Buganda Customs of Heirship Do Not Confer Exclusive Ownership on a Single Heir: The Primacy of Legal Title and Estate Administration Determines Property Rights, Rules the High Court at Kampala.
- Waboga David
- Oct 9
- 8 min read
Introduction
In Buganda, customary succession often involves the appointment of an heir to manage family property, traditionally seen as preserving communal interests rather than conferring exclusive ownership. The heir, typically a male descendant, is entrusted with maintaining ancestral land and burial grounds for the benefit of all family members, guided by norms that emphasize collective heritage over individual title. (Read more)https://www.monitor.co.ug/uganda/oped/commentary/heir-let-s-turn-to-the-law-to-establish-whether-nsibambi-s-action-is-right-1831164
In Mukasa Betty & Others vs. Nsubuga Ivan & Others, the High Court addressed a dispute over land at Kyadondo Block 262 Plot 359, Luwafu, involving competing claims between the Plaintiffs, who asserted exclusive ownership through inheritance, and the Defendants, who argued the land was ancestral and held in trust for all descendants. The court clarified the limits of Buganda customary heirship, emphasizing that such traditions do not grant exclusive ownership absent legal title or formal estate administration. By prioritizing documented evidence and statutory processes, the court's decision emphasises the supremacy of legal title in determining property rights, offering critical guidance on resolving conflicts where customary practices and modern law converge.
Facts
The case concerns a dispute over the land at Kyadondo Block 262 Plot 359, Luwafu (the "suit land"), originally part of a six-acre estate owned by the late Tito Tudemwebaze. Tudemwebaze died testate in 1977, bequeathing his property, including the suit land, to his children, Adonia Kaaya Mukasa and Namubiru Erina Busonga, without specifying shares.
The Administrator General distributed the estate, allocating part of the Luwafu land (including Tudemwebaze’s house) to Erina, which was later sold, and the remaining portion (the suit land) to Adonia. Adonia built a house on the suit land and lived there with his family, and it serves as a burial ground for multiple generations, including Tudemwebaze, Adonia, and Adonia’s son, David Mukasa Senyondwa.
Adonia died intestate in 1992, and David Mukasa was appointed his heir. David, along with his wife Betty Mukasa (1st Plaintiff) and their children (2nd and 3rd Plaintiffs), lived on the suit land. The Plaintiffs claim David inherited the suit land through Adonia’s will, while the Defendants (Adonia’s grandchildren and great-grandchildren) argue it remained ancestral land held in trust for all of Adonia’s descendants.
In 2014, the 1st and 2nd Defendants (Nsubuga Ivan and Roselyn Susan Nansubuga Ntulume) obtained Letters of Administration for Tudemwebaze’s estate and transferred the suit land’s title to the 2nd to 12th Defendants, prompting the Plaintiffs to challenge this as fraudulent.
Issues
Whether the suit property is ancestral property.
Whether the 1st and 2nd Defendants fraudulently obtained Letters of Administration for Tudemwebaze’s estate.
Whether the Plaintiffs are entitled to their sought remedies.
Whether the Defendants/Counter-Claimants are entitled to their sought remedies in the Counter-Claim.
Legal Representation
Plaintiffs Represented by Mr. Jordan Asodio of M/S Ochieng Associated Advocates & Solicitors.
Defendants Represented by Ms. Lydia Nakamalira Tamale and Ms. Jacqueline Kisakye of Tamale & Co. Advocates.
Submissions
Plaintiffs’ Submissions
The plaintiff submitted that the suit land is not ancestral but part of David Mukasa’s estate, passed through inheritance from Tudemwebaze to Adonia, and then to David, per Buganda customs.
That the Letters of Administration obtained by the 1st and 2nd Defendants were fraudulent, as Tudemwebaze’s estate was fully administered by the Administrator General, and the suit land had devolved to Adonia’s estate.
That the transfer of the title to the Defendants was intended to defeat the Plaintiffs’ equitable interest, constituting fraud.
