Kasiba v Administrator General and Another (Civil Appeal Number 11 of 2009) [2015] UGCA 2026 (3 November 2015)

5 THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPAI.A CIVIL APPEAL NUMBER 11 OF 2OO9 lAppeal against the deciston of the Hon. Justice Eldad Mwangusya (as he then wad of the High Court of lJganda delivered on 16,/7,/07 in HCCS No. 760 of 1999 ISAAC KASIBA APPELI-ANT VERSUS 1. ADMINISTRATOR GENERAL 2. MARGARET NABITALO NALONGO RESPONDENTS CORAM: HON. JUSTICE RUBBY AWERI OPIO, JA HON. I-ADY JUSTICE SOLOMY BALUNGI BOSSA, JA HON. JUSTICE KENNETH KAKURU, JA 15 JUDGMENT OF THE COURT 10 20 The appe[ant is a son and customary heir of the Late Butasiyo Bwenza Lule. He sued the two respondents in the High Court regarding his father's estate seeking for orders inter alia lo cancel the registration of the 2nd respondent on the certificate of title for land known as Kibuga Btock 38 Ptot 166 at Wandegeya, cancettation of the second respondent's name from the said title and the re-di bution of .?0 \ 1 il ) 4r, 25 30 35 40 45 this property among the three children of the deceased. The rest of the estate had been distributed between the appellant and another while the 2nd respondent got the suit property. The second respondent claimed that the suit property had been given to her as a gift inter vivos by the deceased. The trial Judge hetd that there was no gift lnter vivos of the suit property to the 2nd respondent but stitt altowed the 2nd respondent to take this property on the ground that the appe[lant was estopped from claiming the property having atlowed the 2nd respondent to take the suit property and to use the same for ten years. The Judge ruted that there was acquiescence on the part of the appel[ant. He dismissed the suit, hence this appeal intended to rectify the [ega[ errors committed by the trial Judge. Grounds of Appeal 1. The Learned trial Judge erred in fact and in law of thewhen he decided the case in favour respondents 2. The Learned trial Judge erred in fact and in law when he faited to evaluate the evidence on record and took into account extraneous matters thereby coming to a wrong decision fl_ ko' JN \ 2 50 55 60 65 3. The Learned trial Judge erred in fact and in law when he faited to consider the authorities and law presented by the appetlant. 4. The Learned trial Judge's awards were contrary to his findings, the [aw and facts of the case 5. The Learned trial Judge erred in fact and in law when he failed to grant any of the remedies sought by the Appetlant At the hearing, the appellant was represented by Mr. Satim Makeera. Mr. Simon Peter Muyomba, a state attorney represented the first respondent white Mr. li/ac Dusman Kabega reprsented the second respondent. Submissions of the parties Counsel for the appeltant submitted that the Learned Trial Judge erred when he failed to properly eva[uate the evidence. However, counseI conceded that the trial Judge rightty over ruled the second respondent on the issue of a gift inter vivos on the ground that it was ineffectua[. Counse['s contention therefore, is that the learned trial Judge erred in going ahead to rule that the second respondent shoutd retain the property 3 70 nt w nce the 4'- appeItant estopped finding evidence. depicts a CounseI had acquiesced from ctaiming back this fact and was the suit property which rea[ fai[ure of evaluation of fufther contended that the 75 80 85 90 Learned Triat Judge relied on extraneous matters in hotding the conclusion, for instance, that the appetlant was present when the distribution was being conducted by the first respondent, whereas it is a fact that at the time, the appel[ant was only a boy of 17 years. Counsel submitted that the doctrine of estoppeI was therefore not properly invoked by the Learned Trial Judge in arriving at that decision and prayed that the appeat be atlowed with costs. On the other hand, counsel for the first respondent submitted that the Learned Tria[ Judge property evaluated the evidence on record as clearty indicated on pages 335-337 of the CounseI further submitted that the record of appeat. trial Judge rightty on the basis ofdismissed the appe[[ant's estoppel as provided for Evidence Act and as under Section 114 of the pleaded by the second CASE respondent in her written statement of defence. t-4 { { 95 100 105 110 115 Resotution Counsel for the second respondent adopted the