[2025] UGHCLD 92

## **THE REPUBLIC OF UGANDA**

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

## **LAND DIVISION**

## **HCCS NO. 19 OF 2019**

## **1. JENNIFER BIRIIBWAMUGUMU**

**2. DR. PAUL BIRIIBWA NATUREEBA**

**3. DR. PETER BIRIIBWA KANSIIME ……………...…PLAINTIFFS**

## **VERSUS**

**1. ADONIA KAHUTA BIRIIBWAMUGUMU 2. NSIBAMBI GODFREY 3. RUBARANGA SALLY DICKENS 4. MATTHEW KAKANDE 5. CHARLES KASAMBA…………….………….……. DEFENDANTS**

# **BEFORE HON. LADY JUSTICE FLAVIA NASSUNA MATOVU JUDGMENT**

# **1. INTRODUCTION**

The dispute in this case concerns land comprised in Busiro Block 314 plots 4265 and 4266 at Buloba Bukasa Bukulu village, Wakiso District which is currently registered in the names of the 4th and 5th defendants. The plaintiffs claimed that the 4th and 5th defendants in connivance with the 1st, 2nd and 3rd defendants fraudulently acquired registration of the said land into their names. The plaintiffs therefore sought for a declaration that the 2nd and 3rd plaintiffs are the rightful owners of the said land and that the defendants are trespassers thereon, declaration that the 1st 3rd ,4th and 5th defendants' interest in the said land was acquired through fraud, an order of cancellation of the 4th and 5th defendants' certificates of title to the said land, eviction of the 4th

and 5th defendants from the said land, permanent injunction, general damages and costs of the case.

# **2. BACKGROUND**

- a) The 1st plaintiff and 1st defendant were husband and wife while the 2nd and 3rd plaintiffs were their sons. In the year 2001, the 1st plaintiff who was living abroad allegedly sent money to the 1st defendant to buy land on behalf of the 2nd and 3rd plaintiffs. The 1st defendant initially purchased ten acres for the 2nd and 3rd plaintiffs from the 2nd defendant and it was agreed that the land be converted into family farm land. Later, the family decided to buy four more acres next to the farm land still for the 2nd and 3rd plaintiffs. This land was bought in 3 phases as follows: – 2 acres on 26th August 2002 from the 2nd defendant, 1 acre on 27th December 2004 from Batte Bate and 1 acre on 25th April 2005 from Ssebagala Kamya and the 2nd defendant. All the 4 acres were kibanja interest. - b) On 25th August 2011, the 1st defendant allegedly connived with the 2nd defendant and they allegedly fraudulently executed an agreement purporting to sell the legal interest of 3 acres out of the 4 acres to the 1st defendant. In this agreement, it was stated all earlier agreements pertaining to kibanja interest in the said land had been cancelled. The 1st defendant then allegedly sold 2 acres of the said land to the 3rd defendant who eventually allegedly sold to the 4th and 5th defendants. The suit land was then transferred into the names of the 4th and 5th defendants. The 3rd 4th and 5th defendants however failed to take physical possession of the

land because it was already in possession of the 2nd and 3rd plaintiffs. The plaintiffs therefore filed the instant suit seeking for the aforementioned remedies.

c) The 1st defendant died during the pendency of the suit. However, in his written statement of defence he had indicated that whereas it was true they had purchased 10 acres of land and registered the same in the names of the 2nd and 3rd plaintiffs, he had single handedly purchased a kibanja interest on the 2nd defendant's land which was adjacent to the 10 acres. That the said kibanja interest was intended for his own benefit and was never intended to be family property. He then gave the 2nd and 3rd plaintiffs one acre of the land as a gift intervivos and then with the consent of the 2nd defendant he sold his interest in the remaining three acres to the 3rd defendant who procured title to the same and sold the same to the 4th and 5th defendants. The 5th defendant claimed that he had legally acquired the suit land and had conducted all the necessary due diligence prior to purchasing the suit land.

# **3. ISSUES**

- i. Whether the transaction between the 1st and 2nd defendants was lawful. - ii. Whether the 3rd, 4th and 5th defendants are bonafide purchasers for value without notice. - iii. Whether the defendants committed any fraud in the transactions relating to the suit land.

- iv. Whether 2nd and 3rd plaintiff are rightful owners of the suit land. - v. Whether the 4th and 5th defendants are trespassers on the suit land - vi. What remedies are available to the parties?

# **4. LEGAL REPRESENTATION**

The plaintiffs were represented by M/s Osilo & Advocates, the 1st and 2nd defendant were represented by M/s Tusasirwe & Co. Advocates while the 5th defendant was represented by M/s G. M. Kibirige & Co. Advocates who filed written statements of defence on their behalf. The 3rd defendant was represented by M/s Ajungule & Co. Advocates while the 4th defendant was represented by M/s KAL Advocates.

# **5. LAW APPLICABLE**

- The Constitution of the Republic of Uganda 1995 - The Judicature Act Cap 16 - The Civil Procedure Act Cap 282 - The Evidence Act Cap 8 - The Civil Procedure Rules - Common law and Case law.