The Plaintiffs sought revocation of the Letters of Administration, cancellation of the Defendants’ title, a declaration that the suit land belongs to David Mukasa’s estate, a permanent injunction against eviction, general damages, and costs.
Defendants’ Submissions
The suit land is ancestral property, housing the family home and burial grounds for four generations, and was never exclusively owned by David Mukasa.
The Letters of Administration were lawfully obtained with a Certificate of No Objection from the Administrator General, and the transfer to the 2nd to 12th Defendants was to preserve the land for Adonia’s descendants.
The Plaintiffs’ claim is baseless, as Adonia died intestate, and David Mukasa lived on the land as heir in trust for all beneficiaries, not as the sole owner.
The Defendants sought a declaration that the suit land is ancestral, an order for the Plaintiffs to vacate, general damages, and costs.
Court’s Findings
On the Framing of Issues
The court observed that the issues were agreed upon in the Joint Scheduling Memorandum (JSM) signed by both parties’ counsel and adopted by the court. It noted that the Plaintiffs’ counsel’s claim that the court did not frame issues was misleading, as the record showed the Plaintiffs’ counsel had requested adoption of the JSM issues. The court further observed its authority to amend or frame additional issues, citing Oriental Insurance Brokers Ltd vs. Transocean (U) Ltd, SCCA No. 0055 of 1995, but found no need to reframe issues as those adopted were sufficient.
On Plaintiffs’ Brief Facts
The court observed a difference between the facts in the Plaintiffs’ Plaint and those in their submissions. However, it noted that this difference was stylistic and did not alter the substance of the case. The court emphasized its ability to determine impartial facts based on the evidence presented.
On Plaintiffs’ Trial Bundle
The court observed that the Plaintiffs referenced documents in their submissions that were not admitted as exhibits during the trial. It noted that only five documents were admitted and marked as exhibits (PEX 1–5), and condemned the Plaintiffs’ counsel’s reference to unadmitted documents as misleading and unprofessional.
On Lack of Administrator General’s Testimony
The court observed that no witness from the Administrator General’s office testified, despite the Plaintiffs’ repeated applications for witness summons. This absence was noted as a gap in evidence regarding the distribution of Tito Tudemwebaze’s estate.
On Locus Visit Evidence
The court observed during the locus visit that the suit land, where Adonia Kaaya Mukasa built his house, contains burial grounds for multiple generations. It noted the 2nd Defendant’s unchallenged testimony that she requested David Mukasa to occupy Adonia’s house as the family heir, not as the sole owner.
On Family Dynamics
The court observed that Betty Mukasa (1st Plaintiff) restricted access to Adonia’s house for other descendants, including denying entry during family events like burials, as per the 2nd Defendant’s testimony. It noted the 2nd Defendant’s desire for all of Adonia’s descendants to enjoy the suit land.
On the Will of Tito Tudemwebaze
The court noted that Tudemwebaze’s Will (DEX 7a and 7b), written in Luganda with an English translation, listed multiple properties, including the six acres at Luwafu, and bequeathed them to his children, Adonia and Erina, without specifying shares. It noted no dispute over other properties, only the suit land.
On Adonia’s Intestate Status
The court noted that David Mukasa, in signing the Petition for Letters of Administration for Adonia’s estate (DEX 13), acknowledged that Adonia died intestate, contradicting the Plaintiffs’ claim of a will bequeathing the suit land to David.
On Certificate of Title
The court noted that the suit land’s Certificate of Title (PEX 5) remained in Tudemwebaze’s name from 1921 until 2015, when it was transferred to the 1st and 2nd Defendants as administrators, and subsequently to the 2nd to 12th Defendants.
On Defendants’ Intentions
The court noted that the 1st Defendant, the only surviving son of Adonia, was not included on the final title, suggesting the transfer to the 2nd to 12th Defendants was not selfish but aimed to preserve the land for Adonia’s descendants.
On Commercial Buildings
The court noted during the locus visit that David Mukasa built two commercial buildings on the suit land, which the Defendants acknowledged belong to David’s beneficiaries, not the estate of Adonia.
