, the heir and making announcements in the media. That no adverse
claims were ever registered hence the 4 th defendant’s resolution to administer the
35 estate under intestacy in 1994.
2
That from all the 4 th defendant’s preliminary investigations, none revealed that the
deceased ever sold the suit land to his son Ahmadah Senkaayi. The 4 th defendant
resolved to administer the estate under the rules of intestacy because even after
summoning Mustapha Nsonzi the clan head, no will was ever produced.
5 That upon the 4th defendant obtaining Letters of Administration it went ahead and
distributed the estate to the known beneficiaries that is Namagembe Hasifa
(daughter) and Muhamudu Lutakome a.k.a Lutakome Abdu (customary heir).
That in 2021, 27 years after administration of the deceased’s estate, the 4th
defendant was sued allegedly for recovery of the suit land purportedly purchased
10 by the late Ahmadah Senkaayi, father to the plaintiffs.
Representation:
At the hearing Mr. Kabanda Umar Sebaduka appeared for the plaintiffs while Mr.
Kuloba Wesaka Henry represented the 4 th defendant. Both parties filed written
submissions.
15 Issues for determination:
1. Whether or not the acts and or conduct of the defendants amount to fraud?
2. Whether or not land comprised in mailo Register Butambala Block 130 Plot
32 forms part of the estate of the late Ahmadah Senkaayi?
3. Whether or not land comprised in mailo register Butambala Block 130 Plot
20 32 was wrongly included as part of the estate of the late Kato Yusufu?
4. Whether or not the 4 th defendant failed to do due diligence before applying
for Letters of Administration of the estate of the late Kato Yusufu?
5. Whether or not the 4 th defendant failed to file an inventory as required by
law?
25 6. Whether the plaintiffs had locus to bring this suit?
7. Whether the suit is not barred by limitation?
8. What are the remedies available to the parties?
Six issues were framed in the scheduling Memorandum filed on 25/3/2022.
During scheduling, the 4 th defendant in agreement with counsel for the plaintiffs
30 proposed to add two preliminary objections as issues. The 4 th defendant then
abandoned the issue on limitation claiming that the suit land is no longer in the
name of the 4 th defendant as administrator but in the name of the 1 st defendant
who is party to the suit. The 4 th defendant maintained the issue on locus standi.
The law:
35 According to Section10 (1) (2) of the Evidence Act, it is provided that;
3
“Whoever desires any court to give judgment as to any legal right or
liability dependant on the existence of facts, which he or she asserts must
prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that
5 the burden of proof lies on that person.”
Section102 of the Evidence Act goes on to provide that;
“The burden of proof in a suit or proceeding lies on that person who would
fail if no evidence at all were given on either side.’
Section 103 of the Evidence Act provide that;
10 “The burden of proof as to any particular fact lies on that person who
wishes the court to believe in its existence unless it is provided by any law
that proof of that fact shall lie on any particular person”
In the case of Nsubuga v. Kavuma [1978] HCB 307 it was held that;
“In civil cases the burden lies on the plaintiff to prove his or her case on
15 the balance of probabilities.”
It is therefore the duty of the plaintiffs in this case to prove their claims against
the defendants at a balance of probability.
Submissions:
Issues 1 and 4 are discussed jointly, 2 and 3 are also discussed jointly, issues 5, 6,
20 7 are discussed each separately.
Issues 1 and 4:
1. Whether or not the acts and or conduct of the defendants amount to fraud?
4. Whether or not the 4 th defendant failed to do due diligence before applying for
Letters of Administration of the estate of the late Kato Yusufu?
25 Counsel for the plaintiffs quoted the case of Fredrick J. K. Zaabwe v. Orient Bank
& 5 Others, S.C.C.A No. 04 of 2006 on the definition of fraud.
Counsel went on to submit that the petition (DEX3) as filed in court by the 4th
defendant did not mention that the late Yusufu Kato had two children but only
mentioned that the late Yusufu Kato was survived by one child who is the 1 st
30 defendant. That the late Ahmadah Senkaayi was not mentioned anywhere in the
documents the 4 th defendant exhibited. That this indicates that there was fraud on
4
the part of the 4 th defendant because DW1 during cross examination told court
that the 4 th defendant was aware that the late Yusufu Kato had two children.
Counsel for the plaintiffs added that DW1 told court that they never inspected the
suit land before applying to administer the same. That this conduct was fraudulent
5 as the 4 th defendant failed to do due diligence before applying for Letters of
Administration.
