[2023] UGHC 505

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

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

### **CIVIL SUIT NO.46 OF 2023 (Formerly Masindi C. S No.36 of 2012)**

### **1. KASISIRI SWAIBU 2. RASHID KAIJUKA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFFS**

#### **VERSUS**

| 1. BYAMUGISHA JULIUS ARINAITWE | |----------------------------------------------------------------------------------------| | 2. JOHN NYAMUGABO | | 3. KABWIBWI GEORGE | | 4. BAGABO GODFREY ::::::::::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANTS |

#### *Before: Hon. Justice Byaruhanga Jesse Rugyema*

#### **JUDGMENT**

### **Background**

- [1] By a consent order dated 28/3/2012 vide **H. C. C. S No.22/2009,** the following suits were consolidated in order to avoid multiple suits in respect of the same suit land and titles thereon; a) **H. C. C. S No.022/2009 (formerly F/portal C. S No.51/2002)** - **b) H. C. C. S No.026/2009 (formerly F/portal as C. S No.49/2002.** - c) **H. C. C. S No.036/2012** and - d) **H. C. C. S No.017/2012.** - [2] Under the consolidated suits, the parties and the title of the suit were to be as follows; - 1. Deliana (U) Ltd - 2. Kasisiri Swaibu - 3. Rashid Kaijuka as plaintiffs and

- 1. Byamugisha Julius 2. Nyamugabo John 3. Kabwibwi 4. Bugabo 5. Hoima District Land Board as Defendants. - [3] However, earlier on, vide **H. C. C. S Nos. 25 & 26 of 2009 (Formerly F/portal C. S Nos.48 & 50 of 2002** over the same suit subject matter between the parties, **Rashid Kaijuka** and **Kasisiri Swaibu** as Plaintiffs Versus **Deliana Ltd** and **Hoima District Land Board** as defendants, the suit portion of land in the title of **"Deliana (U) Ltd"** was recognised to belong to the plaintiffs, and as a result, the suits against the 2nd Defendant, **Hoima District Land Board** were accordingly withdrawn. It would however, later be noted that vide **H. C. C. S No.04/2013; "Deliana (U) Ltd"** was found and held to be a fictitious non entity. - [4] On 18/8/2014, by consent of the counsel for the parties, the order for consolidation of the suits was reviewed and it was ordered that; - 1. **C. S No.17 of 2012** be heard separately. - 2. **C. S No.22 & 26 of 2009** be stayed and the concerns in the suits be addressed /considered in **C. S No.36 of 2012.** In the course of hearing of the suit, counsel for the plaintiffs **Mr. Ngaruye Ruhindi** addressed court that **Mutakire** and **Kamuntu** who were the unique defendants in **C. S Nos.22 & 26 of 2009** vacated the suit land thus leaving **C. S No.36 of 2012** as the perfect suit to resolve the parties' conflict. - [5] In the amended plaint of **C. S No.36/2012,** the Plaintiffs sought inter alia, the following reliefs against the Defendants; - a) A declaration that the suit land (at **Kyarushesha or Kyarusesa Kyangwali, Hoima**) belongs to the plaintiffs. - b) A declaration that the inclusion of the plaintiffs' land in the certificate of title of the 1st defendant was wrongful and illegal. - c) A declaration that the certificate of title issued in the names of **"Deliana (U) Ltd"** was obtained fraudulently. - d) A declaration that the registration of the 2nd & 4th Defendants as transferees of the land was illegal and fraudulent.

