[2024] UGHC 1283

#### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT MPIGI

## (LAND MATTER)

## CIVIL SUIT NO. 125 OF 2018 AND CIVIL SUIT NO. 22 OF 2021 $(CONSOLIDATED)$

## (FORMERLY NAKAWA CIVIL SUIT NO. 595 OF 2015 also FORMERLY HCCS No. 3010/2016 LAND DIVISION)

ALOYSIOUS KAKANDE ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### 1. THE ATTORNEY GENERAL

2. THE COMMISSIONER LAND REGISTRATION

3. MPIGI DISTRICT LOCAL GOVERNMENT

4. RUVIMA JAMES

5. DANIEL NKALUBO SEBUGWAWO

6. SERUKEBERWA EDMOND SEBUGWAWO (Administrator of the Estate of the Late Nelson

Edmund Nkalubo Sebugwawo) ::::::::::::::::::::::::::::::::::::

#### JUDGEMENT

### BEFORE: HON. LADY JUSTICE NABAKOOZA FLAVIA. K

#### **Back ground of the case.**

The plaintiff sued the defendants jointly and severally for a declaration that he is the registered proprietor of private mailo land comprised in Gomba Block 138 Plot Nos. 2, 4 and 5 at Luzira Estate (*hereinafter referred to as the 'suit land'*); an order of cancellation of the registration of the 4^th and 5^th Defendants as registered proprietors on certificates of title for land comprised in Gomba Block 138 Plot Nos. 8 and 9; an eviction order against the 4^th and 5^th Defendants from the suit land; a permanent injunction restraining the 4^th and 5^th Defendants, their


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| | CRTIFIED TRUE COPY OF THE | | | |--|---------------------------|-----------------|--| | | | | | | | | $-$ <b>TRAR</b> | |

$\mathsf{S}$

agents, servants or persons acting on their behalf from trespassing on the suit land; general and exemplary damages and costs of the suit.

According to his amended plaint filed on 17^th July, 2019, the plaintiff alleges that $\tilde{\eta}_i$ he bought 900 acres of land in 1980 from the late Edward Nsimbi. That at the time, the late Edward Nsimbi was one of the registered owners of a P. U. P. measuring 2030 acres out of other P. U. P comprised in Gomba Block 138 Plot 1, Luzira estate. That the aforesaid transaction was subject of a court dispute vide HCCS No. 889/1982 Aloysius Kakande Vs Edward Nsimbi [1984] HCB- 37. That by a decree arising therefrom, court ordered him to survey off his 900 acres. which survey was concluded under a mutation form dated 13^th of January, 1984. which was lodged and registered under Instrument No. KLA 116411. That consequently, he became registered as proprietor of land comprised in Block 138 Plot 2 measuring 900 acres and was also entered on the certificate of title on the 3^rd January, 1986.

That he also entered into another agreement dated $17/4/1986$ , wherein he acquired 750 acres from Nelson Edmond Nkalubo Sebugwawo, another registered proprietor of P. U. P of land comprised in Gomba Block 138 Plot 1, Luzira estate. That the said land was also surveyed as Gomba Block 138 Plot 4 and 5. That subsequently, Nelson Edmond Nkalubo Sebugwawo executed transfer instruments in his favour and was accordingly registered as proprietor of the said land on 5^th of November, 1986 and issued with a certificate of title.

That sometime in 2000, the Administrators of the estate of the late Nsimbi Edward (*Nanjovu Jane and Norah Nassejje*) wrongly caused a survey of 1280 acres out of Block 138 Plot 6; and became registered as proprietors of land comprised in Gomba Block 138 Plot 7 of 1280 acres on the 24^th of October, 2001. Further, that the said land, specifically Plot 7, was superimposed on his land, and sold to the 4^th Defendant by the said administrators by an agreement dated 14^th of May, 2003.

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Address

That upon discovering the above facts, he complained to the $2^nd$ defendant who made investigations. In 2006 the Commissioner Land Registration found that land which exists on Block 138 includes the suit land which was registered in the name of the Plaintiff and land in Plot 6 was under the estate of the late Nsimbi Edward. Further, that under Instrument No. KLA 319546 which was registered on 11^th of November, 2007, the Acting Commissioner for Land Registration cancelled the certificate of title for Gomba Block 138 Plot 7 for having been wrongfully obtained. That the same Commissioner notified the District Staff Surveyor of Mpigi by letter dated 13^th of December, 2007, of the said cancellation and directed him to reinstate the suit land plots on the cadastral sheets since they had been affected by the cancellation, but he failed to implement directive.

That later in April 2014, the aforesaid administrators and the 4^th defendant caused the Department of Surveys and Mapping to approve a false cadastral sheet and surveyed, out of Gomba Block 138 Plot 6, 380 acres in their names. That the said cadastral sheet was approved by the Drawing Office Supervisor, Surveys and Mappings on 28^th of April, 2014; and that the area schedule form made no reference to the suit land on the cadastral sheet.

Furthermore, that on 8^th of July, 2014, the Commissioner for Land Registration ordered that the records be reconstructed and a certificate of title was prepared in the names of the said administrators in respect of Gomba Block 138 Plot 8 measuring 380 acres. That on 20^th October, 2014, Mpigi District Staff Surveyor also approved an area schedule of Gomba Block 138 under a false cadastral sheet showing 900 acres of Plot 2 as belonging to Edward Nsimbe; and 380 acres of Plot 8 as belonging to the said administrators without mentioning the other plots on the suit land. That when he lodged another complaint, the Commissioner for Land Registration instructed the District Staff Surveyor of Mpigi District to carry out a location survey of Plots 2, 4, 5, 8, and 9 to ascertain the location of 380 acres and avoid overlapping titles. That that instruction was executed and it was

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established that Plot 8 falls both within the boundaries of Plot 2 and 5 which belong to him, but the 2^nd and 3^rd defendants' officials later claimed that the documents relating to Plots 2, 4, and 5 could not be traced.

That subsequently, other mutations were carried out wherein the 5^th defendant surveyed 446.39 acres out of Plot 9 Gomba Block 138; and that a survey of 180.654 hectares was approved on 5^th March, 2015. Lastly, but not least, that while the instant suits were pending, the 2^nd defendant entertained a complaint dated 10^th of December, 2017 against him in respect of suit land for plots 4 and 5, and directed that their certificate of title be cancelled. It is the plaintiff's assertion that the acts of the defendants are unlawful thus being liable to him.

The 1^st and 2^nd Defendants filed a joint amended written statement of defence denying any liability to the Plaintiff and contended that all their actions were lawful.

