[2025] UGHCLD 135

#### **THE REPUBLIC OF UGANDA**

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

## **CIVIL SUIT NO.808 OF 2007**

#### **(LAND DIVISION)**

**1. DR. MICHAEL NTEGE ::::::::::::::::::::::::::::::::::::::: PLAINTIFFS**

#### **2. MRS. BINTU CONTE**

**(Both suing through their Attorney, Mr. Kakooza Kenneth)**

### **VERSUS**

- **1. ISMAIL KABALI** - **2. SAMUEL GENZA** - **3. SAFINA NAKIMULI** - **4. NAMALA SOPHIA** - **5. KALIBBALA SALONGO ::::::::::::::::::::::::::::::::::::::: DEFENDANTS**

### *BEFORE HON. LADY JUSTICE KANYANGE SUSAN*

## **JUDGMENT**

The Plaintiffs brought this suit against the Defendants for damages for trespass, permanent injunction, eviction orders, mesne profits, and costs of the suit.

#### **Background to the Case**

The Plaintiffs purchased land known as Kyadondo Block 266 Plot Nos. 967 and 1332 Seguku from Herman Bukenya & Florence Warugaba, and William Henry Sentoogo and were consequently registered as owners holding the land as tenants in common in equal shares. After the said purchase, the land was fenced off and put under the care of Mr. Kenneth Kakooza as caretaker.

On or about January 2007, the defendants, their agents, and or servants, without any right, broke through the fence so erected. The defendants trespassed onto the 2 plots and immediately started erecting illegal structures on the said land, claiming it was theirs. Despite several warnings from the local authorities to the defendants to stop their illegal acts of trespass, the defendants have continued to trespass on the 2 plots to the detriment of the Plaintiffs.

**In the 2nd and 3rd Defendants' Amended Written Statement of Defence,** the Defendants averred that the 1st Defendant, together with Namala Sophia and Kalibbala Salongo, are beneficiaries/administrators of the Estate of the Late Kalanzi Bivanju and beneficial owners of the suit land formerly comprised in


Kyadondo Block 266 Plot 305. Before his demise, the late Kalanzi Dauda Bivanju occupied and utilized the suit land for over 29 years.

The Defendants are purchasers for value, having bought and obtained an interest from the family of the Late Kalanzi Bivanju. The Late Kalanzi Bivanju acquired the suit land by way of purchase under an agreement from the late Samwiri Walusimbi, the registered proprietor of Kyadondo Block 266 Plot 305, and the agreement was handed over to the Defendants. The family of the Late Kalanzi Bivanju occupied and utilized the said property for over 40 years until they sold the same to the Defendants on 4th January 2007.

Upon the sale, the Defendants took possession and developed the suit property and are currently constructing a storied building thereon. Since the Plaintiffs acquired their interest through Herman Bukenya and William Henry Sentoogo, who neither had a right nor authority, the Plaintiffs had nothing. The Plaintiffs acquired the suit land fraudulently and with full knowledge of the defendants' occupation and agricultural developments.

**In their amended counterclaim,** the 2nd & 3rd Defendants/Counterclaimants averred that the family of the Late Kalanzi Bivanju, by an agreement dated 10th December 1987, obtained interest on property described as Block 266 Plot 305 Kyadondo. The said agreement was entered into between the then-registered proprietor, the Late Samwiri Walusimbi, and the Late Kalanzi Bivanju as purchasers. At the time of the death of both parties, i.e., Walusimbi and Bivanju, the property had not been transferred.

Sometime in 2007, after selling their interest, the family of the late Kalanzi Bivanju was surprised to learn that a 3rd party (the plaintiffs) had titles and was claiming an interest in the suit property. The family of the late Kalanzi Bivanju, through their cultural representative, the defendants, applied for a caveat to protect their interest. On searching the registry in Lands, it was found that the property was passed onto William Henry Sentoogo without transfers, and the instrument effecting transfer on the title was fraudulently obtained.

In **Reply to the 2nd & 3rd Defendants' Amended Written Statement of Defence,** the Plaintiffs contended that they lawfully acquired the suit land from Herman Bukenya, Florence Warugaba, and William Sentongo, who were at the material time lawfully registered as proprietors of the said land. After the purchase of the suit land, they fenced off the said land and put it under the care of Kenneth Kakooza a caretaker, who is the current holder of Power of Attorney.

On or about January 2007, the defendants, their agents or servants, trespassed on the said land and started erecting illegal structures, claiming it was their land. The Plaintiffs contended that the family of the late Kalanzi Daudi Bivanju never had an interest in the suit land and could therefore not pass a better title to the Defendants. The Plaintiffs denied that the family of Kalanzi Daudi Bivanju occupied the suit land for over 40 years. The Defendant's entry on the suit land was without the permission and consent of the Plaintiffs. The Plaintiffs exercised due diligence through their then-attorney Brian Tendo before purchasing the suit land.

In **Reply to the 2nd & 3rd Defendants' Amended Counterclaim,** the Plaintiffs denied knowledge of the sale agreement between the late Kalanzi Bivanju and the late Samwiri Walusimbi. The Plaintiffs contended that they obtained the transfer forms before getting registered as proprietors on the suit land. That the defendants' alleged acquisition of interest in the suit land is tainted with fraud.

In **Reply to the 2nd & 3rd Defendants' Written Statement of Defence and Counterclaim,** the 3rd, 4th, and 5th Defendants to the counterclaim averred that they disposed of the suit land to the counterclaimants to among others, to enable them to process letters of administration. Upon the grant of letters of administration, the 3rd, 4th, and 5th Defendants agreed with the counterclaimants to process a land title in favor of the counterclaimants, upon which the 3rd, 4th, and 5th Defendants would receive their balance.

That sometime in 2007, after selling their interest, the family of the late Kalanzi Bivanju was surprised to learn that a 3rd party (the 1st and 2nd Defendants to the counterclaim) had Certificates of title and were claiming to have an interest in the suit property, whereas not. Upon searching the registry, the 3rd, 4th, and 5th Defendants were shocked to find that the suit property was transferred into the name of William Henry Sentoogo without transfer forms, and the instrument number effecting the purported transfer was fraudulently obtained.

That the 1st and 2nd Defendants to the counterclaim acquired their interest through Herman Bukenya and William Henry Sentoogo, who neither had a right nor authority, and their registration on the suit land was fraudulent. The 1st and 2nd Defendants to the counterclaim acquired the suit land fraudulently and with full knowledge of occupation, agricultural activities, and developments by the family of the Late Kalanzi Bivanju.

In **Reply to the Written Statement of Defence and Counterclaim by the 3rd, 4th, & 5th Defendants,** the Plaintiffs/1st & 2nd Counter Defendants contended that they lawfully acquired the suit land. They are bona fide purchasers for value without notice of title defects, if any, by the previously registered proprietors. The 1st and 2nd Defendants to the counterclaim denied the allegations of fraud

and prayed that the reply of the 3rd, 4th, and 5th Defendants to the counterclaim be dismissed with costs.

# **Legal Representation**

**M/S Kajeke, Maguru & Co. Advocates** represented the Plaintiffs/1st & 2nd Counter Defendants. **M/S Stanley Omony & Co. Advocates** represented the 2nd & 3rd Defendants/Counterclaimants. The 4th & 5th Defendants/3rd, 4th, and 5th Counter Defendants were represented by **M/S Lubega, Matovu & Co. Advocates.**

In **a consent decree** dated **11th/March/2016,** which the Court **endorsed** on **19th/May/2016,** the Plaintiffs withdrew the suit against the 1st Defendant, and the 1st Defendant withdrew the counterclaim against the Plaintiffs.