- e) An order directing cancellation of the Registration of **"Deliana (U) Ltd"** as proprietor and of the 2nd defendant as transferee and cancellation of the whole certificate of title. - f) An order directing cancellation of the registration of the 1st Defendant as proprietor and of the 4th Defendant as transferee and or cancellation of the whole certificate of title. - g) An order that the Defendants, their agents, workmen, servants and employees be evicted from the suit land. - h) An order that the Defendants be permanently restrained from trespassing on the plaintiff's land. - i) An order that the Defendants pay general damages for trespass and inconvenience at the rate of 30% per annum from the date of judgment till full payment plus costs of the suit. - [6] It is the Plaintiffs' case that in the year 2000, the 1st plaintiff purchased the suit land at **Kyarushesha, Kyangwali, Hoima** and gave part of it as a gift inter vivos to his son, the 2nd Plaintiff, which they have occupied under customary tenure. - [7] That sometime in the year 2001, the 1st Defendant posing that he was a representative of "**Deliana (U) Ltd"** applied for land adjacent to the suit land across the **Enkondo** or **Nkondo Rd** for himself and on behalf of "**Deliana (U) Ltd"** but included the plaintiffs' land on the right hand side of the said road. - [8] The plaintiffs' protests against the Defendants' acts of surveying the suit land were met with threats to shoot them by the 1st Defendant's deployed 2 uniformed armed soldiers. The plaintiffs however, further lodged caveats to block the process of registration of the said "**Deliana (U) Ltd"** and the 1st Defendant as proprietors in respect of the suit land which included the plaintiffs' portion of land, but the same were ignored. - [9] Lastly, that the plaintiffs have since discovered that in spite of the caveats they filed to block the process of registration of the said "**Deliana (U) Ltd"** and the 1st Defendant, certificates of title were issued to them. The 1st Defendant purporting to be a Director in "**Deliana (U) Ltd"** sold the suit

portion of land in the names of "**Deliana (U) Ltd"** to the 2nd Defendant and the 2nd Defendant also purported to sell part of the suit land to the 3rd Defendant who has occupied and is utilising it to the detriment and anguish of the plaintiffs.

- [10] That a search conducted about "**Deliana (U) Ltd"** reveal that it is not a company incorporated in Uganda as it does not appear on the register of companies in Uganda but the 1st Defendant wilfully used the said name to apply for the plaintiffs' lands. - [11] The Plaintiffs averred and contended that they have been denied the opportunity to utilize their land and have as such suffered loss and damage which entitle them general damages. - [12] The Defendants on the other hand denied the Plaintiffs' allegations and contended that they lawfully acquired the suit land which is comprised of **Plot 5 Buhaguzi, Block 2, Hoima, measuring 245** hectares which was formerly a buffer zone between Semuliki National park and Lake Albert and that in 1999 or 2000, on the directives of the President of Uganda to the Local District Land Board, made it available for human occupation upon which the 1st Defendant lawfully applied for it and acquired a certificate of title both in his own names and of **"Deliana (U) Ltd"**. - [13] That the 2nd and 4th Defendants acquired their respective portions of land from the 1st Defendant by way of purchase without any notice of any encumbrances or fraud while the 3rd defendant is on the suit land with an equitable interest on account of the 2nd defendant, the registered owner of the suit land. - [14] The following issues were agreed upon by the parties during scheduling conference; - *1. Whether the plaintiffs had customary interest in the suit land at the time it was brought under the operation of the Registration of Titles Act.* - *2. Whether or not the suit land was fraudulently brought under the Registration of Titles Act.*

- *3. Whether or not the 2nd, 3rd & 4th Defendants were bonafide purchasers for value without notice.* - *4. What are the remedies available to the parties.*

## **Counsel legal representation**

[15] The Plaintiffs were represented by **Mr. Ngaruye Ruhindi** of **M/s Ngaruye Ruhindi Spencer & Co. Advocates, Mbarara** while the Defendants were represented by **Mr. Aaron Baryabanza** of **Baryabanza & Co. Advocates, Hoima.** Both counsel filed their respective written submissions for consideration of this suit as directed by this court.

# **Issue No.1: Whether the plaintiffs had customary interest in the suit land at the time it was registered under the Registration of Titles Act.**

- [16] According to the plaintiff **(PW1)**, on 10/3/2000, he bought 3 square miles of land (the suit land) located at **Kyarushesha, Kyangwali, Kikuube; (formerly Hoima District)** along Nkondo road which runs from Butoole to Nkondo Fishing ground from a one **Irumba Sebastian** and **Barongo Julius** (PW2) at a consideration of **Ugx 4 million**. A purchase agreement to that effect was accordingly executed **(P. Exh.1(a))** which was witnessed by many people who included **Rwamukunengye James,** a neighbour, **Mubangizi Buruhani** (PW5) and **Byabagambi Hussein** (PW6). - [17] The 1st Plaintiff testified further that upon purchase of the suit land, he took possession of the land and gave part of it to his son, **Rashid Kaijuka**, the 2nd Plaintiff and both started using the land for cultivation of crops and grazing of animals. Thereafter, the Plaintiffs embarked on bringing the land at **Mahamba /Kasiba** under the operation of the Registration of Titles Act. They obtained all the relevant recommendations and endorsements as is the practice from the L. C1-L. CIII who forwarded the application to the Sub county whose officials also recommended and endorsed the application and forwarded it to the District Land Board **(P. Exhs.1 (b), 3(a)).**

