High Court Affirms That a Purchaser Cannot Rely Solely on Title or Lease Registration When Purchasing Family Estate Property.

Brief of the case Bugingo and Others v Sserunkuma and Others (Civil Suit 102 of 2022) [2025] UGHCFD 14 (14 April 2025)

Area of law: Family Law- Estate Planning-Land Law

Topic: Interests in a Kibanja are recognized though not registered.

Introduction

Imagine a family-owned business (rental housing units) that has been in operation for years with numerous relatives, passed down through generations, not by title deeds but by shared understanding and sacrifice.

Now imagine one family member, armed with letters of administration and a selective reading of a will, quietly sells the property.

Would the courts let that stand simply because a will mentions land, even if it doesn’t match the reality on the ground?

In this recent decision of the High Court, the Court declined to adopt a narrow interpretation of testamentary documents when faced with a property dispute clouded by vague bequests, shifting family arrangements, and a web of silent sacrifices.

Instead, it affirmed that context matters—and that courts are duty-bound to look beyond the four corners of a will when the identity, history, and intended use of the property diverge from what is written.

This ruling offers a firm nod to some legal principles, particularly that legal rights cannot be acquired through fraud, misrepresentation, or selective enforcement of succession instruments, even where those instruments appear to confer authority.

The Court emphasised that the administration of an estate must be exercised with fidelity to truth and fairness, not opportunism cloaked in legal formalities.

Brief facts

Philomena Arombo Obol, a widow of Col. Primo Obol, was the mother and grandmother to the plaintiffs in this case. After Obol died in 1971, his close friend Bruno Serunkuma adopted his children, and the two families lived as one. Land in Bulwa, Rubaga Division (the suit land), was allegedly donated by John Baptist Kasozi to his mother-in-law, Philomena, who used it as a garden before her family built her a house there.

Following Philomena’s death, the plaintiffs claimed that the land became part of her estate.

However, the 1st and 2nd defendants, relatives of Philomena through her late son Bosco, allegedly sold the land fraudulently to the 3rd defendant, who then obtained a lease from the Buganda Land Board (4th defendant).

The defendants argued that the land was bequeathed to Bosco by Bruno, was rented out by Bosco during his lifetime, and was lawfully sold by his administrators.

The 3rd defendant claimed to be a bona fide purchaser and is now the registered proprietor.

Issues Whether the Power of Attorney granted to Kassim Alule by the 3rd to 6th Plaintiffs was valid and whether it lawfully authorized him to institute the suit on their behalf.

Counsel for the Defendants challenged the validity of the Power of Attorney (PEX 33), contending that the suit by the 3rd to 6th Plaintiffs was improperly before the Court. They argued that the Power of Attorney was unlawful, citing inconsistencies in the testimony of Kassim Alule, the purported donee, who at one point denied signing the document. Citing Makula International Ltd v H.E. Cardinal Nsubuga [1982] HCB 11, they urged the Court to reject the Power of Attorney on grounds of illegality and strike out the Plaint.

In response, Counsel for the Plaintiffs acknowledged inconsistencies in Kassim Alule’s account but emphasized that he ultimately confirmed having signed the Power of Attorney. It was further argued that even if the Court found defects in its execution, the suit remained properly before the Court since the 3rd to 6th Plaintiffs personally appeared via audio-visual link and participated in the proceedings.

Court’s Decision The Court observed that Kassim Alule, while testifying, gave contradictory statements about the circumstances under which he signed the Power of Attorney—initially stating it was done at home in Rubaga, later claiming it was before a lawyer in town. He also initially denied appearing before a Commissioner for Oaths and provided inconsistent details about the signatories and their presence at the time of execution. These inconsistencies raised doubts regarding the authenticity of the Power of Attorney.

To clarify the matter, the Court ordered the appearance of the 3rd to 6th Plaintiffs. They appeared via audio-visual link, were interviewed by the Court, and examined by Counsel (except for the 5th Plaintiff who faced internet connectivity challenges). Each confirmed their relationship with Kassim Alule and affirmed that they had donated the Power of Attorney to him to pursue the suit on their behalf. Their testimony went unchallenged.

The Court concluded that while there were irregularities in the execution of the Power of Attorney, these did not render it illegal. The donors had personally confirmed its authenticity. In the alternative, the Court held that even if the Power of Attorney were defective, the Plaintiffs’ personal appearance and participation in the proceedings cured any procedural irregularity.

Holding:

The Court found that the Power of Attorney was validly granted. Even if it had not been, the suit was properly before the Court since the Plaintiffs appeared and prosecuted it personally. The issue was therefore answered in the affirmative.