submissions of counsel for the first respondent and added that the appetlant's claim is not bona fide but was brought after prodigat, inefficient management and depletion of atmost 95% of his entire share of the estate. Counsel prayed that this appeal be dismissed with costs for lack of merit. This is a first appeal and the duty of a first appellate Court is we[[ settled. Rule 30 (1) of the Judicature (Court of Appeat Rules) Directions (Sl 13- 10) [hereinafter referred to as the "Court of Appeat Rutes"l provides that: "...on any appeal from a decision of the High Court acting in the exercise of its original jurisdiction, the couft may- and (b)ln its discretion, for sufficient reason, take additional evidence or direct that additional evidence be taken by the trial coutt or by a commissioner..." (Emphasls added) The Supreme Court in the case of Kifamunte Henry V Uganda, Crimina[ Appeal No 10 of L997 d thathet t5 +( m 120 t25 130 135 140 it is the duty of the first appe[late couft to rehear the case on appeal by reconsidering att the materiaI which was before the trial court and make up its own mind. Furthermore, a failure by the first appellate Court to evaluate the materia[ evidence as a whole constitutes an error in [aw. At the hearing of this appea[, counsel for the appel[ant argued a[[ five grounds together. We find that the single question for determination in this appea[ is whether the Learned Triat Judge erred in fact and in law when he failed to grant any of the remedies sought by the Appettant on the basis of estoppeI by acquiescence. On the question of gift inter vivos, the trial Judge hetd that [page 340 of the record]: '...1 have carefully considered the above submissions and in my view, the deceased retained his registered interest in the suit property till his death and if for whatever ree$on he could not transfer this interest to the ?d defendant the ineffectuaL" The trial Judge furlher held that: "His intention seems to have been that the 2d defendant takes over the property after his death 6 ,t r0 -{N 145 150 because testimony that the 2d defendant had sworn an affidavit in which she stated that her father used to tell her that 'this house is yours, when I die you should take it' and that in another affidavit CHRISTOPHER LULE had deponed that he was giving the suit property to his daughter That he told him on more than one occasion that it was his desire that at his death the said premises should go to Nalongo cannot be ignored. 155 160 165 170 remedy?" With respect we do not accept the learned trial Judge's view that once a registered proprietor has for whatever reason not transferred his property to a person to whom the property was given as a gift inter vivos the grant or gift becomes ineffectual. We think that a gift becomes effectual at the time it is made. As to whether a grant has been made or not is a question of fact and evidence. lf for exampte the deceased had prepared and a signed land transfer forms in favour of his daughter, the gift wou[d have been effectua[ notwithstanding the fact that at the time of his death the transfer had been effected. There are a host other reasons why the transfer of title may de[ay, cannot be attributed to the t transferee. lt woutd be unfair an circumstances for the gift to effectua[ simpty because the title many of which ransferor or the d unjust in such be declared un- deed had , at the ll $-l|-'7 lil{, 775 185 190 195 ln this case however, the evidence clearly indicates that the deceased had at the time of his death not granted the 2nd respondent the tand in question as a gift inter vivos, therefore it remained part of her deceased father's estates. This appea[ Judge to appe[[ant, in had not granted property as a gift is premised on refusal by grant the remedies sought, of the finding that the the 2"d respondent inter vivos. VICW the tria[ by the deceased the suit tn of tk ln his plaint on page 10 of the record of proceedings, the appellant pleaded that: the plaintiff prays for judgment against the defendant for orders and declarations that: d The acts of the Administrator General done respect of the deceased's estate before grant letters of administration rbe declared nutt p.a voia { 180 time of the death of the grantor not been transferred to the grantee. A grantee may for example have taken possession of the [and and devetoped it. The grant could have been in writing or expressed in word and deed in such a way that the intention of the grantor was unequivocal, in such circumstances the gift inter vivos in respect of registered land would stitt be valid even if at the time of the grantor's death the transfer had not yet been effected. 