# **6. PLAINTIFFS' EVIDENCE**

a) The plaintiffs called four witnesses who all gave sworn evidence and closed their case. PW1 was Jeniffer Biriibwamugumu, the 1st plaintiff. Briefly she testified that in 2001 while still working in the USA, she sent money to her

husband, the 1st defendant, to purchase land for the family. A portion of land measuring 10 acres was bought from the 2nd defendant and the 2nd and 3rd plaintiffs immediately took physical possession of the same by setting up a farm. That after a while, PW1 discussed with her husband about the possibility of buying the neighbouring lands following complaints from neighbours that their animals strayed off their land and destroyed the neighbours' crops. She eventually sent more money to the 1st defendant on different occasions to purchase the adjoining lands. A total of four plots was eventually bought – 2 acres from the 2nd defendant, 1 acre from one Batte Bate and 1 acre from Ssebagala Kamya. That she then sent money to fence off all the land including the 10 acres that were first bought. That after 6 years of quiet enjoyment, the 1st and 2nd defendants connived and made an agreement of sale of 3 acres out of the 4 that were bought last – stating that the said agreement had cancelled the previous agreements.

b) That the plaintiffs learnt of these developments in 2014 when the 3rd, 4th and 5th defendants destroyed the fence that the plaintiffs had erected on the suit land. That in 2013 when the 3rd defendant inspected the suit land physically, PW1 and her sons protested and informed him that the suit land was not for sale. Nonetheless, the 3rd defendant went ahead and fraudulently purchased and transferred into his name two acres which he eventually subdivided and sold to the 4th and 5th defendants. That prior to the sale, the 3rd, 4th and 5th defendants blatantly ignored signposts which had been

erected on the land indicating that it was not for sale. Sometime in 2014, the 3rd, 4th and 5th defendants brought building materials onto the suit land, but they were stopped and summoned to a meeting at Wakiso Police Station. They were warned to never step on the land again. Upon realizing that land titles had been created, PW1 provided funds to the 2nd and 3rd plaintiffs to lodge caveats on both titles.

- c) In cross-examination, PW1 stated that she was in court to fight for her land – a kibanja situate at Buloba. That she knew the 3rd defendant because he connived with her husband to fraudulently sell off the suit land. She did not look at his agreement of purchase because he had never shown it to her and that the 1st defendant was the major recipient of the monies that she sent from abroad. The land in contention was purchased in 2002, 2004 and 2005. Further that her husband was retrenched by the Ministry of Education in 1992 and had not had a source of income since then. - d) That she sent her late husband money on the 28th of December, 2001 and that she was aware that the Local Council executive witnessed the sale agreements amongst the 3rd, 4th and 5th defendants. When asked what she wanted from court, PW1 stated that she wanted the cancellation of title of the suit land and that her children own the suit land. At the time she bought it for them, they were adults aged 20 and 21 years. All the inspections were done by her sons; the 2nd and 3rd plaintiffs who trusted their father. That the signposts indicating "Not for sale" were erected on the suit land several times, but they were always removed by the 3rd

defendant. She stated that the title of Block 314 Plot 4265 was registered in the name of Kakande Matthew; the 4th defendant. He was not known to the plaintiffs as they never sold to him. She stated that the different people they had bought from were bibanja owners and they eventually negotiated with Mr. Nsibambi Godfrey for the title.

- e) In re-exam, PW1 stated that she had never seen the sale agreement of the 3rd defendant and that the caveats were lodged by the 2nd plaintiff. - f) PW2 was Paul Biriibwa Natureeba, the 2nd plaintiff. He stated that he had heard of the 3rd and 5th defendants but had never seen them. None the less he had interacted with the 4th defendant when he came to the suit land on numerous occasions. That upon receipt of funds from PW1 by the 1st defendant, 10 acres of land were purchased and these are currently registered in his name and that of the 3rd plaintiff. That due to the continuous straying of animals from the farm that had been set up on the 10 acres into the neighbouring lands, it was agreed that the family purchases the neighbouring lands. That the neighboring the land was bought in phases; 2 acres from Mr. Godfrey Nsibambi, 1 acre from Mr. Batte and 1 acre from Mr. Kamya. That after the purchase, PW1 sent more money and the entire 14 acres were fenced off. - g) That sometime in 2014, he heard from PW1 and his uncle Muhirwe Alex, that some men came and claimed 2 acres of the land, uprooted the barbed wire fence and started clearing a path on the land. The matter was reported to Police and

during interrogations, the 3rd defendant claimed ownership of the suit land – with an agreement indicating that he purchased from the 1st defendant. That upon conducting a search on the suit land in the Land Registry, PW2 discovered that the 3rd defendant had transferred to the 4th and 5th defendants. That the 3rd, 4th and 5th defendants in total disregard of the signposts on the land indicating that it was not for sale went ahead to initiate a survey and titling of the 2 acres in violation of the plaintiffs' rights.

