Court name
HC: Civil Division (Uganda)
Judgment date
28 October 2014

Kabega & Anor v Bbale (Civil Suit-2011/150) [2014] UGHCCD 280 (28 October 2014);

Cite this case
[2014] UGHCCD 280

 

IN THE HIGH COURT OF UGANDA AT NAKAWA

CIVIL SUIT NO. 150 OF 2011

SANYU KABEGA TEDDY & ANOR:::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFFS

VERSUS

ANDREW BBALE KABEGA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::DEFENDANT

 

BEFORE: Hon. Justice Wilson Masalu Musene

JUDGMENT

The Plaintiff, Ssanyu Kabega Teddy, Suing as Administrator of the estate of the late Denis Ganafa Kabega, filed this case against Andrew Bbale Kabega, a brother.  The Plaintiff’s case is that she is one of the eight children and Administrator of the estate of the late Denis Ganafa Kabega formerly of Kalagala village, Mawokota County in Mpigi District who died intestate on 2/07/1978.  Her case is that the said deceased left a lot of properties, to wit Mailo Register Volume 3599 Folio 1, F.C. No. 10535 Plot 61 Land at Kalungu, Masaka District and land with a residential house and burial grounds at Kyango, Kalisizo.  The other properties were Buddu Block 321 Plot1, Land at Masaka measuring 5.00 acres with a residential house, Mawokota Block 98 Plot 39 and 54, land at Kalagala measuring 51.4 acres, Busiro Block 421 Plot 92, land at Mpala; Kibuga Block 13 Plot 992 land at Najjanankumbi Block 17, Kibuga County, land at Lule Zone, Rubaga Division, Plot 842 Block 17, Kibuga County Rubaga with 2 Blocks of 2 roomed houses and another plot 826 Block 17, Kibuga County, Rubaga Division.

According to the Plaintiff after the death of their father it was resolved that Letters of Administration be granted to Rev. Father Cosma Mukasa and herself, Ssanyu Kabega, which were granted on 24/05/1979 vide H/C Adm. Cause No. 088 of 1978.  The Plaintiff’s case was that the Defendant, Andrew Bbale Kabega illegally and fraudulently processed parallel Letters of Administration Cause No. 111/2004 (Chief Magistrate Masaka) and another grant in respect of the same vide Nakawa High Coourt Adm. Cause No. 949 of 2009 on 10/02/2010.  It is alleged that thereafter, he began illegally disposing, intermeddling and alienating part of the estate, and transferring some in his names and enjoying the proceeds there from alone, leading to loss, inconvenience, stress and damage to the other beneficiaries. 

The Defendant’s case on the other hand was that he was not aware of any holder of Letters of Administration by the time he processed his, and that no illegal transfers or sells have been made and that his Letters were obtained legally.  Among the agreed facts were that the deceased left various properties comprised in the estate and that the Defendant sold Busiro Block 424 Plot 92 to Dickson Muyambi and Katenta Luutu Livingstone, (DW2). 

At the Joint Scheduling Memorandum, four issues were:-

  1. Whether or not the Plaintiff together with Rev. Fr. Cosma Mukasa are lawful and legal Administrators of the estate of the Late Denis Ganafa Kabega and whether the Defendant was aware of the same.

 

  1. Whether or not the Defendant illegally and fraudulently obtained Letters of Administration vide Masaka Chief Magistrate’s Court Administration Cause No. 111 of 2004 and Nakawa High Court Administration Cause No. 949 of 2009.

 

  1. Whether or not the Defendant has illegally intermeddled, disposed off, alienated, transferred and dealt with the estate properly.

 

  1. What remedies are available in the circumstanaces?

 

I shall handle the issues one by one. 

