[2000] UGHC 44


THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CIVIL SUIT No.555 OF 1998

ADMINISTRATOR GENERAL \*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\* PLAINTIFF

## VERSUS **5**

BEFORE: THE HONORABLE LADY JUSTICE S. B. BOSSA(MRS) GEORGE EDWARD MUSISI SUNDAY PAIN \*\*\*\*\*\*\*\*\*\*\*\* DEFENDANT

## JUDGEMENT

The plaintiff sued the defendant capacity as administrator of the estate of late Mubiru Silas Stephen **IO** vide High Court Administration Cause No,754 of 1994. He sued for cancellation of the defendant's certificate of title of land comprised in Block 231 Plot No.l at Buvuma and for an order that the Registrar of Titles the land register to reflect the **ir** plaintiff rightful owner of the suit land. Nseya Mukono rectifies as^| in his

alleged in the plaint that the deceased Mubiru Silas Stephen disposed of the suit land inter viros when he was still alive and gave the land to his wife Irene Namaganda. \_ That he trusted the defendant to assist her **•20** It was

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,ecure registration but instead the defendant registered himself as proprietor. The plaintiff averred that the ™defendant's title was impeachable for fraud.

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The defendant on the other hand averred that the deceased $^{\text{41}}$ Mubiru and his wife Namaganda wanted to sell the suit land and enlisted his help. That they approached the $\mathbb{I}_{\mathbb{R}}$ $\overline{\mathbf{m}}^{\text{Mehta}}$ Group with a view to selling the land but failed to persuade them to do so, and that after that, the deceased Mubiru and his wife Namaganda offered to sell him the $\mathbf{R}$ and. He accepted their offer and had the land transferred into his names. The defendant asked court to lismiss the plaintiff's suit with costs.

following issues The framed for courts' were letermination.

whether or not the defendant fraudulently transferred $(i)$ the suit land into his names.

whether the plaintiff is entitled to remedies $(i i)$ sought in the plaint.

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Before I proceed to deal with the issues it is pertinent $\begin{array}{c} \blacksquare \end{array}$ to restate the law on fraud. As I under stand it, like all allegations, it must be proved by the one who asserts it under Section 100 of the Evidence Act. Also, fraud $\mathbb{R}$ must be strictly pleaded and proved, its proof requiring more than a mere balance of probabilities. (See Patel ${\bf v}$ Lalji Makanji [1957] E. A. 314 and Kampala Bottlers v Damiano (U) Ltd. Supreme Court Civil Appeal No.22/92).

Where it is so proved a registered proprietor's title can $\Box$ be impeached for fraud. Mere irregularities in the $\overline{\eta}$ registration of title are not sufficient unless they amount to fraud (see Grindlays Bank (Uganda) Ltd v. <pre>Uganda Bottlers Ltd. Civil Appeal No.29 of 1995).</pre>

Finally the transferee must be guilty of some fraudulent Jact or must have known of such act by somebody else and Laken advantage of such act (Kampala Bottlers Ltd. v. Damiano (U) Ltd (Supra).

is whether or not $\mathbf{T}_{\text{the}}$ the defendant issue first fraudulently transferred to himself the suit land. The $10$

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brief facts of the case appear to be the following:-

$\sqrt{N}$ Namaganda aged 80 years is the widow of the late Silas Stephen Mubiru who was the registered proprietor of the land comprised in Kyaggwe Block 231 Plot 1 at Buvuma $\overline{\mathbf{w}}^{\text{Nsenya}}$ , Mukono District. Namaganda alleged that the said deceased Mubiru, her husband, gave her the land as a gift inter vivos in 1980 and passed on to her the certificate pf title with the transfer forms. That because of the close relationship existing between her and her husband pne hand and the defendant on the other hand, she Tentrusted the defendant with the safe keeping of the certificate and the transfer. And that unknown to her land without her knowledge or consent the defendant Tegistered his name on the blank transfer form and proprietor land $\quad\texttt{of}\quad$ the registered $\verb+himself+$ $\mathsf{as}$ Fraudulently. The defendant denied the allegations of The plaintiff. He conceded that Namaganda and her deceased husband were desirous of selling the said land and that they instructed him to sell the said land to Tehta Group of Companies which declined to purchase the land, and that thereafter, they sold him the land and the

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deceased executed a transfer in him names in the chambers of Zaabwe and Co. Advocates.

