[2017] UGHC 124

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

#### CIVIL SUIT NO. 221 OF 2009

- GEORGE KASEDDE MUKASA ' **1.** - MICHEAL GALABUZl MUKASA **2.** - JAMES GALABUZl MUKASA **3.** - ZACHARY K1WANUKA **4.**

**2 w**

> Administrators of the Estate of the late Mackay Albert Kalula Mukasa

BETTY NABETA DAVIS NDYOMUGABE **6.**

**5.**

- FLORENCE NALWOGA KABOOKO **7.** - PLAINTIFFS LUWANDAGA HENRY KITAKULE NYOMBI **8.**

*j*

#### VERSUS

- ROBERT SSEWAVA SENYONJO **1.** - HOLIDAY HOTEL LTD **2.** - DEFENDANTS TILE WORLD LTD----------------- **3.**

## BEFORE: HON. MR. JUSTICE GODFREY NAMUND!


**1**

**1**

#### JUDGMENT

The plaintiffs sued the defendants jointly and severally seeking^caTtcenation of Title to land comprised in Kyadondo Block 272 Plot 34 measuring 8.08 hectares situated at Mutungo, Nakabugo registered in the names of the 3rd defendant, general damages, permanent injunction, interest and costs of the suit.


The $1^{st}$ to the $5^{th}$ plaintiffs are administrators of the estate of the Late Mackay Kalula Mukasa who was the original owner of the suit land. The 6^th plaintiff claims only part of the suit land as a kibanja holder having bought the same from former bibanja owners on the land. He however did not know the measurements of the land he claimed. He believed it to be 17 acres. The 1^st defendant was well known to the late Mackay and at one point he entrusted him with the management of some of his properties. The 1^st defendant claimed that the late sold to him the suit land on 4.03.2001; a sale agreement was executed and transfer forms signed. The late had misplaced the duplicate certificate of title and on 06.12.2003 he applied for a special certificate of title. He then sold the land to the 2^nd defendant after introducing him to the Late Mackay. He transferred title into his names and subsequently to the $2^{nd}$ defendant who in turn sold to the $3^{rd}$ defendant.

The plaintiffs' case against the defendants is that the suit land forms part of the estate of the Late Mackay Kalula Mukasa ; the $\mathbf{1}^{\text{st}}$ defendant who was a servant of the deceased took advantage of the deceased's state of unsound mind due to illness and stole a number of titles including the suit property. And that upon the death of the Late Mackay, the 1^st defendant took advantage and fraudulently applied for the land title and transferred it into his name. Within a space of 4 months he sold it to the 2^nd defendant who in turn sold to the 3^rd defendant who had notice of the 1^st defendant's fraud. The particulars of the fraud against the 1^st, $2^nd$ and $3^rd$ defendants were specifically pleaded in the plaint.

The agreed issues were;

1. Whether the $1^{st}$ to $5^{th}$ plaintiffs have a cause of action against the defendants?

2. Whether the $1^{st}$ to $5^{th}$ plaintiffs as administrators of the estate of the late Mackay Kalula Mukasa have any interest in the suit land?

3. Whether the $6$ ^th plaintiff is a lawful or bonafide occupant on the suit land.

4. Whether the $1^{st}$ , $2^{nd}$ and $3^{rd}$ defendants were registered on the suit land fraudulently?

$\mathbf{2}$

$300$

5. Whether the $2^{nd}$ and $3^{rd}$ defendants are bonafide purchasers for value without notice?

6. Remedies available?

Resolution of the issues agreed by the parties

I shall handle issue 1, 2, 3 and 6 alone and then combine issues 4 and 5.

Issue₁

# Whether the 1^st to 5^th plaintiffs have a cause of action against the defendants?

It was submitted for the plaintiffs that they derive their right to sue under sections 180 and 192 of the Succession Act and Section 134 of the Registration of Titles Act as administrators of the estate of the late. They relied on letters of administration granted by this court on 19.05.2006 vide administration cause No. 1338 of 2004. Counsel cited the case of Auto Garage Vs Motokov (1971) EA 514 on what constitutes a cause of action.

