Wakilii

Mivule and 2 Others v Ndawula and Another (Miscellaneous Application 1130 of 2021)

High Court · [2022] UGCOMMC 125 · 2022 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Objector application arising from execution proceedings following a decree in Civil Suit No. 1056 of 2020
Decision
Land released from attachment and execution proceedings stayed as to that property

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that land dedicated as a family burial ground and containing human remains cannot be attached in execution of a decree against the registered proprietor. Although the judgment debtor held registered title, the land was held in trust for cemetery purposes. Customary law recognises that land containing intentionally buried human remains is perpetually transformed and subject to unique doctrines limiting the owner's right to exclude others. The registered owner lacks disposing power over such land without family consent. The land was released from attachment.

Outcome

Land released from attachment and execution proceedings stayed as to that property

Facts

The late Kato Ezera was the registered proprietor of Kyadondo Block 90 Plot 2. Upon his death, the applicants and the judgment debtor were appointed joint administrators of his estate. Following subdivision and distribution, Plot 878 was transferred to the judgment debtor. The judgment creditor obtained a decree for UGX 110,000,000 with 10% interest against the judgment debtor and caused attachment of Plot 878 for execution. The land was advertised for sale by public auction on 1 September 2021. The applicants filed an objector application contending the plot constituted their family ancestral burial ground and was not available for attachment. An inventory filed in 2015 designated the land as clan burial grounds. Photographs showed over twenty tombstones on the land. The judgment creditor argued the graveyard occupied only a small fraction and the rest could be partitioned and sold.

Issues

  1. Whether land registered in the name of the judgment debtor but dedicated as a family burial ground is available for attachment and sale in execution of a decree.
  2. Whether the applicants, as co-administrators of the estate and family members, have a right to object to the attachment of land containing their ancestral graveyard.
  3. Whether the judgment debtor has disposing power over land held in trust as a family cemetery.

Orders

  • The land comprised in Kyadondo Block 90 Plot 878 is released from attachment.
  • Costs of the application awarded to the applicants.

Rules and key headnotes

Civil Procedure — Execution — Objector Proceedings — Test for Release from Attachment
In objector proceedings under Order 22 rule 57 of the Civil Procedure Rules, the sole question to be investigated is one of possession. The court must release property from attachment if satisfied that it was not in the possession of the judgment debtor, or was in possession of the objector on account of or in trust for some other person and not the judgment debtor.
Civil Procedure — Execution — Property Liable to Attachment — Disposing Power Test
Under section 44 of the Civil Procedure Act, property liable to attachment in execution is property belonging to the judgment debtor or property over which the judgment debtor has disposing power which he or she may exercise for his or her own benefit. Where the judgment debtor lacks disposing power without the assent of others, the property is not available for attachment.
Land & Property — Family Burial Grounds — Dedication and Legal Character
A family burial ground may be dedicated by deed, acts, or conduct of the owner. Once land is dedicated as a family cemetery, it is subject to unique customary law doctrines that fundamentally and perpetually transform its character. The dedication creates rights akin to an easement allowing family members to make burials, visit, and maintain the cemetery. These rights are coterminous with the continued use of the land as a burial ground.
Land & Property — Family Burial Grounds — Rights of Beneficiaries
Beneficiaries of a family graveyard acquire two distinct rights: the right to bury their dead there, and the right to protect the graves from desecration. These rights persist so long as the dead are buried there, graves are marked, and acts are done to preserve their memory and mark their resting place by monuments and gravestones.
Land & Property — Family Burial Grounds — Limitations on Registered Owner's Rights
Land reserved as a family cemetery cannot be used by the registered owner for any purpose inconsistent with cemetery purposes. The owner holds such land in trust as a family burial ground and cannot, without the consent of the family, reduce the size of the land set apart as a cemetery or cause its abandonment. A central right of property ownership—the right to exclude—is lacking where land contains human remains dedicated as a graveyard.
Succession & Estates — Administration — Family Burial Grounds in Estate Distribution
Where land forming part of a deceased's estate is designated and maintained as a clan burial ground in the estate inventory, and contains the graves of the deceased and ancestors, that land is held in trust for cemetery purposes notwithstanding subsequent registration in the name of one administrator. The dedication binds the registered proprietor and limits his disposing power.
Civil Procedure — Execution — Family Burial Grounds — Unavailability for Attachment
Land dedicated as a family cemetery and containing human remains is not property over which the judgment debtor has disposing power which he may exercise for his own benefit without the assent of the family. Such land is therefore not property which can be attached in execution of a decree, as attachment would prevent further use of the land for burial purposes by the family.

Legislation cited (11)

Cases cited (12)

  • Khakale E t/a New Elgon Textiles v Banyamini W (in the matter of Mugunjo) [1976] HCB 31
  • Kasozi Ddamba v M/s Male Construction Service Co [1981] HCB 26
  • Kampala Bottlers Limited v Damanico Limited (Civil Appeal No. 22 of 1992)
  • Sejjaaka Nalima v Rebecca Musoke (Civil Appeal No. 2 of 1985)
  • Uganda Posts and Telecommunications v A K P M Lutaaya (Civil Appeal No. 36 of 1995)
  • Fredrick J K Zaabwe v Orient Bank and 5 Others (Civil Appeal No. 4 of 2006)
  • Kampala Bottlers Ltd v Damanico (U) Ltd (Civil Appeal No. 22 of 1992)
  • Sebuliba v Cooperative Bank Limited [1987] HCB 130
  • M Kibalya v Kibalya [1994-95] HCB 80
  • Trefry v. Younger, 226 Mass. 5; 114 N.E., 1033
  • Frost v. Columbia Clay Co., 130 S.C. 72
  • Bitney v. Grim, 144 P. 490 at 491

Full judgment

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Mivule and 2 Others v Ndawula and Another (Miscellaneous Application 1130 of 2021) [2022] UGCommC 125 (23 March 2022)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.