It is common ground that the late Silas Stephen Mubiru gave the suit land to Irene Namaganda the plaintiff. Even the defendant acknowledges this in his testimony when he says

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"I know about Exh. P6. This letter was written by Stephen Silas Mubiru addressing it to the Manager qiving Namaganda 100 acres and that Mehta should deal with the Namaganda directly or through me".

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What is not clear is when the plaintiff changed her mind and instead sold the land to the defendant. Namaganda categorically denied ever selling any land to the defendant. It is significant to note that the defendant denies close links with the plaintiff and only says that he knew her through the deceased Mubiru. Namaganda and defendant lived in the same village only 1/2 mile apart. The defendant's mother belonged to the same clan as the Namaganda. I believe the plaintiff when she says that

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they visited each other's homes.

Namaganda testified that the deceased's lease had expired after 49 years. and that the deceased took her to Lugazi $\min$ the offices of SCOUL to introduce her as the new owner and handed to her the title. She took it home and eventually gave it to the defendant for safe keeping and $\mathrel{\mathop{\mathbb{P}}\nolimits}$ old him to change it in Mukono land office.

As I have already noted the fact that the deceased Mubiru Jave to the plaintiff 100 acres at Kawolo is not denied. It is confirmed by both the defendant and Mrs. Baraza (PW2).

$\boldsymbol{\beta}$ iven that Namaganda denies ever selling any land to the defendant and the defendant asserts that she and her husband sold her the land, it is a question of which of These two is more credible.

am inclined to believe Namaganda because she impressed $\cdot$ The as a truthful witness. I believe her when she says the defendant knew her husband through her because of her

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friendship with her mother.

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It is also noteworthy that the deceased first indicated that he had given his wife the land on 4th September 1986 (Exh P5) . He reiterated it on 16th October 1987. (Exh P6) . In all these documents he indicated that her agent was Mr. Musisi Sunday Pain the defendant and that he had signed for her blank transfer forms to enable her sell the land.

Although the deceased handed to Namaganda only the title, it 10 transfer forms, by virtue of his authority as agent for If it is true that the deceased gave this land to Namaganda and confirmed it in writing and to Mrs. Baraza and Mr. Kironde of SCOUL, then how could he have accepted the money for this land from **-If** the defendant, her all rental arrears? when he was even urging SCOUL to pay to is quite probable that the defendant got the blank Namaganda to sell the land.

The deceased Mubiru could not have signed a transfer form 16th October ¹⁹⁸⁷ transferring the land to the on

defendant when on the same day he wrote to the General Manager Uganda Sugar Factory Limited (see Exh P6) in confirming the gift he had made to his wife and signing blank transfer forms to enable her sell the land.

It also clearly shows that on that day the deceased could not have been in Mr. Zaabwe's office. The transfer form (Exh. DI) as of 16th October 1987 was blank and the $($ $\prod$ defendant must have filled in his name fraudulently afterwards.

1 O In any case why was there no sale agreement particularly as the defendant knew that the land had been given to the plaintiff by the deceased. And why did it take the defendant so long (4 years!) to register himself as No wonder Mr. Zaabwe could not come rproprietor? to $15$ testify for the defendant. I will now touch briefly on the power of attorney dated 25th March 1988 (Exh D4). I Thave closely scrutinised this power of attorney. I will reproduce it for avoidance of doubt. By it the deceased Mubiru was appointing the defendant to take care of or $20$ Tlook after his land at Nsega, Nakanya and Buvuma in

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Kyaggwe and he was to the following:

- $\frac{1}{2}$ To collect the rent from the lease of the land and to negotiate and conclude the variation of terms in the lease of this land. - $\overline{3}$ . To enforce any contracts covenants or conditions pending upon me or upon any other person in respect of the said land and to recover and maintain possession of the land and to protect the same from waste and trespass by action or otherwise. - $4.$ To receive and give effectual receipts or discharges for all or any money which shall come to the hands of the said attorney by virtue of the provisions herein contained which receipts whether given in my name or in the name of the said attorney shall exonerate

the person or persons paying such moneys from seeing to the applications thereof or being responsible for the loss or misapplication thereof.

