[2013] UGHC 262

**REPUBLIC OF UGANDA** IN THE HIGH COURT OF UGANDA HOLDEN AT MASAKA CIVIL SIUT NO. 21 OF 2003

**ADMINISTRATOR-GENERAL** BY ATTORNEY OF BABIRYE SARAH

PLAINTIFF.

**VERSUS**

1. NANSUBUGA SAIDA

2. MUWANGA ABDU

3. SSEMATIMBA YUSUFU

DEFENDANT.

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## **BEFORE THE HON. JUSTICE L. GIDUDU**

## **JUDGMENT.**

The plaintiff brings this action against the defendants for recovery of land comprised in block 185 plot 43 at Lukaya, Buddu-Masaka hereinafter called the suit property. She prayed for an order deleting the defendants' names on the title, general damages and costs.

The defendants denied any wrong doing and pleaded that the suit is time barred. Further, that there is no cause of action disclosed. The brief history of this case is as follows.

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Paulo Ssaku, now deceased and father ofthe plaintiffs attorney, was the registered proprietor ofMailo land styled plot 43 Block 185 situate at Lukaya Masaka. He got registered on 2nd Janaury 1963. On 6th December, 1977, Zedi Semuyaga, got registered on the same title as proprietor. Later, on 7th December, 1983, the defendants as administrators ofthe estate of Semuyaga got registered.

Prior to the subsequent registrations, a sublease had been created on the title in favour ofJanmohamed Yusuf for 49 years. It was to expire in 2010. Semuyaga died in 1979 while. Ssaku died in 1984. The main business on this property Was a fuel station.

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After the expulsion ofIndians in 1972, the property was managed by the Custodian Board in respect ofthe sublease.

After the death of Ssaku, the Administrator-General took over his estate and distributed it. The suit property was not distributed to date.

The plaintiffsearched the registry and established that the late Semuyaga father ofthe defendants had been registered on the suit property as proprietor in 1977 and the defendants had since been registered as administrators of his estate.

The plaintiff contends thatthe late Ssaku did not sale the suit property to Semuyaga and he could only obtain the registration through fraud because there was no sale agreement and no transfer forms to qffect the transaction. Further, that the application forms for the consent to transfer bore a forged signature ofthe late'Ssaku.

The defendants deny any fraud on the part oftheir late father Semuyaga and raised a defence ofLimitation and lack of a cause of action.

^I should observe here that by the time ofthe trial, the defendant number.two was reported dead and out ofthese proceedings. ^v - •

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**I I** Three issues were framed as follows:

- 1. action. Whether the suit is time barred or does not disclose a cause of - 2. Whether the late Zedi Semuyaga committed fraud - 3. Whether the plaintiff is entitled to the reliefs sought.

Both parties were represented by counsel. Mr Matovu appeared for the plaintiff while Mr. Rwalinda appeared for the defendants.

## **Is this suit time barred and discloses no cause of action?**

Mr. Rwalinda for the defendands invited Court to dismiss the suit on the basis that it was affected by the provisions ofsection ⁵ ofthe Limitation Act. It was his case that PW1 Babirye, admitted to searching the register in 1984 when her father died and discovered that Semuyaga had been registered as proprietor ofthe suit property but she chose to file the suit in 2003 which is 19 years later. This, he argued is more the 12 years provided in section ⁵ of the Limitation Act.

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He referred to case law such as **Uganda Railways Corporation vs. Ekwaru and ors (2008) ULR 319 and Iga vs. Makerere University (1972) EA 65,** for the proposition that a plaint barred by Limitation is barred by law and must be rejected un less grounds of exception are shown in the plaint. In reply, Mr Matovu John for the plaintiff argued that the Limitation Act applied from 1994 and not earlier. From 1994 to 2003 when the suit was filed, it is 11 years.

There is no doubt that a suit for recovery ofland filed 12 years after the cause of action accrued would be barred by law and the court would dismiss it unless it fell within the exceptions under the Act. See sections 5 and 25 the Limitation Act, Cap 80 which provide as follows.