That it was the testimony of PW2 and PW3 that the duplicate certificate of title was
in the custody of the 3 rd defendant, so it was fraudulent for the 3 rd defendant to
give the duplicate certificate of title to the 1 st defendant who presented the same to
10 the 4th defendant.
Counsel for the 4 th defendant on the other hand submitted that the plaintiffs in
their submissions particularized fraud committed by the 4 th defendant as;
Failing to do due diligence before applying for Letters of Administration.
Stating in the petition for Letters of Administration that Yusufu Kato was
15 survived by one child whereas not.
Failure to inspect the suit land which was under her administration.
And yet in the plaint two particulars of fraud were framed to wit;
Failure to do due diligence before applying for letters.
Transferring the suit land to the 1 st defendant without knowing who was in
20 possession.
Counsel argued that it is trite law that parties are bound by their pleadings. That
particulars of fraud ought to be expressly pleaded and strictly proved. Therefore,
the introduction of new particulars of fraud in the submissions ought to be
rejected. Counsel contended that no fraud has been proved against the 4 th
25 defendant.
In regard to failure to do due diligence counsel for the 4 th defendant submitted that
it did due diligence before applying for Letters of Administration as laid out in its
facts and went ahead to define due diligence as;
“A measure of prudence, activity, or assiduity, as is property to be expected
30 from, and ordinarily exercised by, a reasonable and prudent man under
the particular circumstances, not measured by any absolute standard, but
depending on the relative facts of the special case”. (See: Black’s law
Dictionary (1968), 4 th Edition at page 544).
5
That if at all there was something to hide or conceal, why would the 4 th defendant
invite claims through a public advert in a National Newspaper such as Sunday
Vision. That as a public trustee charged with a national mandate of administering
estates of deceased persons, the above efforts meet the due diligence test.
5 Counsel for the plaintiffs in rejoinder submitted that there were no new particulars
of fraud introduced by the plaintiffs but the plaintiffs only pleaded and proved
fraud. That the 4 th defendant did not mention that the late Kato Yusufu had two
children but rather one child that is the 1 st defendant. DW1 during cross
examination admitted that they were aware that Kato had two children but only
10 mentioned one which omission amounts to fraud.
Analysis of court:
I will associate myself with the definition of fraud as laid out in the case of Fredrick
J. K. Zaabwe v. Orient Bank & 5 Others, S.C.C.A No. 04 of 2006 which defined
fraud to mean the intentional perversion of the truth by a person for the purpose
15 of inducing another in reliance upon it to part with some valuable thing belonging
to him or her or to surrender a legal right. It is a false representation of a matter
of fact whether by words or by conduct, by false or misleading allegations or
concealment of that which deceives and it is intended to deceive another so that he
or she shall act upon it to his or her legal injury.
20 In the case of Kampala Bottlers Ltd v. Damanico (U) Ltd, SCCA No.22 of 1992, it
was held that;
“ Fraud must be strictly proved, the burden being heavier than one on
balance of probabilities generally applied in civil matters , it was further
held that;
25 ‘ The party must prove that the fraud was attributed to the transferee. It
must be attributable either directly or by necessary implication, that is; the
transferee must be guilty of some fraudulent act or must have known of
such act by somebody else and taken advantage of such act .”
Counsel for the 4th defendant submitted that the plaintiffs cited cases on fraud that
30 did not aid them.
Counsel for the plaintiffs argued that the title was fraudulently presented to the 4th
defendant by the 3 rd defendant who it was given for safe custody.
However, upon perusal of PEX5, it clearly indicates that the petition for Letters of
Administration by the 4 th defendant stated that Yusufu Kato had only one child that
35 being the 1 st defendant. This goes to say that the 4 th defendant was aware of the
6
existence of the two children but went ahead and gave court false information
which amounts to fraud. The 4 th defendant concealed information from court
while applying for Letters of administration and this is a ground for revocation of
Letters of Administration provided for under Section 234 (2)(b) of the Succession
5 Act.
DW1 also mentioned that they never inspected the suit land they administered
which is an indication of failure to conduct due diligence. If indeed the 4th
defendant had conducted due diligence, it would have known that Yusufu Kato
bought the suit land and it was being occupied by his family as testified by PW2
10 and PW3. DW1 having admitted that they never visited the suit land that they
intended to administer.
It is my finding and holding that the conduct of the 4 th defendant amounted to
fraud, they concealed information as they applied to court to administer the estate
of the late Yusufu Kato and did not conduct any due diligence before applying for
15 the Letters of Administration.