**However,** the 1st Defendant is a 3rd Defendant in the 2nd & 3rd Defendants' Counterclaim.

In the **Joint Scheduling Notes** dated **19th May 2017,** the Parties agreed on the following issues: -

- 1. Whether the Late Kalanzi Daudi Bivanju had any interest in the suit land? - 2. And if so, whether the Counterclaimant acquired any interest in the suit land? - 3. Whether the Plaintiffs acquired the suit land lawfully? - 4. What remedies are available to the Parties?

# **Plaintiffs' Evidence**

Counsel for the Plaintiffs/1st & 2nd Counter Defendants led evidence of three (03) witnesses, **Kenneth Kakooza as PW1, Brian Tendo as PW2, and William Henry Ssentoogo as PW3.**

**During cross-examination, PW1** testified that he was not present at the time when the land was purchased. He told the Court that it was he who fenced the land. He is still the caretaker of the land. On the land, there is now Salongo, who is selling murram.

**PW1** stated that Salongo is a trespasser along with others. They took action against Salongo. They first noticed in 2007. They reported to the police the whole family of Mr. Kalanzi. They went to Buganda Road Court.

According to Defendants' T/Bundle page 89. The Ruling reads that the accused was discharged. He did not appeal. **PW1** stated that Mr. Genza was also one of the trespassers. He is not sure if they have documents against Genza.

**PW1** testified that the documents relating to the survey were kept by Brian Tendo. He does not have them in court now. It is true that the plaintiffs are not using the land.

**At re-examination, PW1** stated that the Plaintiffs have ever occupied the land. Currently, it is Salongo using the land.

**During cross-examination, PW2** stated that he knows Edira Kakooza. He was introduced to him by Dr. Kakooza. He does not know where he resides. He knows the suit land. He does not know and he is not aware whether he resides on the suit land. He does not know who resides on the suit land.

**PW2** stated that the plaintiffs are not in the city, so they're not in occupation of this land. He stated that the land was in possession of the vendors, Sentoogo and Agaba. He found overgrown bushes. There were no coffee plants.

**PW2** told the court that he has never testified to any court on matters related to this land. He heard of Henry Sentongo, Florence, and Herman. He visited the land. He does not recall having testified in any matter in the Magistrate Court at Buganda Road.

**Given a court record. PW2** stated on oath that he is seeing the court record for the first time. He is seeing his name. He has seen this court. He is refreshed, so he is now aware. This is the second time. The record shows the same coffee trees and avocados.

He stated that Under **para.7** of his testimony, the plaint has no word 'fraud.' He has never seen the agreement on page 53 of cdf. T/B. He cannot recall what transpired in the proceedings at Buganda Road Court.

**PW2** testified that he was in touch with the Plaintiff before giving him power of attorney. This was between 2003-2004. The Plaintiffs are his friends. He studied with them in Shapevilled in the UK.

**During cross-examination, PW3** stated that he purchased from Walusimbi in 1987 on the 12th of December and signed no agreement, he doesn't remember how much he paid. When he paid, Kalanzi was not available. Before the transaction, he didn't know Kalanzi. He did not know where Kalanzi was staying. He did not know the land Kalanzi was using for cultivation. He did not know his relationship with Walusimbi.

**PW3** stated that he came to know Walusimbi when he sent Kalanzi to tell him, through his neighbor Joseph Kizito, that he was selling the land. He called his surveyor to be around, and Walusimbi called Kalanzi to be around.

**PW3** stated that his surveyor is the one who showed him the land after opening the boundaries. This was in the presence of Kalanzi and the surveyor's team.

**PW3** testified that Dominico, his surveyor, made a report for him. He has a copy of the survey report. He has a map on which he puts comments, to him, that is the report. This is what he gave him. He explained to him that it was the report.

**On the question for clarification by the Court, PW3** told the Court that when he gave 1 acre = (plot 966), 1½ acre (plot 967).

## **Defendants' Evidence**

Counsel for the Defendants led evidence of three (03) witnesses, **Samuel Genza Kajjumba** as **DW1, and Birungi Jane Barbara** as **DW2.** Counsel for the 3rd, 4th, and 5th Counter-defendants led evidence of **Kalibbala Salongo** as **DW3.**

**DW1** testified that he bought the land from Kalanzi. He was not registered on the title. He never saw transfer forms from Walusimbi to Bivanju. He entered the land on 4th January 2007.

**DW1** testified that **DEX6** dated 8th November 2007 states plots 1332 and 967. It is the same land he is claiming. These are just subdivisions. His lawyers received a letter. The area schedule is on 12-1-2007.

**DEX3- DW1** stated that he took photos on land for Plot 305 Block 266. The photos are not dated. Photos are on land plot 305.

**DEX15- DW1** stated that it was he took photos in March 2015. He does not know who that tractor belonged to. He reported the matter to the police. Police said investigations are still going on. The suspects were not arrested.

**DW1** testified that Ssalongo Kalibala is now occupying the land. Your clients (plaintiffs) brought tractors and destroyed all his properties. The police are still investigating. He did not include William Sentongo in his counterclaim as he had sold his interest to the Plaintiffs.

**DW1** stated on oath that the Plaintiffs participated in the fraudulent subdivision of land because when they were buying they did not have Powers of Attorney. He has no evidence that they participated in the fraud.

**DW1** stated that the Lands Department effects land transfers. He never sued the registrar of titles or lands. He did not see the use to put him when the culprits were here. The Plaintiff's predecessor is Henry William Sentongo.

**DW1** testified that he has evidence of forgery. They used the instrument number of another area, Mawokota, and put it in Kyadondo. It's true that the Plaintiffs and the agent came with tractors based on their consent and demolished his properties. Suspects have been on the run for 9 years. The file is there. He does not have court proceedings yet in a criminal matter. PEX1, **DEX17- The Decision** of Buganda Road did not determine ownership.

**DW1** testified that Plaintiffs acquired their title from Sentongo, who obtained it fraudulently. Sentongo had acquired the title fraudulently. You can't sell what you do not have.

**DW1** stated on oath that the Plaintiffs have a fraudulent title, so he is not abandoning his claim. He had no approved plan for the kraal. He never involved the area LC in his dealings with the children of the late. He never involved the neighbors. He knew them. He does not have a valuation report yet for the damaged property. In the alternative Court to appoint a government Valuer.

**DW1** testified that it is Salongo Kalibbala who is in possession now. He is the administrator of late Kalanzi. He **(DW1)** tried to go to LC, but they wanted 20% money to sign for me (he had paid for Kibanja). Later, he knew they were brokers. When I took photos of tractors, the people at the scene were agents of the Plaintiffs. He does not know their names.

**DW1** told the Court that he kept on checking with the police on investigations. He got a police report. They called the agents of the Plaintiffs at the police, but they refused to go there to make a statement.

**On re-examination, DW1** testified that when they went to Buganda Road in the criminal case, it was when they knew LCs had acted as brokers between Sentongo and Plaintiffs. So, they did not trust them. The plaintiffs acquired titles from Sentongo fraudulently. Sentongo did not have an agreement between him and the landowners.

**DID2-** Document was obtained from the lands. He thinks by Ismail Kabaali. He went to Wakiso to pick it. Photos were taken in March 2007 and June. The land was destroyed in June 2007. We bought Plot 305 1332 & 967 are subdivisions from 305. They relate to the same land. We made 1st agreement when buying Kibanja.

**DW1** testified that after 2 days, Kaabali showed them the sales agreement of the father, which is land, and they needed a money agreement of land between Kalanzi & Walusimbi. They needed money to process letters of administration, so they gave them 2m.