- [18] In the year 2001, the 1st Defendant emerged in the area purporting to be a representative of a company called "**Deliana (U) Ltd"** and filed 2 sets of applications for land at **Mahamba/Koya** on the left hand side of Nkondo Road; the 1st one in his names and the 2nd one in the names of **"Deliana (U) Ltd"** (P. Exh.2 (c)). That when it came to surveying the land which the 1st Defendant had applied for in **Mahamba/Koya,** with the aid of uniformed army men, he included the plaintiffs' land at **Mahamba/Kasiba** on the right side of Nkondo Rd, opposite **Koya** village. - [19] The 1st Plaintiff reported the 1st Defendant's grabbing of his land to the L. C1 secretary for security (PW4) who went to the scene and confirmed the presence of the 2 armed UPDF soldiers with the 1st Defendant on the Plaintiffs' land. He followed this by filing land dispute case before the **L. C1 Court of Kyarushesha** which was determined in his favour **(P. Exh.5).** - [20] The 1st Defendant in due course acquired the suit land and sold it to the 2nd defendant who in turn sold to the 3rd and 4th defendants. - [21] Counsel for the Plaintiffs submitted that the plaintiffs purchased the suit land from a one **Barongo Julius** (PW2) and **Sebastian Irumba,** the former owners of the suit land under customary tenure. That they were the indigenous Banyoro who owned the suit land and had customary interests thereon for they used the same for cultivation and grazing. They had banana plantations thereon and also used the land for grazing livestock which are incidences and tenets of customary tenure. They sold the land to the 1st plaintiff. That by the time the 1st plaintiff came into the picture to have the land brought under the Registration of Titles Act, the plaintiffs had customary interests in the suit land. - [22] According to the Defendants, the suit land was public land free from any 3 rd party claims having prior the year 2000, been infested with ADF rebels and when the rebels were defeated, upon the presidential directive that the land be availed to the public for human occupation, he got interested in it and applied for the same. The District Land Board considered his application and granted him lease offer for 2 portions of land in his names

which were neighbouring each other and the other, in the name of "**Deliana (U) Ltd".**

- [23] The 1st Defendant sold the portion of land in the names of **"Deliana (U) Ltd"** to the 2nd Defendant who in turn sold the portion to the 3rd Defendant and the 4th Defendant. - [24] Counsel for the Defendants submitted that the Plaintiffs and their witnesses claim that they purchased the suit land from **Barongo Julius** and **Irumba Sebastian** whom they claim owned the suit land under customary tenure, that however, no evidence was adduced by the plaintiff or **Barongo Julius** and **Irumba Sebastian** to show that either of them possessed any customary interest in the suit land. He relied on the authorities of **Kampala District Land Board & Anor Vs Venansio Babweyaka & 2 Ors, S. C. C. A No.2 of 2007**, **Balamu Bwetagaine & Anor Vs Zephania Kadooba Kiiza C. A. C. A No.59/2009** and **R Vs Ndembera s/o Mwandawale (1947) 14 E. A. C. A 85** for the proposition that customary tenure must be proved.

# **Analysis**

[25] The plaintiffs' case is simply that they purchased the suit land from a one **Barongo Julius** (PW2) and **Irumba Sebastian** whom they claim owned the suit land under customary tenure.

Customary tenure is defined under **S.1(l) of the Land Act** as

*"a system of land tenure regulated by customary rules which are limited in their operation to a particular description or class of persons the incidents of which are described in section 3."*

**Section 3 provides** for incidents of forms of tenure and customary tenure **(S.3(l))** is a form of tenure-inter alia, applicable to a specific area of land and a specific description or class of persons; applying local customary regulation and management to individual and household ownership, use and occupation of, and transactions in land; providing for communal ownership and use of land; in which parcels of land may be recognised as subdivisions belonging to a person, a family or traditional institution.