h) In cross-examination, PW2 stated that the suit land was Block 314 Plot 857 land at Buloba but it had been subdivided. That they own a total of 14 acres but the instant suit is in respect of 2 acres out of the 14 acres and is comprised in Block 314 Plots 4265 and 4266. He confirmed that the certificate of title for the first 10 acres is in his name and that of the 3rd plaintiff. The contentious plots have never been registered in their names and they were still in the process of getting them registered in their names. PW2 stated that he had a copy of the sale agreement and that it was the agreement indicated on page 10 of the Plaintiffs' trial bundle (PEXH6). That the said agreement indicated that 3 acres of land had been purchased by Adonia Biriibwa Mugumu from Godfrey Nsibambi. That he was not a party to that agreement and it was not reflected any where that the land was bought on his behalf. Further that to the best of his knowledge, this was titled land registered in the names of Godfrey Nsibambi. He confirmed that he had caveated the land before in 2016.

- i) In re-exam, PW2 stated that the money his father used to purchase the suit land was remitted to him by the 1st plaintiff. He stated that he learnt about the said agreement in 2014 following the fracas that broke out on the land. PW2 stated that they bought a total of 14 acres – 10 acres are registered his name and that of the 3rd plaintiff, 3 acres were bought from Mr. Godfrey Nsibambi and 1 acre from Batte. - j) PW3 was Senyonjo Robert a casual labourer working on the farm on the suit land. He stated that he knew the plaintiffs as his employers. That he knew the suit land because he was occasionally sent there to go and collect food from the farm and milk from the cows. That he knew the late Adonia and Mr. Godfrey Nsibambi – the former landlord of the suit land. He did not know the 3rd, 4th and 5th Defendants. At the time he used to go to collect food, he noticed that the suit land was fenced – the 10 acres alone and the 2 acres alone with a paddock system of grazing in place. That in January 2014 when he went together with the 1st plaintiff and other people to collect food, they found when the natural fence around the 2 acres had been destroyed. They found some workers and a truck which had brought building material on the suit land. When they found Mr. Godfrey Nsibambi, he told the 1st plaintiff that she had no authority to question him because he owned the suit land. A scuffle ensued which resulted in the arrest of the 1st and 2nd defendants as well as himself. - k) In cross-examination, PW3 informed court that he did not know the L. C executives of the area where the suit land is located. The entire land is 14 acres and they used to buy in

his presence and that is how he came to know its total acreage. That he witnessed all the transactions on the side of the plaintiffs and that the land was bought piecemeal and not at once. That the plaintiffs first bought 10 acres, then 2 acres, then a kibanja of 2 acres. He then stated that he never signed as a witness on the different sale agreements, but he used to be present during the transactions. PW3 stated that the different portions that were bought were not titled land. It is the 10 acres that are titled.

l) PW4 was Ssebagala Kamya Erisa – a farmer and former owner of part of the suit land. He stated that he did not know the 1st plaintiff, but was acquainted with the 2nd and 3rd plaintiffs whom he has interacted with and seen on the suit land. That he knew the 1st defendant since his family had purchased one acre of land from him. That he also knew the 2nd defendant since he is the landlord of the land where his kibanja was situate before he sold to the plaintiffs' family. That some time in 2005, he was approached by the late Adonia Kahuta Biriibwa who informed him that together with his wife, they intended to purchase his 1 acre as compensation for the damage the animals had done to his crops. That on the day they signed the agreement for sale, Mr. Adonia approached him with a typed agreement and informed him that the agreement was in the names of his children as the buyers – which he had no problem with. The agreement was translated to him by Mr. Godfrey Nsibambi. He did not remember whether the children were present on the day of signing the agreement.

m)In cross-examination, PW4 stated that he was the vendor for 1 acre. At the time the agreement for sale was executed, the L. C executives were not present, but they eventually endorsed it. The executives of the L. C who endorsed the agreement included the Vice Chairperson, but he could not remember the rest. He stated that they were the same members of the executive as of 2014. He stated that it was the plaintiffs who owned land in the area. PW4 did not know the total size of the plaintiffs' land. He stated that whereas it is titled land, he did not know who the registered proprietor of the suit land was.

## **7. DEFENDANTS' EVIDENCE**

a) The defendants called two witnesses who both gave sworn evidence. DW1, was Rubaranga Sally Dickens, the 3rd defendant. He stated that on the 2nd of January, 2014, he entered into an agreement for the purchase of land comprised in Busiro Block 314 Plot 3741 with the 1st and 2nd defendants. That the 1st defendant represented himself as a kibanja holder and the 2nd defendant was the landlord. That prior to the purchase of the suit land, he conducted the necessary due diligence and discovered that the land was unencumbered and free from any third party claims. That he not only conducted a search in the land registry but also inquired from the local authorities about the ownership of the suit land. DW1 stated that he rescinded the agreement when he failed to pay the balance of 10 million, but the 1st and 2nd defendants had already completed the process of transferring the suit land into his name. Consequently, the 1st defendant looked for other purchasers; who turned out to be the 4th and 5th defendants and the 1st defendant then refunded to him (DWI) the 40 million that he had initially paid. That he was a bona fide purchaser for value without notice of any fraud by the 1st or 2nd defendants and was not privy to any of it.

