[2022] UGHCLD 217

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

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

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

#### **CIVIL SUIT NO. 208 of 2015**

5 **GEORGE W. MIREMBE KASUJJA------------------------------------------------------PLAINTIFF**

**V**

# **1. JONES WEST SEBUNYA 2. PRIME AUTO MOBILE WORKSHOP LIMITED-------------------------------DEFENDANTS**

## 10 **Before: Hon. Lady Justice Olive Kazaarwe Mukwaya**

#### **JUDGMENT**

The Plaintiff, Mr. George W. Mirembe Kasujja brought this suit against the Defendants, Mr. Jones West Sebunya and Prime Auto Mobile Workshop Limited jointly and severally seeking the remedies below:

- 15 a) A declaration that the transfer of the land described as Bulemezi Block 30 Plot Nos.332,432,767 and 770 at Mpande in Luwero District (hereinafter called "the suit properties") from the joint names of the Plaintiff and the 1st Defendant to the names of the 2nd Defendant was fraudulent. - b) A declaration that the Plaintiff and the 1st Defendant are the lawful owners of the 20 suit properties. - c) An order directing the Commissioner for Land Registration to cancel the 2nd Defendant's registration as proprietor of the suit properties and re-instate the Plaintiff and 1st Defendant as joint proprietors/tenants thereof. - d) An order directing the 1st Defendant to hand over the certificates of title of the suit 25 properties with duly executed mutation forms and transfer instruments to an independent surveyor appointed by Court to facilitate the process of conducting the aforesaid subdivision.

- e) The fees of the independent surveyor appointed by Court to carry out the subdivision and other costs necessary for the subdivision be met by the Plaintiff and the 1st Defendant jointly in equal shares. - f) General damages. - 5 g) Costs of the suit.

## **PLAINTIFF'S CLAIM**

Mr. George W. Mirembe Kasujja, the Plaintiff, PW1, and the 1st Defendant, Mr. Jones West Sebunya are brothers. They both own shares in the 2nd Defendant, Prime Auto Mobile Workshop Limited, with the 1 st Defendant being the majority shareholder. Initially, 10 when this suit was filed in 2015, the brothers were joint registered proprietors of the suit properties comprised in Bulemezi Block 30 Plot Nos. 332, 432, 767 and 770 at Mpande in Luwero District. This claim was brought by the Plaintiff seeking orders from this court to, among other things, compel his brother to have the suit properties equally divided between the two of them, since they had developed irreconcilable business differences.

15 In 2017, during the pendency of this suit, the suit properties were transferred into the name of the 2nd Defendant by the 1st Defendant. The Plaintiff then filed an amended plaint to protest this action by the 1st Defendant as illegal and fraudulent and also to implore this court to revert the ownership of the suit properties into his name and that of the 1st Defendant, his brother, so that the suit properties could be equally shared, marking an 20 end to their business relationship.

The Plaintiff relied on several documentary exhibits and the evidence of PW2, Ms. Hashakimana Clare, a Forensic Document Examiner, to demonstrate that he did not participate at all in the impugned transfer of the suit properties into the name of the 2nd Defendant. To protect his interests, the Plaintiff lodged caveats on the suit properties in

25 March 2018 and then reported the matter to the police leading to the prosecution of his brother.

It is the Plaintiff's contention that since 2014, he has been denied all access and use of the suit properties by the Defendants, who have had sole use and enjoyment of it. As a result, he has suffered loss and inconvenience hence this suit.

#### **DEFENCE AND COUNTER CLAIM**

Mr. Jones West Sebunya, the 1st Defendant and the majority shareholder in the 2nd Defendant admitted that the Plaintiff is his younger brother. The Defendants asserted that prior to the incorporation of the 2nd Defendant as a limited liability company, the funds to

purchase the suit lands for the 2nd 5 Defendant were obtained from M/S Prime Auto Parts, in which the 1st Defendant was the managing director operating as a sole trader at Kiseka Market. This business was duly registered on 22nd July 1998.

In 2005, after the Plaintiff's resignation from Victoria Motors, the brothers agreed to form the 2nd Defendant, M/S Prime Auto Mobile Workshop. To that end, the 1st Defendant contributed 50% share capital that was registered on 6th 10 April 2005.

Subsequently, the suit properties were temporarily registered in the joint names of the Plaintiff and the 1st Defendant with the ultimate intention of registering the suit lands into the name of the 2nd Defendant in line with the special resolution dated 28th October 2005. They agreed on this temporary arrangement because partnership deeds are not 15 registrable documents since they are not legal personalities.

The sole purpose of the acquisition of the suit properties was to enable the 2nd Defendant to raise funds by acquiring loans from banks and other financial institutions as security. And this was eventually achieved since some of the suit properties are currently the subject of running mortgages. The 1st Defendant further contended that, with the knowledge of the Plaintiff, funds were borrowed on the security of the 1st 20 Defendant's personal property, including his matrimonial home comprised in Kyadondo Block 216 Plot 1831 to inject in the 2nd Defendant business. Therefore, a default in payment of all the compound interest would result in the loss of the 1st Defendant's matrimonial home, a matter the Plaintiff did not take into consideration before insisting on the sale indicated in 25 his amended plaint.