## [25] In **Kinyanjui Kimani Vs Muira Gikanga [1965] E. A 735,** Duffus, J. A held that

*"As a matter of necessity, the customary law must be accurately and definitely established. The court had wide discretion as to how this should be done but the onus to do so must be on the party who put forward the customary law. This might be done by inference to a book or document of reference and would include judicial decision... the party propounding the customary law would have to call evidence to prove the customary law as he would prove the relevant facts of his case."* Emphasis.

In **Marko Matovu & 2 Ors Vs Sseviri & Anor [1979] HCB 174**, it was held that it is generally accepted that customary tenure may be established by the cultivation only of seasonal crops or the grazing of cattle and related construction of wells to water cattle.

- [26] In the instant case, according to the Plaintiffs and their witnesses, prior to the purchase of the suit land by the 1st Plaintiff (PW1), the suit land belonged to **Barongo Julius** (PW2) and **Irumba Sebastian** who were using it customarily and part of it had a banana plantation while the larger chunk was pasture for grazing. Upon purchase, the plaintiffs also used it for both cultivation and grazing. - [27] During cross examination, **Barongo Julius** (PW2) explained that he was born in the area. His parents used to cultivate and plant cotton on the land and he personally had thereon a banana plantation. As regards his previous witness statement in **C. S No.17/2012** (D. Exh.5) where he stated that the "immediate neighbour across the road to the lake was **Kasisiri Swaibu"** but that he did not know how **Kasisiri** (PW1) got the land across the road, he explained that **Kasisiri** has many pieces of land and he did not know which land across the road counsel was asking him about. Otherwise, he knew how **Kasisiri** got the land across the road. **Kasisiri** bought from him and **Irumba**. The sale Agreement is **P. Exh.1(a).** It was never challenged at all. In this case, I find that despite PW2's seemingly inconsistence, he still asserted that the 1st Plaintiff, **Kasisiri** owned the land across the road. PW1's evidence and that of PW2 were corroborated by that of the L. C

Official (PW4) and the Plaintiffs' protests evidenced by the L. C Report (P. Exh. No.4) together with the suit before L. Cs (P. Exh. No.5)

- [28] Counsel for the Defendants relied on the authorities of **Balamu Bwetegaine Kiiza** and **Kinyanjui Kimani (supra)** to show court that the plaintiffs failed to prove that they customarily owned the suit land. I however, find the authorities not helpful to the defendants. - [29] In those cases, the parties in question had pleaded acquisition of land by a peculiar custom or customary law i.e, **" Kinyoro custom that L. Cs and bataka/local elders allocating land in the form of a gift"** and the **"Kikuyu custom that a ceremony is necessary in creating a valid customary gift of land"** respectively. In such cases, the party pleading the custom or customary law would definitely be required to prove it. - [30] In the instant case, the Plaintiffs were not relying on any peculiar custom or customary law and therefore, they would only be required to prove the circumstances under which they acquired or became the owners of the land in question but not to prove the custom or customary law under which they got the land. In this case, neither a custom nor customary law is in contest save for how the Plaintiffs acquired their alleged customary interest on the suit land. The Plaintiffs pleaded and led evidence of acquisition of land by way of purchase of customary interest from former owners of the suit land under customary tenure. It is not in all cases of proof of customary tenure ownership the court will require evidence of an expert, as counsel for the Defendants want, when to prove such an interest. Going by the incidents of forms of customary tenure, **S.3(L) Land Act** customary tenure applies to a specific area and specific group of people and can be established by any activity on the land. A reference has to be made to the practices and customs of the indigenous peoples and local communities, i.e, the established patterns of behaviour that can be objectively verified within a particular social setting or community which is seen by the community itself as having a binding effect. - [31] I take judicial notice of a fact that any indigenous Ugandans or group of Ugandans have always had a right in accordance with their customary law, to occupy any alienated public land (outside the urban areas) in respect of which no tenancy or other right of occupancy had been created without prior license or consent from the controlling authority, and the presence of agricultural practices or other activities common to exclusive use of land that have prevailed over years would define ownership of the particular land. Court is permitted to take judicial notice of a fact of the existence of practices which are not subject to reasonable dispute because they are generally known within the trial court's territorial jurisdiction.