205 270 2r5 220 D The transfer made by the Administrator General to the ?d defendant in respect of Block 38 Plot 166 Wandegeya in 1982 be declared null and void. d The certificate of title subsequently got by the ?d defendant be cancelled. d) The said property comprised in Kibuga Block 38 Plot 166 be redistributed equally among the three children of the deceased or the proceeds got therefrom be shared equally by the said children. e) The ?d defendant accounts for the rent proceeds received from property in (d above from 8/11/82 when she got illegal possession of the propefty till the date of judgment. f) Costs of the suit g) Any other relief this Honourable Court may deem fit to grant." Regarding remedies, the trial Judge went on to hold lat pages 341-342 of the recordl that: "...The question of the remedy is complicated by a number of factors the first of which is that when the account. The estate was shared between the plaintiff and ltllRlAtul NAMUSOKE. The estate divided between the plaintiff and MlRlAful NAA,,IUSOKE was valued while the value of the suit property was not known. So even if the distribution by the Administrator General was to be reviewed the sharing the sharing of the L s€'9 200 225 Jur 230 235 240 245 250 ln essence, it is cal[ed estoppeI or conc[usion, because a man's own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth. ln using the term'estoppell one is of course aware of its kateidoscopic varieties. One reads of estoppet by ilte10 IL 4r suit property would not be in equal shares because the plaintiff and tullRlAM NAAIUSOKE have gotten other shares in the estate. The second kctor is that both the plaintitr and MIRIAM NAMUSOKF took their shares and during cross e-amination the plaintiff admitted having disposed of his share... " The Learned trial Judge further he[d that: "...According to e-h. P 1 the estate was distrih,ted on the oh day of March 1983 and a final account by the 'ninistrator General was made on 14h April 1993 which means that for over ten yearc the plaintiff was enjoying the henefits of the distribution that he now seeks to reverce which by the doctrine of Estoppel by acguiescence is not feasible..." (Emphasis added) According to Btack's Law Dictiondry, 8,t, Ed., at page L66L " estoppel' is defined as a bar that prevents one from assefting a claim or right that contradicts what one has said or done before or what has been tegatty established as true. 255 260 26s 270 275 conduct, by deed, by [aches, by misrepresentation, by negtigence, by silence, and so on. There is atso an estoppet by judgment and by verdict. However, what we are concerned with in this appeal is Estoppel by Acquiescence or silence. Black's (suprd at page 69 also defines " acquiescence!' as a person's tacit or passive acceptance; imp[ied consent to an act. ln simp[e terms, EstoppeI by Acquiescence or silence prevents someone from assefting something when that person had both the duty and the opportunity to speak up earlier, and his or her silence led another person to believe a fact with the effect that such person woutd be prejudiced by raising or assefting the facts withhetd. The doctrine of estoppel is provided for under Section LL4 of the Evidence Act, Cap 6 which provides thus: '114. Estoppel When one person has, by his or her declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon that belief neither he or she 11 '"'(", "k rN .280 her representative shall be allowed, in any suit or proceeding between himself or herself and that person or his or her representative, to deny the truth of that thing." 285 From the evidence on record, it is an undisputed fact that the L't respondent [Administrator GeneraU took over the administration of the estate and distributed the property of the deceased between the appellant and ]r/iriam Namusoke how deceased) before obtaining Letters of Administration. At the time of distribution of the estate, the second respondent was exc[uded from the distribution save for money in the deceased's account, because it was perceived that the suit property had been given to her by her late father as a gift inter vivos and therefore did not form part of the estate. The trial Judge however hetd, and rightty so, that this property was never a gift inter vivos because its transfer was ineffectuat. CounseI for the appeltant conceded that the triaI Judge properly evaluated the evidence and rightty over ruled the second 290 295 300 respondent on this issue. We shatl therefore not pursue that point. 