Counsel for the defendants on the other hand submitted that the Pw1, the 3^rd plaintiff testified in cross examination that they did not include the suit property in the petition for letters of administration and therefore they had no cause of action as administrators. That section 180 and 192 of the Succession Act and Section 134 of the RTA cited by counsel for the plaintiffs apply to property which is properly covered by the letters of administration.

The 3^rd plaintiff, James Galabuzi Mukasa led evidence on behalf of the administrators of the estate of the late Mackay Mukasa Kalula. It was his evidence that their late uncle Albert Mackay Kalula Mukasa died on 25.10.2004 and they obtained letters to administer his estate. At the time of his death, the suit land comprised in Kyadondo Block 272, Plot 34 was still registered in his names and consequently formed part of his estate. To prove this fact, they produced in evidence exhibit P.1C, a copy of the certificate of title to the suit land.

^I have looked at It. The suit property originally belonged to the late Mackay Kalula u asa. He was registered as proprietor on 10.07.1992 until 8.03.2005 when title changed to the I^s defendant. The 1» to ⁵th plaintiffs were granted letters of administrators on 19.05.2006.

^I find no fault in the fact that the suit property was not included as part of the estate of the late because at the time it had changed proprietorship and could not be regarded as property of the estate. The plaintiff administrators' cause in this matter is based on fraud. They dispute the transaction of change of proprietorship to the 1st defendant whom they claim was ^a worker of the late. Armed with letters of administration, the plaintiffs as the legal representatives of the deceased seek to recover the suit property from the 3rd defendant. ^I believe by virtue of that right, the 1st to 5th plaintiffs have ^a cause of action against t-he defendants.

Ref: Section 180 and 192 of the Succession Act

Issue 2

Whether the 1st to 5th plaintiffs as administrators of the estate of the late Mackay Kalula Mukasa have any interest in the suit land?

It was submitted for the plaintiffs that they have an interest in the suit land in so far as it belongs to the estate for which they are administering. The defendants submitted that the 1st to 5th plaintiffs had no interest in the suit property since it Xnot form part ofthe estate of the late.

h, nrooerty of the Late Mukasa before it changed hands to the Ts^ht^e n^defendants. The ¹st to 5th plaintiffs' allegation is based on the fact 1,2 an was derived of his land through fraud. The ³rd plaintiff adduced that the late wa^ tate before he passed on complained to police evidence at tna cusjng the ¹st defendant and others about the loss of his C ^I D headquarters ^a tit|es including the suit land.

**4**

Having found that the $1^{\rm st}$ to $5^{\rm th}$ plaintiffs have a cause of action against the defendants, it is subsequent that their interest in the suit property lies in the extent of their claim as administrators of the estate of the late Mukasa.

#### Issues 4 & 5

4. Whether the $1^{st}$ , $2^{nd}$ and $3^{rd}$ defendants were registered on the suit land fraudulently?

5. Whether the $2^{nd}$ and $3^{rd}$ defendants are bonafide purchasers for value without notice?

The $1^{st}$ to $5^{th}$ plaintiffs claim was that the $1^{st}$ defendant in collusion with the $2^{nd}$ and 3^rd defendant fraudulently transferred title of the suit property from the names of the late. Mackay Kalula Mukasa.