The 3^rd Defendant did not file a written statement of defence despite having been served. Nevertheless, the suit shall proceed against her under Order 9 Rule 10

# of the Civil Procedure Rules SI 71-1.

The 4^th and 5^th defendants, filed a joint amended written statement of defence denying liability, together with a counter claim. They contended that the plaintiff has never plotted his 900 acres; that no cadastral sheet exists for the 900 acres; and that he has never plotted plots 4 & 5 both on ground and the cadastral sheet. That the 4^th Defendant purchased the suit land for a consideration from the former registered proprietors, and that the 5^th Defendant acquired his land through a power of attorney and a gift inter-vivos issued to him by his late father Nelson Edmond Nkalubo Sebugwawo who was the owner of 446.39 acres which was residue land of Block 138 plot 1. In the counter claim, they alleged fraud and misrepresentation committed by the Plaintiff when acquiring the 750 Acres from the late Nelson Edmond Nkalubo Sebugwawo to which they sought for an order implementing the Commissioner for Land Registration's instruction of 22^nd of

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Adding

February, 2019, amending the Register for Book for Block 138 Plots 4 & 5; a permanent injunction against the Plaintiff, restraining him from interfering with their ownership of land comprised in Block 138 plots 8 & 9; a declaration that the said land belongs to them; an order that the Plaintiff surveys and plots off his 900 acres from the residue after their parcels as well as that of Nelson Edmond Nkalubo Sebugwawo, have been confirmed; general and exemplary damages and costs of the counterclaim.

It suffices to state that the 6^th Defendant also filed Civil Suit No.22 of 2021 against the Plaintiff alleging that land in Block 138 Plots 4 and 5 belongs to the estate of the late Nelson Edmund Nkalubo Sebugwawo and sought several reliefs. The said suit was consolidated with the Plaintiff's suit by an order of court upon consent of the parties on the 17^th June, 2021 hence the said defendant becoming the 6^th Defendant herein.

I note that on the 4^th of October, 2021 Civil Suit No.22 of 2021 was abated. However, the abatement order was set aside on 29^th November 2021 and Court directed the parties to file all necessary documents to proceed with the hearing of the consolidated suit.

The plaintiff filed a reply to the counterclaim wherein he denied the particulars 110 of fraud and misrepresentation hence putting them in issue. He asserted that the counter-claimants have no lawful claim in land registered in his name as their titles and plots on ground overlap the position of the suit land.

#### **Representation:** 115

The Plaintiff was represented by Counsel Kawanga John from M/s Kawanga & Kasule Advocates; the 4^th and 5^th were represented by Counsel Serunjoji Brian from M/s Serungoji & Partners Advocates; the 1^st Defendant was represented by Counsel Namala Amina while Counsel Atusasira Godwin represented the 2^nd Defendant.

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During the hearing, the Plaintiff led 2 witnesses, to wit; Aloysius Kakande as PW1 and Baguma Brian as PW2. The 1^st to 5^th Defendants led 5 witnesses, that is; Ruvima James as DW1, Ssekitto Moses as DW2, Daniel Nkalubo Ssebugwawo as DW3, Mawejje Wilson the holder of powers of Attorney for Defendant no.6 Serukebera Edmond Sebugwawo as DW4, and Ngonda Stephen as DW5.

The evidence of the parties was given by way of witness statements whose contents are on record.

The parties also presented documentary evidence in their Trial bundles which were admitted in form of exhibits, say; PEX1 to PEX16 for the plaintiff and **DEX1** to **DEX12** for the defendants.

The court visited the locus in quo at the closure of the trial. The findings at locus visit have guided court in making this decision.

Counsel for the parties filed written submissions, which have been considered in determining the suit. The 4^th and 5^th Defendants Counsel started his submissions by reminding court about the distinction between exhibits and identification documents, and their evidential value as far as the Plaintiff's evidence is concerned. The court is conscious of that, and will only rely on the aforesaid exhibits in determining the suit.

- The following issues were raised by the parties on the 16^th of April, 2021, during 140 trial, for determination by the court. These issues also cover the allegations raised in the counter claim by the $4^{th}$ and $5^{th}$ defendants. - Whether the registration of the plaintiff on land comprised in Gomba i. Block 138 Plot 2, 4 and 5 was lawful? - Whether the plaintiff lawfully obtained the suit land comprised in ii. Gomba Block 138 Plot 2, 4 and 5 Luzira? - Whether the registration of the 4^th Defendant as registered proprietor of iii. land comprised in Gomba Block 138 Plot 8 was lawful?

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- Whether the registration of the 5^th Defendant as registered proprietor of iv. land comprised in Block 138 Plot 9 was lawful? - Whether land comprised in Gomba Block 138 Plot 8 & 9 overlap and $\nu$ . comprised in Gomba Block 138 Plot 2, 4 & 5?

#### vi. What remedies are available?

It is practical to commence with the $2^{nd}$ issue, which involves the Plaintiff's acquisition of the suit land, before the first issue which involves its registration in the Plaintiff's name. I have renumbered the above issues, accordingly (issue no 1 is now Issue no 2 etc.)

# <u>Issue No.1:</u> Whether the plaintiff lawfully obtained the suit land comprised in Gomba Block 138 Plot 2, 4 and 5 Luzira?

The issue involves land in Plot 2 measuring 900 acres, which the plaintiff allegedly bought from Edward Nsimbi. It also involves land in Plot 4 and 5 measuring 750 acres, which the Plaintiff allegedly bought from Nelson Edmund Nkalubo Sebugwawo. I shall handle the different plots separately, since they involve different transactions.

The Plaintiff's claim with regard to Plot 2, is based on an undisputed judgment between himself and Edward Nsimbi involving the land in the said Plot and facts similar to those before this court regarding the same plot.

- I have had the benefit of reading the said judgment vide Aloysius Kakande Vs. Edward Nsimbi vide HCCS No 889 of 1982. The judgment was annexed to the 170 Amended Plaintiff's Trial bundle as annexure Z of the Additional Sworn Witness statement for Aloysius Kakande. This Judgement is also officially reported with the said citation under the High Court Bulletin ([1984] HCB-37). - Section 55 of the Evidence Act Cap.6 provides that "no fact of which the court will take judicial notice need be proved". Having cross-checked with 175 the High Court Bulletin and confirmed the existence of the said judgment, I have taken judicial notice of its existence.

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Address -

According to the said judgment, Manyindo J. (as he then was) held that:

... the defendant freely sold 900 acres of his land to the plaintiff through a

\* genuine and valid sale agreement. Accordingly, judgement would be entered against the defendant and the defendant ordered to transfer by signing the *mutation form.*

The said judgment is clearly in rem since it pronounced itself on the ownership of the 900 acres of land in favour of the plaintiff and it is relevant and admissible under Section 39 of the Evidence Act Cap.6 as such. In George William Katerega Vs. Commissioner land Registration & others, Misc. Application No. 347 of 2015, the court defined a judgment in rem as one which "*invariably* denotes the status or condition of property and operates directly on the property itself. It is a judgment that affects not only the thing but also persons interested *in the thing.*"

In addition, in Mansukhalal Ramji Karia & Anor vs Attorney General SCCA NO. 20 OF 2002, the Supreme Court observed that a judgment in rem is "conclusive against all the world in whatever it settles as to the status of the to the right or title to property, as to property, $or$ $\alpha$ S whatever disposition it makes of the property itself."