The Plaintiff, who testified as PW1 attached a copy of Letters of Administration as annexture “B” to her witness statement.  The said Letters of Administration were granted to her and Rev. Father Cosma Mukasa by Justice Peter Allan on the 24th day of May, 1979.  During cross-examination by Counsel for the Defendant, PW1 testified that all family members, including the Defendant were present when she was authorized to get Letters of Administration.  She added that the meeting was held in September, 1978 at the Administrator General’s office.  PW1 further confirmed that she was nominated as the eldest child and Rev. Father Mukasa represented other relatives.  She also denied that the Defendant was ever made heir to their father.  She also told this Court to what extent the Defendant had tampered with the estate.  The grant of Letters of Administration was not challenged and/or opposed by the Defence.  And judging from her demeanor in the witness box, she was firm and consistent and was not shaken by the cross-examination.  She impressed this Court as a witness of truth.  Even PW2, Cissy  the Plaintiff’s case and denied ever attending a meeting where Kabega, the Defendant was made heir.  To crown it all, PW3 Rev. father Denis Ddamulira also denied any meeting held either on 8/12/1990 or 15/12/2009 and denied signing the same.  In his defence, the Defendant denied that he was aware of the fact that Letters of Administration were granted to the Plaintiff.  However, during cross-examination by Counsel for the Plaintiff, the Defendant could not remember the exact date he was made heir. 

In the premises, I find and hold that the evidence on record is overwhelming that it was the Plaintiff, Ssanyu Teddy Kabega and Rev. Father Cosma Mukasa who are the lawful and legal Administrators of the estate of the Late Denis Ganafa Kabega, having obtained the grant from the High Court of Uganda at Kampala on 24/05/1979 before Justice Peter Allon.  And in accordance with Section 192 of the succession Act, Letters of Administration entitle the Administrators to all rights belonging to the intestate.  The first issue is therefore resolved in the positive.

The 2nd issue is whether the Defendant illegally and fraudulently obtained Letters of Administration in Chief Magistrates’ Court of Masaka High Court in 2009.  This Court has already ruled that the Plaintiff PW1 attached a copy of the Letters of Administration as annexture “B” on her witness statement and the same was not challenged or objected to.  Whereas Counsel for the Defendant has submitted that Andrew Bbale Kabega’s application for Letters of Administration were granted at both instances at Masaka Chief Magistrates’ Court vide Administration Cause No. 111 of 2004 and Nakawa High Court vide Administration Cause No. 949 of 2009, the pertinent question to be asked is which Letters of Administration were granted first? Was it that of 1979 to the Plaintiff or the subsequent ones of first 2004 and then five years later in 2009 to the Defendant? Where was the Defendant between 1979 and 2004, a period of 25 years or 2009, a period of 30 years? There was no evidence on the part of the Defendant that he was out of the country or in exile and returned not aware that Letters of Administration had been granted to the eldest sister in the family.  How could the Defendant expect such an elite family as that of late Denis Ganafa Kabega, with so many properties and estates scattered all over Uganda, including around Kampala (Rubaga), wait for 25 years till 2004 and then apply for Letters of Administration in the lower Chief Magistrates’ Court of Masaka?

Under paragraph 8 of the Plaintiff’s witness statement, she states:-

“8. That however, our brother Andrew Bbale Kabega illegally and without any right processed other parallel Letters of Administration to the deceased’s estate in the lower Chief Magistrates’ Court of Masaka at Masaka and the same were signed by Grade II Magistrate then, His Worship Kakooza J. B. on 24/06/2004……”

 

There is no doubt whatsoever that the Magistrates’ Court Grade II had no jurisdiction at all.  This is because under S.2 (d) of the succession Act, Chapter 162 Laws of Uganda, “Court” means the High Court or Magistrates’ Court other than a Magistrates’ Court presided over by a Magistrate Grade II.”  Letters of Administration obtained from Masaka by the Defendant granted by His Worship Kakooza, Magistrate Grade II were therefore illegal abnitio.  They were null and void under the law.  In the case of Re-Milton Foundation [1997] HCB 79, my Senior brother, Justice Musoke Kibuuka held;

“A Court of Law cannot sanction that which is illegal – illegality once brought to the attention of Court overrides all questions of pleadings including any admissions thereon….. The Court itself, because it is enjoined by Section 101 (now Section 98) of the Civil Procedure Act, to prevent abuse of its process will always exercise its inherent jurisdiction to take up the foundation question of illegality even where the parties have not raised it.”