Issues 1 and 4 are hereby resolved in the affirmative.
Issues 2 and 3:
2. Whether or not land comprised in mailo Register Busambaga Block 130 Plot 32
forms part of the estate of the late Hamada Senkaayi?
20 3. Whether or not land comprised in mailo register Butambala Block 130 Plot 32
was wrongly included as part of the estate of the late Kato Yusufu?
Counsel for the plaintiffs submitted that since the 4 th defendant did not conduct
any due diligence it was maybe the reason why the estate of the late Ahmadah
Senkaayi was wrongly included in his father’s estate.
25 Counsel argued that under Section 90 of the Evidence Act any document that is 30
years old, proved duly to be executed is presumed to be authentic. That in the
instant case, PEX3 a sale agreement date 7/4/1983 is authentic under Section 90
of the Evidence Act.
Counsel noted that it was the evidence of PW3, the widow to the late Ahmadah
30 Senkaayi that they took immediate possession of the suit land in 1983 and that she
still occupied the suit land whose duplicate certificate of title was in the custody of
the 3 rd defendant. That this piece of evidence was corroborated by PW2 who
attended the meeting when the certificate of title was handed to the 3 rd defendant.
That the evidence of PW2 and PW3 was direct evidence on who kept the title and
35 its admissibility is covered under Section 59 (a) of the Evidence Act. Thus, the late
Ahmadah bought the suit kibanja from his father the late Kato Yusufu.
7
Counsel for the 4 th defendant on the other hand submitted that the suit property
did not form part of the estate of Ahamadah Senkaayi. That in regard to the sale
agreement, it is not one whose authenticity can be presumed under Section 90 of
Evidence Act since it was never signed by the buyer and seller. That documents
5 alluded to under Section 90 of the Evidence Act are those that were in custody that
the court considers proper such as those registered with the registrar of documents
or wills kept in a legally gazetted place. That the purported sale agreement in this
case had no verifiable place of custody.
Property wrongly included:
10 It was submitted for the 4 th defendant that the original proprietor of the suit land
was Yusufu Kato followed by the 4 th defendant and finally the 1st defendant. That
the certificate of title is conclusive proof of ownership. That in the instant case at
the time of death of Yusufu Kato in 1989 he was still the registered proprietor and
no caveat was ever lodged. That the 4 th defendant got registered in 2006 pursuant
15 to Section 134 of the Registration of Titles Act and the plaintiffs’ intents were
brought to the attention of the 4 th defendant in 2021. That all the evidence
indicates that the suit land was originally belonging to Yusufu Kato’s estate.
Counsel for the plaintiffs submitted in rejoinder that despite counsel for the 4 th
defendant stating that the sale agreement was suspect since it was not signed by
20 the seller, he did not cite any law that invalidates it.
Analysis of court:
Counsel for the plaintiffs argued that agreement in the instant case was authentic
by virtue of the provisions of Section 90 of the Evidence Act which provides that;
“When any document, purporting or proved to be thirty years old, is
25 produced from any custody which the court in the particular case
considers proper, the court may presume that the signature and every other
part of that document, which purports to be in the handwriting of any
particular person, is in that person’s handwriting and, in the case a
document executed or attested, that it was duly executed and attested by
30 the persons by whom it purports to be executed and attested.”
Counsel for the 4 th defendant on the other hand argued that the sale agreement in
the instant case is not one whose authenticity can be presumed since it was never
signed by the buyer and seller.
Secondly, that the documents the court considers proper are those registered with
35 the registrar of documents or wills kept in a legally gazetted place.
8
Whereas, it is true that the buyer did not sign on the sale agreement, the seller did
sign so did the witnesses. It was however, the evidence of PW2 and PW3 that they
had been on the suit land since 1983 when the land was bought to date without
anyone challenging their occupation. PW3 further told court that she was even
5 given the title for the suit land to keep which she gave to the 3 rd defendant for
custody a day after the death of her husband for safe custody. This is all evidence
admissible under Section 59 of the Evidence Act as direct oral evidence.
In regard to authenticity of the document, I would like to note that counsel for the
4th defendant’s argument is misguided. The explanation of Section 90 of the
10 Evidence Act clearly states that;
“Documents are said to be in proper custody if they are in the place in
which, and under the case of the person with who, they would naturally
be; but no custody is improper if it is proved to have had a legitimate origin,
or if the circumstances of the particular case are such as to render such an
15 origin probable.”