**DW1** testified that the third agreement was to legalize all this as they had now got the letters of administration, and we wanted to legalize all that we had done. He did a search at the land office and was given certified copies and even an instrument number. He does not know which search they are now talking about. He applied to the land office for an instrument number.

**DW1** further testified that before buying, he went to the family of Walusimbi, and it was Walusimbi's registered proprietor's son, and they confirmed the land was for Kalanzi. Also, Nalukwago confirmed land is for Kalanzi.

**During cross-examination, DW2** stated on oath that he had worked in the police force for 37 years. He did not make arrests. He took photos. He found land being graded, and some people were on the ground. He is not supposed to arrest. He was to take photographs. He is a scene of crime officer. He was to visit the site. Its investigating officer who found Ntege and Bintu Ntege defied the court order.

**DW2** stated that it's the investigating officer to know if Michael and Bintu's statements were recorded. It's his first time being called over the photos he took. He knows the investigating officer in this case. They do not usually interact.

**DW2** further stated that he left Kajjansi in 2017. The investigating officer had not briefed him. He never looked at the Court order. He was accompanied to the scene by an investigating officer. He did not see the investigating officer arresting people. He found some banana plantations destroyed, others were there.

**DW2** testified that there were many people at the scene. He found the defence secretary. He does not know his name, but he was there. There were excavators at the scene. He never saw the trucks. He never inquired driver of the excavator. It was for the investigation side. I arrived at the scene at 10:00 am. He was in the company of 1.0 Emokor James and the complainant. It's the investigating officer to know how it ended.

**During cross-examination, DW3** testified that it's him on the suit land. Genza is not in possession of the land. Buildings on the land were theirs. Buildings were demolished by Kenneth. They were family buildings. **DW3** stated on oath he has no problem with Genza because the land he came to purchase, he failed, and he (DW3) is still on the land. He has trees, banana trees on the land.

**DEX5- DW3** stated on oath that he signed this agreement. The agreement says they have already handed over vacant possession, but he was supposed to get possession after paying the balance. To date, he has never paid the balance.

**DEX3-** DW3 stated that he knows that tree, he found it there. It's on that land. Those houses were for family. They were demolished by Kenneth. He knows this photo. That house was for their family. Samuel Genza failed to do what they agreed. He (DW3) never sued him (Samuel) because he (DW3) has his (DW3) land.

**DEX5- DW3** testified that his family received the 10,000,000/= but he was not there. At that time, they had not received letters of the administration. They sold land to Genza on the 29th day of June 2009 at 60 million shillings. They did not have the title but had their father's agreement. The father was not registered on Block 266 Plot 305.

**DW3** testified that when they made the search, it was in the name of William Sentongo. They did not get the consent of the land owner as their agreement was reading the land. They have never reported William Sentongo because they have been on land since 1980, and they had the agreement of their father. They never found the transfer forms of their father. They are administrators.

**DW3** further testified that the land is 1½ acres. They got 26 million from Genza Samuel. They never reported him because the land he was purchasing; he never took it. They had made a search and found that their land was wrongly in the name of Sentongo. The instrument number was wrong for Mawokota. They never reported land office but saw Sentongo…

**DW3** stated on oath that when they came, they reported them civil and criminal cases. They never got the purchaser's title because they failed to pay the balance. Their agreement showed father had bought land.

**DW3** stated that he knows Kenneth Kakooza. He came on the ground with tractors in 2020. Kenneth wanted to settle the matter with them. The tractor demolished houses and trees on the land. They went and reported at the Kajjansi case of Malicious damage for malicious damage. Police stopped him, but he had finished to demolish. He never came back.

**DW3** testified that Counsel has never written to them that they broke the agreement. All of them, as a family, use the land. Kalibbala Dauda, Namala

⁹

Sophia, Kabali Ismail. They use this land. What is there is theirs. It has like 7 houses. It's he who built them for the family in 2015, after the demolition. Temporary injunction, he knows, was old. They did not pay busuulu because they say they have land, and they also own land.

**On re-examination, DW3** testified that he never made a statement at the police. Houses belonged to the family. Samuel Genza has never come to claim the ½ acre in the agreement. Those trees shown in the photos were demolished by Kenneth. He planted more trees and other houses. They do not know if the person they bought from had a title, but they saw an agreement of their father. They were young.

#### **Locus Proceedings**

The Court visited the locus on 27th March 2025. Counsel for the Plaintiffs led evidence of a single witness, **PW1, Kakooza Kenneth.** Counsel for the Defendants also led evidence of a single witness, **Samuel Genza, DW1.** Counsel for the Counter defendants led evidence of 1 witness, **Kalibbala, DW3.**

**PW1** testified that the land starts from the perimeter wall down and stretches up. It goes up to the towers. The last time they came, there was a small house. The houses are for Kalibaala. He does not know the owner of the banana plantation. They were not there when they got it.

**PW1** testified that they do not have any structure or gardens on this land. This has been the case since his people bought. They brought a surveyor to carry out boundary opening around 2014. They have no structure, and by the time they bought, there was no single structure. It was shrubs. They have ever been in possession.

**When asked, a question by the Court, PW1** stated that the land is 2 acres plus 2 decimals. Houses up are for Kalibaala.

**DW1** testified that this is the land he bought from the counter defendants, and it goes up to the masts. It's 1½ acres. Structures were here, a flat, and they were demolished here, and 3 rooms.

**DEX3-** They were there, facing this side and behind a toilet. This is the doublestoried house he had built facing down. It was here that they were demolished. They made an agreement with counter counterclaimant and demolished houses. **DEX16-** This is the agreement. They had a kraal here with a cow. They also had a banana plantation.

**DW1** testified that you cannot see a sign of that double-storied house here. Those structures were put up by Salongo Kalibala. He did not have an approved plan for the storied house. He has never seen the Certificate of Title of the people who sold to him, but they had an agreement. They were only using the lower part, the other one is a hill.

**DW1** testified that when he erected the storied house, those structures were not there. Kalibala was not on land when he was building. No one was on the land. Not even Kenneth. Nobody was there. Houses were demolished by the Plaintiffs. By the time he came with the police, he found tractors on the land. Counterdefendants were not there.

**On re-examination, DW1** stated that houses were demolished and they used lorries to transport away everything. He could not trace where they took them.

**DW3** testified that the land was for his father, late Bivanju. It's 2½. The title came without agreement and transfer. It's plot 360. Some of his siblings signed an agreement with Kalanzi, and he had paid 10 million, but he (DW3) refused. This is the land in Genza's agreement. He does not know the land for the Kakoozas.

**DW3** stated that he built those houses in DEX3. He has spent 230 million on those structures. He is 50 years. He started working in 1991, and their family they were not poor.

**DW3** stated that he never reported to the police as Genza had reported. The person who demolished gave reasons to him (DW3), and he stayed on the land. Kenneth demolished houses. It's Kenneth who reported them and the defendants.

**DW3** further stated that they came and agreed with them to remove the case, and they made an agreement, but he never fulfilled the agreement. **DW3** told the Court that he was hopeful, so he never reported to the police. **DEX16** is the agreement. 74 million was received by the family. 26 million was for Genza. Counsel for Plaintiff Kajeke made the agreement. It was signed on 21st February 2015.

**DW3** testified that Genza has never taken possession. He did everything behind them and then turned against them. Buildings were for their family. It was he building on their behalf. He received 74 million. They agreed and left money, 26 million, with you (Counsel Kajeke for Plaintiffs) to give it back to Genza, as that was the money they owed him as a family.


**On re-examination, DW3** stated that the double-storied house was even there, and the other house was down there, so he has stayed here since 2007. He was working, and his sisters were 4 also abroad working.