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Section 5. **"No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or her..."** *^t*

While section 25 provides for exceptions such as:-

(a) Where the action is based upon the fraud ofthe defendant or his or her agent or of any person through whom he or she claims or his or her agent; '

The period of limitation shall not begin until the plaintiffhas discovered the fraud. \

On the evidence on record, PWl'^s evidence in chiefwas that in 1994, she conducted a search and discovered that the mailo interest had been transferred to Semuyaga. She reported this discovery to the Administrator-General who gave her powers of attorney to sue.

This is the evidence Mr. Matovu asked me to believe to find that the suit was filed within time.

In cross examination, she stated, **"I started searching for this land in 1984 but I filed the suit in 2003.** In re-examination she stated thus" **I went to the Administrator-General in 1984. But I realized later that the land (plot 43) had been transferred into the names of the defendants"**

to be. In his written submissions, Mr. Rwalinda wrote that PW1 testified that she searched the record in 1984 and discovered that the mailo interest had been transferred into Semuyaga's names but took no action until 2003. That she repeated this testimony in cross examination. This cannot be true. The record ofthe evidence in chief does not state as counsel for the defendants wajjts it

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The testimony of PW1 when read together from examination in chief through cross examination and re-examination is that after the death of her father in 1984, she reported to the Administrator-General about the suit land and started doing a search. She got the information from the search that the mailo interest had been transferred to Semuyaga in 1994. This comes out clearly in her re-examination when she states that she started the search in 1984 but realized the suit land had changed hands in 1994 and filed a suit in 2003 which is 11 years after. The point to note here is that the search started earlier but bore no results until 1994. That is when the cause of action accrued which in my view does not give rise to any defence of limitation. In other words starting a search in 1984 did not by itself give rise to a cause of action until the plaintiff had discovered facts upon which she could file a suit. It is when the discovery was made that the period of limitation started running. This is a question of fact on the evidence.

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The submission that PW1 testified that she made the discovery of the transfer in 1984 is, with respect, not supported by evidence and when this court is considering a witness testimony, it takes the evidence as a whole belonging to that witness. The re-examination sorted this matter out and am surprised it found its way in final submissions.

I find as a fact that the discovery of the transfer was in 1994 and the cause of action accrued then. The suit is not affected by limitation and the defence of limitation fails. Issue 1 is resolved in favour of the plaintiff.

## Did the late Zedi Semuyaga commit fraud?

Mr. Matovu for the plaintiff asked me to find that the late Semuyaga committed fraud in the following circumstances.

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- a. No evidence of a sale agreement between the late Ssaku and the late Semuyaga. - b. No witness to the sale was available to testify about the transaction. - c. The late Ssaku had a stroke that paralyzed him from 1972 till his death in 1984 and could not effect any transfer of property by signature. - d. The transfer was effected without transfer forms duly signed by the late Ssaku. - e. The two hand writing experts brought by either side agreed that the signature on the application form to transfer land bore a signature that was different from the one used by Ssaku on other documents. It was counsel's submission that the late Semuyaga took advantage of Ssaku's sick condition to fraudulently acquire his land.

In reply on this issue, Mr. Rwalinda for the defendants'submitted that fraud has to be proved at a standard higher than in ordinary suits'and the same has to be attributed to the transferee as beneficiary. The rest of Mr. Rwalinda's submission is unnecessarily long and winding. What I understand from it is that the plaintiff did not prove that the late Semuyaga forged 'the signature of the late Ssaku. Further, that the expert witness for the plaintiff admitted that a person's signature could change due to sickness.

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Learned counsel faulted the plaintifffor failing to adduce the evidence ofthe Registrar oftitles who would have explained how the transfer into the names ofthe late Semuyaga was done.

Finally, that since the defendants are the registered proprietors, their title cannot be challenged except for fraud which has not been proved. He-cifed y

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the case of **Patel** v **Patel (1992-1993) HCB 137** for the proposition that a certificate oftitle is conclusive evidence of ownership and no submission of oral evidence can be called to cancel or vary except for fraud or illegality.

It was his argument that the plaintiff had not proved fraud and could not impeach the defendants' title.

Under the Registration ofTitles' Act, the certificate oftitle is conclusive evidence of ownership. Section 59 thereofprovides as follows.