In this case, there is no proof that the above-mentioned judgment was ever set aside by any court. Therefore, I find that it is binding and conclusive not only on the parties to it, but also all persons interested in the 900 acres of the subject land. In as far as it is concerned, the plaintiff bought the said land from Edward Nsimbi, and this court has no powers to find otherwise.

I now turn to **Plots 4 and 5**. The plaintiff reiterated the statements in his amended plaint as reproduced above. I need not reproduce them. I note however that he tendered PEX 5, a land sale agreement dated 17/04/1986, and PEX 6, a copy certificate of title showing his registration on the said land on the 5^th of November, 1986.

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During cross-examination PW1 stated that Edward Nsimbi and Nelson Edmond Nkalubo Sebugwawo were brothers who owned 1280 acres and 750 acres of land respectively. That he has no claim against the 4^th Defendant, except that his title is not in the right place. That although Plot 1 was subdivided in 1984, it still existed in the land office as residue after taking off his 900 acres by April 1986. On re-examination, PW1 repeated the testimony that he bought 900 acres and 750 acres, and that he has been in possession of that land until 2015 when the matter came-up in court. That Block 138 Plot 1 was subdivided into Plot 2 comprising of 900 acres, and Plot 4 and 5 comprises of 750 acres.

DW3 Daniel Nkalubo Sebugwawo, a son to the late Nelson Edmond Nkalubo 215 Sebugwawo, testified that in 1981, after the death of the then caretaker of the 750 acres, his father appointed the late Yahwe John to care take the whole land measuring 2030 acres including the portion owned by Edward Nsimbi. That until 1996, he used to drive his father to the suit land and never saw PW1 or any claimant apart from bibanja holders. That throughout the 1980s and 1990s, his father did not survey and plot off his 750 acres but only chose a portion where the 750 acres would be curved out. That after discovering that Nanjovu Jane and Nasejje Norah had surveyed off 380 acres while PW1 had also gotten his 900 acres out of 1280 acres of land, he instructed his surveyor a one Bruno to get him a copy of the area schedule to establish the fate of his father's land. That his father did not know nor did he ever meet PW1 and had embarked on the process of challenging title deeds covering the 303 acres before he died. Further, that armed with letters of administration to his father's estate, DEXI, the administrators (John Luswata (now deceased) and the 6^th defendant) made complaints to the Police and to the 2^nd Defendant against PW1 to the effect that their late father never sold land in Plot 4 and 5.

During cross examination, DW3 testified that his father was conversant with land matters since he was a Minister of finance in Kabaka's Government. That his

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father was aware that he had to get his land surveyed and get a certificate of title.

He however did not know when the Nsimbis surveyed their land and what portion was surveyed, but that he was given responsibility of Sebugwawo's land after the Nsimbi's had done their own survey. Further, that he did not know that the Nsimbis had sold 900 acres to PW1 or that there was a court case in respect of the same. Lastly, that he got to know his father's land after checking at the Land Registry, and did not have interest in it until after his father's death in 2015.

DW4 (Mawejje Wilson the holder of powers of Attorney for Defendant no.6 Serukebera Edmond Sebugwawo) testified that the 6^th defendant is the surviving administrator to the estate of the late Nelson Edmond Nkalubo Sebugwawo which estate includes an area covering Plots 4 and 5 on Block 138 land at Gomba. That the late Nelson Edmond Nkalubo Sebugwawo has never sold the said land to PW1, and that the late Nkalubo was in possession of it through a care-taker called John Yawe. That sometime in 1985, PW1 had a conflict with the late Nsimbi Edward regarding 900 acres of the whole land which saw Plot 1 subdivided and PW1 took off the 900 acres but never plotted it leaving a residue of 380 acres for Nsimbi, and relied on DEX 8, an internal memo indicating that the Plots were never plotted to support his testimony. He also stated that PW1 forged a sale agreement showing that the late Nkalubo had sold to him 750 acres of land out of Plot 1, which was impossible since that did not exist in April 1986.

DW5 testified that in 2003 as they moved in search for water and pasture for their cows from Western Uganda, they reached lake Wamala and inquired about land upon which they were directed to the late Yawhe John, a caretaker, and late Nelson Edmond Nkalubo Sebugwawo, the owner. That they grazed on the land from 2003 to 2005 and got an idea of permanently acquiring it. That he was eventually taken to Nelson Edmond Nkalubo Sebugwawo's home with whom he discussed an offer to acquire 90 acres of land. That the late Nelson Edmond Nkalubo Sebugwawo referred him to the 5^th defendant with information that he

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was dealing with issues of the suit land and agreed to sell to him part of Plot 9 after concluding mutation processes. That in the process of mutation of Plot 9, they were stopped by PW1 and he immediately informed DW3 and the late Nelson Edmond Nkalubo Sebugwawo about that.

During cross examination, DW5 reiterated that in 2003, he went to Lake Wamala with Yahwe when his cows had no water and that he used to rare his cows on the land. That **PW1** stopped the survey of the land by **D. W.5** in 2015.

In my evaluation of the above evidence, a perusal of $DEX2$ , which is a certificate of title for plot 1 on block 138 (formerly Mailo Register Volume 169 Folio 17), shows land measuring 2030 acres of which the 1280 is indicated to belong to Edward Nsimbi and 750 belongs to Nelson Edmond Nkalubo Sebugwawo. This evidence thus shows that Edward Nsimbi and Nelson Edmond Nkalubo Sebugwawo owned the whole Block 138 Plot 1 land at Luzira Gomba.

PW1, Kakande Aloysious, tendered a sale agreement dated 17 of April, 1986 which was admitted as PEX5. He claimed that he purchased 750 acres of land from Nelson Edmond Nkalubo Sebugwawo and that it was part of land comprised in Gomba Block 138 Plot 1, Luzira Estate.

The Defendants disputed PEX 5 and alleged forgery of the signature of the vendor, Nelson Edmond Nkalubo Ssebugwawo, by PW1. They equally assert that vendor could not have sold to the Plaintiff a non-existent plot, that is Plot 1; because the same had ceased to exist at the material time. They relied on **DEX4** which is a letter from the Commissioner Land Registration calling for the hand writing expert's report with the sample documents which were examined and DEX5 which is the hand writing expert's report to allege that PW1 committed forgeries at the time of the stated purchase of the 750 Acres.