**When asked a question by the Court, DW3** testified that he has 7 houses, and kraal of cows. He said Keneth found them there and found the houses that were demolished. He has just put up the current houses there. The family divided the 74 million and used it. They had to pay for the demolished houses and trees, and they handed over the land. They never were to pay 500 million for houses and 300 million for other things.

### **Court's observations**

The Court observed that the suit land is 2½ acres. It has five small houses and one mud house for Kalibaala. The small houses look like those in a shrine, and visible signs of spears and other items found in a shrine are present. The suit land has banana plantations.

## **Determination of the Court**

# **ISSUE 1: Whether the Late Kalanzi Daudi Bivanju had any interest in the suit land?**

From the evidence adduced in court and at the locus in quo, it is an undisputed fact that the 3rd, 4th, and 5th Defendants to the counterclaim are the administrators and beneficiaries of the estate of the Late Kalanzi Daudi Bivanju. This is confirmed by **DEX2,** the Letters of Administration **vide HCT-00-FD-AC-0518 of 2009.**

The Defendants and their witnesses, particularly *DW3 (Kalibala)*, testified that the Late Bivanju(father) purchased the suit land from the Late Samwiri Walusimbi under an agreement dated 10th December 1987, marked as *DIDI*. This agreement purports that William Walusimbi sold to Daudi Kalanzi the land comprised in Kyadondo Block 266 Plot 305 measuring 2.5 acres at Ugx. 250,000/=.

*DW1 (Genza)* corroborated this position and testified that Kaabali showed them the sales agreement of their father between Kalanzi & Walusimbi. He told the Court that before buying, he went to the family of Walusimbi, and they confirmed the land is for Kalanzi. Nalukwago also confirmed the land is for Kalanzi.


Counsel for the Plaintiffs/1st and 2nd Counter Defendants submitted that the purported sale agreement marked D1D1 did not vest ownership of the suit property in the 3rd, 4th, and 5th Counter defendants, and as such, the Defendants/Counter claimants could acquire no better title than the sellers had.

Counsel for the 2nd & 3rd Defendants/Counter claimants submitted that the Defendants and 3rd, 4th , and 5th Counter Defendants have proved prior presence and use of the land which disentitles the Plaintiffs from taking the Defendants as trespassers.

Counsel added that the Plaintiffs have not availed any evidence that besides being registered on the Certificate of Title, they have ever been in occupation and/or when and how they lost the possession. All PWs and DWs have given cogent evidence which points to the occupation of the suit land for a very long time by the family of the Late Kalanzi Dauda and that interest is not taken away whether the agreement was admitted as an identification document (ID1).

Counsel for the 3rd, 4th and 5th Counter defendants submitted that the Plaintiffs must have acquired their equitable interest subject to the 3rd, 4th, and 5th Counter defendants existing interests of being in actual possession.

There is no evidence that the Late Kalanzi was ever registered as proprietor. The Defendants rely on a document marked DIDI, being a purported sale agreement between Samwiri Walusimbi and the Late Kalanzi, dated 10th December 1987. However, DIDI was only marked for identification and never formally admitted as an exhibit. The Court is bound to give it minimal evidential weight, and no credible explanation was offered for the failure to tender it in evidence or to produce a registered instrument of title in Bivanju's name.

Nevertheless, the law recognizes that an equitable interest in land can arise even in the absence of registration, if the sale agreement is proved and the purchase price paid.

It is trite that in equity, interests in land passes upon payment of the purchase price. In **H. M. Kadingidi Vs Essence Alphonse, HCCS No. 289/1986, Ntabgoba P. J** (as he then was) held that;

"A purchaser who has concluded a sale agreement with the owner immediately becomes the owner of the land, and the vendor becomes his trustee in title. This is because the purchaser is potentially entitled to the equitable remedy of specific performance. He obtains an immediate equitable interest in the property, for he is, or soon will be, in a position to call it specifically. It does not matter that the date for completion, when the purchaser may pay his money and take possession, has not yet arrived. Equity looks upon that as done which ought to be done, and from the date of contract, the purchaser becomes owner in the eyes of equity**." (See: Lysaght Vs Edwards (1876) 2 Ch. D. 499 at pp. 506-510).**

Further, In the case of **Ismail Jaffer Allibhai & 2 Ors Vs Nandlal Harjivan Karia & Anor, SCCA No. 53/1995,** the Supreme Court held that;

"In a sale of immovable property, upon payment of a deposit, the property passes to the purchaser who acquires an equitable interest in the property and the vendor becomes a trustee who holds the property in trust for the purchaser. The purchaser becomes the lawful purchaser when he has paid the deposit."

Although DIDI is not formally in evidence, the oral testimonies of DW1 and DW3, which were not substantially challenged, suggest that: a sale agreement was executed between the Late Walusimbi and Kalanzi; Some money changed hands; The Defendants have been in occupation, claiming through the estate of Kalanzi.

DW3 (Kalibala) stated that the family has been on the land since around 1980, and that **structures were built** on it. DW3's account was partially corroborated by the Court's own **observations at locus**, the Court observed that the land measured approximately 2½ acres. There were **small houses,** one associated with **Kalibala**. There was also a banana plantation and shrine-like structure.

Further, DW3 testified that after the destruction of some of their structures, **an agreement for compensation** was made and a sum of **UGX 74 million** was received by the family. This conduct is consistent with a party asserting an **existing interest**.

**PW1 and PW3** disputed that the Late Kalanzi had any claim, **PW1** testified that the late Kalanzi was a broker between William Walusimbi and William Sentongo. **PW3** corroborated PW1's testimony when he testified that Kalanzi was a land agent of Walusimbi. He told the Court that that was the relationship they had.

It was PW3's testimony that Mr. Kalanzi was living in the same area as a neighbor. He was staying near the land but not on the land. There was no one living on the land.

PW3, despite claiming to have bought from Walusimbi, did not tender any agreement himself.

On balance, while the Plaintiff's evidence contests Kalanzi's interest, it does not **disprove** the **possibility of an equitable claim**.

The **longstanding occupation**, coupled with **partial corroboration of a sale**, and **payment of compensation** by the other side, persuades the Court that **an equitable interest arose in favor of the Late Kalanzi**.

Accordingly, the Court finds that: The Late Kalanzi Daudi Bivanju **did not acquire legal title** to the suit land; However, based on the **oral evidence**, **physical occupation**, and the conduct of the parties, **he acquired an equitable interest** in the suit land; The counter defendants, as administrators and beneficiaries of his estate, claim through that **equitable interest**.

#### **Issue 1 is answered in the affirmative to the extent that the Late Kalanzi Bivanju acquired an equitable (but not legal) interest in the suit land.**

# **ISSUE 2: And if so, whether the Counterclaimants acquired any interest in the suit land?**

The key question here is whether the 1st and 2nd Counterclaimants lawfully acquired any legal or equitable interest in the suit land by virtue of the sale agreements entered with the 3rd, 4th, and 5th Defendants to the counterclaim.

The evidence shows that the Counterclaimants entered into **three agreements** with the children of the Late Kalanzi Daudi Bivanju, namely:

- **DEX1 (04/01/2007)**: Sale of a *Kibanja* (not registered land) at UGX 10 million. - **DEX4 (06/01/2007)**: Sale of registered land (Block 266 Plot 305) at UGX 50 million, with UGX 2 million acknowledged. The agreement was conditional: UGX 10 million was to be paid after two months, and the balance (UGX 38 million) upon acquisition of letters of administration and title transfer.

• **DEX5 (29/06/2009)**: Agreement after the vendors had acquired letters of administration (DEX2). The land was sold for UGX 60 million. UGX 16 million was paid in cash. Clause 2(b) of DEX5 clearly stated that if the balance of UGX 44 million was not paid by 29/12/2009, the purchaser would be entitled to only **½ an acre** of the land.