To prove their case, Pw1; James Galabuzi Mukasa, the 3^rd plaintiff, adduced evidence that the late Mackay Kalula died on 25.10. 2004 and at the time the suit property formed part of his estate. Before they could get letters of administration, the $1^{st}$ defendant in collusion with the $2^{nd}$ and $3^{rd}$ defendants transferred title into his names and within less than 2 minutes transferred the same to the 2^nd defendant. He executed the transfer deed on 16.05.2005 in favour of the 2^nd defendant when title was still in the names of Albert MacKay Kalula Mukasa. Pw1 claims that the 1^st defendant was aware that the late had passed on and proceeded to deal in the estate without letters of administration. The $1$ ^st defendant knew that there was a caveat emptor forbidding any person from dealing with the estate of the deceased but proceeded to do so. The $\mathbf{1}^{\text{st}}$ defendant was aware that the deceased prior to his death had lodged a complaint at police about his lost title. That the $1$ ^st defendant is contradictory and falsely claiming in one part that he purchased the suit land from the late and in the second part that he was given the land as a gift. He uttered a false transfer deed without any consideration. Further that he dealt in the deceased estate when he had no authority. He falsely pleaded that the deceased had personally handed over the duplicate certificate of title for the suit land yet at the time of his death $\mathsf{S}$

the duplicate certificate of title was lost and deceased had applied for issuance of special certificate of title which was issued on 22.11.2004 after his death. Pw1 also claimed that the 1^st defendant dealt in the deceased estate well knowing that he was mentally ill and had been kidnapped prior to his death.

At trial during cross examination the 6^th plaintiff, Davis Ndyomugabe, abandoned the claim of fraud on the sale to the $2^{nd}$ and $3^{rd}$ defendants as pleaded in the plaint.

The 1st defendant in his evidence denied that he acquired the suit land fraudulently and transferred it to the 2^nd defendant fraudulently. He also denied that the 3^rd defendant was aware of the transaction between Mucunguzi Myers and himself leading to the purchase and transfer of the suit land to the 2^nd defendant. Arthur Katongole, the advocate who witnessed the transaction led evidence that the late Mackay was a long time client and that he prepared and witnessed the transaction between the late and the 3^rd defendant. He also led evidence that he had handled the application by the late for a special certificate of title to the suit land and kept custody of the transfer forms executed for the 3^rd defendant by the deceased. Ahmed Mukasa, a resident of the area and secretary of defenec LC1 adduced evidence that the late Mackay introduced the 1st defendant as the person he had sold the land to and Myers Mucunguzi, the 2^nd defendant as a person interested in buying the land from the 1^st defendant.

Equally, the 2^nd defendant in his evidence denied the allegations of fraud against him. It was also his evidence that the late Mackay introduced Sewava as a person who had been care taking the land and whom he eventually sold it to. Upon being satisfied, he purchased the land and the 1^st defendant signed transfer forms on 16.05.2007.

Sanyu Betty Byamugisha, the managing director of the 3^rd defendant led evidence $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ It was the $2^{nd}$ defendant who introduced her to the land. She carried out a search physically at the land and at the land register and there was no encumbrance. She opened the boundaries. The suit land was partly occupied by Luwandagga and 6 Florence Nalwonga and their families. The 3^rd defendant duly compensated the occupants and they vacated the suit land.

It was submitted for the plaintiffs that the $1^{st}$ , $2^{nd}$ and $3^{rd}$ defendants were registered on the certificate of title fraudulently and the chief organizer of the fraud was the $1^{st}$ defendant assisted by the $2^{nd}$ and $3^{rd}$ defendants. Counsel for the defendants in rejoinder submitted that the plaintiffs did not prove fraud to the required standard and that the particulars of fraud pleaded were not proved and most of them would not in any case amount to fraud even if they had been proved in the manner prescribed by law.

It is a well known legal principle that a certificate of title is conclusive evidence of title and such estate of a registered proprietor is paramount as against all claims. Ref: Section 59, 64 and 176 of the RTA.

The law however provides certain exceptions to this rule and, an allegation of fraud is one of the commonest claims by which a registered proprietor can be ejected from land. Section 176 of the RTA specifically states;

'176. Registered proprietor protected against ejectment except in certain cases.