- b) In cross examination DW1 stated that he did not use any agent. That there is no person called Aine Ankunda Michael. When referred to paragraph 3 of his witness statement, DW1 stated that it is a family friend. DW1 stated that he did not have a copy of the search report from the Land Registry. He also did not have a survey report. He did not have a boundary opening report for the suit land. DW1 stated that he had purchased the suit land at 50 million, but had so far paid 40 million, with the balance of 10 million payable upon transfer of the upon completion of the transfer process. When he failed to pay the balance of 10 million, he rescinded the agreement. DW1 did not know the neighbours of the suit land. - c) Further that he did not know who the Registered Proprietor was. The late Adonia showed him documents of ownership of the suit land before purchase. DW1 stated that Adonia had no title and that is why they made a kibanja agreement. When referred to the said agreement (D3EXH1), he stated that Nanteza Efulasi and Nabagala Dolosi who were reflected as vendors in the agreement did not sign, but Godfrey Nsibambi signed. DW1 stated that he did not know the plaintiffs. - d) In re-examination, DW1 stated that Ankunda Aine Michael are the names of his 3 children and that he physically

conducted a search at the land registry and that is why he had no search report. DW1 stated that he was the one who contracted the surveyor to survey the suit land in the presence of Mr. Adonia and Mr. Nsibambi.

- e) DW2 was Matthew Kakande, the 4th defendant. He stated that some time in December, 2014, he physically toured the suit land with a land broker and Adonia Kahuta. That he went ahead and conducted a search in the land registry and discovered that the land was registered in the name of Rubaranga Sally Dickens – the 3rd defendant. That after ascertaining the true ownership of the suit land, he, together with the 5th defendant went ahead to pay the 1st instalment of 40 million on 3rd January, and the last instalment of 10 million was paid on the 17th of January, 2015. DW2 stated that in May, 2015, he initiated the process of transferring the land into his name; surveyed and subdivided. - f) That in June 2015 while visiting the suit land, he was threatened by a farm manager. He informed the late Adonia who assured him that he had won all the criminal cases that had been filed by the 2nd and 3rd plaintiffs. The 2nd and 3rd plaintiffs took down the poles he had used to fence off his land. When DW2 reported the matter to police and the plaintiffs were summoned, they failed to produce any documentation to prove their ownership over the suit land. That in March 2017, he started the process of constructing a house on the suit land. The house was, however, destroyed on the 28th of June, 2017 in the night and the plaintiffs instituted a suit against him. The plaintiffs lodged a caveat

on his land title without any colour of right and have frustrated him from utilizing the suit land.

- g) In cross-examination, DW2 stated that before this case, he did not know the plaintiffs. That he first interacted with the plaintiffs in August 2015 when they were claiming to own the land that he had bought. That he first learnt of the plaintiffs' claim to the land in 2015. He stated that before he bought the land, he visited it physically. That he did not have a survey report, but that he consulted the neighbours on 3 different occasions. He, however, did not know the names of the neighbours. DW2 stated that when the plaintiffs disturbed him he did not take them to court because he was abroad for about 7 years. He stated that he knew the 5th defendant because they were colleagues before he moved abroad and they bought the suit land together, subdivided it so that they both had an acre. DW2 stated that he got his title to the suit land when he paid the final instalment on 17th January, 2015. He testified he interacted with the 1st defendant when he tried to take possession of the suit land and met resistance. - h) In re-examination, DW2 stated that the land he bought was titled land registered in the names of the 2nd defendant. He stated that he met resistance 4 months after purchasing the suit land. - i) When court examined DW2, he stated that Adonia was brought on board during the transaction to show him the boundaries of the suit land. He was a neighbour to the suit land. DW2 stated that the land was vacant when he bought

it. The 3rd defendant was not doing any activity on the suit land. And he never introduced him to the L. C executives. They were involved after the purchase.

j) The 2nd and 5th defendants did not lead any evidence.

## **8. LOCUS PROCEEDINGS**

Court visited locus in this matter where it was observed that the plaintiffs were the ones in possession of the land. They were using it for farming and the land had been cleared in preparation for the next season.

## **9. PLAINTIFFS' SUBMISSIONS**

a) Counsel for the plaintiffs filed written submissions which I carefully studied. Briefly, he submitted that the transaction between the 1st and 2nd defendants was fraudulent. That the language in the said agreement (PExh.6) which stipulated that it cancelled all earlier transactions was fraudulent. That the 3rd, 4th and 5th defendants were not bona fide purchasers for value because they had actual notice of the third party interests in the suit land prior to the purchase. He relied on the case of **Lwanga Israel v. Leonard Mubiru & 3 Ors;¹** where it was held that actual notice implies that a party has direct knowledge of the defect in one's title and submitted that the scuffles that broke out when the 3rd, 4th and 5th defendants visited the land should have alerted them there was a defect in the seller's title. Counsel further submitted

*1S. C. C. A No. 18 of 2022*

that the signposts erected on the suit land indicating that it was not for sale and the interim order (PExh.7) were sufficient for the defendants to have constructive notice of the 3rd party interests in the suit land.