I entirely agree with my senior brother Judge, Musoke Kibuuka and I have nothing more useful to add.  For emphasis, the grant of Letters of Administration to the Defendant by Grade II Magistrate were contrary to the law as a Grade II Magistrate Court has no such powers under the succession Act.  It therefore follows that any actions undertaken by the Defendant with regard to the estate after such an illegal grant were equally null and void.

Counsel for the Defendant has submitted that the Defendant was not aware of the Letters of Administration held by Ssanyu Teddy Kabega and Rev. Father Cosma Mukasa.  However, under paragraph 10 of the Plaintiff’s witness statement, she stated that when Andrew Dennis Kabega tried to transfer Mailo Register Volume 3599, Folio 1 FC. No. 10535 Head Title Volume 918, Folio 10 Plot 61, Land at Kalungu, Masaka District and Singo Block 321 Plot 1 Masaka, the Plaintiff’s Advocates wrote a Letter to the Registrar of Titles, Masaka Land Registry stopping the same.  The Letter was attached to the statement and marked Annexture “D”.  For avoidance of doubt, I shall reproduce the Letter to show that Defendant was all along aware and that is why that transaction was stopped.

            “Date: 4/02/1998

The Registrar of Tittles

Masaka Land Registry

Masaka.

Dear Sir,

Re:      1. MAILO REGISTER VOL. 3599 FOLIO 1 FC NO.                                                     10535….VOL.918 FOLIO 10 PLOT 61 KALUNGU.

            2. BLOCK 321 PLOT 1 MASAKA.

We act for and on behalf of Administrators of the estate of Dennis Ganafa Kabega the deceased proprietor of the above named land who have instructed us to address you as follows:-

The Administrators, Rev. Father Cosma Mukasa and Ms. Teddy Ssanyu Kabega obtained Letters of Administration vide Administration Cause No. 88 of 1978 but never transferred their land into their names.  They have initiated the process to transfer the land but one family member, viz ANDREW KABEGA, is purporting to cause transfer of the said land.

The purpose of this letter is to inform you that the legitimate Administrators of the land have undertaken process to have the land transferred and/or to lodge caveats thereat.  We therefore request you to stand over any transactions upon this land, in the meantime.

Your corporation is highly appreciated.”

The letter is dully signed by M/S BUWULE AND MAVIGA ADVOCATES.

Neither the Defendant nor Defendant’s Advocates challenged  or contested paragraph 10 of the PW1’s witness statement and so this Court cannot permit them to turn around or change colors like a chameleon and say that Defendant was not aware of the Letters of Administration held by Ssanyu Teddy Kabega and Rev. Father Cosma Mukasa.

Furthermore, and as if the illegal Letters of Administration in Masaka were not enough, five or so years later in 2009, the Defendant fraudulently and again illegally secured Letters of Administration from the High Court of Uganda at Nakawa Central Circuit vide Administration Cause No. 949 of 2009, and the same were granted on 10/02/2010.  It does not need a Judge from mars to tell that the Defendant, who was jumping from Masaka Court and then Nakawa High Court was acting with ill motive or fraudulent intentions.

Under paragraph 12 of the Plaintiff’s witness statement, PW1 stated that while fraudulently procuring Letters of Administration from Nakawa, Andrew Bbale Kabega falsely declared in the petition that the family meeting of the deceased dated 8/12/1990 had appointed him sole Administrator whereas not.