It was admitted in evidence that:

-The late Kalanzi Daudi Bivanju **was never a registered proprietor** of the suit land (Plot 305).

- There was no transfer from the registered proprietor, Walusimbi, to Kalanzi or his children.

-The title for the suit land had already been processed in 2004 (PEX1 and PEX2), and it was in the names of the Plaintiffs/1st and 2nd Counterdefendants at the time of the DEX1, DEX4 and DEX5 transactions.

Therefore, the **3rd, 4th, and 5th Counter-defendants were not in a legal position to pass good title**, having themselves no registrable interest to convey. The Counterclaimants did not purchase from a registered proprietor nor someone with complete proprietary rights.

Counsel for the Plaintiffs/1st and 2nd Counter defendants submitted that DEX1, DEX4, and DEX5 did not pass any interest in the suit property to the Defendants/Counter claimants. DEX1 was executed on 4/1/2007, DEX4 on 6/1/2007 and DEX5 on 29/06/2009. DEX5 purportedly ratified the earlier sale agreements, which were made before the grant of DEX2. PEX1 and PEX2 were issued by the Lands Office on 8/4/2004.

Counsel further submitted that by the time the Counter claimants and the 3rd, 4th, and 5th counter-defendants purported to transact in the suit land, the Plaintiffs/1st and 2nd Counter-defendants were the registered proprietors of the suit land. That the 3rd, 4th, and 5th Defendants did not obtain the consent of the registered owner.

Counsel for the 3rd, 4th, and 5th Counter defendants submitted that the 3rd, 4th, and 5th counter-defendants took a step to ensure that they could acquire their interests in the suit land by acquiring letters of administration to the estate of their late father Kalanzi Dauda Bivanju as per DEX2 but they were frustrated when they found out that PW3 had transferred the land into his names and sold it off to the Plaintiffs.

Counsel for the 2nd and 3rd Defendants/Counter claimants argued that the evidence of DW1 and DW3 and the PWs confirm that the Late Kalanzi Dauda Bivanju was in occupation of the suit land. No evidence was adduced to show that the Late Kalanzi vacated the land in 1996 as alleged. No evidence was led to prove that the Plaintiffs at any one time were in possession of the suit land.

Counsel further argued that the Counter claimants derived their interests from the children of the Late Kalanzi Dauda Bivanju and that the transaction is not in dispute. Once the estate is found to have an interest corresponding, the claimants would have an interest.

**DW3** testified that he agreed and sold to Samuel Genza, but Genza did not fulfill the agreement. **DW3** told the Court that they had made two agreements with Genza. The first one was to help them get letters of administration. They made the 1st agreement when buying Kibanja.

**DEX1,** a copy of the first sale agreement dated 04/01/2007, indicates that the children of the Late Kalanzi D. Bivanju sold their Kibanja to Prince Samuel Kajjumba and Princess Nalubale, measuring 2.5 acres. It also indicates that the buyers paid Ugx. 10,000,000/= in cash.

**DW1** testified that at the time they made **DEX1,** he had not done a search in the land office. He told the Court that they were buying a Kibanja for 10 million. They did not get the consent of the landowner before purchasing the Kibanja.

**DW1** testified that it was he, Kajjumba Samuel, swearing an affidavit in **DEX13** dated 11th April 2007. It is he who paid 10 million. He paid to the family of the late Kalanzi D. Bivanju. The 10 million was for a Kibanja sale, not land. For the land, he paid 2 million. This 10 million is for Kibanja.

**DW1** stated on oath that the family of the late Kalanzi had a sale agreement of the Kibanja. His (DW1's) agreement was not witnessed by Area LCs, no neighbors.

**During the locus, DW3** testified that for the second agreement, Genza came in his absence and convinced his brothers, and they made the 2nd agreement, which **DW1** testified that the purchase price was 50 million. He never paid the 10 million after 2 months. They did not include the 10 million of the Kibanja in this agreement (DEX4). He never paid the balance of 28 million. The agreement was not witnessed by LCs or neighbors.

**DW1** confirmed to the Court that he was buying land in **DEX4.** He told the Court that the first one was a Kibanja. He did not make a search at the time he made **DEX4.** He knew the land was in the name of Walusimbi, the former mailo owner. **DW3** testified that they did not get consent from the land owner as their agreement was reading the land.

**DW1** stated on oath that he was buying land, and they acknowledged his Kibanja sale. By this time, he made a search in the land office. The purchase price was 60 million. This is the last agreement **(DEX5)** they made. He paid 16 million in cash. He did not pay the 44 million as they were still looking for the title.

**On perusal of DEX5,** the Court noted that it was acknowledged that the beneficiaries of the late Kalanzi Daudi sold to Samuel Genza Kajjumba, Nalubaale Diana, and Nakato Nakimuli a Kibanja comprised in Kyadondo Block 266 Plot 305 at a consideration of Ugx. 10,000,000/= under the first agreement dated 04/01/2007.

**DEX5** indicates that the administrators of the estate of the late Kalanzi sold to Samuel Genza Kajjumba, Nalubaale Diana, and Nakato Nakimuli the whole of Block 266 Plot 305 at Seguku at Ugx. 60,000,000 to be paid in installments. Ugx. 16,000,000 was paid in cash and the balance of Ugx. 44,000,000/= was to be paid within 6 months, not later than 29/12/2009, and **in the event that the purchaser fails, the purchaser will take ½ an acre of the sold property.**

**DW3** testified that his siblings received the 10,000,000/= (DEX5), but he was not there. At that time, they had not received letters of administration. They sold land to Genza on the 29th day of June 2009 at 60 million shillings. They did not have a title but had their father's agreement. His father was not registered on Block 266 Plot 305.

**Paragraph 6 of DEX5** shows that the family of the late Kalanzi, by signing the third agreement, ratified the sale of the Kibanja to the purchasers under the sale agreement of 6/01/2007, subject to clause 2 (b) of DEX5.

**DW1** testified that the third agreement was to legalize all this as they had now got the letters of administration, and they wanted to legalize all that they had done.

**DW3** stated on oath that the land is 1½ acres. Genza gave them 26 million when making letters of administration. 26 million out of 60 million. He was paying for a Kibanja. They never reported Genza because of the land he was purchasing, he never took it. Samuel Genza has never come to claim the ½ acre in the agreement.

**DW3** testified he signed on **DEX5.** The agreement says they have already handed over vacant possession, but he (Genza) was supposed to get possession after paying the balance. **To date, he has never paid the balance.**

It was DW3's testimony that he had no problem with Genza because the land he (Genza) came to purchase failed, and he (DW3) is still on the land. Samuel Genza failed to do what they agreed. He (DW3) never sued him (Samuel) because he (DW3) has his (DW3) land.

**DW1** told the Court that **DEX6** dated 8th November 2007 states plots 1332 and 967. It is the same land he is claiming. These are just subdivisions. They bought Plot 305. Plots 1332 & 967 are subdivisions from 305. They relate to the same land.

**DW1** testified that when he was buying, he bought plot 305. When they made a search, they found it had been subdivided. They had proof that land was for late Kalanzi, so they went ahead.

**DW1** further testified that it was not fraud that he knew the land was subdivided when he bought it. He has the title of plot 305. It is the same plot that the plaintiffs are playing with.

**DW3** testified that the suit land, 2½ acres, was for his father, the late Bivanju. The title came without agreement and transfer. It is Plot 360. Some of his siblings signed an agreement with Genza, and he had paid 10 million, but he (DW3) refused. The suit land is the land in Genza's agreement. He does not know the land for the Kakoozas.