It is therefore, not true that for a document to be considered authentic under the
above Section, it should have only been kept in a gazetted place. Custody in this
case includes, being kept in a place or by a person who would naturally be with
the document or proof of a legitimate origin in case of no proper custody.
20 In the circumstances, the sale agreement in this case does qualify as an authentic
document, however, this court will not rely on it for the lack of proper execution
that is the failure of the buyer to sign on the same. Execute may mean to carry out,
perform, or complete as required, usually to fulfill an obligation, such as executing
a contract or order; or to sign or complete all formalities necessary to make a
25 contract or document effective, such as signing, stamping or delivering. In the
instant case the sale agreement as presented in court was an incomplete document
for lack of the signature of the buyer.
Property wrongly included:
Counsel for the 4 th defendant submitted that the original proprietor of the suit land
30 was Yusufu Kato followed by the 4 th defendant and finally the 1 st defendant. That
the certificate of title is conclusive proof of ownership as per Section 59 of the
Registration of Titles Act. That the 4 th defendant was registered in 2006 and all the
evidence indicates that the suit land belonged to the late Yusufu Kato.
It is my considered view that there is evidence indicating that the plaintiffs’ father
35 bought the suit land by virtue of the occupation of the PW2 and PW3 on the same
from 1983 to date without any complaints or challenges or third party claims.
PW3, widow to Ahmadah Senkaayi also told court that she had in her custody the
9
title to the suit land before she passed it on to the 3 rd defendant for safe custody. It
was therefore, erroneous to include the estate of Ahmadah Senkaayi under the
estate of Yusufu Kato.
In the case of Maria Ciabaitaru
5 M’mairanyi and Others v. Blue Shield Insurance Company Limited, 2000
[2005]1 EA 280, it was held that:-
“Whereas under section 107 of the Evidence Act, (which deals with the
evidentiary burden of proof and is equivalent to our section 102 of the
Evidence Act), the burden of proof lies upon the party who invokes the aid
10 of the law and substantially asserts the affirmative of the issue, section 109
of the same Act recognizes that the burden of proof as to any particular
fact may be cast on the person who wishes the Court to believe in its
existence.”
The plaintiffs in this case ably discharged their burden in proving that the suit land
15 belonged to the estate of the late Ahmadah Senkaayi and was erroneously added to
the estate of the late Yusufu Kato.
Issues 2 and 3 are hereby resolved in the affirmative.
Issue 5: Whether or not the 4 th defendant failed to file an inventory as required by
law?
20 Counsel for the plaintiffs submitted that DW1 confirmed to court that no inventory
was ever filed in court and that the impugned grant of Letters of Administration
ought to be revoked since the 4 th defendant has failed to exhibit an inventory and
an account required by the provisions of Section 234(2) (e) of the Succession Act.
Counsel for the 4 th defendant on the other hand submitted that it is ironical that
25 the plaintiffs prayed for the 4 th defendant to be ordered to execute his mandate yet
they do not by their pleadings bring their claim as beneficiaries of the estate of
Yusufu Kato. That in their pleadings they claim that the suit land does not belong
to the estate of Kato. So they are bound by their pleadings and an administrator is
only obliged to account to the beneficiaries.
30 Analysis of court:
Whereas it is true that the plaintiffs do not claim to be beneficiaries of the estate of
the late Yusufu Kato, the law is clear that an Administrator has a duty to file an
inventory and provide accountability to the court that granted th e Letters of
Administration.
35 Section 234 of the Succession Act provides as follows;
10
(1) The grant of probate or letters of administration may be revoked or annulled
for just cause.
(2) In this section, “just cause” means—
(a) That the proceedings to obtain the grant were defective in substance;
5 (b) That the grant was obtained fraudulently by making a false suggestion, or by
concealing from the court something material to the case;
(c) That the grant was obtained by means of an untrue allegation of a fact essential
in point of law to justify the grant, though the allegation was made in ignorance
or inadvertently;
10 (d) That the grant has become useless and inoperative through circumstances; or
(e) That the person to whom the grant was made has willfully and without
reasonable cause omitted to exhibit an inventory or account in accordance with
Part XXXIV of this Act, or has exhibited under that Part an inventory or account
which is untrue in a material respect.
15 In this case the 4 th defendant does not deny not filing an inventory ever since it
became the Administrator of the suit property in 1994 to date without any
reasonable explanation which is a contravention of Section 234 (2) (e) of the
Succession Act.
