[2024] UGHC 294

#### **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT MASAKA**

#### **CIVIL SUIT NO. 110 OF 2022**

#### **1. KATSINDE GEORGE**

2 NUWAGABA MARK •••••••• •••• •• • •• •••• •••••• • •••••• •• •• ••• • •••••• • ••••• •• •• •• • **PLAINTIFFS** • • •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• **VERSUS**

#### 1. **RUBAREKYERA GEORGE**

- **2. SSEMBABULE DISTRICT LAND BOARD** ::::::::::::::: **DEFENDANTS** - **3. COMMISSIONER LAND REGIST~ATION**

## **Before: HON JUSTICE LAWRENCE TWEYANZE**

#### **JUDGMENT.**

#### **Introduction/Background:**

#### **Plaintiffs' case:**

- 1. The Plaintiffs allege that they purchased land comprised in LRV MSK436 Folio 13, Plot 3 Block Ranch 57B\*3 at Mawogola, Sembabule (" the suit land") for value in early 2020. That the 1st Plaintiff, Mr. Katsinde George and a one Kamaida Amos purchased 209 acres of land from a one Kyabahwa Justus in proportions of 17 4 and 35 acres respectively. That at the time of the purchase, the suit land was in the names of a one Nfaki Beatrice but was in the process of being transferred to Kyabahwa Justus. Subsequently, the 2nd Plaintiff bought the 35 acres from Kamaida Amos. The Certificate of Title was registered in the names of George Katsinde and there was subdivision and LRV MSK 444 Folio 13, Plot 1 Block Ranch 57B\*3 was created for Nuwagaba Mark. - 2. That 1st Defendant, Rubarekyera George who is an immediate neighbour to the suit land saw the Plaintiffs take possession, develop and transform the land into modem farms with residential houses but never levied any claims or objection to the Plaintiffs' possession and de~eloplrl)ent when they ,,,, ,\_,,, .. -

*(',,,* / *I* Page 1 of 25 -~ /

widened his dam and constructed a gate for him in exchange for an access road. That the Plaintiffs' occupation and possession remained uninterrupted until April 2022 when the 1st Defendant started claiming an interest in the same, and produced a parallel Certificate of Title. That he lodged a caveat on the suit land and started to threaten the Plaintiffs with eviction.

- 3. That the matter was referred to police which investigated and released a report on 29th September, 2022 wherein the 1st Defendant and the 3rd Defendant's employees (Commissioner for Land Registration) were found culpable for fraud, forgery and wrongfully issuance of a Certificate of Title in relation to the suit land. On 12th September, 2022, the 3rd Defendant issued the Plaintiffs with a notice to cause changes in the Register on the 12th day of October, 2022 which entailed cancellation of the Plaintiffs' Certificates of Title. - 4. That the Plaintiffs filed this suit challenging the 1st Defendant's fraudulent interest and the fraudulent actions of the 3rd Defendant's employees, particularly Kabira Aisha. That the Plaint together with Applications for temporary injunction and interim order respectively were served on the 3rd Defendant before the public hearing. At the public hearing, the existence of the suit and a repor^timplicating the 3rd Defendant's employees, particularly Kabira Aisha in regard to issuing the 1st Defendant's Certificate of Title, was communicated. That Kabira Aisha conducted the public hearing and cancelled the Certificates of Title within 3 days. That one arm of the pending injunction was defeated but the Plaintiffs secured an injunction barring eviction. - 5. That the suit land previously fell under the Masaka Ranching Scheme. It was allocated to one Rugundana Eria though allocation slips returned after he had died. That the 1st Defendant spent years fighting with the children of the Late Rugundana Eria i.e., Rwamakubo Samwiri and Nfaki Beatrice until Nfaki Beatrice obtained a grant of Letters of Adminisfratibn and evicted him /

,,,, ,

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from the suit land. That the police report recommended arrest and prosecution of the 1st Defendant and the matter did not proceed after it was resolved that the charges be dropped and that the 1st Defendant would stop claiming the suit land. That whereas the 1st Defendant claims to have secured an extension of 49 years, the 2nd Defendant denies extending the lease.

