[2011] UGHC 206

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

## LAND DIVISION

# CIVIL APPEAL NO. 13 OF 2010

(Arising from Mpigi Civil Suit No. 48 of 2006)

### 1. FR. EMMANUEL RUVUNGWAHO ) 2. YOFESIRUDIGIRA )

#### VERSUS

## SILVERSTER BYARUHANGA RESPONDENT

#### BEFORE: HON. MR. JUSTICE RUBBY AWERI OPIO co

# JUDGMENT

This appeal arises from the decision ofthe learned Chief Magistrate, Her Worship Irene Akankwasa sitting at Mpigi ChiefMagistrates Court.

and The main suit Civil Suit No. 0007 of 2008 was instituted by the Respondent as Plaintiff for a declaration that he was the registered .y~ proprietor ofthe suit land comprised in LRV 1162 Folio 11 Block 58 Plot 2 at Kyambobo, Maddu, Gomba, Mpigi District having purchased the same from the Administrators of the estate of the late Edward Wilson Mukasa Kakooza on 27/8/2003. The Respondent further sought orders for eviction, permanent injunction, general damages, interest and costs the lifting of the caveat lodged on the suit land by the Appellant/Defendant.

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APPELLANTS'

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During the hearing ofthe matter, the following facts were agreed upon:

- (1) That: the Plaintiffwas the registered proprietor ofthe suit land. - (2) The Defendants were currently in occupation ofthe suit land. - (3) The 1st Defendant lodged a caveat on the suit land on 21/2/2005.

### Agreed issues:

- 1. Whether the Plaintiff was a bona fide purchaser for value without notice. - 2. Whether at the time the Plaintiff purchased the suit land, the vendors had authority to pass title ofthe suit land. - Whether the Defendants have any claims to the suit land. **j. ^I o**

4. Remedies to the parties.

On 19/2/2010 the learned Trial Magistrate entered judgment in favour of the Respondent as follows:-

- (a) A declaration that the Plaintiff is the registered owner ofthe 450 acres of land comprised in LRV 1162 Folio 11 Block 58 Plot 2 1jT at Kyambobo, Gomba, Mpigi. - An eviction order against the Defendant. (b)

- (c) { The caveat registered on the Land Registry copy of the title for the suit land was unlawfully lodged and was to be lifted with immediate effect. - (d) **S** A permanent injunction restraining the Defendants from entering, grazing or cultivating the suit land or claiming ownership thereof. - (e) General damages amounting to Shs.10,000,000/=. - (f) Interest at the rate of 8% per annum. - (g) Cost ofthe suit.

Being dissatisfied with the said judgment and orders, the Appellants [<3 preferred the instant appeal on the following grounds, namely;

- (l)The Trial Magistrate erred in law and fact when she found, in her judgment that Karusi Edward had no power to dispose of the suit land when he sold it to the first Appellant. - (2)The Trial Magistrate erred in law and fact when she found in her |5" judgment that the sale agreement between Wilson Karusi and, the 1st Appellant was a nullity. - (3)The Trial Magistrate erred in law and fact when she found in her judgment that the Appellants were not in occupation of the suit land at the time it was sold to the Respondent. q

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- (4) The Trial Magistrate erred in law and fact when she did not find in herjudgment that Mutazindwa Paul, Stephen Kakooza Mufagubya, Nabakooza Sarah and Nansasi Florence who sold the land to th^ Respondent did not have any right to sell the land at the time. - (5)The trial Magistrate erred in law when she awarded exhibiting general damages and interest thereon against the Respondents without taking into consideration the legitimate claims and rights ofthe Appellants.

The Appellants were represented by Niinye from Niinye, Karigye Advocates while the Respondent was represented by Counsel io Muhimbura from Muhimbura & Co. Advocates. Both Counsel filed written submissions.