Since the 4 th defendant does not deny not filing an inventory as required by the
20 law, this issue is resolved in the affirmative.
Issue 6: Whether the plaintiffs had locus to bring this suit?
Counsel for the plaintiffs noted that the position of the law is that a beneficiary of
an interest does not need Letters of Administration to sue on the estate. (See: Kabwa
v. Martin Banobwa, S.C.C.A No. 52 of 1997). Counsel also cited the case of Dima
25 Domnic Pro v. Inyani Godfrey & Another, H.C.C.A No. 17 of 2016, which quoted
the case of Solo David & Mutoto Moses v. Bagali Abdu & Tukei Anthony, H.C.C.A
No. 27 of 2009 where it was held that;
“…it is imperative that a person who has an interest in an estate takes steps
to protect the estate even before grant of Letters of Administration.”
30 Thus, the plaintiffs have locus to bring this suit.
Further, that PW2 was not cross examined on the issue of being a son to the Late
Ahmadah and according to the case of William Mukasa v Uganda Revenue
Authority, [2013] 1 H.C.B 68, it was held that;
11
“If a testimony is not challenged at all in cross-examination by the
respondent, it is implied to be true.”
That in the instant case, it was the undisputed evidence of PW2 and PW3 that they
are in occupation of the suit land that they paid off the mortgaged suit property
5 with the help of PW1 who acknowledged to have helped the family to redeem the
suit land from Equity Bank (U) Limited. PW3 is a widow to the late Senkaayi
Ahmadah who was a son to the late Yusufu Kato. That this is direct evidence
admissible under Section 59(a) of the Evidence Act.
Counsel for the 4 th defendant on the other hand submitted that the plaintiffs
10 admitted that they had no Letters of Administration for the estate of the Late
Ahmadah Senkaayi and cited Section 191 of the Succession Act and argued that
the instant case is distinguishable from that of Kabwa as in the latter case, the
beneficiary was undertaking steps to obtain Letters of Administration and had
obtained a Certificate of no objection.
15 Counsel added that the plaintiffs are not direct beneficiaries for the estate of Yusuf
Kato and are beneficiaries from the estate of Senkaayi Ahmadah which also has no
Letters of Administration and it is therefore, difficult to tell what their status is.
That in the circumstances they should have opened a file with the 4 th defendant of
the late Senkaayi for verification and ascertaining the true beneficiaries. That the
20 suit is now registered in another name and not the 4 th defendant and the status of
the plaintiffs is highly contentious thus the need for Letters of Administration. That
in the circumstances the suit should be dismissed for contravening the law.
Counsel for the plaintiffs in rejoinder quoted Section 22(b) of the Limitation Act
which provides that;
25 “In the case of a foreclosure or other action by a mortgagee, the person in
possession of the land or personal property or the person liable for the
mortgage debt makes any payment in respect of it, whether of principal or
interest the right shall be deemed to have accrued on and not before the
date of the acknowledgment or payment.”
30 Counsel added that the plaintiffs are in occupation of the suit land which Equity
Bank Uganda wanted to foreclose in 2020, whereof PW1 helped pay the mortgage,
thus the plaintiffs have locus. Counsel argued that the case of Kabwa does not set
out the procedures which the beneficiary should first take when suing to protect
his/her interests. That PW3 a widow of Ahmadah clearly told court that the
35 plaintiffs were her step sons, so, how else is one expected to prove that they are a
beneficiary?
12
Analysis of court:
The plaintiffs in the instant case claim to be beneficiaries of the estate of the late
Ahmadah Senkaayi and brought the suit as such to recover land that was wrongly
included under the estate of the late Yusufu Kato. In the circumstances they have
5 locus standi to bring the instant case. They are also entitled to benefit from the
estate of Yusufu Kato by virtue of Senkaayi Ahmadah having been a son to the
former.
The plaintiffs as beneficiaries of the estate of the late Senkaayi Ahmada therefore,
do not need to have Letters of Administration in order to bring the instant suit.
10 Counsel for the 4 th defendant argued that the Kabwa case as relied on by the
plaintiffs is distinguishable from the instant case. That in the former they had taken
steps to apply for Letters of Administration and had obtained a Certificate of no
Objection whereas in the instant case no steps have been taken.
It is my considered view that at the end of the day in the instant case and the Kabwa
15 case both parties cannot be said to have been having Letters of Administration
when they instituted their suits, whether steps were taken or not to obtain letters
of Administration. Therefore, the taking of steps to obtain Letters of Administration
is not equivalent to obtaining Letters of Administration. The issue at hand is that
do the parties as beneficiaries have Letters of Administration as they sue? The
20 answer is no. The law provides that beneficiaries can take steps to protect their
interests even before obtaining Letters of Administration as is the case in the
present matter.