No action of ejectment or other action for the recovery of any land shall lie or be sustained against the person registered as proprietor under this Act, except in any of the following cases—

(c) the case of a person deprived of any land by fraud as 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;'

In civil cases that the burden of proof lies upon the plaintiff who must prove his or her case on the balance of probabilities if he or she is to obtain the reliefs sought. Ref: Sections 101-I03 of the Evidence Act, Cap. 43. Miller v Minister of Pensions [1947] 2 All ER 372.

$3\parallel$

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# $T$

An allegation of fraud must be proved strictly, the burden being heavier than on a balance of probabilities generally applied in civil matters. Ref: Katureebe JSC in Mpungu and Sons Transporters Limited v Attorney General and another [2006] 1 EA 212 and also Wambuzi, C. J in Kampala Bottlers v Damanico (U) Ltd SCCA No. 22 of 1992

I find exhaustive the definition of fraud as stated in the holding of Katureebe, JSC in Fredrick J. K Zaabwe Orient Bank & 5 others Supreme Court Civil Appeal No. 4 of 2006 in which he stated:

'I find the definition of fraud in BLACK's LAW DICTIONARY 6TH Edition page 660, very illustrative. `

"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 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. Anything calculated to deceive, whether by a single act or combination, or by suppression of truth, or suggestion of what is false, whether it is by direct falsehood or innuendo by speech or silence, word of mouth, or look or gesture.................................... 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, dissembling, and any unfair way by which another is cheated. "Bad faith" and "fraud" are synonymous, and also synonymous of dishonesty, infidelity, faithlessness, perfidy, unfairness, etc. ............

As distinguished from negligence, it is always positive, intentional. It comprises all acts, omissions and concealments involving a breach of a legal or equitable duty and resulting in damage to another. And includes anything calculated to deceive, whether it be a single act or combination of circumstances, whether the suppression of truth or the suggestion of what is false whether it be by direct falsehood or by innuendo, by speech or by silence, by word of mouth, or by look or gesture......."

Hence any form of dishonesty in procuring or registration of a certificate of title to land would amount to fraud.

I have looked at exhibit P.1 F, a statement made by the deceased to police on 19.10.2004 complaining about some fraudulent dealings in his land. The 1^st defendant was among the people he suspected. Exhibit P.1 J shows that on 10.05.2004, the late wrote a letter to the land office alerting them not to issue any certificates of title to a list of people and the 1^st defendant was among them. Further still exhibit P.1 K shows that on 20.11.2002, the late had revoked the power of attorney he had earlier granted to the 1^st defendant in respect of his properties. And exhibit P.1. L shows that on 20. 02.2002, the late wrote to the $1^{st}$ defendant warning him of unauthorized activities concerning his property.

It is therefore not in doubt there were several complainants of fraudulent dealings in the late Mackay properties and the 1^st defendant was cited as among the suspects. I have also looked at annexure 'G' to the written statement of defence in which the late Mackay clarified that he had no complaint on the $1^{\rm st}$ defendant and that people made him that he had stolen his things.

Needless to note, exhibit P.1 T, a medical report from Butabika Hospital clearly elaborated that the late Mackay suffered from a mental illness and this dated back as early as in the 1950s. On 11.08.2004 he was admitted at the facility. The reason for his referral was because he was disposing off family property illogically and selling land at give away prices.

I also note that $1^{st}$ defendant is not certain of how he acquired the suit land. I have carefully considered exhibit P.1 H and P.1. I. On one occasion he mentioned that he was given the suit land yet on the other that he purchased it. In his witness statement however, the $1^{st}$ defendant stated that the late allowed him to occupy and develop the suit land for a consideration of 10,000,000/ $=$ . To prove this fact he produced in evidence a letter written by the late on 20.02.2000

ろろ

$\overline{g}$ acknowledging this fact. He further stated that on 4.03.2001, he executed an agreement of sale for the suit land at the aforesaid consideration and on 7.07.2003 he signed transfer forms for him.