- b) That fraud was committed when the 1st and 2nd defendants purported to sell a kibanja interest in PExh.6 that did not exist at the time. That fraud can be imputed upon the 3rd defendant when he claimed to have purchased land from Nsibambi Godfrey, Nabagala Dolosi and Nanteza Erulasi, but only Nsibambi signed the undated agreement. Moreover, the agreement was signed by Aine Ankunda Michael who the 3rd defendant initially denied knowing as an agent, but during cross-examination claimed that these were the names of his children. Counsel relied on the case of **David Sejjaka Nalima v. Rebecca Musoke;²** where it was held that fraud has aspects of dishonesty and concluded that the transactions by the defendants were riddled with dishonesty. - c) Lastly, Counsel submitted that the 4th and 5th defendants were trespassers on the suit land. That whereas the certificates of title are in the names of the 4th and 5th defendants, they have never had physical possession of the suit land. Their actions of trying to unlawfully enter and construct on the suit land amounted to trespass because they did so without the permission of the plaintiffs.

*²S. C. C. A No. 18 of 1985* ### **10. DEFENDANTS' SUBMISSIONS**

- a) Counsel for the 3rd defendant filed written submissions which I carefully studied. Briefly he submitted that the agreement between the 1st and 2nd defendants constituted a valid contract and that the intention of the parties could be inferred from the terms of the agreement that was signed. He relied on the case of **Bank of Credit & Commercial International S. A (In Liquidation v. AIi³** where court stated that in construing contractual provisions, the object of court is to give effect to the contracting parties intention and maintained that since the 2nd defendant rightfully owned the legal interest in the land and the 1st defendant who initially owned a kibanja interest was desirous of acquiring the legal interest, there was nothing unlawful about the transaction. - b) As to whether the 3rd, 4th and 5th defendants were bona fide purchasers for value without notice, Counsel submitted that the 3rd defendant conducted all the necessary due diligence prior to purchasing the suit land when he verified that it was registered in the name of the 2nd defendant and had no encumbrances. That this issue is irrelevant in his case since he rescinded the contract. Further that the 3rd defendant exercised due diligence before purchase and was a bonafide purchaser. - c) Counsel for the 4th defendant also filed written submissions. He raised two preliminary points of law to the effect that the plaint disclosed no cause of action against the defendants and that the 1st plaintiff had no locus standi in this matter.

*³ [2OO1] 1 ALLER*

d) With regard to the substantive issues, he submitted that in the absence of Powers of Attorney granted to the 1st defendant by the plaintiffs, there is no evidence to show that he was supposed to purchase the suit land on their behalf and not in his own personal capacity. Counsel argued that since the 1st defendant entered into the kibanja purchase in his individual capacity and not on behalf of his children, then he had every right to purchase the legal interest from the 2nd defendant and deal with the suit land as he deemed fit. As to whether the 4th defendant was fraudulent, Counsel submitted that the 4th defendant conducted the necessary due diligence by visiting the suit land, consulting the local authorities and conducting a search in the land registry – all of which did not indicate any third party interests in the suit land. Therefore, the 4th defendant cannot be said to be trespassing on the suit land.

## **11. SUBMISSIONS IN REJOINDER**

In rejoinder, counsel for the plaintiffs cited the case of **Bank of Uganda & Anor v. Kaweesi Sulaiman;⁴** where it was held that if one has sufficient interest in the matter to which the claim relates, then he/she has locus standi and for that reason the 1st plaintiff has sufficient interest in the matter since she funded the land purchases. He largely reiterated his earlier submissions.

⁴ *M. A No. 1047 of 2022*

## **12. DECISION OF COURT**

### **Preliminary point of law:**

a) Counsel for the 4th defendants submitted that the 1st plaintiff had no locus standi and that the plaintiffs have no cause of action against the defendants. The term locus standi was discussed at length in the case of **Dima Dominic Poro vs. Inyani & Anor⁵** where it was noted that;

"the **term locus standi literally means a place of standing. It means a right to appear in court, and conversely, to say that a person has no locus standi means that he has no right to appear or be heard in a specified proceeding**". This case was cited with approval in *Namayega vs. Etot & 2 others6.* Further in the case of *Njau and others vs. City Council of Nairobi⁷* court noted that;

"**to say that a person has no locus standi means the person cannot be heard, on even whether or not he has a case worth listening to".** This case was cited with approval in *Milton Obote Foundation ltd. Vs. Uganda People's Congress8.* From the pleadings on record it is clear that the cause of action is partially premised in trespass. The 1st plaintiff filed the case as the person who provided the funds which were used to purchase the said land and also as one who was in lawful possession of the suit land, but whose possession was interfered with when the defendants allegedly committed several unlawful actions on the land. In my

⁵ *Civil Appeal No. 0017 of 2016*

⁶ *HCCS. No. 939 of 2019 (Commercial Division).*

⁷ *( 1976-1985) EA 397 at 407*

⁸ *M/A No. 121 of 2019 at the Land division.*

view she has locus standi in this case as a person whose rights in the said land were violated by the defendants.