Further illustrations of fraud were stated in paragraphs 13, 14, 15, 16,17, 18. 19. 20, 21 and 22 of PW1’s witness statement which again neither the Defendant nor his Advocate challenged.  And while testifying in this Court, both Cissy Kabega (PW2) and Rev. Father Dennis Ddamulira (PW3) denied the alleged meeting of 8/12/1990 where Defendant was appointed  heir.  They confirmed in their witness statements that their signatures were forged.  This Court believes the testimonies of PW2 and PW3.  And as per paragraph 17 of PW1’s statement, Rev. Father Cosma Mukasa could not sign to grant Kabega Bbale Andrew authority to obtain Letters of Administration when the Rev. Father Mukasa and the Plaintiff had already obtained them way back on 24/05/1979.  Those would be double standards which this Court cannot believe a Rev. Father of Cosma Mukasa’s status could do.  Even the witnesses called by the Defendant, Sonko Ibrahim Gasula and Katenda Luutu Livingstone were not aware of the alleged meeting of 8/12/1990 where the Defendant was nominated as heir.  Instead, DW2, Katenda Luutu Livingstone told this Court that he convened a security meeting in 2010 when he was an RDC Mpigi and that it was only Andrew Bbale Kabega who was the only child of the deceased who attended the meeting.  Even the Defendant himself during cross-examination by Counsel for the Plaintiff conceded that he tried to invite family members to the meetings but they never turned up.  At the same time, he denied forging their signatures.  It is abundantly clear that if the family members never turned up, then their signatures were forged.  And this is particularly when PW1, PW2 and PW3 denied in Court ever attending the meeting.

The other question in the mind of this Court is why did the Defendant, if at all he was appointed in a meeting of 18/12/1990 as heir and to obtain Letters of Administration, why he waited for 20 years till 2010 before applying and obtaining Letters of Administration in Nakawa, if not through fraudulent intentions.  And as submitted by Counsel for the Plaintiff, the Defendant Andrew Bbale Kabega contradicted himself in this Court when he stated that before acquiring Letters of Administration in Nakawa High Court, he first had the ones he had obtained from Masaka Chief Magistrates’ Court cancelled.  And that the Letters in Masaka were revoked in the year 2010.  However, the Administration Cause was filed in Nakawa as Administration cause No. 949 of 2009, and that meant before the one of Masaka was cancelled.  That was a contradiction.  Under paragraphs 12 and 13 of his witness statement, the Defendant talks of annextures which were never attached.  So given such contradictions and lies on the part of the Defendant, the only logical conclusion by this Court is that his actions were indeed fraudulent. 

Counsel for the Defendant submitted that the contradictions were minor and should be ignored by this Court.  How can such contradictions be minor when they reveal the true character of the Defendant as a liar and a person who is a fraudster, jumping from Court to Court to falsely obtain Letters of Administration and tampering or intermeddling with the estate of the deceased to the detriment of other family members.  In his petition for Letters of Administration, the Defendant stated in paragraph 6 that the late Dennis Ganafa Kabega did not leave a widow as she had died earlier.  But during cross-examination by Counsel for Plaintiff, the Defendant said he did not know when his mother died, but that his mother was alive when his father died.  This Court wonders how the Defendant, who purported to be the rightful applicant of Letters of Administration, could not even know when the mother died.  Under S.154 (c) of the evidence Act, the credit of a witness may be impeached by proof of former statements inconsistent with any part of his or her evidence which is liable to be contradicted.

In conclusion therefore, I find and hold that the Defendant fraudulently and illegally obtained Letters of Administration both in Masaka and Nakawa as the earlier grant to the Plaintiff and Rev. Father Cosma Mukasa were  in force and had not been revoked.  I therefore find the second issue in the affirmative.

The third issue is whether the Defendant has illegally intermeddled, disposed off, alienated, transferred and dealt with the estate property.  Having held and found that the grants of Letters of Administration to the Defendant both in Masaka and Nakawa were illegal and fraudulent, then the Defendant wrongfully intermeddled, disposed off and/or dealt with the estate property.