#### **The 1st Defendants' Defence and Counterclaim.**

*I*

- 6. That the 1st Defendant/Counter- Claimant occupied the suit land as early as 1995 while hiring it from Rwamakubo Samuel for grazing his cattle. Rwamakubo later sold the suit land to the 1st Defendant/ Counter- Claimant in 2001 and he continued in occupation of the same. That on 26th August 2011, the 1st Defendant was duly registered as a proprietor of land comprised in LRV 4246 Folio 11 Plot 57B3, land in Sembabule District on a 5 years lease with effect from 1st January 2011. That the said lease was later extended under Instrument Number 476758 to 49 years. The 1st Defendant had lived in quiet possession of the suit land since 2001 while utilizing the same for residential and commercial purposes until he was evicted in 2019 from the said land by the Plaintiffs. - 7. That in 2011, the late Rwamakubo Samuel instituted Civil Suit No. 13 of 2011 at the Chief Magistrates Court of Sembabule regarding the suit property but later abandoned the same upon the 1st Defendant obtaining a restraining Court Order. In 2015, Rwamakubo supported his sister Nfaki Beatrice to obtain Letters of Administration and alleged that the suit land belonged to the Estate of their late father Rugundana whereas not. - 8. That Nfaki Beatrice also instituted a suit regarding the suit land in the High Court of Masaka vide Civil Suit No. 35 of 2015 but the same was dismissed for want of prosecution. That Nfaki Beatrice well aware that the 1st Defendant/ Counter- Claimant had a Certificate of Title went ahead to create another title in her own names and not as an Administrator of the Estate of the late Rugundana on top of the 1st Defendant's unimpeqc;hed Certificate of

Page 3 of 25 *^r r*

*f*

Title and immediately purported to transfer the suit land to 3^rd parties. That by the time Nfaki Beatrice transferred the suit land there was a temporary injunction preserving the status quo of the suit land in MA No. 051 of 2019 arising from Civil Suit No. 35 of 2015 filed by Nfaki Beatrice.

- 9. That in 2022, the 1^st Defendant discovered that there are titles that were erroneously or illegally issued on his land, and applied to the Commissioner Land Registration to cancel the Certificates of Titles (LRV MSK 436 Folio 13 Block 57B3 Plots 1 & 3, Mawogola Sembabule) created over the suit land and the same were cancelled after conducting a public hearing in the presence of the Plaintiffs and their lawyers. - 10. That the Plaintiffs having full knowledge of the 1^st Defendant's legal interest in the suit land proceeded to transact with a party who had no claim in the suit land. That they did not conduct due diligence and that the person they transacted with had no better title nor any interest in the suit land. That throughout the hearing of this case all witnesses alluded to the fact that the purchasers knew about the existing interest of the 1st Defendant but deliberately ignored the same and transacted with Mr. Kyabahwa Justus who was neither a registered proprietor nor in possession of the suit land and worse still who was not called as their witness. - 11. That on 17^th October 2022, the Certificates of Title which were issued in error were accordingly cancelled by the Commissioner Land Registration, however, the Plaintiffs never bothered to amend their Plaint or seek an appropriate remedy. That on 11^th October, 2022 the Plaintiffs filed this Civil Suit No. 110 of 2022 against the Defendants as an afterthought with intentions to interrupt a public hearing by the Commissioner Land Registration which was scheduled for the following day 12^th October, 2022 and was duly communicated to the Plaintiffs as intended to effect changes in the Register in respect to land comprised in Leasehold Register Volume

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Sweenkab

4246 Folio 11 Plot 57B3 Land at Masaka Ranching Scheme, Sembabule which is the gist of this Suit.

12. That the instant Civil Suit 110 of 2022 was overtaken by events when the Certificates of Title were cancelled by the Commissioner Land Registration for having been issued in error.