I therefore, find the case of Kabwa as cited by the plaintiffs applicable to the instant
case and agree that beneficiaries can sue without having Letters of Administration.
25 This issue is resolved in the affirmative.
Issue 7: Whether the suit is not barred by limitation?
This issue was abandoned by the 4 th defendant. It is hereby struck out.
Issue 8: What are the remedies available to the parties?
Counsel for the plaintiffs reiterated the remedies prayed for in the plaint and
30 submitted on the law in regard to general damages as enshrined in the cases of
Kampala District Land Board 7 George Mitaki v. Enansio Babweyana, S.C.C.A No
212 of 2007 and Robber Coussens v. Attorney General, S.C.C.A No. 8 of 1999 cited
with approval in the case of Norah Nassozi & Another v. George William Kalule,
H.C.T No. 5 of 2012 where the supreme court held that;
13
“It is trite law that general damages are the direct probable consequences
of the act complained of such consequences of the act complained maybe
loss of use of profit, physical inconvenience, mental distress, pain and
suffering. Damages must be prayed and proved.”
5 “The object of damages is to compensate a party for the damage, loss or
injury suffered. They can be pecuniary or non-pecuniary. The former
comprising of all financial and material loss of business profit and income,
and the latter representing inroad upon a person’s financial or material
assets such as physical pain or injury to feelings.”
10 Counsel further submitted that since the 4 th defendant failed to execute its duty
and the estate was wasted by its acts and those of the 1 st defendant. The plaintiffs
prayed for damages to a tune of UGX 100,000,000/= in accordance with Section
47 of the Succession Act and prayed for costs.
Counsel for the 4 th defendant on the other hand submitted that the plaintiffs are
15 not entitled to any of the remedies sought and no special damages were specifically
proved against the 4 th defendant. That the 4 th defendant did due diligence and no
loss or damage was occasioned. And that the plaintiffs having not proved that they
are beneficiaries of Yusufu Kato’s estate they are not entitled to general damages.
Analysis of court:
20 It is trite law that general damages are awarded at the discretion of
court. Damages are awarded to compensate the aggrieved, fairly for the
inconveniences accrued as a result of the actions of the defendant. It is the duty of
the claimant to plead and prove that there were damages losses or injuries suffered
as a result of the defendant’s action.
25 The plaintiffs in this case have not proved to court any loss they have suffered that
was as a result of the 4 th defendant’s actions. I am mindful of the law on award of
general damages it would therefore, be unfair and unreasonable to condemn the
4th defendant in general damages when no proof of loss or suffering has been
adduced by the plaintiffs. I will thus, make no orders as to general damages since
30 I find no justification for the same.
The plaintiffs however, through PW1 proved that he paid the loan that had been
obtained and shared by the 1 st, 2nd and 3 rd defendants, having mortgaged the suit
land. PW1 himself told court that he has not yet taken legal action to recover the
said money. The plaintiffs did not suffer any losses in this regard.
35 It is trite that special damages must not only be specifically pleaded but they must
also be strictly proved (see: Borham-Carter v. Hyde Park Hotel [1948] 64 TLR).
14
Special damages therefore are to be specifically proved and pleaded however in
the instant case no special damages were specifically proved, though pleaded they
were not also specifically pleaded by the plaintiffs, so, I will make no orders as to
the same.
5 The plaintiffs however, proved their case as against the defendants on a balance of
probability to this court. Judgment is hereby entered in favour of the plaintiffs with
the following orders;
a. A declaration that land comprised in mailo Register Butambala Block 130
Plot 32 forms part of the estate of the late Ahmadah Senkaayi.
10 b. A declaration that the 4 th defendant applied for Letters of Administration of
the estate of the late Yusufu Kato fraudulently.
c. A revocation of the Letters of Administration granted to the 4 th defendant.
d. An order compelling the 4 th defendant to file a comprehensive statement of
account of dealings with the estate of the late Yusufu Kato.
15 e. An order of cancellation of the 1 st defendant’s name from the duplicate
Certificate of Title of land comprised in Butambala Block 130 Plot 32.
f. Costs of the suit.
I so order.
Right of appeal explained.
20
……………….………….
OYUKO ANTHONY OJOK
JUDGE
01/12/2022
25
30
15