59. Certificate to be conclusive evidence of title.

No certificate of title issued upon an application to bring land under this Act shall be impeached or defeasible by reason or on account of any informality or irregularity in the application or in the proceedings previous to the registration of the certificate, and every certificate of title issued under this Act shall be received in all courts as evidence of the particulars set forth in the certificate and of the entry of the certificate in the Register Book, and shall be conclusive evidence that the person named in the certificate as the Proprietor of or having any estate or interest in or power to appoint or dispose of the land described in the certificate is seized or possessed of that estate or Interest or has that power. ,

A title may, however, be impeached for fraud or illegality as provided in section 176(c) of the RTA, Cap 230 which provides thus:

176. Registered proprietor protected against ejectment except in certain cases.

No action of ejectment or other action for the recovery of any land shall lie or be sustained against the person registered as proprietor under this Act, except in any of the following cases—

(a), (b)

(c) the case of a person deprived of any land by fraud as against the person registered as proprietor of that land through fraud or as against a person deriving otherwise than as a transferee bona fide for value from or through a person so registered through fraud

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**I** It is trite law that allegations of fraud must be strictly proved; although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required. **R. G.** Patel **vrs Lalji** Makanji ,(1957) EA.314, followed.

Fraud must be attributable to the transferee directly or by implication. The transferee must be guilty ofsome fraudulent act or must have known ofsuch acts by somebody else and taken advantage ofsuch act. See Wambuzi C. J. (as he then was) in **Kampala Bottlers vrs Damanico (U) Ltd Civil Appeal no.22/92 (Supreme Court)**

Fraud is not defined under the RTA but it covers dishonest dealings in land. **(^o** The Cambridge International Dictionary ofEnglish, 1995, defines fraud as something/aZse. *A person or thing that is not what is claimed.*

In the instant case, the plaintiffrests her case on the fact that the signature on the only available document during the transaction is forged. That is the signature on the *applicationfor consent to transferform.* She testified that she searched the land office and did not find the *transferforms* while no sale agreement was made.-,

The defendants argue that there is no proof offraud. That the signature may differ due to sickness ofthe late Ssaku. The defence also raised the failure to produce a Registrar oftitles as a weakness in the plaintiffs case.

^I agree that if a Registrar oftitles had testified, then this case would have been decided on the day it was closed for hearing.

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The Registrar was summoned twice but did not appear despite proof of service. When I wanted to issue a warrant, counsel asked me to dispense with the witness and closed his case.

Both hand writing experts called by either side agreed that the signature of the late Paul Ssaku on the *application to transferform* was different from that on the title and on the lease agreement. This would support the evidence ofthe plaintiff when she testified that her father was bed ridden from 1972 and was not capable ofsigning any document.

It can also be inferred that since Ssaku was bed ridden and was just being attended to by people like Vincent Kiribagwa, PW2 and Ndikola Ssekamwa, PW4, he could not sell land without the knowledge ofthe two. The two witnesses testified that the sale could not have taken place without their knowledge since they were in charge of nursing the late Ssaku.

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In a suit founded on fraud, the plaintiff has the burden of.proofthat is beyond the ordinary standard. It is beyond the balance of probabilities.

The question I ask is, has the plaintiff discharged this burden? The defence asked me to find that it has not been discharged. Learned counsel for the defence argued that the plaintiff did not avail originals from which the hand writing expert could properly determine whether the signature is forged or not. Counsel then went on to state that DW2, Olanya Joseph, gave evidence that the signatures to the specimens That were similar to the ones PW2, Ntariirwa Apollo examined were the same meaning there was no fraud.

With respect, counsel for the defendant read the record upside down. It is the opposite. DW2, found as did PW2 that the signature on the *application to transfer* was different from the one on the lease agreement and the titl& ,

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Moreover, DW2 stated that he searched the register in Kampala and found the originals which he used to determine that the *application to transfer form* was signed differently.

This search by DW2 did not reveal other documents such as the *transfer forms* which PW1, Babirye said did not exist when she searched the register.

By circumstantial evidence, it is clear that transfer forms do not exist in the land registry and perhaps it is the reason the registrar of titles Masaka did not want to testify. These are necessary inferences from the circumstances surrounding this case. Both the plaintiff and defendants could only got the *application to transfer form* which they gave to their respective advocates for hand writing analysis and not the land transfer forms which are the basis for transferring land from one person to another.