11- ,( 12 -\ul. ,30s 310 315 We agree with the position of the law stated by the trial Judge. According to Halsbury's Laws of England, Vo[ 16, Para 1055, page 917: "The question whether a course of conduct, negligent or otherwise, amounts to a representation, or ts 320 witb unequiwcal. "(E m p h a s i s a d d e d) ln this appeat, counsel for the appe[[ant also that the trial Judge relied on extraneous matters in hotding instance, that the at that conclusion, forarriving appe[[ant argued factors the \e WAS ',"'""f[:"' 13 \ 325 Counsel for the first respondent submitted that the trial Judge erred in going ahead to rule that the second respondent shou[d retain the property since the appellant had acquiesced this fact and was estopped from claiming the suit propefty. ln dec[ining to grant any reliefs sought, the trial Judge relied on a number of authorities which expound the doctrine relied upon. .330 335 340 345 350 distribution was being conducted by the first respondent, whereas it is a fact that at the time, the appetlant was only a boy of 1.7 years. At page 344 of the record, the trial Judge considered atl the arguments presented by the appellant and came to the conclusion that even when the appellant obtained the age of objections as to property. We are for the second majority, status or inclined 1,4 he did not ownership raise any of the suitthe thus to agree with counseI respondent that the appe[[ant inefficientbrought this management entire share from the suit 95% of his of the estate. He now seeks to benefit property which the second respondent has maintained and developed. The matters considered by the trial Judge were relevant and material in determining this case because they point to the appetlant's acquiescence. As a rute of evidence, estoppel need not have been pteaded as argued by counseI for the appe[[ant. Rather, the evidence must show, [ike in this case, that there is a tacit, passive or an act. EstoppeI was hightighted imptied consent to claim after prodigat, and depletion of almost bv the Court of L,* 4 Appea[ for Eastern Africa in NURDIN RANDALI u LOMBANK LTD $96il EA 304, where Newbotd J.A. (as he then was) held at p. 314: "...Estoppel, on the other hand, is primarily a rule of evidence whereby a party to litigation is, in ceftain circumstances, prevented from denying something, which he had previously assefted to be true, "(Emphasis added) At page 1BB of the record, the second respondent testified: "...1 took over the suit property after it was bombed. I have since repaired it and improved it. I pald off the over draft and took another loan from National lnsurance Corporation to repair it. I repaired the building after the death of my father. Nohody__yas yeaa " (Emphasis added) Ctearty, the above are compe[[ing circumstances against the appe[[ant for estoppeI stopping him from ctaiming the suit property after 11 years of its ownership, management and control by the second respondent. ll m' It rl 15 355 360 365 370 37s 380 l$\ t For a[[ that time the appetlant looked on as his sister (2"d respondent) repaired and improved the suit [and by borrowing from financial institutions. To underscore the above point the learned Judge quoted the decision of COTTENHAM, L.C in Duke of Leeds VS Amherst 1846, 78 RR 47. Phittips 117. "lf a part, having a right, stand by and sees another party dealing with the property in a manner inconsistent with that right, while the act is in progress, he cannot afterwards complain. This is the proper sense of the word acquiescence" 385 390 395 ln the result, we dismiss this appeal for [ack of merit but since this is a family issue we would make no order as to costs. We so Order 3A L Dated at Kampata, this day qt Hon. Mr. Justice Rubby Aweri Opio, JA 400 Hon. Lady Justice Sotomy Batungi Bossa, JA Hon. Mr. Justice Ke lhuo,"- nneth"Kak 16 uru, JA eft&,\ '2015. z/,, (,wti- ow.hn, \\\a,r^ru^lcuq C&O F, t ry l6La-4A (, ) (-- / t, q t, t ) I ) t-^^- € &1b C*^