Court name
HC: Land Division (Uganda)
Judgment date
5 December 2017

Nakamya v Ntanda (Miscellaneous Cause-2017/) [2017] UGHCLD 106 (05 December 2017);

Cite this case
[2017] UGHCLD 106
Coram
Masalu-Musene, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MPIGI

MISC. CAUSE NO. 014 OF 2017

ANNA MARIA NAKAMYA:::::::::::::::::::::::::::::::::::::::::::APPLICANT

VERSUS

NTANDA PASCAL::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

 

BEFORE: HON. JUSTICE WILSON MASALU MUSENE

 

RULING

The applicant, Anna Maria Nakamya filed this application against the respondent, Ntanda Pascal.  The application was under Section 140 (1) of the Registration of Titles Act,  Section 98  of the Civil Procedure Act and Order 52  rules  2 and 32 of the  Civil Procedure Rules.  It was seeking for orders that:-

  1. An order that the Respondent’s caveat  lodged on the applicant’s  land comprised in Mawokota Block 312, Plot 20, situate at Musaale Kitojjo be removed and or struck out.
  2. Costs of the application be provided for. 

The grounds of the application are briefly that:-

  1. That Applicant is a widow of the late  Henry Bukomeko Ndighaetangala, the registered proprietor of the above described land.
  2. The Applicant is the appointed administrator of the estate of late Henry Bukomeko Ndigaetangala.
  3. The Applicant is in the process of distributing  the estate of the late Henry Bukomeko Ndigaetangala..
  4. The Respondent  is a biological son of the applicant and late Henry Bukomeko.
  5. The caveat lodged by the Respondent on the above described  land is invalid, null and void.
  6. That the existence of the caveat on the land has impended the Applicant’s desire to distribute  the estate.
  7. It is just and equitable that the order is issued.

The applicant was represented by M/S Semuyaba, Iga and co. Advocates, while the respondent was not represented and despite being  served, did not file a reply.  So the applicant was allowed to proceed ex-parte.

 

The Applicant’s submissions were that she is the widow, beneficiary and Administrator to the estate of  the late Henry Bukomeko who was the registered proprietor  of land comprised in Mawokota Block 312, Plot 20 but she is being prevented from distributing the said land to its rightful beneficiaries by the existence of the Respondent’s caveat  on the land.

It was further submitted that  on the 16th day of November, 2017, the Respondent was effectively  served with the application and the affidavit in support  thereto, he did not file an affidavit in   reply.  My Lord it is our submission that the evidence on court record is not contraverted and is un challenged by the respondent, it should thus be admitted by this Honourable Court and it has n to be taken as the absolute truth.  The case of  Tororo District Administration vs Andalalapo  Ltd (1977)  IV  KALR 126, Kania  J held that where no affidavit in reply is filed, the affidavit in support is  taken to be unchallenged and truthful, subject to whether the contents pass the test of evidence and is congent  and of probative value. 

Rose Achieng  (1978) HCB, 297 and Eridadi Ahimbisibwe vs World Food Programme  & others [1998] IV  KALR  32, Lugayizi J, stated that the facts as adduced in the affidavit  evidence which are neither  denied nor rebutted are presumed to be admitted.

Counsel for the applicant further stated that  under Section 180 of the Succession Act, an administrator of a deceased person is his or her legal representative for all purposes and all property of the deceased person vests in him or her as such.  Furthermore , under  Section 192 and 193  of the succession Act, letters of administration vest in the administrator  all rights and interests belonging  to the  intestate as effectively as if administration had been Granted at the moment after his or her death as was held  in Khalid Walusimbi vs Jamil Kaaya & Anolio (1993) 1 KALR 20 .

I have carefully considered and internalized this application which is unopposed.  Under S. 270 of the Succession Act, an executor or Administrator has power to dispose off  property of the deceased either wholly or in part in such a manner as he /she may think fit and Section 25  of the same Act states that all property in an intestate estate devolves upon the personal representative of the deceased upon trust for those persons entitled to the property under  the Act.

The Administrator of the estate can effectively distribute the said land to all beneficiaries, who include Respondent   if the caveat is lifted.  If the Respondent  was opposed to the widow  getting letters of administration, he would have objected before the grant; and  not to go behind by way of lodging a caveat.

In the circumstances, I find and hold that this is a fit and proper application to be allowed so that the caveat is lifted to enable the applicant distribute the caveated land to all the rightful beneficiaries.

I accordingly do hereby allow the application with costs.

 

W. Masalu Musene

Judge

05/12/2017