Similar to fraud, forgery must be proved to a standard beyond the balance of probabilities. Consequently, in Wandera Stephen Vs Good Man Agencies & 2 Ors, HCMA No. 680/2021, my brother Sekaana J held that:

Hadding. Page 11 of 29

Additionally, the aspect of the alleged forged signature of the Applicant if raised as in this matter can be dealt with only through a suit in which evidence of the alleged forgery can be adduced and scrutinized through cross examination as fraud is of strict proof .... The handwriting expert report generated specifically for purposes of denying the signature on a specific document should be cautiously admitted since it is made to achieve an *intended aim.*

The piece of evidence relied on by the 4^th and 5^th Defendants to impute forgery on PW1 is *DEX5*, a forensic investigation report dated 25/05/2017 prepared by Chelengat Sylvia (a forensic document examiner). She concluded at page 3 that "based on the observations made above, in my opinion there is strong evidence to show that the author of the sample signatures in exhibit B marked B1, C marked C1, D marked D1, E marked E1, F marked F1 and G marked G1 did not sign the questioned signature in exhibit A Marked A1".

- However, *Exhibit A* relied on by the examiner to examine other documents is a mutation form. There is no indication that PEX 5, a sale agreement between 305 Nelson Edmond Nkalubo Sebugwawo and Aloysius Kakande, has ever been examined. Consequently, the inference is that the forgery of PEX5 by the Plaintiff was not proved. Accordingly, there is no evidence contradicting the validity of *PEX5*. - It is settled law that once a contract is valid, it automatically creates reciprocal 310 obligations between the parties thereto; and that when a document containing contractual terms is signed, in the absence of fraud or misrepresentation, the party signing it is bound by its terms (See. William Kasozi Vs DFCU Bank Ltd HCCS No. 1326 of 2000). To that extent, I find that the Plaintiff proved the existence of a contract under which he purchased of 750 acres of land from 315 Nelson Edmond Nkalubo Sebugwawo. Consequently, I find the first issue in the affirmative.

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## Issue No. 2: Whether the registration of the plaintiff on land comprised in Gomba Block 138 Plot 2, 4 and 5 was lawful?

In Consideration of Plot 2, Counsel Sserunjoji for the 4^th and 5^th defendants submitted that Block 138 Plot 1 was registered in two names, that is; Edward Nsimbi who owned 1280 acres and Nelson Edmond Nkalubo Sebugwawo who owned 750 acres. That the two were registered as proprietors of Unascertained Parcel (PUP) which meant that they were tenants in common. He defined tenants in common by relying on Osborn's Concise Law Dictionary, 7th Edition, to imply a situation "where two or more persons are entitled to land in such a manner that they have un-divided possession...that is no one of them is entitled to the exclusive possession of any part of the land being entitled to occupy the whole in common with others".

Counsel argued that any action that was to be done on any part of the aforesaid 330 land first needed ascertainment which could be done by both tenants. That the mutation form that created Plot 2 had to be signed by both Nsimbi Edward and Nelson Edmond Nkalubo Sebugwawo. Further, that the decree of court between the Plaintiff and Nsimbi Edward did not do away with that requirement. Additionally, that the Plaintiff not being the registered proprietor of Plot 1 signed the mutation form, PEX I, as owner which was unlawful and illegal since a person who is not an owner cannot sign on a mutation form or a transfer form as envisaged under Sections 95 and 96 of the Registration of Titles Act.

In resolving this issue, Section 59 of the Registration of Titles Act Cap 230 340 gives absolute ownership of land to the registered proprietor, together with all rights and privileges belonging thereto save for fraud. The best way of confirming ownership of registered land is by doing a formal search at the 2^nd Defendant's registry (Adrabo Stanley Vs. Madira Jimmy Civil Suit No. 0024 345 of $2013$ ).


I already noted that Plot 2 was vested into the Plaintiff as a result of a judgment. In that judgment, Manyindo J. (as he then was) was alive to the issue of coownership. Notwithstanding that, he nevertheless ordered Nsimbi Edward to cause the transfer of the decreed land by signing transfer forms in favor of PW1. Accordingly, it would be irregular for this court to revisit the court's conclusion in that judgment. Therefore, I am unable to entertain Counsel for the 4^th and 5^th Defendants' submission about a tenancy in common. Since the judgment was passed in rem, I find that the Plaintiff's registration on Plot 2 was lawful. I now consider the registration of the Plaintiff on plots 4 & 5.

PW1 testified that the vendor in PEX 5 caused a survey of 750 acres of land in Block 138 Plot 4 & 5, executed the necessary instrument of transfer hence becoming the registered proprietor on 5/11/1986 and a certificate of title was issued to that effect (PEX 6).

The Defendants' evidence was that PW1 used forged mutation forms in September 1986 for Plot 1 Block 138; and that he surveyed 750 hectares equivalent to 1853.25 acres yet the remaining land at the time was less than the mentioned acreage.

DW2, Mr SSekitto Moses, testified that they received a complaint on 10/12/2017 from Serunjogi & Partners Advocates indicating that PW1 got registered on Block 138 Plots 4 and 5 erroneously as the land had never been transferred by Nelson Edmond Nkalubo Sebugwawo. That the findings showed that PW1 had, in September 1986, used forged mutation forms and purported to subdivide Gomba Plot 1 into Plots 4 and 5 measuring 750 acres yet Plot 1 had ceased to exist by 1985; that the Senior Staff Surveyor Mpigi MZO confirmed that Plots 4 and 5 did not appear on the cadastral map; that the deed plans in PW1's title were different from those on the cadastral sheets and were not plotted; that PW1 altered the acreage of Plots 4 and 5 from 303.7 acres as it appears on the area schedule form to 750 acres.

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Holig

DW4 further testified that PW1 used a forged mutation form to mutate a nonexistent Plot 1 under DEX 3. In cross examination, he stated that the mutation form was forged as per the forensic report of the police handwriting expert admitted as *DEX5*. That the real acreage was 303 acres in the system, but PW1's plots 4 & 5 comprise of 750.05 acres. In addition, DW3 stated that a forensic investigation report showed that the late Nelson Edmond Nkalubo Sebugwawo's signature on the mutation form which created Plot 4 and 5 was forged, and made reference to DEX 4 and DEX5. Further, that the mutation form for Plot 4 and 5 was a nullity for having been curved out of Plot 1 in 1986 which plot ceased to exist in 1985 and that the Kalamazoo had a Plot 4 measuring approximately 15.5 acres and Plot 5 measuring 288 acres making a total of 303 acres.

