[2022] UGHC 154

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT HOIMA CIVIL SUIT NO. 12 OF 2022 (Formerly MSD HCCS NO. 009 OF 2011)

**PLAINTIFF** JOSEPH KASUMBA ATEENYI ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

### 1. KAGADI SEVENTH DAY ADVENTIST CHURCH ASSOCIATION OF UGANDA 2. KIBAALE DISTRICT LAND BOARD::::::::::::::::::::::::::::::::::::

Before: Justice Byaruhanga Jesse Rugyema

### JUDGMENT

- In this suit, the Plaintiff's claim against the Defendants is for, inter alia, $[1]$ fraudulent registration of title for FRV 456, Folio 25, Buyaga Block 32, Plot 6 (suit land), cancellation of the said certificate of title and a declaration that he is the lawful owner of approximately 3 hectares which were included in the Defendant's certificate of title which measure approximately 8.679 hectares. In the alternative, that the Defendant surrenders the certificate of title to the Plaintiff together with a transfer and mutation forms to enable him survey off his 3 hectares which were illegally included in the Defendant's title. - It is the Plaintiff's case that he lawfully purchased various plots of land $[2]$ (Bibanja) in Kagadi North LC1, Kagadi Town Council, Kagadi District from individual owners, including Tusubira Moses and Bakiite Leonard. These plots were distinct from the land of the 1^st Defendant, Kagadi Seventh Day Adventist Church. However, when the Plaintiff sought to bring his land under the Registration of Titles Act (RTA), he discovered that approximately 3 hectares of his land had been fraudulently included within the 1st Defendant's land, comprised in FRV 456 Folio 25, Buyaga Block 32, Plot 6, measuring approximately 8.679 hectares. The Plaintiff's efforts to resolve the matter through various legal and administrative channels were unsuccessful, and his land remains unlawfully claimed by the 1st Defendant.

The plaintiff contends that both the $1^{st}$ and $2^{nd}$ defendants acted $[3]$ fraudulently during the process of acquiring the land title, failing to check for existing interests (such as the plaintiff's land) and not following the proper legal procedures for land registration. He further contends that the 2^nd defendant. Kibaale District Land Board, acted fraudulently when it among other things, granted a lease offer to the 1^st defendant well knowing that there were other interests of the plaintiff on the suit land and acting in collusion with the 1st defendant and cause a false grant and/or conversion of the suit land to freehold without following the proper procedure and law.

$\overline{a}$

- In response, the 1^st Defendant denied the Plaintiff's claims, contending that $[4]$ it is the rightful owner of the entire 8.679 hectares of land comprised in FRV 456 Block 32 Buyaga Plot 6, which was acquired through legal processes, including purchase, survey, and registration of a freehold title. The First defendant contends that it is the lawful and rightful owner of the entire 8.679 hectares, that include the disputed portion, and has counterclaimed for a declaration of ownership and damages. The $1^{st}$ defendant asserts that it acquired the land lawfully, through a combination of purchase and application to the Uganda Land Commission. The 2^nd Defendant did not lead evidence. The matter therefore proceeded without any input of the $2^{nd}$ Defendant. - It was the $1^{st}$ defendant's case that in 1994/1995, it applied for a lease from $[5]$ Uganda Land Commission (ULC) and the application was officially registered under LWB//7702. In February 1995, it was granted a lease offer (D. Exh.3) by ULC. That it also made the requisite payments for the lease offer, as evidenced by receipts DE1 and DE6, for the payment of premiums and fees for the 14-hectare plot. On 21st August 1996, the church received an instruction to survey the land, and the survey was completed on 10^th September 1996 without any dispute at the time of the survey. That upon survey, though the 1^st defendant had originally applied to ULC for 14 hectares, upon professional survey in 1996, the survey established that the land for the 1st defendant church covered 8.679 hectares. Indeed, the 1^st defendant applied for the freehold title of the above acreage which was issued on 27^th June 2007, under the name of the Kagadi Seventh-Day Adventist Church.