At trial during cross examination, he stated; 'I was estate's officer of Mackey to 2004. Mackey gave me the land according to the work I was doing for him. He signed an agreement for me. The same was in form of money at his lawyer Katongole's place at Shs. 10,000,000/=. There was no cash payment by me.'

I have looked at the transfer form that was alleged to have been signed in his favour and it did not indicate a purchase price for the suit land. The 1^st defendant himself testified that; 'there is no figure indicated on the consideration.'

It is not clear to me as to whether the 1^st defendant bought the suit land or it was given to him for the work he did for the late. I see a sale agreement executed on 4.03.2001, then a letter written by the deceased on 20.02.2000 allowing the $1^{st}$ defendant to occupy the land at a consideration of $10,000,000/=$ and a transfer form that does not indicate as to whether the land was bought or given. Having this in mind and considering the fact that the deceased had made several complaints against the 1^st defendant, as among the people he suspected were stealing his property, I find that the 1^st defendant was not honest in the way he acquired the suit land. The 1^st defendant was a person who closely worked with the late Mackay and I believe he must have been aware of his poor mental health and went ahead to take advantage of him. I find that the $\mathbf{1}^{\text{st}}$ defendant was registered on the suit land through fraud.

In regard to the 2^nd defendant, it came to my notice that he bought the suit land from the $1^{st}$ defendant at Ushs. 30,000,000/= and yet in the transfer form he declared Ushs. 13,000,000/= for purposes of stamp duty. At trial he testified; $\mathcal{I}$ bought it at sh. 30,000,000/=. I am no longer the owner of the land. It now belongs to Tile World. I sold to them at 180,000,000/=. The transfer form indicates sh. 13,000,000/= as my consideration to Sewava. The figure was an error. I bought it for a total of sh. 30,000,000/=. '

The 2 defendant understated the consideration on the transfer form. It is well known that understating consideration is fraudulent and illegal.

In Janet Diana Cope & 4 others vs Janet Namuli & Anor HCCCS No. 33 of 2005, Justice Eldad Mwangusya, cited ^a number of cases in which courts in Uganda have decided that ^a buyer is not bonafide where he inserts a less figure on transfer from a consideration when actually paid more in order to defraud government of revenue and further that it is evidence of fraud to state different figures in the sale agreement from ^a transfer.

Also: Samuel Kizito Mubiru vs. Byensiba & another (1985) HCB

Court therefore cannot enforce or allow itself to be made an instrument of . enforcing obligations alleged to arise out of ^a contract or transaction which is illegal if the illegality is duly brought to the notice of the court and if the person invoking the aid of the court is himself implicated in the illegality: Kisugu Quarries Ltd vs Administrator General Supreme Court Civil Appeal No. 10 of 1998.

Defrauding the government of stamp duty is ^a serious allegation that this court cannot take lightly. Fraud once brought to the attention of court vitiates all contracts that would otherwise have been legal. In that regard ^I find that the 2nd defendant was registered on the suit land fraudulently.

The plaintiffs are capitalizing on the fact that the 1st defendant has ever been convicted for fraud in a matter involving land transactions. ¹ have looked at the of the court judgment submitted by counsel for the plaintiffs arising from High Court Criminal Appeal No. 94 of 2015 In which the 1" defendant was convicted on the seven counts of fraud he was charged with.

t to counsel, the 1st defendant is not trial in this case for having Wlt ^U . another case and that cannot be used to conclude that he must been convic jnstant case. His culpability if any must be assessed on be guilty *o* gd the p|^a jntiffs and their witnesses in the instant case. In short "is case must be decided on its own merits.

**I**

**11**

As matters stand and on the evidence availed, the $1^{\ensuremath{\text{st}}}$ defendant is guilty of fraud as he cannot explain the discrepancies or the related different versions of the story on how he obtained the title. I have not found any evidence to impute the $1^st$ defendant's fraud on the 2^nd defendant.