In his submissions Mr. Niinye argued ground ¹ and ground 2 together and the rest of the grounds separately. While Counsel for the Respondent argued all the grounds together. In my view it is more ⁱ ^S' convenient to argue the first two grounds together and the rest separately. However, I have to remind myself of the role of the first Appellate court as was reiterated by the Supreme Court in **Kifamunte Henry ^v Uganda - Criminal Appeal No. ¹⁰ of ¹⁹⁹⁷** as follows:-

*the duty ofthefirst appellate court is to hear the case on appeal by reconsidering all the materials which were before the trial court and make up its own mind. "*

In his submissions, Counsel for the Appellants contended inter alia, that at the time Paul Mutazindwa, Stephen Kakooza Mutagubya,

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S' (o Nabakooza Sarah and Nansasi Florence sold the suit land to the Respondent on 27/8/2003, they were not the registered proprietors and they did not have letters of administration. The above individuals. obtained Letters of Administration on 8/11/2004 long after they had sold the suit land. The Trial Magistrate held that the Letters of Administration issued had a retrospective effect to legitimize theactions ofthe four named individuals which was an error on the Trial Magistrate. The learned Counsel further submitted that the Trial Magistrate erred in law when she held that the consent order had the effect of acting as Letters of Administration. He submitted that the consent order only had the effect of enabling the vendors to apply for Letters of Administration. Counsel contended that in any event, the land in issue had already been sold legally to the 3rd parties by one Edward Karusi as registered proprietor and hence could not be part of the estate administered by later vendors to the Respondent. The said Edward Karusi was administrator of the estate of the late Wilson Mukasa Kakooza's estate until 20th June 2002 when the Letters of Administration were revoked by a court order. In that capacity, as administrator he registered his name as registered proprietor and sold the land in that capacity as registered proprietor in 2000 before the said Letters of Administration were revoked. Following Section 59 of the Registration of Titles Act certificate of title is conclusive evidence oftitle. Counsel accordingly, concluded that the Appellants purchased the suit land from Karusi who was registered and had certificate oftitle to the said land hence the right to deal with the land in any way he wished and the sale was valid contrary to the Trial Magistrate's holding.

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In his reply, Counsel for the Respondent submitted that Edward Karusi had no power to dispose of the suit land to the 1st Appellant and that the sale executed between Karusi Edward and 1st Appellant was a nullity. He submitted that the sale was executed unlawfully and without authority in view ofthe consent order which was to the effect that the properties not distributed in accordance with the will were to resort to the estate. He submitted that since the suit land was disposed of in violation of the clear terms of the will, the suit land reverted to the estate on 20/6/2006 and became under the administration of **(O** Nansasi Florence and her co administrators.

The evidence on record shows that the Respondent Silvesto Byaruhanga purchased the suit property from the administrator of the estate of the late Edward Wilson Mukasa Kakooza after executing a sale agreement on 27/8/2008. The vendors obtained Letters of Administration from the High Court on 8/11/2004. On the other hand ? S the Appellants adduced evidence to the effect that the 1st Appellant purchased the suit land partly from Sebulime and Sibutane and partly from Edward Karusi i.e. 320 acres and 120 acres respectively. The suit land was in the name of Edward Karusi as registered proprietor. Karusi testified that he was the eldest son of the late Edward Wilson ^70 Mukasa Kakooza who was the first registered proprietor on 11/2/1982. After his death he (Karusi) got registered on the title on 20/3/2000 after obtaining letters of probate together with his co-administrators.

It is clear from the above evidence that the said Edward Karusi sold the suit property in his capacity as an administrator ofthe estate of his late father and as registered proprietor thereof. It is also clear that subsequently, the above probate was revoked on 20/6/2007.

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He testified that by the time he consented to step down as administrator in the favour of his siblings, he had already sold the suit land to the knowledge of his siblings.

For the above reasons I do not agree with the learned Trial Magistrate that the said Edward Karusi had no power to dispose ofthe suit land to the 1st Appellant. Edward Karusi exercised powers vested in him under the Succession Act. Therefore the sale agreement between him and the 1st Appellant was valid and not affected by the consent order which emanated after his siblings took up arms against his style of administration after the property had already been sold and even (o transferred to a third party.