### **Counsel Legal representation**

Mr. Rwarinda Godfrey of M/s Jambo & Co Advocates, Kampala appeared $[6]$ for the Plaintiff while Mr. Kasangaki Simon of M/s Kasangaki & Co **Advocates**, Masindi appeared for the $1^{st}$ defendant. The $2^{nd}$ defendant was not represented and did not lead evidence. Counsel on record filed submissions as directed by court which I have duly considered in deciding this matter.

# **Issues for determination**

- $[7]$ Both Counsel in their submissions proposed varying issues for determination. Upon consideration of the proposed issues, I find the following issues as the appropriate ones for determination; - 1. Whether the Plaintiff is the lawful owner of the disputed 3 hectares of land. - 2. Whether the First defendant fraudulently or illegally obtained the certificate of title for the land. - 3. What remedies are available to the parties.

## **Burden and Standard of Proof**

Section 101 of the Evidence Act imposes the burden of proof on the $[8]$ person alleging a set of facts. He/she who asserts must prove. It is trite that the burden of proof in civil matters lies on the Plaintiff to prove his case on a balance of probabilities. The Plaintiff must provide sufficient evidence to prove his claims of ownership and fraud. The Defendant, on the other hand, must prove its counterclaim by a similar standard. See: Muller vs. Minister of Pensions, [1947] 2 ALL E. R. 372; Lugazi Progressive School & Anor. Vs. Serunjogi & Ors [2001-2005] 2 HCB 12.

# Issue 1: Whether the Plaintiff is the lawful owner of the disputed 3 hectares.

$[9]$ The Plaintiff contends that he is the rightful owner of **3 hectares** of land, part of the property comprised in FRV 456, Buyaga Block 32, Plot 6. To support this, the Plaintiff called three witnesses: himself (PW1), Rukuba Jude (PW2), and Vincent Asiimwe (PW3). The Plaintiff submits that the disputed land, which he purchased from various owners in Kagadi North LC1, belongs to him. The Plaintiff took physical possession of the land, renovated existing structures, and rented them out to tenants. He was shocked to discover that part of his land had been fraudulently included in the $1^st$ Defendant's title. The Plaintiff contended that he led evidence of witnesses, including PW2 and PW3, who confirm that the Plaintiff legally acquired the Bibanja and that the 1^st Defendant's actions amounted to land grabbing, including land that rightfully belongs to the Plaintiff unto its title.

- The Plaintiff's case primarily is that he is the lawful owner of various plots $[10]$ (bibanja) he purchased from various persons who were lawful owners thereof and adduced evidence of agreements of the 1^st Kibanja purchased from **Bakiite Leonard** measuring 120ft x 128ft dated 2/5/2007 and that of the 2^nd Kibanja purchased from **Tusubira Moses** and others totaled up to 3 acres. During cross examination, when asked about proof of ownership of the other alleged bibanjas, he revealed that the other bibanjas were purchased from a one **Remegio Kyalimpa** and **Kamanyire** Frank both on 29/4/2006 and other bibanja from a one Rwakwizire John on 3/5/2008, Rukyelekera Sulaiman on 13/8/2008 and lastly the jointly owned Kibanja of Kasiba Deo Xavier and Namuli Marghreta on $9/10/2008$ . The plaintiff clearly contended that though these bibanjas he purchased were never measured, he estimated all of them to total 3 acres. - The Plaintiff's evidence was supported by that of Rukube Jude, the $1111$ Secretary L. C1 Kagadi North where the Bibanja are located. - The Plaintiff however in his pleadings, he claims 3 hectares which he $[12]$ alleges were fraudulently included in the $1^st$ defendant's title comprising of land measuring **8.679** hectares. Secondly, the plaintiff is found to had only pleaded 2 bibanjas i.e, that he purchased from Bakiite Leonard measuring 120 x 128ft and that purchased from Tusubira Moses measuring $95 \times 128$ and claimed that both of them totalled up to 3 acres. In cross examination however, he adduced evidence of other bibanjas purportedly purchased from other people he mentioned and that those inclusive totaled to 3 acres. - I find the Plaintiff's evidence adduced during cross examination regarding $[13]$ these other pieces of bibanja and the claim of 3 acres amounting to a departure from previous pleadings which is prohibited by **O.6r.7 CPR**. It provides thus:

#### "Departure from previous pleadings

*No pleading shall, not being a petition or application,* except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading that pleading."