The 2^nd defendant's registration to the suit land was tainted with fraud for having under stated the consideration on the transfer form.

I also find that the plaintiffs have not adduced evidence that implicates any fraud on the part of the 3^rd defendant when they purchased the suit land. I am convinced that the 3^rd defendant was a bonafide purchaser for value without any notice of the $1^{st}$ and $2^{nd}$ defendant's fraud.

Issue 3

3. Whether the 6^th plaintiff is a lawful or bonafide occupant on the suit land?

It was pleaded in paragraph 11 of the plaint that the 6^th plaintiff purchased from the lawful occupants of the disputed land and took possession, cultivated and planted both seasonal and perennial crops and trees. Copies of the sale agreements were attached to the plaint. His claim lies in the fact that he bought from occupants on the suit land.

It was submitted for the plaintiffs that the 6^th plaintiff was a bonafide occupant of the suit land whose occupancy is protected by the law.

The 6^th plaintiff, Davis Ndyomugabe, adduced evidence to prove that between 1999 and 2006, he bought and took possession of different bibanja from occupants on the suit land. Copies of the different sale agreements were adduced in evidence.

It was his evidence that on 26.11.1999 he bought from Emmanuel Ssalongo Serunjogi, Susan Namirembe and Margaret Nalweyiso land at nakabugo $at$ 3,000,000/=. On 4.9.2000, he bought from Kabooko Lule at 1,500,000/=. On 27.11.2001, he bought from Nansubuga Namaju Mary at 3,000,000/=. On 31. 8.2006, he bought from the Mbazira family at 24,000,000/= and on 16.12.2006, $8.2006$ , he bought from the Mbazira family at 24,000,000/= and on 16.12.2006, $12$

he bought from Nalwonga Jane Namere at 9,500,000/=. He claimed that the above vendors were bonafide occupants on the suit land and they passed their interest to him. He further led evidence that the cultivated the land with various food crops and tress. At the time he bought the land, the landlord was Albert Mackay Kalula Mukasa whom he met in his life while he was with Nicholas Lubula the then LC-1 Chairman and he assured him that he would get title in the future. ssalongo kaggwa the LC1 Chairman of the area and David Sempala led evidence confirming the fact that the $6^{th}$ plaintiff owned a kibanja on the suit land.

Nalwonga Jane confirmed to selling a kibanja to the 6^th plaintiff and led evidence that her late father occupied the kibanja at Nakabugo in the 1930s. They have always lived there and they had burial grounds on it. They inherited the kibanja from their late father.

Florence Nalwonga Kabooko also confirmed the sale of their kibanja to the 6^th plaintiff. In her evidence, she stated that she was born and grew up at Nakabugo on the land owned by her grandfather and in the 1990's the late Kalula Mukasa informed them that he was their landlord.

The 3^rd plaintiff led evidence that at the time the deceased got the transfer from Waligo Nkalubo on 10.07.1992 he found the family of Kabooko and recognized the family as tenants on the suit land.

Ivan Everest Kyeyune Mbazira led evidence that the land they sold to the 6^th plaintiff was never part of the late Kalula Mukasa's land and that it was wrong for the $3^{rd}$ defendant to have fenced it off.

The 1^st defendant denied any knowledge of the occupants on the suit land from whom the $6$ ^th plaintiff bought his interest. He however recognized the interest of Luwandagga. The $2^{nd}$ defendant equally testified to the same fact. The $3^{rd}$ defendant in evidence stated that at the time she inspected the suit land, it was partly occupied by Luwandagga and Florence Nalwonga and their families who were compensated.