- [32] Under the above observation therefore, I find that once as in the instant case, the plaintiffs have established that the 1st plaintiff purchased the suit land from indigenous owners who had customary interest thereon, in form of usage by cultivation of crops and grazing of animals, and on that basis, they were in the process of bringing the land under the operation of the Registration of Titles Act, the burden shifted to the defendants, by evidence, to rebut such facts, which they failed to do. - [33] In the premises, I find that land held under customary tenure may be acquired by purchase of the customary interest or may be acquired by gift inter vivos. It follows therefore that in this case, by the time the suit land was brought under the operation of the Registration of Titles Act by the 1st defendant, the plaintiffs had customary interests therein. The 1st issue is found in the affirmative and therefore in favour of the plaintiffs.

# **Issue No.2; Whether or not the suit land was fraudulently brought under the Registration of Titles Act.**

[34] Fraud has been defined to include and embrace all incentives of untruth which are aimed at cheating another so as to gain from such false representation. It also includes the use of illegal means to obtain an advantage which, if not for the illegality could not have rightly accrued to the perpetrator of the illegality; **Mivumbi-Katale & 2 Ors Vs Tamale H. C. C. S No.384/2008 [2020] UGH CLD 13.** In **Katarikawe Vs Katwiremu & Anor [1977] HCB 214** fraud was defined to cover dishonest dealings in land such as depriving a purchaser for value in occupation of the land of his unregistered interest;

*"Although mere knowledge of an unregistered interest cannot be imputed as fraud under the Act, it is my view that where*

*such knowledge is accompanied by a wrongful intention to defeat such existing interest, that would amount to fraud."*

- [35] The Defendant must be guilty of some sharp practice while dealing in land, **David Sejjaka Vs Rebecca Musoke, S. C. C. A No.12/1985 [1986] UG SC 12,** or be guilty of some dishonest act or must have known such acts by somebody else and taken advantage of such act and that fraud must be strictly proved and the burden is heavier that one of balance of probabilities generally applied in civil matters, **Kampala Bottlers Ltd Vs Damanico, S. C. C. A No.22 of 1992.** - [36] In the instant case, it is the Plaintiffs' case that the 1st Defendant, **Byamugisha Julius Arinaitwe** came to Kyarushesha, Kyangwali Sub county, Hoima and applied for land in **Mahamba/Koya** village in his names and those of a company by the names of **"Deliana (U) Ltd".** That during the process of bringing the land under the Registration of the Titles Act/the survey process, the 1st Defendant fraudulently included their portion of land in **Mahamba/Kasiba** village across the **Nkondo** Road. - [37] The 1st Defendant on the other hand does not deny the inclusion of the alleged plaintiffs' land, the suit land unto his title but aver and contend that the land was available for leasing.

## **Acquisition of the suit land in the names of the 1st Defendant (P. Exh.3B).**

- [38] It is not correct to say that at the time when the suit land was being brought under the operation of the Registration of the Titles Act, the villages **Kasiba** and **Koya** were not in existence as the Defendants (2nd Defendant/DW3 and Begumya Paul/DW2) wanted this court to believe. - [39] **Begumya Paul** (DW2) as an L. C Official Chief of the area endorsed on both applications of the Plaintiffs and the 1st Defendant and these applications disclosed the existences of the 2 villages **(P. Exh.1(b), P. Exh.3(b)** & **P. Exh.2(a)/D. Exh.6).** It is therefore a proved fact that the two villages exist and therefore, whereas the Plaintiffs customary interest of the land is in

**Kasiba village**, the 1st Defendant's interest of the land he applied for was in **Koya village** across Nkondo Rd opposite, the **Kasiba Village** suit land.

[40] 2ndly, the 1st Defendant filed 2 sets of Applications. The 1st set was in the names of the 1st Defendant **(P. Exh.3b)** while the 2nd one was in the names of "**Deliana (U) Ltd"** (P. Exh. 3(c)); both portions of land being at **Mahamba/Koya village**. During the survey exercise of the land, the Plaintiffs protested claiming that the surveyors were in the survey exercise including their land at **Mahamba/Kasiba village** but the 1st Defendant silenced them with threats of shooting them with guns. Though the 1st Defendant denied the existence of armed men, **Nkubito Eugine** (DW6), during cross examination, conceded that the 1st Defendant was accompanied by army men though, on the other hand he denied that they were armed. However, the evidence of the 1st Plaintiff/PW1, 2nd Plaintiff/PW2 and **Kisimbiri Hamidu**/PW4, the L. C1 Defence Secretary corroborated by the L. C Official Report, **P. Exh.4,** which was endorsed by the L. C1 Chief **Begumya Paul** (DW2), is sufficient evidence that the 1st Defendant found the Plaintiffs on the suit land and upon their protest against the 1st Defendant's fraudulent survey of the land, the Plaintiffs were silenced with threats to shoot them by the 1st Defendant's deployed armed soldiers.