In Iani Properties Ltd Vs Dar es-salaan City Council [1966] EA 281, Court observed that:

"the parties in civil matters are bound by what they say in their pleadings which have the potential of forming the record moreover, the Court itself is also bound by what the parties have stated in their pleadings as to the facts relied on by them. No party is allowed to depart from its pleadings" see Semalulu Vs Nakitto, HCCA No.4 of 2008.

- Though during cross examination the Plaintiff claimed and emphasized $[14]$ that he estimated the allegedly grabbed land as 3 acres, by all standards, the 2 pleaded bibanjas measuring 120ft x 128ft and 95ft x 128ft cannot be estimated to total up to 3 acres or the pleaded 3 hectares. The Plaintiff did not explain his contradiction in evidence that the bibanja he purchased total up to 3 acres and then his conclusion that the $1^{st}$ Defendant church encroached on his kibanja by about 3 hectares. Even if one was to take it that because of our diverse dialects, the plaintiff by stating "acres" he meant hectares, still the conclusion would not be different since the size or acreage of the pleaded 2 plots of Bibanja cannot total up to 3 hectares. The plaintiff's case is worsened by the caveat he lodged to protect his interest wherein he claimed to have had interest in only 2 acres. - [15] On the other hand, the 1^st defendant provided cogent evidence of ownership of the entire 8.679 hectares. The First defendant submitted a series of documents, including receipts for payments made for the land, instructions to survey the land, a lease offer from the Uganda Land Commission, and a freehold certificate of title. This documentary evidence, supported by the testimony of several witnesses, including Government surveyor, attached to Hoima and Kibaale Districts, **Kyamanywa Peter (DW5),** establishes that the $1^{st}$ defendant lawfully acquired the land in question through lawful means. That at the time of the survey of the 1^st Defendant's land in 1996, the land was vacant with nobody settled on. The Defendant's witnesses provided consistent and detailed testimony regarding the acquisition and ownership of the land. Furthermore, the Defendant's evidence shows that the Plaintiff's purported purchase of land from individuals such as DW2 (Tusubira Moses) and others occurred after the $1^st$ defendant had already legally acquired the land. The Plaintiff's witnesses failed to establish that the 3 hectares he claims to own were part of the land he lawfully purchased and that his land was titled by the Defendant. DW2 himself, who is one of the sellers of the Kibanja to the Plaintiff while testifying in support of the $1^{st}$ Defendant stated that the kibanja he sold to the plaintiff is not on the 1^st Defendant's title or at least, that he was not aware of that fact. - [16] The Plaintiff's case rests primarily on his testimony and that of his witnesses. However, the Plaintiff's evidence suffers from significant contradictions and inconsistencies which undermine the credibility of his claim. The Plaintiff, during cross-examination, admitted that he did not

know the sizes of the land parcels he allegedly bought from various individuals between 2006 and 2008. He further acknowledged that he had no documentation proving that these sellers were the rightful owners of the land. Importantly, the Plaintiff conceded that the 3 hectares mentioned in his pleadings was merely an estimate, and that the sellers did not provide proof of ownership. Then, on the other hand he adduced evidence of 2 plots of land which had specific measurements of 120 x 128ft and 95 $x$ 128ft which had nothing to do with either the pleaded suit land of 3 **hectares** or as he stated in evidence, the 3 acres as his claim.