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The importance of transfer forms is found in section 92 of the RTA which provides thus in sub section $(1)$ .

92. Form of transfer.

(1) The proprietor of land or of a lease or mortgage or of any estate, right or interest therein respectively may transfer the same by a transfer in one of the forms in the Seventh Schedule to this Act; but where the consideration for a transfer does not consist of money, the words "the sum of" in the forms of transfer in that Schedule shall not be used to describe the consideration. but the true consideration shall be concisely stated.

The plaintiff has the onus of proving the fact that there was no transfer form similar to the one in schedule 7 to effect the change in names on the title from Ssaku to Semuyaga. However, her evidence is that the search she made did not yield those results. She only got the *application to transfer form* plus the title and the lease agreement. Her evidence is corroborated by DW2 who also did a search but only got the same documents that the plaintiff had-OF UGANDA

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What do ^I infer from this? That the *transferjorms* never existed meaning there was no legal transfer ofland from Ssaku to Semuyaga.

During the scheduling conference on 27th March 2006, Mr. Rwalinda, counsel for the defendants informed court that he would produce the *transfer forms* with leave of court. The trial was held in 2013 and no such *transfer forms* were tendered in court. No leave was sought to tender such forms. Again the irresistible inference here is that such forms did not exist. Am fully aware that the defendant had no duty to prove the case since the onus was on the plaintiff but where a party offers to adduce evidence at the conferencing stage and abandons it without explanation, the court is entitled to conclude that the production ofthat evidence would be adverse to the defendant.

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PW2 was emphatic that he nursed the Ssaku for 12 years. He was paralysed and could not hold anything. He was an invalid who could not independently go out to sell land to another person. Both Ssaku and Semuyaga lived in Lukaya town and were known to each other. They could not have transacted quietly without the knowledge of Ssaku's handlers.

On the basis ofthe technical evidence and findings ofthe two expert witnesses(PW2 and DW2) and further, on the basis ofthe purported transfer being effected without duly signed transfer forms, and on the basis ofthe plaintiffs evidence that Ssaku was indisposed and could not have transacted in the land without knowledge or assistance of his handlers, I am inclined to conclude that the transaction that lead to the transfer ofland to the benefit of the late Ssaku could only have been obtained by fraud. This evidence is

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strong enough to prove and has proved the case beyond mere balance of probabilities.

Semuyaga could not have got his name to the title in issue without his participation. His name was registered on the title that belonged to Ssaku and though both are dead, there is no trace of the legal papers to legalise that transaction. I attribute the fraud to Semuyaga as a beneficiary of the registration. It is illogical to say that somebody else committed the fraud but Semuyaga took full benefit of it. Once the attention of court is drawn to a proven fraud, the court has a duty to cancel all transactions affected by that fraud.

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Just like illegality, fraud overrides all others forms of defence that may be raised to justify it.

Though under section 59 of the RTA the certificate of title is everything, the fact of fraud renders it invalid and I direct that under section 177 of the RTA, the registrar should cancel not only Semuyaga's name but also those of the defendants who derive title from him from the register and replace them with the original name of Paulo Ssaku.

In the result I would answer issue number two in the affirmative.

I was asked to award damages of $250.000,000=$ I must confess that no evidence was lead to suggest this figure. PW1 stated that they have been deprived of the property but she did not indicate by how much she and others have lost. I take into account that this property is to go the Administrator-General who would then distribute it. I was not assisted to make an assessment of the damages and cannot award the wishes of the plaintiff.

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Without some indication as to how much the defendants have been getting from the property, ^I shall award nominal damages of 30,000,000= plus the costs ofthis suit.

In conclusion, the following orders are made:

- I. The registrar is directed to cancel the names of Haji Zedi Semuyaga and those ofthe defendants from the title comprised in Block 185 plot 43 and replace them with the original names of Paulo Ssaku . - II. The defendants shall pay the plaintiff 30 million as damages for the deprivation ofthe suit property. - III. **IS** The defendants shall pay costs ofthis suit to the plaintiff.

awrence Gidudu

Judge

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18th September, 2013.

**o** The Assistant Registrar Masaka is directed to read thisjudgment on my behalf ept€mber, 2013.

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Judge

18th September,2013

.wrence'Gidudu

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