*b)* As regards cause of action, as rightly submitted by counsel for the 4th defendant, for plaintiff to establish a cause of action he or she must show that he/she enjoyed a right, the right was violated and that the defendant is liable. In the instant case, the pleadings show that the cause of action by the plaintiffs against the defendants is premised in trespass and fraudulent dealings in the suit land which allegedly belonged to the 2nd and 3rd plaintiffs. From the pleadings it is clear that the plaintiffs enjoyed a right to quiet possession and enjoyment of the suit land as owners of the same which right was violated by the defendants when they fraudulently dealt with the said land. Therefore, on the face of it, the plaint discloses a cause of action against the defendants. The objection raised by counsel for the 4th defendant is therefore hereby over ruled.

#### **Issue 1**

# **Whether the transaction between the 1st and 2nd defendants was lawful**.

a) The plaintiffs had a duty to prove on a balance of probabilities that the transaction between the 1st and 2nd defendants in relation to the suit land was unlawful. PW1 and PW2 testified that the 1st and 2nd defendants executed an agreement on 25/8/2011 which was admitted as EXHP6. That by the said agreement, the 2nd defendant sold 3 acres out of land comprised in Block 314 plot 857 at Bukasa Bukulu in Buloba Wakiso District and consideration for the said agreement was

6.5 million. In the said agreement it was expressly stated that that the old agreements by which the land was sold to the 1st defendant in Kibanja form had been cancelled. Unfortunately, the 2nd defendant did not come to court. However, PW1 and PW2 both testified that the agreements that were allegedly cancelled were Agreement dated 26/8/2002 (PEXH3) and Agreement dated 25/4/2005 (PEXH5) and I had no reason to doubt them. A careful scrutiny of these agreements shows that they were between 2nd defendant and 2nd and 3rd plaintiff. Apparently the 1st defendant was not party to the said agreements even though he participated in cancelling them. The 2nd and 3rd plaintiff were not party to the agreement of 25/8/2011 which cancelled their agreements and they were not even consulted. As already noted, the 1st defendant who executed the said agreement was not party to the earlier agreements which were purportedly cancelled. In my view, it was unlawful for the 1st and 2nd defendants to purport to cancel previous agreements without involving all the parties to the same especially the 2nd and 3rd plaintiffs who were purchasers.

b) The agreement between the 1st and 2nd defendant was therefore unlawful in as much as it purported to cancel previous agreements without involving or even consulting the 2nd and 3rd plaintiffs who were parties as well as direct beneficiaries from the said previous agreements. The old agreements show that the land was sold to 2nd and 3rd plaintiffs and not to 1st defendant. The 1st defendant had no right to cancel the said agreements. I therefore find that the

transaction between the 1st and 2nd defendant on 25/8/2011 in relation to the suit land was unlawful.

#### **Issue 2**

## **Whether the 3rd, 4th and 5th defendants are bonafide purchasers for value without notice.**

a) PW1 , PW2 and PW3 all testified that the 2nd and 3rd plaintiffs bought land in 2002 and 2005 respectively, took possession and continued to utilise the same as farm land. The 1st plaintiff too joined them on the said land. The 3rd defendant who testified as DW1 testified that he purchased the land from 1st and 2nd defendant on 3/1/2014, the consideration was 50 million of which he paid 40 million. In support of this fact, the 3rd defendant tendered to court an agreement that was admitted as D3EXH1. A careful scrutiny of that agreement shows that the vendors were the 1st defendant who was a Kibanja holder and Nsibambi Godfrey (2nd defendant), Nabaggala Dolosi and Nantenza Efulasi who were the registered owners and the purchaser was Ankunda Aine Michael. The name of the 3rd defendant does not appear anywhere on the said agreement and no viable explanation was given as to why the 3rd defendant opted to hide his identity during the transaction. While I appreciate that one of the Vendors (1st defendant) has since passed on, none of the other vendors appeared at court to substantiate the claim that indeed the 3rd defendant bought the land even though

he used different names. Worse still, the other vendors mentioned in the agreement did not sign the same. The agreement itself is therefore suspicious and raises doubt in the mind of court as to whether the 3rd defendant ever purchased the suit land.