- [17] The $1^{st}$ defendant provided consistent and credible evidence regarding its ownership of the land. It demonstrated that the land in question was legally acquired and that the church has been in continuous possession of the land since the 1990s. The Defendant's title was granted following lawful procedures, including a lease offer obtained from the Uganda Land Commission in 1995, and the subsequent freehold. The Plaintiff's failure to present any solid evidence of his ownership, such as documentation of credible formal agreements with the sellers or any other form of proof for the claimed 3 hectares of land, leads this Court to conclude that the Plaintiff has not proved ownership of the land he claims. - [18] In conclusion, I find that: - The plaintiff could not provide a clear description of the land $a)$ he allegedly purchased or any documentation proving ownership. - Several of the sellers from whom the plaintiff allegedly bought $b)$ land could not be verified as legitimate landowners, in the available documentation and/or by the plaintiff himself or the witnesses he presented to court. - The plaintiff's land was claimed to be located near the $c)$ defendant's land, but there was no evidence to show that at time, the church land was available for purchase or that it had been offered for sale. The church land is more than the disputed portion. There is no evidence that the un ascertained disputed portion of land belongs to the plaintiff. The Plaintiff was not able in evidence to ascertain what acreage of land he is claiming. It was also not shown that at the time the church acquired the dispute certificate of title the plaintiff was its neighbour. - Considering the timelines in the uncontroverted evidence of $d$ ) the parties, it is clear that the church had acquired a legal interest in the disputed land long before the plaintiff **purchased** his alleged land. The lease offer application, survey, and freehold title issuance occurred between 1994 and **2007**, while the plaintiff's alleged purchases were made in $2007$ and 2008. The **defendant's documentary evidence** is clear and uncontroverted, establishing the **church's ownership** of the land before the plaintiff's alleged purchase. The key documents include; the **Lease Offer** (DE3) for 14 hectares of land granted to the church in **February 1995**, the **Survey Instructions** (D. Exh.2) and completion in **1996**, which clearly demarcated the land, the Freehold Certificate issued on 27^th **June 2007** (D. Exh.8), and ascertained the whole land to bra confirming the church's 8.679 hectares. ownership. Furthermore, PW1 acknowledged that the church had already surveyed its land by 1996, well before he made his purchases. I also observe that the Neighbouring consent to the $1^st$ Defendant's title process which was not contested from individuals like Akunobere Pascal and Rev. Kahirita, who were involved in the church's land acquisition process, alludes to the probity and legitimacy of the $1^{st}$ defendant's title acquisition process.

The plaintiff failed to provide any evidence that the individuals from $[19]$ whom he purportedly purchased the land had valid ownership rights to the land. I find that the land he purportedly purchased was already owned by the 1^st defendant, as evidenced by the church's unchallenged legal documentation and witness testimony. By and large, the inconsistencies in the evidence of the Plaintiff suggest that the plaintiff's claim is either fabricated or based on flawed or incomplete information. For these reasons, this court is inclined to arrive at the irresistible finding that the suit land belongs to the $1^{\rm st}$ defendant and not the plaintiff.

## Whether the 1^st defendant illegally and **Issue** $2:$ fraudulently obtained the certificate of title.

The Plaintiff submits that the freehold certificate of title issued to $[20]$ the $1^{st}$ Defendant by the $2^{nd}$ Defendant was unlawful. According to the Land Act, the procedure for granting a freehold title involves specific steps, including proper demarcation, public hearings, and verification of land ownership through Land form 23. That the $1^st$ Defendant did not follow these procedures. That there was no consultation with the area Land Committee or the local community, and no notice was given to the Plaintiff or other potential landowners before the impugned title was processed. In the Plaintiff's view, the failure to follow due process led to the fraudulent acquisition of the title. The Plaintiff further submits that the 1st Defendant acted fraudulently in processing the title for the suit land, that the $1^{st}$ Defendant intentionally included land that belonged to the Plaintiff in their certificate of title and that despite being aware of the Plaintiff's ownership and the existence of the disputed land, the $1^{st}$ Defendant proceeded with the registration of the land without conducting a proper survey or informing the Plaintiff. That this conduct constitutes fraud, as it intentionally perverted the truth for the purpose of unjustly gaining ownership of the Plaintiff's land. Therefore, he prayed that the freehold certificate of title issued to the 1^st Defendant should be considered unlawful, cancelled and/or rectified to exclude the suit land.

