Wakilii

Namubiru and Another v Birungi and 3 Others (Civil Suit 7 of 2019)

High Court · [2023] UGHCFD 143 · 2023 Judgment for Plaintiffs AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for declarations regarding estate distribution and cancellation of fraudulent title registrations
Decision
Plaintiffs' claims substantially allowed; defendants ordered to redistribute estate property in accordance with the testator's will; title to be cancelled and reissued; permanent injunction granted

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that a customary heir is entitled only to 1% of the deceased's estate under the Succession (Amendment) Act 2022. The plaintiffs, as beneficiaries under their grandfather's will, were entitled to 0.75 acres at Bweyogerere as originally bequeathed. The 1st defendant, though named as custodian of title deeds in the will, was not entitled to register Bugerere Block 12 Plot 9 solely in his name; the property must be redistributed equally among the three beneficiaries named in the will. The claim regarding Block 12 Plot 20 failed as it was bequeathed to a different beneficiary.

Outcome

Plaintiffs' claims substantially allowed; defendants ordered to redistribute estate property in accordance with the testator's will; title to be cancelled and reissued; permanent injunction granted

Facts

The plaintiffs and their sister Angela Nansubuga are grandchildren of the late Paul H.K Wandera Mubiru, who died testate leaving a will dated 5 December 1990 and two codicils dated 16 December 1995 and 5 October 1996. The plaintiffs' father, Fred Wamala Nsimbi, predeceased the testator. The 1st, 2nd and 3rd defendants were appointed administrators of the estate. The 4th defendant was installed as customary heir to Fred Wamala Nsimbi. The testator bequeathed 0.50 acres at Bweyogerere to Fred Wamala Nsimbi, which was later redistributed to Philip Alexander Mubiru Mutebi (0.75 acres) and then to the plaintiffs. The testator also bequeathed Bugerere Block 12 Plot 9 (60 acres) to be shared equally among Saulo Lwanga Birungi (1st defendant), Fred Nsimbi Wamala, and Esther Batabakika Namutebi. The 1st defendant registered the entire Plot 9 solely in his name. The 4th defendant registered Block 12 Plot 20 in his name, though it had been bequeathed to Philip Alexander Mubiru Mutebi. The plaintiffs alleged fraud and sought redistribution of the estate according to the will.

Issues

  1. Whether the 4th defendant is entitled to a share in the estate of the late Fred Wamala Nsimbi?
  2. Whether the plaintiffs are entitled to a portion equivalent to 0.75 acres from the land comprised in Kyadondo Block 236 Plot 132 at Bweyogerere?
  3. Whether property comprised in Bugerere Block 12 Plot 9 was illegally/fraudulently transferred to the 1st defendant?
  4. Whether property comprised in Bugerere Block 12 Plot 20 was illegally/fraudulently transferred to the 4th defendant?

Orders

  • The 4th defendant's (now deceased) estate is not entitled to a share in the plaintiffs' beneficial interest granted to them by their late grandfather.
  • The plaintiffs and their sister Ms. Angela Nansubuga are entitled to their respective shares of the estate of the late Paul H.K Wandera Mubiru and that of their father, the late Fred Wamala Nsimbi.
  • A declaration that the 1st defendant is not the sole Registered Proprietor of the property comprised in Bugerere Block 12 Plot 9.
  • An Order directing the Commissioner for land registration to cancel the title issued to Saulo Lwanga Birungi (the 1st defendant) comprised in Land situate at Bugerere Block 12 Plot 9.
  • The 1st defendant shall redistribute land situate at Bugerere Block 12 Plot 9 equally into 3 parts and have a third of each registered in names of the Children of the deceased Fred Wamala, Esther Batabakika Namutebi and himself (Saulo Birungi).
  • The plaintiffs together with Nansubuga Angela are entitled to 0.75 Acres land to be curved out of Kyadondo Block 236 Plot 132 at Bweyogerere.
  • A permanent injunction restraining the 1st to 3rd defendants from the undertaking any further dealings with the suit property and/or interfering with the plaintiff's ownership.
  • Costs are awarded to the Plaintiffs.

Rules and key headnotes

Customary Heir — Entitlement — Succession (Amendment) Act 2022
A customary heir of an intestate is entitled to receive only 1 percent of the whole property of the intestate under Section 14 of the Succession (Amendment) Act 2022, and not the entire estate.
Testamentary Interpretation — Intention of Testator — Technical Words Not Required
Under Section 61 of the Succession Act, it is not necessary that technical words or terms of art be used in a will; it is sufficient that the wording enables the testator's intentions to be known.
Testamentary Gifts — Extent of Interest — Section 82 Succession Act
Where property is bequeathed to any person under Section 82 of the Succession Act, that person is entitled to the whole interest of the testator in the property unless it appears from the will that only a restricted interest was intended.
Lapsed Bequests — Death of Legatee Before Testator — Section 96 Succession Act
Under Section 96 of the Succession Act, where a bequest has been made to a child or lineal descendant of the testator and the legatee dies in the lifetime of the testator, but any lineal descendant survives the testator, the bequest does not lapse but takes effect as if the legatee's death occurred immediately after the testator's death, unless a contrary intention appears in the will.
Executor's Duties — Custodianship of Title Deeds — Prohibition on Self-Dealing
An executor or administrator appointed to keep title deeds on behalf of beneficiaries is not thereby entitled to transfer the property into his own name as sole registered proprietor; such conduct exceeds the custodial function and violates the beneficiaries' rights under the will.

Legislation cited (10)

Cases cited (9)

  • Bongole Geoffrey and Others v Agnes Nakiwala (Civil Appeal No. 76 of 2015)
  • Nagidde Rebecca v Mwasa Charles Steven (Civil Appeal No. 160 of 2018)
  • David Acar & 3 others v Alfred Acar Aliro (1982) HCB 60
  • Fernandes V Noroniha [1969] EA 506
  • De Souza v. Uganda [1967] EA 784
  • Yeseri Waibi v. Edisa Byandala [1982] HCB 28
  • Nsibambi v. Nankya [1980] HCB 81
  • Rev. Onesifolo Ngaaga and Another v Moses Matovu and Another (Civil Case No. 107 of 2003)
  • Beatrice Asire Mallinga v Jonathan Obukunyang Mallinga (High Court Civil Suit No. 13 of 2013)

Full judgment

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

Namubiru and Another v Birungi and 3 Others (Civil Suit 7 of 2019) [2023] UGHCFD 143 (27 July 2023)
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.