$31 +$

$13^-$

Ahmed Mukasa, on this issue led evidence that the 6th plaintiff bought the kibanja from the family of Susan Namirembe of Kigo Lunyo Zone on the land adjacent to the suit land belonging to Mrs. Waligo explained the fact that the land claimed by the 6 plaintiff was located on the neighboring land and not the suit land. More so, that the family of Namirembe lived and still lives in Kigo Lunyo zone which is different from Mutungo Zone where the suit land is located. That the kibanja of the family of the Mbazira which was sold to the 6th plaintiff and which agreement he witnessed is on the land belonging to Mrs. Waligo. Further that the kibanja of the late Kabooko comprised of the portion occupied by Nalwonga Florence which was compensated by the 3rd defendant. It was his evidence that the 6th plaintiff had never occupied part of the suit land.

i'

**I..**

**I**

It is the undisputed evidence of Ivan Everest Kyeyune Mbazira that the land they sold to the 6th plaintiff was never part of the suit land. There is also undisputed evidence by the defendants that the 6th plaintiff has never occupied the suit land but land adjacent to it.

This court opted not to visit the locus in quo as there was sufficient evidence on record to enable court make relevant conclusions.

^I take note that the 6th plaintiff in his evidence did not specify what portion and size of the land he bought from the alleged occupants on the suit land. In that regard, ^I am not convinced that the 6th plaintiff bought any kibanja on the suit land.

compens The people who were occupants on the suit land which the 3rd defendant eventually bought that is, Florence Nalwonga and Luwandagga were duly ated by the said 3rd defendant. The 6th plaintiff was not one of those.

, • tharpfore is that on ^a balance of probabilities, the ⁶th plaintiff has The conclusion ineieiu . failed to establish and prove his claims on the suit land.

**3W**

**14**

## The Counter claim

The counter claimants claimed that 6^th plaintiff and a one Kitaka Gerald trespassed on the suit land. Its claim was supported by the evidence of Sanyu Betty Byamugisha, the managing director of the 3^rd defendant that he forcefully entered the suit land, destroyed the fence and converted fencing materials. In respect of Kitaka Gerald, the 3^rd defendant led evidence that he entered on the suit land and started constructing a storied building. This claim is not collaborated by any other evidence. The claim for general damages cannot accordingly stand. The counter claim fails and is dismissed accordingly.

### Issue 6

### 6. Remedies available?

After considering all the evidence and submissions on record, this court has come to the following conclusion;

1. That the plaintiffs have a claim against the 1^st defendant for fraudulently converting the estate property and against the $2^{nd}$ defendants for fraudulently under valuing the property so as to evade taxes.

However, courts take into account the fact that the property has been sold and transferred to 3^rd and 4^th parties. In that respect, the plaintiffs can only claim the value of the land and general damages from the 1^st defendant.

- 2. The $6^{th}$ plaintiff has failed to prove his claims against the 3^rd defendant who to this court is a bonafide purchaser without notice of adverse claims. - 3. The $3^rd$ defendant is duly declared bonafide purchaser of the suit property without notice of the fraudulent acts of the $1^{st}$ and $2^{nd}$ defendants. - 4. The counter claim by the $3^{rd}$ defendant against the $6^{th}$ plaintiff is not proved and is dismissed accordingly.

Judgment is accordingly entered in the following terms;

1 The Plaintiffs No. 1 to ⁵ as administrators of the estate of Mackay Mukasa have duly established their claim against the 1st Defendant and are entitled to the value of the suit property.

**r. •**

**I; •**

- They are accordingly awarded on top of the above general damages assessed at shs. 100,000,000/= as against the 1st Defendant - 2 The claim by the 6th Plaintiff against the 3rd Defendant is dismissed with costs.

A permanent injunction is accordingly issued against him from further interfering with the 3rd Defendant's occupancy and title of the suit property.