- The Plaintiff further submits that the 2^nd Defendant, the Kibaale $[21]$ District Land Board, breached its duty and trust in granting a freehold title to the 1^st Defendant. The 2^nd Defendant failed to ensure that the land was surveyed in compliance with the law and allowed the 1^st Defendant to unlawfully survey off land that belonged to the Plaintiff. The Plaintiff referred court to the evidence of Asiimwe Vincent (PW3), the then Secretary Kibaale District Land Board (DLB) who he submits confirms that the 2^nd Defendant ignored requests to rectify the registration of the title and continued to process the land title despite knowing that it included land that belonged to others, including the Plaintiff. - As rightly submitted by counsel for the plaintiff fraud must be [22] specifically pleaded and strictly proved and cannot be left to be inferred from the facts, O.6 r.3 CPR and Kampala Bottlers Ltd Vs Damanico (U) Ltd, SCCA No.22 of 1992. - In the instant case, the plaintiff particularized the particulars of $[23]$ fraud against the defendants as: - a) The 1^st Defendant applying to be allocated 8.679 hectares at Kagadi North when they actually know that the church land was not worth the applied size. - b) Applying to bring the land under the operation of RTA without Form 23 which would have indicated various interests of the plaintiff. - c) Having both actual and constructive notices as to the existence of the plaintiff's interests but went ahead to register herself. - d) Having knowledge of the plaintiff's caveat lodged on 19/11/2007.

- e) The $2^{nd}$ defendant acting in collusion with the $1^{st}$ Defendant's agents/members and cause a false grant and/or conversion of the suit land to a freehold without following the proper procedure and law. - As already found, in the first instance, no evidence was adduced by $[24]$ the plaintiff that he did have any lawful interest in the alleged suit land (be it 3 acres alleged in evidence or the 3 hectares pleaded). As a result, the plaintiff lodged caveat which in the first instance contradicts the plaintiff's evidence and pleadings regarding the acreage of his interest was inconsequential. In the caveat, the plaintiff claimed to protect his 2 acre kibanja comprised in the 1^st Defendant's title, Buyaga Block 32, plot 6. The caveat dated 11/9/2007 was lodged to the Ministry of land on $13/9/2007$ well after the 1^st Defendant had already become registered proprietor as per D. Exh.7 which show that the $1^{st}$ Defendant was registered on 27/6/2007. - So, in the instant case, it cannot be found that at the time, either the $[25]$ plaintiff had any caveatable interest in the land or that the defendants disregarded the caveat itself during the processing of the title. - [26] In the instant case, it is not in dispute that in 1995 and 1996, the plaintiff was under ULC MIN. No.35/1994 offered a lease of 14 hectares (D. Exh.2) and Kyamanywa (DW5) was given instructions to survey the said land. It is also not in dispute that in 2006, the plaintiff applied for freehold of 8.679 hectares and instructions to re-survey that land were given to SURVEYORS PROPERTIES, when at the time, again Kyamanywa (DW5) was an employee (upon retirement from Government). The instructions to survey was for 8.679 hectares. The above culminated into the issuance of the impugned certificate of the title (D. Exh.7). The plaintiff's witness Vincent Asiimwe (PW3) was the then Secretary Kibaale DLB as per D. Exh.4 who notified the plaintiff of the grant of the freehold. - The evidence of the Surveyor, DW5, however which was not $[27]$ challenged during cross examination is that during the survey of the suit land, it was vacant with no body settled thereon though Irumba Joshua (DW3) stated that there were only 2 families. In any case, this court has already found that the plaintiff has no recognizable interest on the land worth consideration. - DW5 explained that the $1^{st}$ defendant originally applied to ULC for 14 $[28]$ hectares but upon the survey in 1996, it was established that the land of the 1^st defendant covered 8.679 hectares. That prior to the expiry

of the $1^{st}$ Defendant's initial lease offer granted by ULC, the District Board replaced ULC as the controlling authority. Land $On$ 20/12/2006, he received instructions to re-survey the land (reopen the boundaries) and confirmed the 8.679 hectares.