**DW3** testified that Genza has never taken possession. He did everything behind them and then turned against them. He received 74 million from the plaintiffs. The family divided the 74 million and used it. They had to pay for the demolished houses and trees, and they handed over the land. They never were to pay 500 million for houses and 300 million for other things. They agreed (DEX16) and

left 26 million with you, Counsel for the Plaintiffs, to give it back to Genza as that was the money they owed him as a family.

Most significantly, the evidence shows that:

- The vendors themselves only held **an equitable interest**, not legal title. - The purchasers (Counterclaimants) were never registered on the title. - The full purchase price was **never paid**. - The possession was **never delivered**. - Clause 2(b) of DEX5 clearly limits the entitlement to **½ acre** in the event of default.

Even assuming that some equitable interest might have arisen upon partial payment and contract execution, such interest is contingent upon substantial compliance with the terms of sale which was never done.

DW1 and DW3 both testified that the balance **was not paid**. DW1 stated he never paid the 10 million after two months under DEX4 and never paid the remaining 28 million. Under DEX5, only 16 million was paid, and the rest was not.

**In Ismail Jaffer Allibhai & 2 Ors vs Nandlal Harjivan Karia & Anor (SCCA No. 53/1995),** the Supreme Court held that an equitable interest may pass upon payment of a deposit in land transactions.

However, where the deposit is not paid, or terms are not fulfilled, no enforceable interest can be claimed.

It is noted that DW3 acknowledged that UGX 26,000,000 was left with Counsel for the Plaintiffs to be refunded to Genza as consideration owed to him. However, this agreement (DEX16) was entered into between the Plaintiffs and the family of Bivanju—**Genza was not a party to DEX16**, and no conclusive evidence was adduced to show that he ever received a refund or successfully asserted any claim based on this arrangement. The counterclaimants also never found out who the owner of the land was at that time or the registered owner on the title, that is the plaintiffs, thus necessary consents were never obtained under the land act from the registered proprietors. see **S.35,36 of the land Act** as amended.

The Court thus finds that **the Counterclaimants did not acquire any proprietary interest in the suit land**, legal or equitable, and they should claim their refund from those they paid their deposit.

Accordingly, **Issue 2 is answered in the negative** and the counterclaim fails.

## **ISSUE 3: Whether the Plaintiffs acquired the suit land lawfully?**

**Section 101 (1) of the Evidence Act, Cap. 8** provides that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist.

The burden of proof lies on the Plaintiffs to prove that they acquired the suit land lawfully.

There is no dispute that the Plaintiffs are the registered proprietors of the suit land comprised in Kyadondo Block 266 Plots 967 and 1332. **PEX1 and PEX2** confirm this registration and reflect the Plaintiffs' entry on the register as tenants in common on 08.04.2004. Their immediate predecessors in the title are well documented.

Under **Section 59 of the Registration of Titles Act, Cap. 240**, the possession of a Certificate of Title by a registered person is conclusive evidence of ownership of the land described therein, and under **Section 160(c)**, It is stipulated that;

"No action of ejectment or other action for the recovery of any land shall lie or be sustained against the person registered as proprietor except in the case of a person deprived of any land by fraud 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." **(See also: H. R. Patel versus B. K. Patel [1992 - 1993] HCB 137).**

## **While the Plaintiffs presented Certificates of Title (PEX1 and PEX2), which are prima facie proof of ownership, the Defendants raised several allegations of fraud.**

**DW1** testified that the Plaintiffs acquired their title from Sentoogo, who obtained it fraudulently. Sentoogo had acquired the title fraudulently. You can't sell what you do not have.

The Counter claimants under **paragraph 11 (f)** of their counterclaim averred that upon a search in the registry, it was found out that the property was passed onto William Henry Sentoogo without transfers, and the instrument effecting the transfer on the title was fraudulently obtained.

Counsel for the 3rd, 4th, and 5th counter-defendants submitted that the Plaintiffs/1st and 2nd Counter-defendants tendered before the court PEX1, PEX2, PEX3, PEX4, and PEX12 to prove their genuine purchase of the suit land. However, before a purchaser can claim protection under section 59 of the Registration of Titles Act, he/she must act in good faith.

Counsel submitted that there is circumstantial evidence to saddle the Plaintiffs with fraud, that PW3 and the Plaintiffs knew of the 3rd, 4th, and 5th Counterdefendants' unregistered interests. That DW1 told the court that instrument no. KLA 127768 dated 16/12/97 registering PW3 on the land title was of another transaction in Mpigi.

The burden is on the Defendants to prove fraud to the required standard—**more than a balance of probabilities but less than beyond reasonable doubt**.

It is a well-established principle of law that a party relying on fraud must specifically plead it and that particulars of the alleged fraud must be stated on the face of the pleading. It is not allowable to leave fraud to be inferred from the facts pleaded, and accordingly, fraudulent conduct must be distinctly alleged and distinctly proved. (**See: Davy v. Gannet (1878) 7 Ch. D. 473 at 489**).

The alleged particulars of fraud against the plaintiffs are:

- a. Purportedly buying land under the utilization and occupation of the family of the Late Kalanzi Bivanju. - b. Ignoring notice of interest on the property by ignoring the crops and the agricultural developments on the suit land. - c. Failure to conduct a physical search for fear of knowing the truth. - d. Transferring the property without a transfer form from the Late Samwiri Walusimbi to William Henry Sentoogo. - e. Obtaining an instrument number KLA 127768 fraudulently.

**The Black's Law Dictionary, 8th edition,** defines fraud to mean a known misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment.

## In **Fredrick Zaabwe Vs Orient Bank & Others SCCA No. 4/2006,** Fraud was defined to mean;

"An intentional perversion of truth to induce another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which deceives and is intended to deceive another so that he shall act upon it to his legal injury. ………. A generic term, embracing all multifarious, means that human ingenuity can devise, and which are resorted to by one individual to get advantage over another by false suggestions or by suppression of truth, and includes all surprise, trick, cunning, dissembling, and any unfair way by which another is cheated…"

In **paragraph 2** of their reply to the **Written Statement of Defence and Counterclaim by the 3rd, 4th, and 5th Defendants,** the 1st and 2nd Counter Defendants contended that they are bona fide purchasers for value without notice of defects in title, if any, by the previously registered proprietors.

According to **Black's Law Dictionary, 9th Edition,** on **page 1355**, a Bona fide purchaser is a buyer who buys without constructive or actual notice of any defects or infirmities against the seller's title.

In **Israel Lwanga Vs Leonard Mubiru & 3 Others, SCCA No. 18/2022, Mwondha, JSC** defined a Bona fide Purchaser for value without notice to mean "that buyer who has paid a stated price for the property without knowledge of existing or prior claims or prior equitable interest."

It is trite law that a person who relies on the defence of bona fide purchaser for value without notice under **Section 165 of the Registration of Titles Act, Cap. 240** has the burden to prove he or she acted in good faith.

In the case of **Abdu Nasser Katende Vs Vithalidas Haridas & Co. Ltd, CACA No. 840/2003,** the Court laid down the requirements to establish the defence of a Bona fide purchaser for value without notice; -

- a) He holds a Certificate of Title issued under the Registration of Titles Act in respect of the property. - b) He purchased the property in good faith - c) He had no knowledge of the fraud - d) He purchased for valuable consideration - e) The Vendors had an apparent valid title - f) He purchased without notice of any fraud - g) He was not a party to the fraud.

**G. M Okello, JA** in **Sir John Bageire Vs Ausi Matovu, CACA No. 7/1996** observed that Lands are not vegetables which are bought from unknown sellers. They are valuable properties, and buyers are expected to make thorough investigations not only of the land but also of the owner before purchase.