- **rd** ³ The ³ Defendant is declared the lawful registered proprietor of the suit property having purchased it bonafide without notice of adverse claims. - 4 The counter claim by the 3rd Defendant against the 6th Plaintiff is dismissed with costs. - 5 The 2nd Defendant is to pay general damages to Plaintiffs No. 1 to 5 for his fraudulent under valuing of the suit property. The same is assessed at Ushs. 30,000,000/= - 6 The ¹st and 2nd Defendants are to meet the costs of Plaintiffs NO. ¹ to 5.

**G FREY NAIYIU JUDGE DATE:.**

**I**

# THE REPUBLIC OF UGANDA

ļ

# IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) CIVIL SUIT NO.221 OF 2009

| $\mathbf{1}$ .<br>$\overline{2}$ .<br>3.<br>4.<br>5.<br>6. | GEORGE KASEDDE MUKASA<br>MICHEAL GALABUZI MUKASA<br>JAMES GALABUZI MUKASA ·<br>ZACHARY KIWANUKA<br>BETTY NABETA<br>(Administrators of the Estate of the late<br>MACKAY ALBERT KALULA MUKASA)<br>DAVIS NDYOMUGABE | | | PLAINTIFFS | |------------------------------------------------------------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--|--|------------| | <b>VERSUS</b> | | | | | | 2.<br>3. | ROBERT SEWAVA SENYONJO<br>HOLIDAY HOTEL LTD.<br>TILE WORLD LTD. | | | DEFENDANTS |

### DECREE

THIS SUIT coming for final disposal before the Hon. Mr. Justice Godfrey Namundi on the 25^th day of April, 2017 and after having considered the written submissions of M/s Muhimbura & Co. Advocates Counsel for the plaintiff and M/s Barya, Byamugisha & Co. Advocates, Counsel for the defendants, the pleadings and the evidence adduced for the respective parties, IT IS ORDERED AND DECREED as follows:-

- 1. Plaintiff Nos. 1 to 5 to wit, George Kasedde Mukasa, Micheal Galabuzi Mukasa, James Galabuzi Mukasa, Zachary Kiwanuka and Betty Nabeta as administrators of the estate of the late Mackay Kalula Mukasa having duly established their claim against the 1^st Defendant are entitled to the value of the suit property comprised in Kyadondo Block No. 272 Plot 34 at Mutungo, Nakabugo, and on top are awarded Shs. 100,000,000/= (One hundred million Shillings) general damages as against the 1^st defendant. - 2. The 3^rd Defendant is declared the lawful registered proprietor of the land comprised in Kyadondo Block 272 Plot 34 at Mutungo Nakabugo measuring 8.08 acres having purchased it bonafide without notice of any adverse claims. - 3. The claim by Davis Ndyomugabe the 6^th Plaintiff against Tileworld Ltd the 3^rd Defendant in respect of the land comprised in Kyadondo Block 272 Plot 34, at Mutungo Nakabugo measuring 8.08 hectares is dismissed with costs and a permanent injunction is issued against measuring 0.00 modifies to account the $3^{rd}$ Defendant's occupancy of and title to it. - 4. The Counter-Claim by Tileword Ltd, the 3^rd defendant against Davis Ndyomugabe, the 6^th Plaintiff is dismissed with costs. - 5. The 2^nd Defendant does pay general damages to Plaintiffs Nos. 1 of 5 for his fraudulent The 2 Determinant user $\frac{1}{2}$ assessed at Shs. 30,000,000/= (Thirty million Shillings).<br>undervaluing of the suit property assessed at Shs. 30,000,000/= (Thirty million Shillings). - 6. The 1^st and $2^{nd}$ Defendants shall meet the costs of Plaintiff Nos. 1 to 5.


M/s MUHIMBURA & CO. ADVOCATES COUNSEL FOR THE PLAINTIFFS.

*il lat iAli* IJΨ

M/s BARYA, BYAMUGISHA & CO. ADVOCATES<br>COUNSEL FOR THE DEFENDANTS

. day of April GIVEN under my hand and the Seal of this Court this ... $\ldots 2017.$

**REGISTRAR**

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