Counsel for the Defendants relied on the case of Joseph Kaye Musisi Tooli Vs Kulubya Luuka HCCS No. 688 of 2007 and submitted that one cannot rely on non-existent land for anything including selling, subdivision or even bringing a cause of action. That DEX4 and DEX5 relates to the Plaintiff's fraudulent procurement of the title deed in Plots 4 and 5. That the Plaintiff did not contest the forensic report (DEX5) and that its probative value be taken as true. He further relied on Section 66 of the Evidence Act to submit that it was incumbent on the Plaintiff to prove that Nelson Edmond Nkalubo Sebugwawo signed the impugned documents which he failed so to do. That the Plaintiff failed to avail a certified copy of a transfer form for the 750 acres as ordered by Court on 29/08/2022 and instead informed it that transfer forms were not found. He reiterated that the sale agreement dated 17/04/1986 and the mutation form to create Plots 4 and 5 were made out of a non- existent; and that the late Nkalubo's signature on the mutation form which created Plot 4 and 5 was forged.

From the above evidence, the trend of registration of parties on different plots must be viewed against the background of the facts. It is a fact that Block 138 Plot 1 measured 2030 acres and was owned by two people. The facts also show

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that the first owner sold part of his land to PW1, but did not relinquish the interest of the 2^nd owner. In Civil Appeal No. 0012 of 2019 Auma Lillian Vs David Livingstone Lakony, my brother Mubiru J observed that "all tenants in common have distinct and separable ownership of their respective interests, in other

words every tenant in common owns a distinct share or interest in the land which may be equal or unequal".

In light of the facts and the above authority, it means that by 1986 after the Plaintiff had surveyed 900 acres under Plot 2 (by 13^th January 1984, as indicated in *PEX1* and confirmed by a copy of a certificate of title showing his registration on 3^rd January, 1986, the residue of Plot 1 must to have been 1130 acres. DW2 confirmed this when he stated that Plot 1 was subdivided into Plots 2 and 3 measuring 900 and 1130 acres respectively. There is no evidence that Plot 3 remained registered in the names of Nelson Edmond Nkalubo only. Therefore, the inference is that that plot remained registered in the names of Nelson Edmond Nkalubo Sebugwawo and Edward Nsimbi. Further, the evidence shows that the former owned 750 acres, hence implying that the latter owned only 380 acres of Plot 3. For that cause, I am unable to conceive the Defendants' contention that the real acreage of Plot 3, in the system, was 303 acres as opposed to the 750 acres or more, as claimed by the Plaintiff. This is so because the residue land, following the subdivision of Plot 1 into Plot 2, was 1130 acres and this was comprised in Plot 3. DW2 confirmed that. It would be contradictory to conceive that Plot 3, or that the residue, was 303 acres.

Further, it is certainly true, as PW2 and the Defendants have asserted, that by 1986, when the Plaintiff acquired 750 acres of land from Nelson Edmond Nkalubo Sebugwawo, Plot 1 had ceased to exist. Nevertheless, in 1986 PW1 lodged documents depicting a non-existent plot 1, and the $2^{nd}$ defendant acted upon them despite her record showing otherwise. The description of a nonexistent plot 1 in those documents like DEX3 (mutation form, see the box labelled

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"out of plots" no 1 and PEX 5) was probably an error on the part of the Plaintiff 430 and Nelson Edmund Nkalubo Sebugwawo, in addition to that the Second counter claimant Daniel Nkalubo Sebugwawo also on page 5 of the counter claim mentioned that his late father owned 446.39 acres of land which had been a residue from **plot 1**. From the time this residue was created **Plot 1** had ceased to exist in 1986 after the first mutation of plot 2 of 900 acres this left a residue in 435 **plot 3** of 1130 acres and the subsequent plots that were created afterwards. The mention of **plot 1** was also maintained further by the $2^{nd}$ Defendant who

failed to rectify the Register Book too. That alone, however cannot be a basis of imputing forgery on the Plaintiff, except where further evidence dictates so.

That further evidence was adduced by DW1, DW3 and DW4 the Attorney for 440 **Defendant no 6.** In their counter claim who relied on *DEX 5*, a forensic report. However, the author of **DEX5** was not called as a witness in this court by the Defendants hence diminishing its evidential value. In Iwa Richard Okeny Vs Obol George Okot HC Misc. Application No. 63/2012) my brother Mubiru J. pointed out that "unless his or her attendance is waived by the opposing party, 445 the expert witness must be subjected to cross-examination in court; mere submission of opinion by an expert through any certificate or any other document is not sufficient". Accordingly, I am unable to rely on DEX5 to infer forgery on the part of the Plaintiff.

The Plaintiff's Counsel relied on Section 90 of the Evidence Act which provides 450 that:

> When any document, purporting or proved to be 30 years old is produced from any custody which the court in the particular case considers proper, the court may presume that the signature and every other part of that document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that, it was


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duly executed or attested by the persons to whom it purports to be executed *and attested".*

Counsel argued that by the time the Defendants disputed the said mutation form, it had been in custody of 2^nd Defendant and had been acted upon for over 30 years by Officials of the Department of Surveys and Land Registry. I do agree with the above submission, especially since **DEX3** was lodged for registration on 5^th of November, 1986. I find no other reliable evidence discrediting it.

It is needful to add that in Lalwak Alex Vs Opio Mark Civil Appeal No. 078

of 2018, My brother Mubiru J., noted that "some documents are selfauthenticated such as ancient documents, recorded deeds and other documents over 30 years old". Consequently, I presume that the signature on **DEX3** is that of Nelson Edmond Nkalubo Sebugwawo.

In conclusion, I find that the 4^th and 5^th Defendants/counterclaimants and the 6^th defendants have not proved to the required standard any fact defeating the Plaintiff's registration on land in Plot 4 and 5. Accordingly, I resolve the second issue in the affirmative and this also resolves the allegations in the counter claim in the negative.

Issue No. 3: Whether the registration of the 4^th Defendant as registered 475 proprietor of land comprised in Gomba Block 138 Plot 8 was lawful? The title of a registered proprietor is indefeasible except in case of fraud (*Section* 59 and 176 of the RTA). The fraud must be strictly proved against the transferee, at a standard higher than balance of probabilities applied in civil matters but not as high as reasonable doubt (KCB Bank Uganda V Paul Alinda HCCA No. 480 $37/2018$ ).

> DW1 testified that in mid 2000s, he bought land comprised in Block 138 Plot 7 measuring 1280 acres; that the vendors were the registered proprietors of the said land; and that he is a bonafide purchaser for value. That before purchase, he conducted due diligence through his lawyer Ms. Nina Kavuma (now deceased)

> > Page 18 of 29

on the said land and letters of administration. That on further inquiries, he was informed by the vendors that the land was initially 2030 acres; that 750 acres belonged to Nelson Edmond Nkalubo Sebugwawo, and 1230 acres belonged to their father Edward Nsimbi who obtained it as a gift from his father (vendors' grandfather). That he visited the said land and found it to be occupied by the vendors. That after he paid for it, he was later informed by one of the vendors that a person was claiming that it was wrongly plotted hence asking them to refund his money or find him alternative land. That the vendors offered him Plot 8 and, since he did not want to lose his money, he agreed to take it.