Estate Distribution
The court established that the Administrator General distributed Tudemwebaze’s estate, allocating half of the Luwafu land to Erina (sold off) and the other half (suit land) to Adonia, who built his house and maintained burial grounds there.
Adonia’s Intestate Death
The court established that Adonia died intestate, as evidenced by the Petition for Letters of Administration (DEX 13) signed by David Mukasa, negating the Plaintiffs’ claim that Adonia bequeathed the suit land to David via a will.
David Mukasa’s Role
The court established that David Mukasa lived on the suit land as Adonia’s heir, holding it in trust for all of Adonia’s descendants, not as the exclusive owner.
Locus Visit Findings
The court established during the locus visit that Erina’s portion of the Luwafu land was sold to unrelated parties, and her descendants have no claim to the suit land, as confirmed by the 2nd Defendant.
Non-Fraudulent Transfer
The court established that the 1st and 2nd Defendants’ actions in obtaining Letters of Administration and transferring the title were not fraudulent but intended to preserve the suit land for Adonia’s descendants.
Nature of the Suit Land
The court clarified that the suit land is not ancestral property but forms part of Adonia Kaaya Mukasa’s estate. It ceased being part of Tudemwebaze’s estate once allocated to Adonia by the Administrator General, despite remaining in Tudemwebaze’s name on the title.
Non-Exclusive Ownership
The court clarified that David Mukasa’s residence on the suit land was in his capacity as Adonia’s heir, holding it for the benefit of all Adonia’s descendants, not as the sole owner.
Administrator General’s Role
The court clarified that the Administrator General’s issuance of a Certificate of No Objection to the 1st and 2nd Defendants implied unadministered property (the suit land) remained in Tudemwebaze’s estate, justifying their application for Letters of Administration.
Fraud Allegations
The court clarified that fraud requires intentional deception, as per Fredrick J.K Zaabwe vs. Orient Bank & Others, SCCA No. 0004 of 2006. The Plaintiffs failed to prove fraud beyond a balance of probabilities, as their evidence only expressed shock at the Defendants’ actions without substantiating deceit.
Plaintiffs’ Residence
The court clarified that Betty Mukasa’s long-term residence (since 1993) in Adonia’s house does not confer exclusive ownership, given her restriction of access to other descendants.
Issue 4 (Defendants’ Counter-Claim)
The suit land is not ancestral but part of Adonia’s estate.
Betty Mukasa (1st Plaintiff) must vacate Adonia’s house by October 6, 2026, as she has restricted access to other descendants, though she may relocate to commercial buildings built by David Mukasa on the same land.
No general damages were awarded, as the Defendants suffered no proven loss.
Each party bears its own costs to promote family harmony.
Holding
The Plaintiffs’ case was dismissed.
The Defendants’ Counter-Claim succeeded with the following orders:
The suit land is part of Adonia Kaaya Mukasa’s estate.
It was never distributed among Adonia’s beneficiaries.
David Mukasa lived on the land as heir in trust for all beneficiaries.
The Letters of Administration were not fraudulently obtained.
The title transfer to the 2nd to 12th Defendants was lawful.
A representative of David Mukasa’s family must be added to the title.
Betty Mukasa must vacate Adonia’s house by October 6, 2026.
Commercial buildings built by David Mukasa belong to his beneficiaries.
The suit land is for all Adonia’s descendants, including David’s children.
Future developments require consent from all beneficiaries.
No general damages awarded.
Each party bears its own costs.
Key Takeaways
The court clarified that the suit land is not ancestral but part of Adonia’s estate, emphasizing the importance of proper estate distribution and title transfer.
Fraud must be strictly proven with clear evidence, not mere assertions. The court found no fraudulent intent in the Defendants’ actions.
The decision prioritizes access for all descendants to shared family property, balancing individual claims with collective rights.
Buganda customs of inheritance were considered but not upheld as conferring exclusive ownership to one heir.
The decision aims to restore family harmony by ensuring equitable access and denying costs to both parties.
.jpg)
Comments