### **Acquisition of the suit land in the names of Deliana (U) Ltd (P. Exh.3(c))**

- [41] The Plaintiffs assert that when the 1st Defendant applied for land at **Mahamba/Koya village in Kyangwali,** during the survey exercise, with force of use of a gun, he included their portion of land in **Mahamba/Kasiba** village, opposite side which is across Nkondo Road, where his land is located. - [42] The 1st Defendant had personally applied for this land in the names of "**Deliana (U) Ltd"** which the Plaintiffs on search in the Companies Registry, found to be non –existent. The 1st Defendant/DW1 during cross examination conceded that indeed, in that application, he represented a non-existing company. Indeed, in **C. S No.04/2013 formerly C. S**

**No.17/2012** as conceded by the 2nd defendant who purported to derive interest from the said **"Deliana (U) Ltd",** this company was found by court to be a non-existing body incapable in law to transact business **(P. Exh.6).** Court proceeded to order for cancellation of the certificate of title **LRV 3363, Folio 6, plot 5, Block 2 Mahamba/ Koya (P. Exh.2(a))** for he purported to purchase from what in law was "no seller". Court concluded that as a result,

*"From this judgment the suit land is free for any interested person to apply of course subject to the usual practice."*

- [43] In the above suit, i.e, **C. S No.4 of 2013,** the present Plaintiffs were not a party. It was between **Deliana Ltd,** an existing company and the 2nd Defendant, **Nyamugabo John** in respect of land the 1st Defendant representing a non-existent company, "**Deliana (U) Ltd"** had applied for at **Mahamba/Koya village** and therefore, the holding of the suit could not affect or bind the Plaintiffs whose land is that across the Nkondo Road, at **Mahamba/Kasiba village.** - [44] **At page 6 of the Judgment in C. S No. 4/2013**, court found and observed thus;

*"The elusive Julius Arinaitwe (The 1st Defendant) used the post office box number 30183 of the Plaintiff Deliana (U) Ltd, in all documents except in the supplementary sale agreement. He attached a sheet behind the lease offer containing the names and signatures of the Plaintiff's directors as witnesses to the lease offer…This was the page which was taken to the, Handwriting Expert, PW1 for analysis. The directors of the Plaintiff dishonoured the document and the signatures thereon. PW1 confirmed that the signatures were forgeries… No wonder, the said Arinaitwe has since disappeared from the scene."*

[45] The conclusion this court can make from the totality of the above is that the transaction relating to the acquisition of the suit land by the 1 st Defendant was tainted with fraud, and since the "**Deliana (U) Ltd"** acquired land that included that of the Plaintiffs, the 1st Defendant's knowledge of the existence of the Plaintiffs' un registered interest, accompanied by his knowledge of the fictitious **"Deliana (U) Ltd",** his illegal acquisition must have been intended to defeat the Plaintiff's existing interest, which in all circumstances amount to fraud.

46] The 2nd issue is in the premises found in the affirmative. The suit land was fraudulently brought under the Registration of Titles Act.

# **Issue No.3: Whether or not the 2nd, 3rd, 4th defendants were bonafide purchasers for value without notice.**

- [47] The doctrine of *bonafide* purchaser for value is a statutory defence available only to a person registered as proprietor under the Registration of Titles Act, **Nasula Akongo Vs Oyat Francis Otoo, C. A. CA No.68/2011** where it was further held as follows; - a) A *bonafide* purchaser is a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly. - b) For a purchaser to successfully rely on the *bonafide* doctrine must prove inter alia, that; - i)He holds a certificate of title - ii)He purchased the property in good faith - iii)He had no knowledge of the fraud - iv)He purchased for valuable consideration - v)The vendor has apparent valid title.