Remedies sought under the Counterclaim are;

1. A declaration that the 2nd Counter Claimant is the lawfully registered owner of the suit properties together with the developments thereon which lands the 1st Counter Claimant and the 1st Counter Defendant bought for its business purposes.

- 2. A declaration that the 2nd Counter Defendant is in law a subsidiary company to the 1 st Counter Claimant based on principles of the Law of Agency and the Master and Servant relationship. - 3. A declaration that the 1st Counter claimant and the 1st Counter Defendant are barred in the law and equity from selling and transferring the 2nd 5 Counter claimant's properties and share the proceeds of sale equally without the express consent and/or approval of the 2 nd Counter claimant. - 4. A declaration that the 2nd Counter claimant is in law entitled to recover the said total sum of UGX. 608,398,000/= from the Counter Defendants jointly and/or 10 severally. - 5. The 1st Counter Defendant to return his share certificate(s) free from claims/or encumbrances to the 2nd Counter claimant thereby ceasing to be a member of the 2 nd Counter Claimant company. - 6. An order to lift the caveats lodged by the 1st Counter Defendant on the suit properties that belong to the 2nd 15 Counter Defendant for just cause. - 7. The 1st Counter Defendant to return the 2 nd Counter claimant's properties like the cheque book and stationery which are in his possession and custody. - 8. A notice in Uganda Gazette and in at least two (2) prominent Newspapers with a wider coverage for public information purposes restraining parties from entering 20 the property of the other without express consent and/or approval of the other party. - 9. The Counter Defendants to pay costs of the suit and the Counter claim.

## **REPRESENTATION**

from M/S. Eric-Kiingi and Co. Advocates.

The Plaintiff/Counter-defendant was represented by Mr. John Kaddu from M/S Marques Advocates while the 1 st 25 Defendant/Counterclaimant were represented by Mr. Eric Kiingi

Counsel filed written submissions in this matter which I have considered.

- **1. Whether the transfer of the land described as Bulemezi Block 30 Plot Nos.332.432,767 and 770 at Mpande in Luwero District from the joint names of the Plaintiff and the 1st Defendant to the 2nd Defendant's names was** 5 **lawful?** - **2. Whether the Plaintiff and the 1st Defendant are the lawful joint owners of the land described as Bulemezi Block 30 Plot Nos. 332, 432,767 and 770 at Mpande in Luwero District?** - **3. Whether the Counter claimants are entitled to the remedies sought in the** 10 **counterclaim?** - - **4. What remedies are available to the parties?**

#### **RESOLUTION**

**Issue 1**

# **Whether the transfer of the land described as Bulemezi Block 30 Plot** 15 **Nos.332.432,767 and 770 at Mpande in Luwero District from the joint names of the Plaintiff and the 1st Defendant to the 2nd Defendant's names was lawful?**

It would have been extremely useful to have the complete certificates of title to the suit properties in Court for perusal. They were not adduced into evidence. What was availed were the sale of land agreements, the ownership and encumbrance pages of the 20 certificates of titles and the search statements supplied by the Commissioner Land registration upon the Plaintiff's Counsel's request. The search statements indicate that the 2nd Defendant is the registered proprietor on all three certificates of title as of the 22nd June 2017 and that the Plaintiff's caveats dated 7th March 2018 exist on all the titles.

Thankfully, the 1st Defendant does not deny the status quo on the suit properties. His 25 defence consists of a lengthy, detailed and somewhat emotional explanation of why the 2 nd Defendant is the current registered proprietor on all the suit properties. In my view, there is a real danger of relying on emotional pleas of the parties in adjudication of disputes between parties. Moreover, where the parties are biological brothers whose attempt to do business together had met an unfortunate end. The duty of the court is to dispassionately focus on the facts, the evidence and law pertaining to the dispute at hand in order to arrive at its decision.

The crucial fact before this Court is that the Plaintiff and the 1st Defendant were joint registered proprietors on all the suit properties. **Section 56 of the Registration of Titles**

5 **Act Cap 230** defines joint tenants and tenants in common as follows**;**

#### *56. Joint tenants and tenants in common*

*Two or more persons who are registered as joint proprietors of land shall be deemed to be entitled to the land as joint tenants; and in all cases where two or more persons are entitled as tenants in common to undivided shares of or in any land, those persons shall*

10 *in the absence of any evidence to the contrary be presumed to hold that land in equal shares.*

The rights of the Plaintiff and the 1st Defendant as joint proprietors are firmly protected by section 56. PW2, the forensic document examiner's evidence amply demonstrates that the Plaintiff did not affix his signature to any of the transfer documents that led to the 2nd

15 Defendant's registration on the suit properties, thereby corroborating the Plaintiff's testimony that he did not participate in the transfer.