- b) The 3rd defendant further testified that he later on rescinded the agreement when he failed to pay the balance of 10 million and the 40 million was refunded to him which means that he ceased to have any interest in the land if any when he rescinded the contract. He also testified that before purchase he conducted due diligence and found that the land was unencumbered and free from 3rd party interests and also conducted a search in the land registry. Unfortunately, he did not avail to court copy of any search report that he received from the land registry to ascertain whether indeed the persons who sold to him were reflected in the land registry as registered proprietors. He also did not elaborate to court the particulars of the persons from whom he inquired. What is clear is that at that time the 2nd and 3rd plaintiffs were already in possession and apparently he did not consult them. - c) The 4th defendant testified as DW2. He testified that he together with the 5th defendant purchased the said land from the 3rd defendant on 3rd January 2015. In support of this fact an agreement that was executed was tendered as D4EXH1. A careful scrutiny of the said agreement shows that the same was executed between 3rd defendant as vendor and 4th and 5th defendants as purchasers. However, the 3rd defendant himself told court that he rescinded the contract and his

money was refunded which means that he ceased to have any interest in the land. That being the case, one wonders what he then sold to the 4th and 5th defendants. Clause 2 of the said agreement states that the purchasers had paid 40 million to the vendor who was the 3rd defendant, but the 3rd defendant told court that when he rescinded the agreement, the 1st defendant looked for buyers and is the one who sold to 4th and 5th defendants. The 4th defendant did not avail to court any copy of search report or certificate of title to ascertain whether indeed at the 3rd defendant was the registered proprietor of the land at the time he sold to him. I must note that there were salient mistruths in the entire transaction. The agreement itself was false in as much as it reflected the 3rd defendant as vendor when in actual fact he was not the person who sold.

d) In the case of **Amrattal Purshottan & Anor⁹** it was held that **a bonafide purchaser is a person who acquires property without actual or constructive notice of any defect in title. The person must have in good faith paid valuable consideration for property without prior notice of any adverse claim and one who has exercised due diligence as well as reasonable caution before entering into a transaction would be a bonafide purchaser.** In the instant case the 3rd ,4th and 5th defendants had a duty to exercise due diligence and ascertain the interest of the persons who were in actual possession of the land. They ought to have made

⁹ *HCCS. No. 289 of 2010.* inquiries from neighbours to the land or better still the Local Council Committee members of the area.

- e) Due diligence is defined as "**a measure of produce or activity to be expected from, and ordinarily exercised by a reasonable or prudent man under the particular circumstances, not measured by an absolute standard but dependent on the relevant facts of a particular case."¹⁰** Suffice to note that notice will be implied upon a party if he/she neglects to make reasonable inquiries into a particular set of facts11. The circumstances of this case required the 3rd, 4th and 5th defendants to make inquiries from neighbors, LC'S and persons who were in possession before purchase since some of the vendors were not in actual possession of the suit land. Besides PW1 and PW2 both testified that there were signposts on the land clearly informing prospective buyers that the land was not for sale which the 3rd, 4th and 5th defendants ignored. - f) In the case of **David Ssejjaka Nalima v. Rebecca Musoke¹²;**, the Court of Appeal found that failure to make inquiries negates the exception of one being a bonafide purchaser for value without notice and imputes fraud upon him/her. Further in the case of **Rogers Kalyegira Eulogius v. Irene Rukundo Potts¹³;**, it was held that conducting a search in the land registry is not enough. One ought to conduct a

¹⁰ Black's Law Dictionary, 2nd Edition

¹¹ Cheshire and Burns *Modern Law of Real Property 16th Edition at page 60*

¹² Civil Appeal No. 12 of 1985

¹³ High Court Civil Suit No. 181 of 2019

physical search on the land to establish possession and also ask the neighbors about the state of the land. Had the 3rd, 4th and 5th defendants exercised due diligence by inquiring from the neighbors, the LC'S of the area and persons in possession, they would have established that indeed the suit land was already being utilized by the 2nd and 3rd plaintiffs as family land and that other people apart from the 1st defendant too had interest in the same land. I therefore find that the 3rd 4th and 5th defendants were not bonafide purchasers for value without notice of the 2nd and 3rd plaintiffs' unregistered interest in the suit land.

### **Issue 3**

# **Whether the defendants committed any fraud in the transactions relating to the suit land.**

a) Fraud relates to acts of dishonesty by a party. In the case of **Fredrick Zaabwe vs. Orient Bank & 5 others¹⁴** the supreme court defined fraud as

*"an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or 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".* In **Kampala Bottlers Ltd vs. Domanico (u) Ltd¹⁵ .** the supreme court guided that for one to succeed in case of fraud, the

¹⁴ *Civil Appeal No. 4 /2006*

*¹⁵SCCA No. 22 of 1992*

plaintiff must prove that there acts of dishonesty, attributable to the defendant or that the defendant knew of such acts and took advantage of them. I must note that the standard of proof of fraud is slightly higher than balance of probabilities though not beyond reasonable doubt.

b) In the instant case the 1st and 2nd defendants committed acts of dishonesty when they purported to cancel the 2nd and 3rd plaintiffs previous purchase agreements of the land without the knowledge or participation of the 2nd and 3rd plaintiffs. The 3rd defendant also acted dishonestly when he hid his identity while executing the agreement (D3EXH1) and made it appear like the vendor was Ankunda Aine Michael. The 4th and 5th defendants too acted dishonestly when they executed as agreement (D4EXH1) and made it appear like they were transacting with 3rd defendant and had paid him money when in actual fact the 3rd defendant had already ceased to have any interest in the said land and they indeed they dealt with the 1st defendant. All the three defendants deliberately omitted to make exhaustive inquiries about the interests of the plaintiff on the suit land yet the plaintiffs were on the land. The said acts of dishonesty were intended to benefit the parties involved and make it appear as if the transactions were genuine whereas not. The plaintiffs therefore proved to the required standard that the defendants committed acts of fraud in relation to the said land.