See also, **Francis Kiyaga Vs Josephine Ssegujja & Anor, C. A. C. A. No.70/2010.**

#### **2 nd Defendant, Nyabugabo John's interest**

[48] It is the 2nd Defendant's (DW3) case that in 2003, **Byamugisha Julius,** the 1 st Defendant/DW1 sold him the land in the names of **"Deliana (U) Ltd"** upon describing himself as the proprietor and another land in the names of **Byamugisha Julius** but later, vide **C. S No.04/2013 (formerly C. S No.17/2012**), the title he acquired from "**Deliana (U) Ltd"** was cancelled **(P. Exh.6).** The other piece of land in the names of **Byamugisha Julius**, the 2 nd Defendant sold it to **Bagabo Godfrey,** (the 4th Defendant) whom he handed over blank transfers he had got from **Byamugisha Julius**, the vendor to enable him have direct transfers.

- [49] As regards the 2nd Defendant's interest therefore, as derived from "**Deliana (U) Ltd",** comprised in **LRV 3363, Folio 6, Plot 5, Block 2, Mahamba/Koya, Kyangwali** (P. Exh.3(a)), he conceded that he lost interest thereon vide **C. S No.4/2013** (P. Exh.6) for its title was cancelled as there was no sale to him in law, because a non-existing body, "**Deliana (U) Ltd"** could not in law transact business. - [50] As regards the 2nd Defendant's interest as derived from the 1st Defendant, **Byamugisha Julius Arinaitwe** (the 1st Defendant), as per the certificate of title **(D. Exh.1),** the 1st Defendant got registered on the suit land on 12/8/2005. It is therefore apparent as per the sale agreement dated 6/2/2004 between the 2nd Defendant and the said **Byamugisha Julius Arinaitwe** attached to the 2nd Defendant's witness statement, the 1st Defendant/vendor sold the suit land to the 2nd Defendant before he became the registered proprietor i.e, before acquisition of the property. It follows therefore that at the time of purchase, the vendor **Byamugisha Julius Arinaitwe**, had no apparent valid title to pass over to the 2nd Defendant as a purchaser. Besides, by 6/2/2004 when the 2nd Defendant purported to had purchased the suit land from the 1st Defendant, the plaintiffs had lodged their respective caveats on the suit land and therefore, such caveats put him on notice and his purported purchase was in the circumstances subject to the interests of the plaintiffs as reflected in the said caveats.

### [51] In **Erick Kimbowa Vs Bernard Kasitro, H. C. C. S No.197/2009 citing UPTC Vs AKPM Lutaya, S. C. C. A No.36/1995**,

*"A person who conducts a perfunctory search of the title to land before purchase, takes it subject to existing equitable interest."*

In this case, it is apparent that despite being brought to notice by the caveats on the suit land, the 2nd Defendant did not bother to thoroughly investigate the various interests on the land he intended to purchase, if at all he was not privy to the fraud that was associated to its acquisition by the 1st Defendant. In the absence of any evidence of due diligence on the part of the 2nd Defendant made before the purported purchase, he cannot qualify as a *bonafide* purchaser. Besides, contrary to the requirement in **Nasula Akungo Otoo** & **Hannigton Njuki (supra),** by the time of purchase, the vendor must be the registered proprietor, in this case, the 1st Defendant was not.

### **The 3rd & 4th Defendant's interest**

- [52] In his witness statement to court, the 3rd Defendant **Kabwibwi George** (DW5) testified that at the time of purchase of the 100 acres of the suit land from the 2nd Defendant, the vendor, **Nyabugambo John** was not the registered proprietor of the land. He only possessed a "duplicate" certificate of title in the names of the 1st Defendant. The 3rd Defendant's purchase agreement was admitted under protest from counsel for the Plaintiffs that it lacked stamp duty as required by **S.42 of the Stamp duty Act,** however, nevertheless, stamp duty was eventually paid (D. Exh.4). As per **Namwaki & 2 Ors Vs Wanguto, HCCA No. 59/2010**, lack of payment of stamp duty on an agreement does not per se invalidate it but forbids its admissibility in evidence. The eventual payment of the stamp duty on the agreement in this case therefore, in the premises validated its admission on record though interestingly the 1st Plaintiff's purchase agreement tendered in by counsel for the plaintiffs had been admitted without stamp duty having been paid in respect of the agreement. - [53] In this case, nevertheless, from the foregoing, I find that the 3rd Defendant did not purchase from a registered proprietor who could pass a valid interest of the suit land to him and therefore, he cannot in the circumstances qualify to be a *bonafide* purchaser for value without notice. His fate is similar to that of the vendor, the 2nd Defendant in all aspects of the matter. Besides, it is apparent from the witness statement of the 2nd Defendant in **Paras. 17-19,** that whereas the 2nd Defendant sold the 4th Defendant a portion of the land that was registered in the names of the 1st Defendant, the portion of land he sold to the 3rd Defendant appear to be that one that was in the names of **"Deliana (U) Ltd"** whose title was cancelled and therefore, the 2nd Defendant had no land or title to sell to the 3 rd Defendant. This also appear to be the position of his counsel **Mr. Baryabanza** when he submitted that whether or not the 2nd and 3rd