- This matter analysed from the standpoint of the law, burden and [29] proof, the Plaintiff's allegations of fraud standard $\quad\text{ of }\quad$ are unsubstantiated and fail to meet the high threshold required for proving fraud in civil matters, which is higher than the balance of probabilities. It is well established in the case of Fredrick Zaabwe vs. Orient Bank & Others, SCCA No. 4 of 2006, that fraud must be strictly pleaded and proved. The Plaintiff has not proved fraud in the registration process of the 1^st Defendant's title. Section 59 of the Registration of Titles Act (RTA) provides that the title of a registered proprietor is indefeasible except in cases of fraud. The Plaintiff has not met the burden of proof required to establish fraud on the part of the Defendant, to the required standard. - [30] In conclusion, I find that the $1^st$ defendant demonstrated that its acquisition of the land was through lawful means, including a purchase of the land and an application to the Uganda Land Commission. The $1^st$ defendant obtained a lease offer for the land and later a freehold title to the land. There was no evidence presented by the Plaintiff to show that the $1^st$ Defendant's title was obtained through fraud or misrepresentation. The Plaintiff's failure to discharge the burden of proof on fraud and the absence of any supporting evidence leads the Court to conclude that the First defendant lawfully acquired the title to the suit land, and no fraudulent conduct occurred during the registration process.

## Issue 3: What remedies are available to the parties.

- Having found that the Plaintiff has failed to prove ownership of the $[31]$ suit land and has not established fraud in the 1st Defendant's acquisition of the land, it follows that the Plaintiff is not entitled to the remedies sought in this suit. - $[32]$ On the other hand, the $1^{st}$ Defendant's counterclaim must succeed. The 1^st defendant has provided sufficient evidence to prove its ownership of the suit land, and the Plaintiff's occupation of the land without a valid title constitutes trespass. Additionally, the $1^{st}$ defendant has demonstrated that the Plaintiff's actions in attempting to claim ownership $\quad\text{ of }\quad$ the land have caused inconvenience to the Church. The $1^st$ defendant is in the premises

entitled to an award of general damages for the inconvenience and loss caused by the Plaintiff's actions. The 1^st Defendant's counterclaim for ownership of the suit land is therefore accordingly granted with the reliefs sought in the counterclaim

- In conclusion, Judgment is entered for the Defendants with the $[33]$ following orders: - a) The Plaintiff's suit is dismissed with costs. - b) A declaration is made that the $1^st$ defendant was lawfully and legally registered as the proprietor of land comprised in FRV 456, Buyaga Block 32, plot 6, measuring approximately 8.679 hectares and therefore the suit property belongs to the 1^st Defendant. - c) A declaration is made that the Plaintiff has no legal or equitable interest in the suit land and is a trespasser thereon. - d) An order is made vacating the caveat lodged by the Plaintiff on the suit land. - e) The $1^st$ defendant and/or counterclaimant is granted vacant possession of the suit land. The Plaintiff and his agents are ordered to vacate the land and in default, be evicted therefrom. - A permanent injunction is issued restraining the Plaintiff or $f$ ) Counter $1^{st}$ defendant and his agents from further trespassing and interfering with the suit land. - The $1^{st}$ defendant is awarded general damages $g)$ of UGX 15,000,000 (Fifteen Million Uganda Shillings) for the disturbance caused by the Plaintiff's wrongful claims. - h) Costs of the counterclaim are awarded to the $1^st$ Defendant.

$[34]$ It is so ordered

Dated at Hoima this $17^th$ day of January 2025.

Byaruhanga Jesse Rugyema JUDGE.