As for the sale between the Respondent and Nansasi and her coadministrators, the purported sale on 27/8/2003 was a fiasco because by that time they were not the registered proprietors and they did not . have Letters of Administration. The above named individuals */* obtained Letters of Administration on 8th November 2004 long after they had sold the suit land. It was erroneous for the learned Trial Magistrate to hold that the said Letters of Administration had a retrospective effect to legitimize the actions of the four named individuals. This is because they were not the first people to obtain iLo Letters of Administration. Letters of Administration had already been obtained but simply revoked. For that reason the case of **Isreal Kabwa v Martin Bamba Musige (1996) II KARL 109** Which Counsel for the Respondent relied on was cited out of context.

In conclusion I do allow the ¹st and 2nd grounds of appeal in favour of Ad the appellants. The above grounds also dispose of the 3rd and 4th

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grounds. In particular, the learned Trial Magistrate was in error when she did not hold that Mutazindwa Paul, Stephen Kakooza Mutagubya, , Nabakooza Sarah and Nansasi Florence who sold the land to the Respondent did not have any right to sell it at the time. The above individuals did not have Letters of Administration to the estate of the ydeceased. They only obtained the same later after revoking the probate given to Edward Karusi. However by that Time, the said Karusi had already sold the same property to the 1st Appellant in his capacity as the administrator of the estate of the deceased. The 1st Appellant had no reasons to doubt the said Edward Karusi because (0 Karusi produced original Certificate of Title. After executing the sale agreement, the 1st Appellant was introduced to the Local Council officials who also signed the sale agreement.

There was therefore a valid authority to sell and a valid sale agreement took place between the ¹st Appellant and Edward Kakrusi. The ly" purported sale between the Respondent and Mutazindwa Paul and his colleagues were null and void for lack of authority to sell and also because the subject matter of sale had already been validly sold to the Appellants.

**Ground 5: The Trial Magistrate erred in law when she \_i<o excessively exercised her discretoncy power to order damages.**

In her judgment the learned Trial Magistrate ordered general damages amounting to Shs. 10,000,000/- and interest at 8% (eight percent) per annum. She based herself on the reasons that the Appellants had been on the land, a huge area of450 acres since 2005.

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It is trite law as was held in **Joseph Muwanga v Starling Civil** Engineering, SCCA No. 20/1992 that in principle, an appellate court will not interfere with either findings of lower courts on issue of damages except where court has not properly appraised evidence in assessing damages and thereby made a wholly erroneous estimate of damage resulting into too small or too large a sum.

The learned Counsel for the Appellants submitted that the awarding of shs. 10,000,000/= was excessive. That the Appellants were.on the land believing the same to be lawfully theirs and not illegally. To the contrary the Respondent did not carry out proper search to dig out the jo loopholes in the land he was purchasing.

General damages are ordered to compensate the aggrieved party on the principle of*restitutio intergrum.* In the instant case the suit land was 450 acres. The Appellants were said to have forcefully entered and occupied the same since 2005. They were grazing and cultivating on the same. I think court was a live on the principle upon which it exercised its discretion to award the 10,000,000/= to the Respondent by way of general damages. The same was not too small or too large. The damages were reasonable in the circumstances and therefore this court will not interfere with the discretion of the trial court. In the po premises this ground is found in favour ofthe Respondent. All in all, after evaluating the evidence on record I do find that the Trial Magistrate erred in law and fact in finding in favour of the Respondent. The appeal is allowed with the following orders:

(1) The appeal is allowed and all orders ofthe lower court are set 3-A Aside.

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- (2) The Appellants are to continue in possession and ownership of the suit land. - (3) The purchase of the Respondent is declared null and void. - $(4)$ The Respondent's name on the Certificate of title be cancelled. - Costs of the appeal and/the lower court granted to the Appellants. $\overline{\mathcal{S}}$ $(5)$

HON. MR. JUSTICE RUBBY AWERI OPIO **JUDGE** 26/6/2011

#### 27/6/2011

Amony present for Respondent.

Respondent present.

Appellants present.

Judgment read in Chambers 44 in Open Court.

HON. MR. JUSTICE RUBBY AWERI OPIO **JUDGE** 27/6/2011