Defendants are *bonafide* purchasers for value is in futility since the suit land they occupied ceased to be under the Registration of Titles Act by virtue of the holding in **C. S No.04/2013.**

- [54] As regards the 4th Defendant, **Bagabo Godfrey**, counsel for the Defendants insisted that he is a *bonafide* purchaser for value without notice of fraud because at the time of purchase, he found the 2nd Defendant in occupation of the suit land. It is noted however that at the time of purchase, it is apparent that the vendor, the 2nd Defendant was not the registered owner of the land. The 4th Defendant only conducted a perfunctory search of the title to land he intended to purchase as clearly seen, because the vendor was not the registered proprietor and therefore, the 3 rd Defendant's acquisition of title was therefore tainted with fraud. In the land office, Kampala where he eventually took the transfer forms, at the time, the plaintiffs had lodged their respective caveats forbidding any transfer without their notification **(P. Exh.1(c)).** The 4th Defendant is not in any better position than that of the vendor, the 2nd Defendant himself. He took the land subject to its equities and cannot therefore successfully rely on the doctrine of a *bonafide* purchaser for value. - [55] In conclusion, I find that the 3rd issue is found in the negative. The 2nd, 3rd and 4th Defendants were not **bonafide** purchasers for value of the suit lands without notice.

# **Issue No.4: What remedies are available to the parties**

- [56] This court having found that the Plaintiffs had customary interests in the suit land and that the suit land was fraudulently brought under the Registration of titles Act with the 2nd, 3rd and 4th Defendants being malafide purchasers of the land, it follows that judgment is in favour of the Plaintiffs and they are entitled to the reliefs sought; - a) A declaration that they are the lawful owners of the suit land located at **Mahamba/ Kasiba village, Kyangwali, Hoima**. - b) A declaration that the inclusion of the Plaintiffs' land in the certificate of title of the **1 st Defendant** and **Deliana (U) Ltd** was wrongful and illegal.

- c) A declaration that the certificates of title issued in the names of the **1 st Defendant** and **Deliana (U) Ltd** were obtained fraudulently. - d) A declaration that the registration of the 2nd Defendant and the 4 th Defendant as transferees of the suit land was illegal and fraudulent. - e) An order directing cancellation of the registration of the 1st Defendant as proprietor and of the 2nd and 4th Defendants as transferees and for avoidance of doubt, cancellation of the whole of title of land comprised in **Buhaguzi, Block 2 Plot 6, Mahamba Kyangwali, Hoima.** - f) An order of eviction of the 2nd, 3rd and or 4th Defendants, their agents, workmen, servants and employees from the suit land. - g) An order that the Defendants jointly and severally pay the plaintiffs general damages of **Ugx 400,000,000/=** for trespass on the Plaintiffs' land measuring approximately 3 square miles and inconvenience, stress and mental anguish caused to the Plaintiffs. - h) The general damages to carry interest of **24% per annum** from the date of filing of this suit, the 17th of October, 2012 till full payment. - i) Under **S.27 CPA**, the Defendants to pay costs of this suit to the Plaintiffs who are the successful litigants. - j) The above declarations and orders accordingly settle the rights of the parties in the stayed **MSD C. S Nos.22 (formerly F/Portal C. S No.51 of 2002) & 26 (formerly F/Portal C. S No.49 of 2002) of 2009,** judgment being entered in favour of the Plaintiffs.

Dated at Hoima this **17th day of May, 2023.**

**………………………………………… Byaruhanga Jesse Rugyema JUDGE.**