For me and in my name to do all acts matters and

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things necessary the powers hereby given ..." or expedient for carrying out

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The defendant stated that he leased the land to Mehta in 1988 and that because the land had not been registered in he therefore got Mr. Mubiru. his names, a power of attorney from

One wonders why after buying the land the defendant would '.1 need a power of attorney from the deceased Mubiru. The .explanation can only be that because the lease had expired and the defendant was agent for Namaganda, he was **) o** therefore given the grant to negotiate the lease.

That would explain the reluctance of Mr. Kironde to buy the land from the defendant and his response when he got to know of the full facts from the Administrator General (see Exh. P2) . He only renewed the lease with effect from January ¹⁹⁹⁹ (see Exh P2) because the defendant 1st power of attorney. produced a

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Also the deceased knew how to read and write. He apparently was also literate in English. He could not failed to execute a sale agreement, let alone have introducing the defendant to SCOUL as purchaser. He took trouble to introduce his wife the plaintiff there and supplemented it by writing.

These facts do not support the defendant's story that the plaintiff and her husband sold him the land in 1987 because the plaintiff had a very sick brother. In fact, the plaintiff even expressed surprise at the purchase price calling it too meager.

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To answer the first issue therefore, it is my judgment that the defendant fraudulently registered himself on a blank transfer dated 16th October 1987 and thereafter fraudulently transferred the land belonging to Namaganda into his names, thus dispossessing her of it.

The defendant's Counsel alleged in his submissions that Namaganda never followed upon the land title for many years and that the evidence that she lied. That is not

correct. asked the defendant **J** to go to Administrator General. The burden of proof required of the plaintiff here in my view been discharged. This also answers the second issue of whether the plaintiff is entitled to remedies. Indeed the plaintiff is entitled to remedies. The plaintiff's **J** first prayer is for a declaration that the said land was **I)** fraudulently transferred into the names of the defendant. The declaration is so made. In answer to the second |O prayer ^I order the Registrar of Titles to cancel the **J** defendant'^s title deed comprised in Kyaggwe Block ²³¹ Plot at Buvuma Nsanya Mukono District and to register the Administrator General thereof in his capacity as **: ^j** administrator of the estate of late Silas Stephen Mubiru. **IT** The lease title should be similarly treated. The defendant is ordered to pay all funds he has so far collected from SCOUL as ground rent to the plaintiff. **-I** The defendant is also ordered to pay costs of this suit. Namaganda stated in cross-examination that she so many times and eventually decided

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Mr. Lubega Matovu for plaintiff

Sentomero. F. holding brief for Prof. Sempebwa $Mr.$ $\quad\quad\text{for}\quad\quad$ defendants.

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Judgment delivered.

18/5/2000

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### **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT KAMPALA**

#### **HIGH COURT CIVIL SUIT NO 555 OF 1998**

**ADMINISTRATOR GENERAL PLAINTIFF**

#### **VERSUS**

#### **GEORGE EDWARD MUSISI SUNDAY PAIN DEFENDANT**

### **JI DECREE**

This suit coming on this day for final disposal before Hon Lady Justice S. B BOSSA (MRS) In the presence of Mr. Lubega Matovu counsel for the plaintiff and Mr. Ssentomero Frederick counsel for the defendant.

#### **IT IS HEREBY DECREED** as follows: -

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- (1) That the defendant fraudulently transferred land comprised in Block 231 Plot ¹ at Buvuma Nseya Mukono into his names. - (2) That the Registrar of Titles cancels the defendant's title deed comprised in the above- mentioned land and registers the Administrator General thereof in his capacity as administrator of the estate of the late Silas Stephen Mubiru. - (3) That the defendant pays all funds he has so far collected from SCOUL as ground rent to the plaintiff. - (4) That the defendant pays costs of this suit. **2.0**

*(S* day of **GIVEN UNDER** my hand and the seal of this Honorable Court this 2001.

**REGISTRA^**

Drawn & Filed by KATENDE, SSEMPEBWA & COMPANY. Advocates, Solicitors and Legal consultants P. O BOX 2344 **KAMPALA.**

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