The purchaser must have given due consideration and purchased the land without notice of the fraud. Such notice covers both actual and constructive notice of fraud.

The Plaintiffs contended that they exercised due diligence through their then-Attorney Brian Tendo before purchasing the suit land and that they obtained transfer forms before getting registered as proprietors on the suit land.

**PW1** testified that it is true the purchaser took due diligence. He started taking care of the land in 2004. He does not know what was there before 2004.

**PW1** stated on oath that he knows the purchaser opened boundaries before purchasing. He was there, and they also conducted a physical search. The documents relating to the survey were kept by Brian Tendo. It is true that the plaintiffs are not using the land.

**PW2** told the Court that the fencing was after the purchase and opening of boundaries. It was done by the Plaintiffs through him.

## In **Jones Vs Smith [1841] 1 Hare 43, the Chancery Court** held:

"a purchaser has constructive notice of fraud if he had actual notice, that there was some incumbrance and a proper inquiry would have revealed what it was (but if) abstained either deliberately, carelessly from making those inquiries which a prudent purchaser would have made…then the defence cannot be available to him or her. **(See: Yakobo M. N Senkungu & Others Vs Cresencio Mukasa, Civil Appeal No. 17/2014)**

**PW1** told the Court that before, there was no one on the land. Now, in the north there is a mass tower, south, a big house (later sold off), East, an empty land, and West, also an empty land (there was late Sabina).

**PW2** testified that he did due diligence and got a search statement. The land was in the name of Henry William Sentongo. Plot 1332-Herman and Florence Warugaba.

**PW2** testified that on the first visit to the land, they were with Matovu (2nd Defendant). On whether he went to the LCs and neighbors, **PW2** stated that Matovu knew Sentoogo, and he took him there himself. The land was empty. There was no cultivation. There was nothing showing third-party interest in land.

**PW3** testified that Dominico was his surveyor. After opening the boundaries, he physically went there on the land with the surveyors and Kalanzi. There were many members of the surveying team. He can't recall the number. Kalanzi was there. Walusimbi was elderly, but he was not there; his staff were there.

**PW3** stated on oath that nobody was on the land when he sold it. No one utilized the land. He allowed Kalanzi to use it. What he means by being there is one who

builds a house there. Kalanzi was just cultivating it. He allowed him alone as Kalanzi.

**During the locus, PW1** testified that they do not have any structures or gardens on the suit land, and this has been the case since his people bought the land. They brought a surveyor to carry out boundary opening around 2014. They have no structure, and by the time they bought, there was no single structure. It was shrubs.

**PW3** told the Court that Walusimbi's land was 78.88 acres subdivided into 12 plots. One was 305, which he bought. 305-he gave it to his sister-in-law 1 acre. He remained with 1½ acres, which he sold to Dr. Kamuli.

**On re-examination, PW3** testified that he allowed Kalanzi to cultivate in 1987. In 1996, he left the land and no longer cultivated it.

**During cross-examination, PW1** testified that he was not present at the time when the land was purchased. He told the Court that it was him who fenced the land and that he is still the caretaker of the land.

**PW1** stated on oath that to his knowledge, Salongo is the son of the Late Kalanzi. The late Kalanzi was a broker between William Walusimbi and William Sentoogo. PW1 suggested that Salongo is a trespasser, along with others.

**PW3** testified that Kalanzi was a land agent of Walusimbi (That's the relationship they had).

**PW3** stated on oath that he purchased from Walusimbi in 1987 on 12th December. He signed the agreement. He does not remember how much he paid. He paid in instalments. **PW3** stated that from the time he bought the land, he has never occupied it.

A copy of the transfer form dated 1st April 2004 shows Ugx. 30,000,000 as the purchase price, and yet the sale agreement for Block 266 Plot 967 shows the consideration is Ugx. 48,000,000.

**PW1** told the Court he does not find a problem between these two figures of the purchase price. **On re-examination, PW1** stated on oath that he did not play any role in the execution of these agreements and the transfer form.

**Regarding the sale agreement** dated **24.02.2004** showing 48,000,000/= and not 30,000,000/=, **PW2** confirmed to the Court that there was under declaration of the value on the transfer forms. He does not know if that was proper.

**Regarding the consideration of Ugx. 30,000,000/=. PW3** told the Court that he sold for 48 million. The lawyer is the one who put it, it is not him.

**PW2** confirmed the sale agreement of 1967 on 24.02.2004. He signed the sale agreement dated 24.2.2004 as an Attorney.

**PW2** told the Court that the Transfer form dated 1st April 2004 is the document upon which Plot 967 was transferred from William Henry Sentoogo to Bintu Conteh and Michael Ntege Kimuli. The said plot was sold at Ugx. 30,000,000, and it was witnessed by Andrew Kabaya, the same lawyer who witnessed the sale agreement for Plot 967.

**PW2** testified that he only appended his signature on the transfer form as the purchaser.

**PW2** stated that he does not know who resides on the suit land. The Plaintiffs are not in the city, so they are not in occupation of this land. He stated that the land was in possession of the vendors, Sentoogo and Agaba. He found overgrown bushes. There were no coffee plants.

**PW2** told the court that Andrew Kibaya drafted the documents. He does not recall who took him through. He did not participate in the evaluation exercise. When he bought and reached there, there were no 3rd party interests thereon.

**PW2** stated that the Defendant's plot is 967 and 1332. Plot 305 has nothing to do with this. He does not know who is in possession because some people have encroached. He does not know if Kakooza is in possession.

**PW3** told the Court that Walusimbi's land was 78.88 acres subdivided into 12 plots. One was 305, which he bought. 305-he gave it to his sister in-law 1 acre. He remained with 1½ acres, which he sold to Dr. Kamuli.

**PW3** told the Court that the relationship between Plot 969 and 1332 is long. There was one plot No. 305, which was subdivided into 966 and 967. He donated 966 to his in-laws. They divided it into 1331 and 1332, which they also sold to Dr. Kimuli.

In **paragraph 6** of his Witness Statement, **PW2** stated that the Plaintiffs never committed acts of fraud in purchasing the suit land. He told the Court that he meant the Plaintiffs are bona fide purchasers.

**In the case of Kampala Bottlers Ltd Vs Damanico (U) Ltd, SCCA No. 22/92,** Wambuzi, C. J (as he then was) stated on page 7 of his judgment that;

"Fraud must be attributable to the transferee. I must add here that it must be attributable either directly or by necessary implication. By this I mean the transferee must be guilty of some fraudulent act or must have known of such an act by somebody else and taken advantage of such an act." (**See also: David Sejjaka Vs Rebecca Musoke, SCCA No. 12/1985**).

Counsel for the Plaintiffs/1st & 2nd Counter defendants submitted that no evidence was led by the Defendants/Counter claimants to prove that the Plaintiffs who are transferees participated in the alleged acts of fraud. The Defendants/Counter claimants did not prove that the Plaintiffs participated in the payment of the government taxes or that the Plaintiffs are employees of the Ministry of Lands responsible for giving instrument numbers.

In addition, Counsel submitted that the Plaintiffs transferred the suit land using DEX12 and the party who signed it as the transferee/purchaser was the donee of the Plaintiffs/1st and 2nd Counter Defendants. In any case in 1987 when the Certificate of Title for Kyadondo Block No. 266 Plot No. 967 was transferred the names of William Henry Ssentoogo, the Plaintiffs were not in possession and or knowledge of the suit land and when PEX2 was transferred into the names of Herman Bukenya, the Plaintiffs did not participate in the said transfer.