However, during cross examination, DW1 testified that he did not do due diligence at first but he did it later. That he did not find out that PW1 had a certificate of title for Plot 4 and 5 and was not interested in knowing what PW1 owned. That he does not know who did the survey of the land but, gave out money for the exercise. That after 2014, he wanted to use his land but PW1 informed him that his plot 8 partly seat on his plot 2 hence this land dispute. That he has been occupying part of the land since 2014, and that PW1 occupies part of it.

In my analysis of this issue, PW1 gave evidence under paragraph 31 of his witness statement suggesting that he was in possession of his land at the time the 4^th Defendant acquired Plot 8. He added to this during re-examination by stating that he has been in possession of that land until 2018 when the matter came-up in court. This evidence was confirmed by DW1, during cross examination, by stating that PW1 occupies part of his land on Plot 8.

It is settled law that a purchaser is guilty of fraud if he or she does not make a proper inquiry on the vendor and the land itself. Thus in Sir John Bageire Vs Ausi Matovu CACA No. 7 of 1996, Okello J. rightly observed that "lands are not vegetables which are bought from unknown sellers. Lands are very valuable

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Address

properties and buyers are expected to make thorough investigations not only on the land but also of the owner before purchase".

In this case, DW1 had a duty to make inquiries about the occupants on Plot 8, in this case PW1. In addition to that, the High Court in Jimmy Tumwine vs. Frank Nkurunziza & Anor HCCS No. 479 of 2002, held that having knowledge of any such fact, and not making any inquiry from the person in physical possession of the land constitutes constructive notice of the interest of the person in possession.

In this case, it is highly probable that the $4^{th}$ defendant had constructive notice of the Plaintiff's right to Plot 8, considering that the latter was in possession when the 4^th Defendant bought Plot 8.

Furthermore, in Omar Salim Mukasa vs. Hajji Mohammed & Anor CACA No.114 of 2003, the Court of Appeal held that having constructive notice is deemed to constitute fraud in the words below:

In equity constructive knowledge is deemed to constitute fraud. In the instant case, the second respondent saw the appellant's house built on the suit land. If the second Respondent had inquired, they would have discovered the appellant's interest on the suit land but did not do so. That was evidence of *fraudulent intension to defeat the Appellant's interest.*

However, it also on record in *DEX6* in the letter dated $3^rd$ July 2015 in which the Commissioner Land Registration then Ms. Sarah Kulata Basanga advised the District Surveyor of Mpigi then to allow the owners of plot 8 go ahead with their transaction because the Mpigi land office did not have plots 2,3, and 4 in the Cadastral sheet and she doubted their authenticity.

It is also **DW2's** evidence that after the creation of plot 2 measuring 900 acres the residue in plot 3 was 1130 acres this was divided further into plot 4 measuring

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15.35 acres and plot 5 measuring 288.4 acres leaving a residue of plot 6 with 826.25 acres That on 5^th November 1984 under instrument number KLA 121171 Nelson Edmond Nkalubo Sebugwawo was registered on plot 4 block 138 measuring 750 acres. Kakande Aloysious PWI also got registered on plots 4 & 5 under instrument number KLA121173 on the 5^th November 1986 (see paragraph 2.5-2.9 of DW2's witness statement)

- In paragraph 2.10 DW2 further states that the 826.25 acres in plot 6 were 545 subdivided into plots 8 measuring 380 acres and plot 9 measuring 446 acres; and that on 10^th January 2007 a cancellation of Plot 7 on block 138 was done because it was comprising of land on the titles in the already existing plots 2,4, and 5 that this resulted in the restoration of plots $2,4$ , & 5 on the cadastral sheet. - That after the above cancellation, a new certificate of tittle was issued for plot 8 550 in the names Jane Nanjovu and (the Administrators of the estate of Late Nsimbi Norah Nassejje. It is also the evidence of DW1, Ruviima, that when plot 7 was cancelled, he demanded for a refund of his money from the Administrators of the Estate of late Nsimbi who offered him their residue in plot 8 measuring 380 acres. - It's not in dispute that when Plot 2 was created in 1986 off the late Nsimbi's 555 portion of 1280 acres his estate remained with a residue of 380 acres which the two administrators sold to DW4 Ruviima. Therefore, if the 380 acres in plot 8 exist on Block 138, the only issue with this sale is the position of this plot 8 on the ground and on the cadastral sheet knowing that it was the residue for the late Nsimbi's Estate.

In addition, PW1 during cross examination he pointed out that he had no claim against the 4^th defendant's 380 Acres except that his plot is not in the right place.

During the locus visit, court confirmed PW1's & DW1's evidence that Plot 8 partly sits on plot 2. In PEX16, only plot 8 and 9 exists on the current cadastral sheet the earlier plots like 2, 4 and 5 and boundaries of plot 3 are not seen.

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$Adag$

$N_n$

In conclusion, I find that the 4^th defendant's registration on plot 8 was lawful. This resolves the first counter claimant James Ruviima's claim of 380 acres in plot 8 on block 138 in the affirmative save for its location on the suit land. The third issue **partially** succeeds.

Issue No. 4: Whether the registration of the 5^th Defendant as registered 570 proprietor of land comprised in Block 138 Plot 9 was lawful?

It was **DW3's** ( $5^{th}$ Defendant) testimony that to find ways of raising money for treatment of his father, his father gave him powers of attorney, DEX12 and **DEX11**, to handle his land. That he also signed transfer forms and mutation forms in his favor for the 750 acres so that he could plot and sell them and raise money. That he instructed his surveyor to get him a copy of the area schedule to find the fate of his father's land; and that he discovered that the land had been subdivided and the residue was Plot 9 with 446 acres. That he immediately reported to his father about the grabbing of the 303 acres to make 750 acres.

**PW1** reiterated his statements in the amended plaint in regards to Plot 9 and the 5^th Defendant. I am mindful of the same, and shall not reproduce them here. Counsel for the Defendants relied on *DW5*'s evidence and submitted that the late Nelson Edmond Nkalubo Sebugwawo knew his land, and gave powers to deal with it in 2003, to wit; a power of attorney, *DEX 12*, and a letter, *DEX 11*.

Counsel cited Kampala Bottlers Vs. Damanico (U) Ltd SCCA No. 22/1992 and Bugingo Wilfred Vs Willy Jagwe & Ors HCCS No. 359/2014, where it was held that fraud must be actual or some act of dishonesty and must be attributed to the transferee either directly or by necessary implication. Further, that the Plaintiff did not plead fraud anywhere in his pleadings and neither did he mention its particulars against the $4^{th}$ and $5^{th}$ Defendants to impeach their titles.