It follows that a transfer without the consent of the Plaintiff, who held an equal share in the suit properties, was fraudulent, illegal and void. And there was no explanation under the sun that could justify the 2nd Defendant's registration on the suit land under the laws

- 20 of Uganda. I read through the Defendants' amended Written Statement of Defence and I perused the 1st Defendant's evidence in chief. I listened as he painted a picture of himself as an unselfish business man whose primary interest was the success of the 2nd Defendant. He testified to how he identified the suit lands and paid for them and agreed to have his brother sign on the sale agreements, even though he did not contribute to the - purchase price. The 1st 25 Defendant told this court how he had made extensive sacrifices for the sake of the 2nd Defendant. On the other hand, the 1st Defendant portrayed his younger brother, the Plaintiff, as a self-indulgent and inconsiderate person for insisting on the remedies sought in the plaint. Counsel for the Defendants elaborately augmented these observations in his submissions.

The foregoing observations were made by the 1st Defendant, a man who, by his admission, had deprived his brother of his lawful interest, as registered proprietor on the suit properties, apparently for an altruistic purpose. It was starkly ironic, diabolical and ultimately untenable in my view. Illegality and fraud can never form a justifiable foundation

- 5 for altruism. I find that the mode of acquisition of the suit lands was irrelevant. The moment the Plaintiff and the 1st Defendant were registered on the suit land, they each acquired the proprietary rights bestowed upon them under section 56 of the RTA. And therefore, when the 2 nd Defendant was unlawfully registered on the suit land, all subsequent land transactions on the suit lands became suspect and could not therefore not receive any - 10 endorsement by this court.

I find that the transfer of the land described as Bulemezi Block 30 Plot Nos.332.432,767 and 770 at Mpande in Luwero District from the joint names of the Plaintiff and the 1st Defendant to the 2nd Defendant's names was unlawful.

## **Issue 1 is resolved in the affirmative.**

### 15 **Issue 2**

# **Whether the Plaintiff and the 1st Defendant are the lawful joint owners of the land described as Bulemezi Block 30 Plot Nos. 332, 432,767 and 770 at Mpande in Luwero District?**

Given my finding on Issue 1, it follows that the Plaintiff and the 1st Defendant are the 20 lawful joint owners of the suit properties described as Bulemezi Block 30 Plot Nos. 332, 432,767 and 770 at Mpande in Luwero District.

## **Issue 2 is resolved in the affirmative.**

## **Issue 3**

# **Whether the Counter claimants are entitled to the remedies sought in the** 25 **counterclaim?**

I accordingly find that the Defendants are not entitled to any of the remedies sought in the Counter Claim which is dismissed with costs.

#### **Issue 3 is resolved in the negative.**

#### **Issue 4**

#### **What remedies are available to the parties?**

I agree with Counsel for the Plaintiff that the Plaintiff is entitled to the prayers in the Plaint 5 which seek to restore the ownership of the suit properties into the names of the Plaintiff and the 1st Defendant. I also grant the orders to have the suit properties equally divided between the two brothers. Finally, I grant general damages of UGX 50,000,000/= to the Plaintiff. It is my considered opinion that the 1st Defendant intentionally dragged the Plaintiff onto a long windy path of litigation, when it has always been within his power to 10 do the right thing and amicably sever his business relationship with his estranged brother, the Plaintiff- but he chose not to do so.

**In conclusion, I enter judgment for the Plaintiff and order as follows;**

- **1. The transfer of the suit properties described as Bulemezi Block 30 Plot Nos.332.432,767 and 770 at Mpande in Luwero District from the joint names of the Plaintiff and the 1st Defendant to the 2nd** 15 **Defendant's names was** - **2. The Plaintiff and the 1st Defendant are the lawful joint owners of the suit properties described as Bulemezi Block 30 Plot Nos. 332, 432,767 and 770 at Mpande in Luwero District.** - **3. The Commissioner for Land Registration is directed to cancel the 2nd** 20 **Defendant's registration as proprietor of the suit properties and re-instate the Plaintiff and 1st Defendant as joint proprietors/tenants thereof.** - **4. The 1st Defendant is directed to hand over the certificates of title of the suit properties with duly executed mutation forms and transfer instruments to an** 25 **independent surveyor appointed by Court to facilitate the process of conducting the subdivision of the suit properties into equal shares between the Plaintiff and 1st Defendant within 90 days of the appointment of said Independent Surveyor.**

**unlawful.**

- **5. The fees of the independent surveyor appointed by Court to carry out the subdivision and other costs necessary for the subdivision be met by the Plaintiff and the 1st Defendant jointly in equal shares.** - **6. General damages of UGX 50,000,000/=.** - 5 **7. Costs of the suit.**

-------------------------------------

**Olive Kazaarwe Mukwaya**

10 **JUDGE**

**4 th November 2022**

**Judgment delivered by email to Counsel for the Parties.**