PW1’s testimony under paragraph 9 reveals that the Defendant illegally sold off some of the property to people like Rev. Father Mwebe.  Under Paragraph 24, PW1’s testimony was that since 1998, the Defenant has enjoyed all rental proceeds from the commercial buildings at Plot 992 Block 13, Kibuga, land at Stella Zone, Najjanankumbi.  It was Plaintiff’s unchallenged testimony that Defendant sold off Kibuga Block 17 Plot 250, Land at Lule Zone, Rubaga Division and Land at Masaka, Buddu Block 321 Plot 1.  As if that was not enough, the Defendant registered himself on the certificate of Title to Mawokota Block 98 Plot 54.  And even in Court, the Defendant admitted that he sold 22 acres out of the Mawokota Block 98 Plot 54 to one Ddamulira, and Katenda Luutu. The Defendant further conceded that he solely enjoys the proceeds from the building at Najjanankumbi.  In effect, the Defendant sold more than his shares to the detriment of other family members.  So the Defendant not only illegally obtained Letters of Administration without the consent of the family, but he sold off the mentioned properties and could not account for the proceeds.  In such circumstances, this Court has no alternative but to revoke the Defendant’s existing two Letters of Administration. 

The witnesses called by the Defendant contradicted themselves in material particulars.  Sonko Ibrahim Gasula, stated that he is a businessman who deals in real Estates but he did not remember the Block and Plot number he bought from Defendant.  And whereas he stated that Block 98 Plot 54 measures 2 acres, a look at the land Title shows that Block 98 Plot 54 measures 51.4 acres.  Sonko Ibrahim could not produce the search.  Livingstone Katenda Luutu also contradicted himself when he said he did not own any land at Kabalagala on Mawokota Block 98 Plot 54, and yet the Defendant’s testimony was that Katenda Luutu was one of the people whom he gave land comprised in Mawokota Block 98 Plot 54.  So when the evidence of the Defendant and that of his witnesses is so full of contradictions, then this Court wonders what brought them to Court if not to perpetuate the illegal activities of the Defendant of intermeddling with the estate.  I therefore find and hold that the third issue also be answered in the affirmative. 

I now turn to the remedies available in the circumstances.  In view of this Court’s findings as outlined above, I do hereby make the following orders-

 

  1. The Letters of Administration granted to the Defendant on 10/01/2010 to the estate of the Late Dennis Ganafa Kabega vide Administration Cause No. 949 of 2009, are hereby revoked.
  2. The Letters of Administration granted to the Defendant to the deceased’s estate in the lower Chief Magistrates’ Court of Masaka and signed by Grade II Magistrate, then His Worship Kakooza J. B. on 24/06/2004 are null and void.
  3. The Registrar of Titles is hereby directed to cancel the name of the Defendant from the Certificate of Title to Mawokota Block 98 Plots 39 and 54, land at Kalagala.  Instead the names of the rightful Administrators, Ssanyu Teddy Kabega and Rev. Father Cosma Mukasa be replaced thereon.
  4. A permanent injunction restraining the Defendant, from alienation or any further transactions or dealings in respect of the estate of the deceased.  However, since it was among the agreed facts under the scheduling memorandum that Defendant sold Busiro Block 424 Plot 92 to Dickson Muyambi and M/S Katenda Albeit as Bibanja, then that be taken as part of the Defendant’s share out of the estate.
  5. The Plaintiff, Ssanyu Kabega Teddy and Rev. Father Cosma Mukasa are hereby directed to carry on with the Administration of the estate of the Late Dennis Ganafa Kabega as per the grant of the High Court of Uganda on 24/05/1979 by Justice Peter A. p. Allen vide Administration Cause No. 88 of 1978.

They are to distribute the deceased’s properties equitably to all the beneficiaries.

Lastly, since the parties to this case are brother and sister respectively of the late Dennis Ganafa Kabega and in the interests of family unity, each side to meet their own costs.

 

……………………………..

W. M. MUSENE

JUDGE

28/10/2014

 

 

Plaintiff present

Defendant reported sick

Both Advocates absent

Betty Lunkuse, Court Clerk present

 

………………………

W. M. MUSENE

JUDGE

Court:   Judgment read out in open court.

 

 

……………………

W. M. MUSENE

JUDGE