### **Resolution of the Issue No. 4**

**DEX 12** is a power of attorney dated $28/06/2006$ issued to the 5^th Defendant by Nelson Nkalubo Sebugwawo to manage and execute matters related to properties

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comprised in Gomba County P described as P. T. 86 T IV-56 FC 15675, FC 34374 and FC 11550 approximately 3 ½ square miles, and Block 516 Plot 4 at Kibanda. **DEX 11** is a letter written to the $2^{nd}$ Defendant dated 27/12/2012 notifying the Registrar of the registered proprietor's condition and need to protect his land against fraud. The land included Busiro Block 444, 445, 438 and 439 at Nkumba; Gomba P. T. 86 T IV-56 FC 15675, FC 34374 and FC 11550; and Singo Block 516 Plot 4 at Kibanda.

From the above analysis, it is evident that the late Nelson Edmond Nkalubo Sebugwawo did not list the land comprised in Gomba Block 138 as part of his property. Further, the late Nelson Edmond Nkalubo Sebugwawo did not also refer to any of the disputed land by its original or former description say, MRV 169 Folio 17 or Block 138 Plot 1 in the power of attorney. Interestingly, the 5^th Defendant's Lawyers did not also list any part of the suit land as part of the deceased's properties under DEX 11, despite DW3 and DW4's testimonies that they had knowledge of the land since 1980s.

Counsel for the 5^th Defendant argued that the Plaintiff did not plead fraud committed by the 5^th Defendant (or also 4^th Defendant) in acquisition of Plot 9. However, not specifically pleading fraud and its particulars is not fatal provided that the facts in the pleadings are such as to create an inference of fraud. This view is supported by the Supreme Court and Court of Appeal's decisions in **Fam** International Ltd & Anor vs. Mohamed Hamid El-Fatih SCCA No.16 of 1993; and David Nalima VS. Rebecca Musoke CACA No 12 of 1985. In the 615 latter case, the Court of Appeal specifically observed that:

> *According to my interpretation of the above authorities there are two courses* open to a plaintiff when he is drawing his plaint. He may specifically employ the word fraud and proceed to particularize the instances of fraud. Alternatively, he may set down a catalogue of allegations, without using the


word fraud, which clearly point to the Defendants state of mind. These are the tests I shall adopt in this case.

In this case, several paragraphs in the amended plaint gave the 5^th defendant, as well as the 4^th and 6^th Defendants, sufficient particulars of what acts the Plaintiff was alleging as fraud against them, namely, the making of false cadastral sheets or area land schedules or mutation forms, among others. Therefore, I find that the Plaintiff's pleadings satisfied the requirements of the law and find that no prejudice was occasioned to any of the Defendants in not specifically pleading fraud and its particulars.

Turning back to the gist of the issue; it is needful to add that the power of attorney 630 exhibited does not in way relate to the suit land. And even if it did, it only vested the 5^th Defendant only with authority to endorse and represent the donor in the matters of the said land, not to transfer it into his name.

Further, DEXI, shows that the administration of the estate of the late Nelson Edmond Nkalubo started on 28/07/2016, the same (letters of administration) was issued. However, the 5^th defendant became registered on the subject land on 14/04/2015 after approval *PEX 14*, an area schedule form dated 5/03/2015.

It is not clear when Nelson Edmond Nkalubo Sebugwawo died but if he was alive by 14/04/2015, then subject land ought to have been registered in his name given the absence of evidence in form of a transfer form executed by himself in favour of the 5^th Defendant. Corollary to that, DEX 10, a certificate of title, ought to indicate the predecessor of the subject land as Nelson Edmond Nkalubo. However, it indicates the 5^th Defendant as the original proprietor of the same.

In view of the above observations, it follows that there is no evidence upon which the court can infer the root of the 5^th Defendant's interest in Block 138 Plot 9. This court wonders what guided the 2^nd Defendant in registering the 5^th Defendant on this plot instead of Nelson Edmond Nkalubo Sebugwawo who was still alive.

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In the circumstances, I am constrained to believe the Plaintiff's evidence that the 5^th Defendant forged cadastral sheets and area land schedules in becoming registered on the said land. In addition to that, I am still mindful of PW1's evidence showing that he was in possession of his land by the time the 5^th Defendant acquired Plot 9. I believe this evidence. I find that the 5^th Defendant is guilty of constructive notice, and this was fraudulent.

In conclusion, I resolve the fourth issue in the negative.

### 655

## Issue No. 5. Whether land comprised in Gomba Block 138 Plot 8 & 9 overlaps that comprised in Gomba Block 138 Plot 2, 4 & 5?

In the instant case, there are four certificates of title in existence alleged to be in the same location. The Plaintiff's titles are described as Block 138 Plot 2 measuring 900 acres and issued on 3/01/1986, and Block 138 Plot 4 and 5 measuring 750 acres issued on $5/11/1986$ . On the contrary, the land in the 4^th Defendant's title is comprised in Block 138 Plot 8 measuring 380 acres, and the land in the 5^th Defendant's title is comprised in Gomba Block 138 Plot 9 measuring 446 acres.

PW2 gave evidence about the alleged overlapping of the two titles of the 4^th and 665 5^th Defendants on the Plaintiff's land. *PEX 16*, his survey report, indicates that Plot 4 and 5 do not exist on the current certified cadastral map, but that they exist as subdivisions of Plot 3 leaving a Plot 6 as a residue, according to the certified copy of the area schedule form obtained from MZO in Mpigi. It is emphasised that the existence of the said plots was testified about by DW2, an Acting 670 Principal Registrar of Titles.

> PEX 16 also shows that mutation forms obtained from the Lands Registry showing that Plot 4 and 5 were mutated out of Plot 1, but this differs from the testimony of DW2 and the Kalamazoo which suggest that they were mutated from Plot 3. It also shows that the field surveyor's entry reveals that Plots 4 and 5 at the time of mutation were surveyed forming 750 acres.

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Further, *PEX16* reveals that the entry in the Drawing Office section shows that an error was made regarding the mutated areas but was later amended by cancellation and that the Drawing Office Supervisor appended his signature consenting to the amendments. That plot 8 and 9 exist after mutation of plot 6; and that they exist on the certified cadastral map obtained from the department of surveys and mapping although the certified copy of the mutation form for their entry was not available at the lands registry. That the position of Plot 8 and 9 overlap with the position of Plot 2 and 5; and that the mutation form reveal Plot 9 as an independent mutation yet the Kalamazoo captures it as a residue plot. That the cadastral sheet shows only two plots, 8 and 9 which came out of Plot 6 but, the boundaries for Plot 6 cannot be traced.