Whether the property formed part of the estate of the late Philomena Arombo Obol or that of her son, Bosco Anywar Serunkuma.

Court’s Findings

The Court found that the suit property was not formally transferred as a registered leasehold interest. Instead, it was a kibanja (customary interest) donated by John Baptist Kasozi to his mother-in-law, Philomena Arombo, in 1975. Though the lease had expired by 1978, the donation of the kibanja, corroborated by multiple unchallenged witnesses, was upheld.
The Court accepted that the Plaintiffs, especially the children and grandchildren of Philomena, contributed to the construction of the house. The absence of receipts or formal architectural documents was not fatal, as the oral and circumstantial evidence was deemed credible and consistent.
Evidence showed that Philomena used the land as a garden during her lifetime and that construction of the house was intended for her. Though she died before occupying the new house, her use and family intentions were clear.
The Defendants relied on the will of Bruno Serunkuma to argue the land was to revert to Bosco upon Philomena’s death. However, the Court physically visited the site and found that the suit land was separate from the two plots mentioned in the will.

Rule of Law

This decision reaffirms several fundamental principles:

The Court emphasized that unpleaded but consistent and credible evidence can establish ownership, especially in customary land contexts where formal documentation may be lacking.
The Court acknowledged and upheld kibanja interests as legally recognizable, even in the absence of registered titles
The Court declined to extend the reach of a will beyond its explicit wording, resisting attempts to conflate separate properties.

Determination of ownership of suit land in Rubaga and whether the Defendants fraudulently dealt with it.

The Court reaffirmed that the suit land was a kibanja and not a registered leasehold at the time of transfer to Philomena.

The family's collective occupation and decision-making, including authorizing Bosco to collect rent due to his illness, did not diminish their ownership claim. Instead, it reflected familial solidarity.

The Plaintiffs’ silence between Bosco's collection of rent and the institution of the suit was not neglect, but rather an act of familial kindness toward an ailing relative.

It was only when the 1st and 2nd Defendants attempted to sell the land that the Plaintiffs took legal action.

Rule of Law

The Court’s detailed analysis is rooted in the principles of the rule of law, particularly:

The Court upheld kibanja ownership based on consistent oral testimony and physical occupation.
Even assuming the property had been bequeathed to Bosco, he held it in trust, and it could not be alienated to the exclusion of other family members.
Citing Fredrick Zaabwe v. Orient Bank, the Court stressed that fraud requires intentional deceit, which was evident in this case.

Court’s Findings on Fraud (Issue 3)

The Court found the 1st and 2nd Defendants acted fraudulently, citing the following acts:

Knowingly misrepresenting ownership of the suit land to the Buganda Land Board (BLB), when the land did not form part of Bosco’s estate.
Entering a sale agreement with the 3rd Defendant, presenting themselves as lawful administrators of land they did not own.
Giving unauthorized consent for a lease transfer to the 3rd Defendant.
Dealing with the property exclusively and excluding known beneficiaries, including the rightful heir of Bosco, Pierre Serunkuma Obol.

The Court noted the 1st Defendant’s deliberate suppression of family ties, reliance on a land dealer, and the exclusion of his half-brothers, including the recognized heir, as clear evidence of bad faith a

Whether the 3rd Defendant lawfully acquired the suit property

Court Determination The Court held that the 3rd Defendant did not lawfully acquire the suit property, despite being the registered lessee. The Court found that the 3rd Defendant, a real estate dealer, failed to exercise due diligence and disregarded multiple red flags indicating that the 1st and 2nd Defendants—administrators of the late Bosco’s estate—lacked authority to sell the property.

The 3rd Defendant claimed to rely on a will by the late Bruno Serunkuma, which bequeathed the property to Bosco upon Philomena’s death. However, the same will explicitly prohibited any sale, requiring the property to remain within the Obol family. The Court emphasized that this restriction served as constructive notice that the land was held in trust for Bosco’s siblings and could not lawfully be alienated.

Further undermining the 3rd Defendant’s claim to good faith was his failure to:

Investigate the interests of Bosco’s other heirs;
Include any family members as witnesses to the sale;
Consider official warnings from the Administrator General and State House Land Department cautioning against the sale;
Abide by court orders prohibiting dealings on the property; and
Acknowledge prior occupation and use by Philomena’s descendants.

Citing Nabanoba Deziranta & Anor v Kayiwa Joseph & Anor and Silver Byaruhanga v Fr. Emmanuel Ruvugwaho & Rudeja, the Court reiterated that administrators hold property in trust for beneficiaries and may not dispose of it at will. It concluded that the sale to the 3rd Defendant was both irregular and fraudulent.

