THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
COMMERCIAL COURT DIVISION
(ARISING FROM CIVIL SUIT NO 762 OF 2005)
1. BAGAMBE GEOFFREY )
2. KUTESA HERBERT )…. .……………………. OBJECTORS/APPLICANTS
ECUMENICAL CHURCH LOAN FUND (U) (ECLOF) ……. RESPONDENT/ PLAINTIFF
1. SSERUMAGA EDDIE
2. SSESANGA LIVINGSTONE
3. LAMECK LUMU
4. KAKANDE MOSES
5. KASULE S.
ALL T/A BWISHIKATWA MIXED
FARM) ………………..………JUDGMENT DEBTORS/ DEFENDANTS
BEFORE: HON. MR. JUSTICE LAMECK N. MUKASA
The application is supported by an affidavit deponed to by the 1st Applicant Bagambe Geoffrey. The objector’s case, as gathered from the affidavit and annextures thereto is that the objectors are the registered proprietors of the land which is the subject matter. Bagambe Geoffrey the 1st applicant, as Administrator of the estate of the late Edward Kusasira under High Court Administration Cause No. 562 of 2001 granted on 21st December 2004 and Herbert Kutesa, 2nd Applicant as Administrator of the estate of the late Christopher Ntalatambi under High Court Administration Cause No. 513 granted on 7th September 2001. The suit land is their family land where they have their own homes and their predecessor’s homes and where they graze their cattle. They are not parties to the suit which gave rise to the attachment of the property. The suit was filed in December 2005 against Edward Kusasira, Christopher Ntalatambi, Sserumaga Eddie, Ssesanga Livingstone, Lameck Lumu Kakande Moses, and Kasule S, all stated to be trading as Bwishikatwa Mixed Farm. Bagambe Geoffrey states in his affidavit that the said Edward Kusasira and Christopher Ntalatambi died before the year 2001, thus before the filing of this suit. That the said Edward Kusasira and Christopher Ntalatambi were the only registered partners in M/S Bwishikatwa of Mixed Farm, which firm or business never owned the attached property. It is further averred that Serumaga Eddie, Ssesanga Livingstone, Lameck Lumu, Kakande Moses and Kasule who were the borrowers under the loan agreement dated 19th May 1999 and which gave rise to the main suit have never been members or partners in Bwishikatwa Mixed Farm.
The Respondent M/S Ecumenical Church Loan Fund (U) (ECOLOF) was on record as represented by M/S Rwakafuzi & Co Advocates. Though duly served through its said lawyers as per the affidavit of service dated 28th August 2006 the Respondent did not file an affidavit in reply. Neither its counsel nor its representative appeared at the hearing and hearing proceeded in their absence. In the circumstances the facts outlined above and deponed to by the 1st applicant in his affidavit in support were neither rebutted nor denied by the Respondent. The presumption is that averments on oath which are neither denied nor rebutted by the respondent are admitted as the true facts See Masa Vs Achen (1978) HCB 297.
The law and tests to be applied in an investigation to be conducted in applications of this nature is contained in rules 56, 57 and 58 of Order 22 of the Civil Procedure Rules. They were summed up in the case of Harilal & Co Vs Buganda Industries Ltd (1960) EA 318 as follows:
If the court finds that it was the judgment debtor who was in possession then the inquiry will proceed no further. Secondly the court must determine whether the Objector held the property on his own account or in trust for the judgment debtor or some other person.”
The evidence as contained in paragraph 8 of the affidavit of the 1st Objector is that the attached property was the objectors’ family land where they have their own homes and those of their predecessor’s and where they were grazing their cattle. This is evidence of occupation by the objectors. This evidence was neither denied nor rebutted by the Respondent. Therefore I find that when the property was attached it was in the possession of the objectors.
The next issue is whether the Objectors were in possession of the land in trust for the judgment debtors or any of them. The Certificate Title annexture A” – shows that the Objectors are the registered proprietors of the and which is the subject matter of these proceedings, the 1st objector as administrator of the estate of the 2nd Judgment debtor and the 2nd objector as administrator of the estate the 1st judgment debtor. I have already indicated that for the purposes of this investigation the question of legal right and title are irrelevant, except so far as they may affect the decision as to account of or in trust for the judgment debtor.
An administrator of an estate is not necessarily the owner of such property, unless he/she is the sole beneficiary of the estate. An administrator holds such property in trust for the benefit of the beneficiaries to the estate. Section 25 of the Succession Act provides:-
The objectors as such administrators can only be said to be in possession of the land in trust for the beneficiaries of the estates of the late Edward Kusasira and the late Christopher Ntalatambi. The 1st and 2nd Judgment Debtors were the deceased themselves thus could not be beneficiaries. There is no evidence to show that any of the other judgment debtors, namely Serumaga Eddie, Ssesanga Livingstone, Lameck Lumu, Kakande Moses and Kasule S, are beneficiaries to any of the estates of the two deceased persons.
Therefore I find that there is no evidence to show that the Objectors were in possession of the land in trust for the judgment debtors or any of them. This application is accordingly allowed. The land comprised in LRV 1814 Folio 12 Block 349 – 351 Plot 4 Gomba, Mpigi District be released from attached and sale in execution of the judgment in High Court Civil Suit No. 762 of 2005. The Objectors are awarded costs of these proceedings.
I so order.
Hon Mr. Lameck N. Mukasa
22nd September 2006