Furthermore, that Plot 6 was a residue and is a mother Plot of Plot 8, and Plot 9 upon subdivision of Plot 3 into plots 4, 5. However, that no boundaries for Plot 3 can be identified on the cadastral sheet which shows a blank space; and that the plotting of Plot 8 and 9 shows that the entire block of Plot 6 was sub-divided into plot 8 and 9. In conclusion, summarily, Plot 3 cannot exist without trace of Plot 2 which renders the cadastral map in its current state unreliable for any technical decision.

Counsel for the 4^th to 6^th Defendants submitted that if court follows the Plaintiff's 695 deed print which does not correspond with the information on the cadastral sheet/map, it will find that the 4^th Defendant's Plot 8 was superimposed on the Plaintiff's Plot 2. He stated that in Bugingo Wilfred Vs Willy Jagwe & Ors, supra, Justice Bashaija Andrew, while faced with an issue of overlapping titles, relied on the District Staff Surveyor and another licensed surveyor's report to 700 hold that it is impossible for a Commissioner of Lands and Survey to issue deed prints from the cadastral sheet that overlap another plot. That the Commissioner uses the first come-first plotting method on the cadastral sheet and that therefore, there is no way he could create two prints overlapping each other.

| Page 26 of 29 | $\frac{1}{2}$ | |---------------|---------------| | | |

705 I am mindful though that **Bugingo Wilfred Vs Willy Jagwe & Ors, supra, is a** High Court decision and does not bind me; it is only persuasive. However, I am not inclined to follow it in view of the peculiar facts of the instant case.

With regard to those facts, I am mindful of Section 48 of the Registration of Titles Act (Cap 240 of the 7^th Revised Edition Laws of Uganda 2023) on priority of instruments in relation to their date of registration. Having looked at DEX 2, a certificate of title for Mailo Register Volume 169 Folio 17 registered in the names Edward Nsimbi and Nelson Edmond Nkalubo Sebugwawo, it is evident that it was brought onto the new Register Book on 6/01/1961 as Gomba Block 138 Plot 1. The first sub-division of the said Plot 1 was created by **PEX1**, mutation forms dated 13/01/1984, and PEX2, the area schedule form for Block 138 dated $28/10/1985$ .

Upon a comparison of the deed prints of $DEX$ 10, the 5^th Defendant's title, $PEX$ 3, PEX 6, and a sketch map of the locus in quo, I observe that Plots 9 and 8 were created out of Plot 2 and 5. This observation is further supported by **DW1's** evidence that he and the Plaintiff uses part of Plot 8. Besides PW2's evidence, no reliable evidence was led about the genesis of Plot 6 and its subdivision into Plots 8 and 9. DW2 gave some evidence on the subject, but I found it unreliable for the inconsistences in it. He stated that Plot 1 was subdivided into Plot 2 and 3 which measured 900 and 1130 acres respectively, which is undoubtedly true. However, he added that Plot 3 was subdivided into Plots 4 and 5 measuring 15.35 acres and 288.5 acres respectively hence leaving Plot 6 as a residue with 826.25 acres but stated also that Nelson Edmund Nkalubo was later registered on Plot 4 measuring 750 acres; which is illogical because Plot 4 could not have measured 15.35 acres initially but enlarged to 750 acres on registration in the name of Nelson Edmund Nkalubo Sebugwawo.

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Having carefully considered and evaluated all the evidence, and considered the submissions of Counsel, I find that Plots 8 and 9 overlap the land in Plots 2, 4, and 5. Accordingly, I resolve the fifth issue in the affirmative.

#### **Issue No. 6:** What remedies are available to the parties? 735

The 4th and 5th Defendants raised, by implication of their counterclaim, an issue about the 2^nd Defendant's rectification of the Register Book in respect of Block 138 Plot 4 and 5 on the 22/02/2019. The Plaintiff had pleaded similar allegations in that respect. The Plaintiff's Counsel raised an additional issue as to whether that the 2^nd Defendant's action was lawful. I find it pertinent to first resolve the issue in order to completely dispose of the counterclaim.

The evidence suggests that in doing so, the $2^{nd}$ Defendant acted under Section 91 of the Land Act Cap 227 now Section 88 of the Land Act Cap.236 (Revised 7th Edition The Laws of Uganda 2023); and cancelled on block 138 plot 7 on 10/1/2007 under instrument No. KALA319546 and plots 4 & 5 later on 22/02/2019. However, the allegation upon which she acted involved fraud According to the decision of the Supreme Court, the 2^nd Defendant has no power to cancel title and rectify a Register Book upon allegations of fraud. That power is reserved vested in the High Court (Hilda Wilson Namusoke & 3 Ors vs. Owalla's Home Investment Trust (E. A) Limited Supreme Court Civil Appeal No. 15 of 2017). Accordingly, I find that the 2^nd Defendant's action was unlawful. I shall now determine the remedies the Plaintiff is entitled to. Having found no fault in the Plaintiff in respect of land in Gomba Block 138 Plots

2, 4 and 5, the court enters judgment in his favour and invokes Section 37 of the

# Judicature Act Cap.16 (Revised 7^th Edition The Laws of Uganda 2023).

Accordingly, the following Reliefs are awarded:

a. A declaration that the Plaintiff is the lawful owner of land comprised in Gomba Block 138 Plot 2, 4 and 5 at Luzira Estate.

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- The 2nd defendant is ordered to reconstruct the cadastral sheet to restore plot $\mathbf{b}$ . 2 with the 900 acres it comprised of in 1986 when the title was issued and the subsequent plots $3, 4, 5, 6$ and $8$ - The $2^nd$ defendant is ordered to cancel the certificate of title of registration of $\mathbf{C}^{\perp}$ the 5^th Defendant as the registered proprietor of land comprised in Gomba Block 138 Plot No. 9. - 765

d. The 4^th and 5^th Defendants are ordered to surrender to the 2^nd Defendant the duplicate certificates of title for land comprised in Gomba Block 138 Plots 8 and 9 for rectification of the Register Book within 60 days of this judgement.

- e. An eviction order is issued against the $4^th$ defendant from the **portion** of plot 8 that overlaps into plot 2 on block 138 bland at Gomba. - 770

- f. An eviction order against the 5^th Defendant from the Plaintiff's land described in $(a)$ above. - g. A permanent injunction is issued to restrain the $5^th$ and $6^th$ Defendants, their agents, servants or persons acting on their behalf from trespassing on, or claiming any interest in plots 4 and 5 block 138 land described in (a) above. - h. The plaintiff is awarded Ugx. 80,000,000 as general damages payable by the $5^th$ and $6^th$ Defendants, jointly and severally. - The costs of the suit shall be paid jointly and severally by the 1^st, 5^th and 6^th i. Defendants.

Signed, dated and delivered at Mpigi this 25 day of September 2024. 780

Nabakooza Flávia. K CERTIFIED TRUE COPY OF THE **Judge**