Key Takeaway:

A purchaser cannot rely solely on title or lease registration when purchasing estate property.
Where property is held in trust under a will, any sale in violation of the testator’s express instructions, especially without consultation with beneficiaries, may render the transfer unlawful—despite administrative authority or documentation.
Personal representatives (administrators or executors) hold property in trust for beneficiaries and cannot deal with estate property contrary to the terms of a will.
Express limitations in a will—such as a prohibition against sale—bind not only the representatives of the estate but also third parties transacting with them.
Notice of a dispute, including official correspondences and pending claims, is sufficient to disqualify a claim of good faith acquisition.
Courts will look beyond formal ownership documents to enforce the intent of the testator and protect beneficiary rights.

Context and Ruling

In Serunkuma-Obol v. Ssebuggwawo & Ors, the 3rd Defendant claimed to have lawfully acquired land formerly used by the late Philomena Obol, based on a sale agreement with the administrators of Bosco’s estate.

He relied on a will allegedly bequeathing the property to Bosco and the visible control of the land by the vendors.

The Court, however, found that the will expressly gave Philomena a life interest and directed the property remain within the Obol family, explicitly forbidding its sale. The 3rd Defendant, not being a family member, had constructive notice of these restrictions. His failure to verify the status of Bosco’s other children (including the heir) and disregard for existing administrative and legal objections, including a State House report and Administrator General warnings, further negated his claim of good faith.

Quoting from Nabanoba v. Kayiwa and Silver Byaruhanga v. Fr. Emmanuel Ruvugwaho, the Court reaffirmed that administrators act in trust and not as owners, and must respect the interests of beneficiaries.

The 3rd Defendant's actions were found to be "not only careless but fraudulent," and his acquisition of the suit land was declared unlawful.

Rule of Law Principle:

Estate administrators are fiduciaries, not proprietors. Any transfer of estate property in contravention of the will or without consideration of beneficiary interests is invalid. Courts will not shield a purchaser who fails to inquire in the face of suspicious or disputed circumstances.

Whether the 4th Defendant (Buganda Land Board) fraudulently approved and granted a lease of the suit property to the 3rd Defendant.

The Plaintiffs argued that the Buganda Land Board acted fraudulently when it granted a lease to the 3rd Defendant without first offering the renewal option to John Baptist Kasozi, the previous lessee, and without verifying the legitimacy of the kibanja registration and sale by the 1st and 2nd Defendants. They further contended that no sale agreement was presented to justify the transfer of interest.

In response, the 4th Defendant denied any wrongdoing, asserting that once a lease expires, the land reverts to the landlord, who may allocate it at their discretion. Citing relevant case law, they also claimed that they were wrongly sued, as the lease agreement was made with the Kabaka of Buganda, the principal, not the Board, which is merely an agent.

Court’s Determination

The Court rejected the 4th Defendant’s attempt to evade liability, finding that all material dealings regarding the lease were conducted through the Buganda Land Board.

The Board issued consent to transfer, collected busulu, and registered kibanja interests—all evidencing its central role in the transaction. As such, the Court held that the 4th Defendant was rightly sued.

More critically, the Court held that the Board failed to exercise due diligence. Although the Will of the late Bruno, upon which the 4th Defendant relied, expressly prohibited the sale of the suit land and directed that it remain for the benefit of the Obol family, the Board nonetheless approved the transfer to the 3rd Defendant. When pressed, the Board's representative dismissed this concern as a matter of “freedom of contract,” a stance the Court found reckless and indicative of possible fraud.

The Court was also persuaded by the evidence of Vincent Kataba (PW6), a local agent of the Kabaka, who admitted he was misled into signing an initial letter endorsing the 1st and 2nd Defendants’ claim.

He later withdrew that endorsement, clarifying that the land belonged to Philomena’s family. Despite receiving this corrective notice, the Board proceeded with the lease approval.

The Court found that the 4th Defendant’s conduct was not merely negligent but rose to the level of fraud. It faulted the Board for deliberately ignoring red flags and failing to verify the interests of all potential beneficiaries.

Issue 5 was answered in the affirmative.

Key Takeaways

A kibanja interest, if proven by consistent and credible evidence, can form part of an estate even if not formally registered.
Contributions toward construction can support a claim to property, particularly within familial contexts and customary law frameworks.
Courts will look beyond form to substance, especially where claims are supported by longstanding possession and uncontested use.
The judiciary plays a vital role in protecting property rights through thorough, evidence-based inquiry and strict adherence to legal standards, reinforcing the rule of law.

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