### **Issue 4**

#### **Whether 2 nd and 3rd plaintiff are rightful owners of the suit land.**

PW1, PW2 and PW3 testified that the 2nd and 3rd plaintiffs purchased the suit land in 2 phases i.e. in 2002 (EXHP3) and in 2005 (EXHP5). PW4 who participated in the agreement of 2005 specifically told court that 1st defendant told him that the agreement should be made in the names of their children (2nd and 3rd plaintiffs. The witnesses further testified that that after purchase the entire land was fenced off including the earlier 10 acres and the plaintiffs took possession of the said land by utilising the same as farm land. They therefore acquired equitable interest in the said land as purchasers of the same even though they had not effected transfer of the same into their names. I therefore find that the 2nd and 3rd plaintiffs are rightful owners of the suit land.

#### **Issue 5**

# **Whether the 4th and 5th defendants are trespassers on the suit land**

Trespass to land occurs when a person makes an unauthorized entry upon another's land and thereby interfering with another person's lawful possession of the land16. In Onega Obel¹⁷ trespass to land was said to consist of the following unjustifiable acts

¹⁶ *Justine E. M. Lutaaya vs. Sterling Civil Eng. Civil Appeal No. 11 of 2002.*

*¹⁷ Onega Obel &Anor vs. The Attorney General HHCS. No. 006 of 2002*

namely – entering upon the land in possession of another; remaining upon such land; or placing any material object upon it. Apparently in the instant case, whereas the 4th and 5th defendants are registered on the certificates of title as proprietors they are not in and have never taken actual /physical possession of the land. Evidence shows that when they attempted to take physical possession, they were successfully resisted and chased away by the plaintiffs. To date it is the plaintiffs who are in possession of the land. I therefore find that the 4th and 5th defendants are not trespassers on the suit land.

#### **Issue 6**

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

a) This court has already found that the defendants committed acts of fraud in relation to the above land. Court has also found that the 3rd, 4th and 5th defendants are not bonafide purchasers for value of the suit land. Apparently the 4th and 5th defendants acquired registration of the said land into their names as a result of several fraudulent actions as elaborated before, they too partially participated in the fraud and are not bonafide as they claim.

b) S. 160 of the Registration of Titles Act provides that an action of ejectment or recovery of land can lie against a registered proprietor in instances where it is established that the he /she acquired registration through fraud. S.161 of the same Act further grants this court powers to direct cancellation of certificate or entry in certain cases. Indeed, fraud is one of such cases where the High court can order cancellation of title. For that reason, names of the

4th and 5th defendants should be cancelled from the register and substituted with those of the 2nd and 3rd plaintiffs.

c) It is true the plaintiffs have been inconvenienced by the acts of the defendants in relation to the suit land. They have not been able to have the land registered in their names even though they purchased the same several years ago. They are therefore entitled to general damages for the said inconvenience. In my view a sum of 20 million as general damages would suffice.

## **13. FINAL ORDERS.**

### **Judgment is therefore hereby entered as follows;**

- a) It is hereby declared that the 2nd and 3rd plaintiffs are the rightful owners of land comprised in Busiro Block 314 plots 4265 and 4266 at Buloba Bukasa Bukulu village, Wakiso District - b) The Registrar of titles is hereby directed to cancel the names of the 4th defendant (Kakande Matthew) from the certificate of title to the land comprised Busiro Block 314 plot 4265 and register the same in the names of the 2nd and 3rd plaintiffs (Dr. Paul Biriibwa Natureeba & Dr. Peter Biriibwa Kansiime) as proprietors of the same. - c) The Registrar of titles is hereby directed to cancel the names of the 5th defendant (Kasamba Chareles) from the certificate of title to the land comprised Busiro Block 314 plot 4266 and register the same in the names of the 2nd and 3rd plaintiffs (Dr. Paul Biriibwa Natureeba & Dr. Peter Biriibwa Kansiime) as proprietor of the same.


- d) The 2nd, 3rd, 4th and 5th defendants shall jointly pay a sum of Ug.shs. 20 million as general damages. - e) The 2nd, 3rd, 4th and 5th defendants shall pay interest on (d) above at court rate from date of judgment till payment in full. - f) The 2nd, 3rd 4th and 5th defendants shall pay costs of the case.

### **DATED at Kampala this 19th day of June 2025**

**JUDGE.**