Wakilii

Nakaziba Mirabu Magoba and Others v Basale Perez and Others (Civil Appeal No. 16 of 2024)

High Court · [2026] UGHC 770 · 2026 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First appeal to the High Court from the judgment of a Magistrate Grade One dismissing a civil suit concerning the estate of a deceased person; corrected judgment issued under the slip rule
Decision
Appeal dismissed; trial magistrate's judgment upholding validity of the land sales and finding the suit land not part of the intestate estate confirmed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed a first appeal, holding that where a deceased distributed his land among his wives and their children as gifts inter vivos during his lifetime, that land ceases to form part of his estate and is not available for intestate distribution. The uncontroverted evidence of the surviving widow, the possession observed at locus in quo, and the appellants' failure to discharge the burden of proof under section 101 of the Evidence Act supported the trial magistrate's findings. An admission under section 57 of the Evidence Act does not displace the burden of proof, since the court retains discretion to require admitted facts to be proved. Sales by the 1st respondent with his mother's consent were valid.

Outcome

Appeal dismissed; trial magistrate's judgment upholding validity of the land sales and finding the suit land not part of the intestate estate confirmed

Facts

The late Mukama Perez owned approximately 35 acres of land at Bulimba village, Namutumba District. He died in 1974, survived by three widows and fourteen children, including the appellants and the 1st respondent. The appellants sued for declarations that the land formed part of his estate, that sales by the 1st respondent to the 2nd and 3rd respondents were void, and for distribution of the estate, an injunction, general damages and costs. The respondents contended that the deceased had distributed the land among his three wives and their children during his lifetime, each receiving a portion which they cultivated. The 1st respondent's mother, Namugaya Ruth, the only surviving widow, testified that each wife and her children were given land during the Obote I regime and that none remained undistributed. She was given 7½ acres. The 1st respondent sold 2 acres and later a further 1½ acres to the 2nd respondent, and land measuring 18ft by 40ft to the 3rd respondent, with his mother's consent. At locus in quo the magistrate confirmed the 1st respondent occupied only a portion, and that other siblings occupied separate portions. The trial magistrate dismissed the suit with costs.

Issues

  1. Whether the suit land formed part of the estate of the late Mukama Perez.
  2. Whether the late Mukama Perez distributed the suit land among his three wives and their children during his lifetime as gifts inter vivos.
  3. Whether the land sale transactions between the 1st respondent and the 2nd and 3rd respondents were valid.
  4. Whether an admission in the pleadings and joint scheduling memorandum relieved the appellants of the burden of proving that the deceased died intestate leaving the suit land undistributed.

Orders

  • Ground 4 of the memorandum of appeal struck out for offending Order 43 Rule 1(2) of the Civil Procedure Rules.
  • The judgment first delivered on 12 January 2026 is recalled.
  • The judgment and orders of the lower court are upheld.
  • The appeal is dismissed with costs in this Court and the Court below.

Rules and key headnotes

Succession & Estates — Intestate Estates — Gift Inter Vivos Removing Property from the Estate
Land which a deceased person distributed as a gift inter vivos to his wives and their children during his lifetime no longer forms part of his estate and is not available for distribution on intestacy.
Succession & Estates — Beneficiaries — Standing of a Child of One Wife to Claim Land Gifted to Another Wife
Where a husband gives parcels of land as gifts inter vivos to different wives and their children, a child born of one wife has no cause of action claiming land given to another wife; only the children of the mother to whom the gift was made may claim in that gift.
Evidence — Burden of Proof — Party Asserting a Positive Fact
Under section 101 of the Evidence Act the burden of proof lies on the party who asserts the affirmative of an issue, and a plaintiff who fails to adduce evidence in support of the alleged facts cannot succeed on the balance of probabilities.
Evidence — Admissions — Court's Discretion to Require Admitted Facts to be Proved
An admission in pleadings or a joint scheduling memorandum does not automatically relieve a party of the burden of proof, because section 57 of the Evidence Act preserves the court's discretion to require admitted facts to be proved otherwise than by the admission, particularly where the opposing party was unrepresented and challenged the assertions at trial.
Land & Property — Sale of Land — Validity of Sale by Beneficiary of a Gift Inter Vivos with Donee's Consent
A sale of land forming part of a gift inter vivos made with the consent of the person to whom the gift was given is lawful and valid, and the purchasers acquire good title or interest in the portions sold.
Civil Procedure — Memorandum of Appeal — General Grounds Offending Order 43 Rule 1(2)
A ground of appeal framed in general terms, alleging only that the trial court erred in dismissing the case and thereby occasioned a miscarriage of justice, offends Order 43 Rule 1(2) of the Civil Procedure Rules and will be struck out.
Civil Procedure — Slip Rule — Recall and Correction of a Delivered Judgment
Under section 99 of the Civil Procedure Act a court may recall a judgment already delivered and issue a corrected judgment to rectify errors in the statement of evidence, such as the misstatement of acreages of land in the analysis of evidence.

Legislation cited (4)

Cases cited (3)

  • Sanyu Lwanga Musoke v Galiwango (Civil Appeal No. 48 of 1995)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Kaggwa v Olal and 6 Others (Civil Appeal No. 10 of 2017)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Nakaziba Mirabu Magoba and Others v Basale Perez and Others (Civil Appeal No. 16 of 2024) [2026] UGHC 770 (20 May 2026)
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.