Counsel for the 3rd, 4th, and 5th counter-defendants submitted that the Plaintiffs/1st and 2nd Counter defendants tendered before the court PEX1, PEX2, PEX3, PEX4, and PEX12 to prove their genuine purchase of the suit land. However, before a purchaser can claim protection under section 59 of the Registration of Titles Act, he/she must act in good faith.

Counsel submitted that there is circumstantial evidence to saddle the Plaintiffs with fraud, that PW3 and the Plaintiffs knew of the 3rd, 4th, and 5th Counter defendants' unregistered interests. That DW1 told the court that instrument no. KLA 127768 dated 16/12/97 registering PW3 on the land title was of another transaction in Mpigi.

Counsel for the 2nd & 3rd Defendant/Counterclaimants submitted that the Plaintiffs/Counter defendants saw the crops and agricultural activities on the

suit land but chose to ignore them. The Plaintiffs/Counter defendants failed to make reasonable inquiries of the persons in possession and such negligence or ignorance formed part of fraud.

According to the documents, **PEX3,** the Power of Attorney was signed on 17.3.2004, and the agreement was on 24.02.2004. **PW2** confirmed to the Court these dates. He told the Court that the sale agreement for Plot 1332 is dated 17.3.2004, the same date he received the Power of Attorney, which is 17/3/2004.

**PEX3,** the Power of Attorney, was registered on 5th April 2004. **PW2** confirmed to the Court that the Power of Attorney was registered after the sale agreement was done.

**PW2** testified that the discrepancy in dates on the Power of Attorney and sale agreement is that paragraph 3 of the sale agreement left a space for filling in the date of the Power of Attorney.

**Regarding PEX6** dated 24th Feb 2004, **PW3** told the Court that that was when he signed the agreement. He did not physically go to the ground to hand over the land to them. He just wrote a letter.

The Power of Attorney (PEX3) and the sale agreement have inconsistent dates. The agreement was dated **24.02.2004**, while the Power of Attorney authorizing the transaction was executed on **17.03.2004** and registered on **5.04.2004**. This raises questions about the authority under which the agreement was signed.

Although PW2 attempted to explain this as a clerical error and stated that the Power of Attorney was referenced in paragraph 3 of the agreement, the mismatch is material and raises some doubt. But none of the parties in the agreement have any problem with it.

**DW1** testified that he has evidence of forgery. They (Plaintiffs) used the instrument number of another area, Mawokota, and put it in Kyadondo.

While this is a serious allegation of fraud in the land registry, there was no evidence that the Plaintiffs were responsible for the assignment of that instrument number. As their counsel argued, the Plaintiffs are not officials of the Ministry of Lands and cannot be presumed to have orchestrated forgery in instrument numbers.

Nonetheless, the irregularity in the root of the title, if established, affects the foundation upon which the Plaintiffs' title rests. The law is clear that you cannot pass a better title than you have. If Sentoogo's title was rooted in fraud,


then all subsequent transfers are tainted unless the transferee is protected as a bona fide purchaser for value. It was not proved that the title itself was fraudulently obtained and no act was attributed to the plaintiffs.

The Plaintiffs through PW1 and PW2 testified that they Conducted boundary opening with a surveyor, Found the land unoccupied, with only shrubs, Relied on their attorney Brian Tendo to process the documents, and Were not aware of any third-party interests, occupants, or developments.

However, DW1 and the Defendants claimed that the land was under cultivation and occupation by the family of the late Kalanzi Bivanju, and that the Plaintiffs ignored this visible occupation. DW1 also testified that the Plaintiffs never visited the LCs or neighbors to inquire about the land, which is a common and prudent step in transactions involving land in Uganda.

The Plaintiffs were never in physical possession of the suit land. PW1 admitted that he is merely a caretaker and that the land remains undeveloped. DW1 and other witnesses claimed the family of late Kalanzi had been in possession through cultivation and occupation since the 1980s. If the Plaintiffs (or their agents) had physically inspected the land, they would have observed the presence of crops and activity, which ought to have triggered further inquiry.

The law is settled that **actual occupation of land is constructive notice** of the rights of the person in possession. **In David Sejjaka Vs Rebecca Musoke, SCCA No. 12/1985,** the Court held that;

"…the mere fact that he might have found out the fraud had he been more vigilant and had made further inquiries which he omitted to make does not itself prove fraud on his part. But if it is shown that his suspicions were aroused and that he abstained from making inquiries for fear of learning the truth, the case is very different and fraud may be ascribed to him."

In conclusion,

From the totality of evidence, it is clear that the Plaintiffs are the registered proprietors of the suit land, and their Certificates of Title entitle them to protection under Section 59 of the Registration of Titles Act. However, this protection is not absolute, and can be impeached on proof of fraud.

The circumstantial evidence raises serious doubts about the due diligence exercised prior to purchase. The presence of occupants on the land, that is the Kalanzi family, and lack of physical inspection all point to a lapse in diligence, which defeats the Plaintiffs' claim to the protection of a bona fide purchaser without notice.

The Plaintiffs failed to conclusively establish that they acted in good faith and without notice of prior interests.

Accordingly, **this Court finds that the Plaintiffs did not acquire the suit land lawfully** as there were equitable interests and are **not bona fide purchasers for value without notice**. The plaintiffs thus acquired the land subject to the equities on it.

## **ISSUE 4: What remedies are available to the Parties**

**Section 33 of the Judicature Act Cap. 16** enjoins this Court to grant all such remedies to enable the final determination of all matters of controversy between the parties.

This Court has established

- that the plaintiffs are the registered proprietors of the suit land.

-The Late Kalanzi Daudi Bivanju acquired only **an equitable (but not legal) interest** in the suit land;

-The **Counterclaimants** acquired **no proprietary interest**, legal or equitable, in the suit land, and therefore their counterclaim **fails**;

## -The **Plaintiffs did not acquire the suit land lawfully** and are **not bona fide purchasers for value without notice**;

However, the estate of the Late Kalanzi, through his administrators, accepted payment for their **equitable interest**, when disputes arose. This was confirmed by 5th counter defendant Kalibaala salongo and also DW3. He said at locus visit that at first some family members had got 10 million shillings from 1stdefendent Genza but he refused. Later they agreed as a family to remove case with the plaintiffs specifically through the Attorney Kenneth and shillings **74 million** was paid. He then said he never fulfilled all the terms and that is why they are not in possession. What was not fulfilled was never mentioned but they as the family took the money and **26 million** for Genza remained with the lawyer as money owned to him. That Genza never took kibanja they had sold him as they found it had already been registered in names of Sentoogo and others and structures on land were theirs.

Accordingly, having now sold their equitable interest to the plaintiffs they cannot now also stay in possession. That is specifically Kalibaala Salongo who has even embarked on construction but rather the plaintiffs should be in possession.

Accordingly, I make the following declarations

1)The plaintiffs are the rightful owners of land comprised in **Kyadondo Block 266 Plots 967 and 1332 land at seguku.**

2)-A declaration is issued that the estate of the Late Kalanzi Daudi Bivanju held an **equitable interest** in the suit land comprised in **Kyadondo Block 266 Plot 305**, measuring approximately **2.5 acre which they have since sold off to the plaintiffs.**

**3)**A permanent injunction is granted restraining the defendants,3rd,4th and 5th counterdefendants, their agents or servants from interfering, trespassing or utilizing in any way the plaintiffs land.

**4)**An order of eviction is granted against the defendants and 3rd,4th and 5th counter defendants.

5)The **counterclaim is dismissed** for failure to establish any proprietary interest in the suit land by the Counterclaimants.

6)The plaintiffs are awarded costs of this suit.

July

**DATED AT KAMPALA THIS…………. DAY OF………..2025** 14th

**…………………………………..**

**KANYANGE SUSAN**

**JUDGE**