## **The 3rd Defendant's defence.**

- 13. The 3rd Defendant denied the claims in the Plaint and averred that the alleged lease offers and the Certificate does not exist in the 3rd Defendants National Lands Information system and denied the said Certificate of Title to the Plaintiffs. That the alleged extension of the Lease offers to 49 years when brought to the attention of the 3rd Defendant's was rejected by the then Registrar of Titles for lack of the allocation form from the Ranches Restructuring Board. That the said transfer of the Lease by one Nfaki Beatrice to one Kyabahwa Justus and latter to the Plaintiffs was in error and illegal since there was no subsisting Lease in the first place. - 14. That much as the 3rd Defendant was involved in the issuance of the said Certificates of Title, the same was issued in error since there was already an existing Certificate of Title to the suit land issued to the 1st Defendant. That there was no fault and/ or connivance on the part of the 3rd Defendant in registration of dealings on the suit lands in the name of the 1st Defendant since it already averred that the subsequent Certificates of Titles were issued and/ or created in error and denied the particulars of fraud but admitted issuance of the Notice to effect changes in the Register book. - 15. In rejoinder, the Plaintiff retaliated their averments and denied the Counter -Claim.

**Representation and hearing.**

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16. The Plaintiffs were represented by M/ s Mwesigwa Rukutana & Co. Advocates. The 1st Defendant was represented by Eliakim & Edson Advocates while the 3rd Defendant was represented by the office of Titles, Ministry of Lands, Housing and Urban Development. The 2nd Defendant was not represented neither did they file a defence.

## **Visiting locus.**

- 17. Court visited the *locus in quo* on the 10th day of November 2023 in presence of the parties and their Counsel. While at the locus, it was observed that: - a) PW2 has two houses, a banana plantation, a dam (which was an expansion of the old dam that PW2 says it belonged to Kyabahwa Justus but the 1st Defendant says it belonged to him) and some cows all done in 2020 - b) The 1st Defendant neighbours the suit land, had a kraal and houses and an abandoned homestead seen(amatoongo) - c) Nothing at locus seen belonging or which belonged to Mr. Kyabahwa Justus who sold to the Plaintiffs and the family or heritage of the late Ruzindana to show that they once occupied the suit land - d) For PW3 he has a house and dam all constructed in 2020.

## **Submissions.**

- 18. Counsel for the parties filed their respective submissions. I have read and appreciated all the pleadings and the submissions of the parties. I will refer to the submissions as and when I find it necessary since they majorly repeat the contents of the pleadings and witness statements save for the cited authorities. - 19. In the Joint Scheduling Memorandum filed by the parties on 28th March, 2023, the parties raised six issues for determination. Consequently, Counsel for the parties resorted to the following issues for determination;

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- *1. Whether the 1st Defendant obtained the Certificate of Title in respect to the suit land fraudulently?* - 2. *Whether the 1st Defendant is the rightful owner and the registered proprietor of the suit land.* - 3. *Whether the Plaintiffs' have valid and legal Certificates of Title in respect to the suit land.* - *4. Whether the Plaintiffs acquired the suit land fraudulently?* - 5. *Whether the Plaintiffs' Certificates of Title were rightfully cancelled?* - 6. *What remedies are available to the parties?* - 20. According to Counsel for the Plaintiffs, since some of the issues are duplicated as it is not possible to address one without the other. With the concurrence of Counsel for the 1st Defendant, they resolved to address issues 1 and 2 jointly, 3 and 4 jointly and the rest, independently. I will as well adopt this order as the issues are quite repetitive and similar in effect.

## **Analysis.**

## **Burden and Standard of Proof.**

- 21. In civil proceedings, the burden of proof lies upon he who alleges. **Section 103 of the Evidence Act** provides that; The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. - 22. Accordingly, the burden of proof in civil proceedings normally lies upon the Plaintiff or Claimant. The standard of proof is on a balance of probabilities. The law however goes further to classify between a legal burden and an evidential burden. When a Plaintiff has led evidence establishing his/her claim, he/ she is said to have executed the legal burden. The evidential burden thus shifts to the Defendant to rebut the Plaintiff's claims *(See Asha*

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Ali Suleman and Another Versus Nassanga Aisha Salma and Another Civil Suit No. 338 of 2015).

## Issues $1\&2$ :

- 1. Whether the $1^{st}$ Defendant obtained the Certificate of Title in respect to *the suit land fraudulently?* - 2. Whether the $1^{st}$ Defendant is the rightful owner and the registered proprietor of the suit land. - 23. I have considered the submissions of the parties in resolving these issues. Section 59 of the Registration of Titles Act (RTA) is to the effect that a registered proprietor of the land is protected and his/her title is indefeasible except in cases of fraud. (See the case of Katarikawe vs John Katwiremu & Anor (1977) HCB 187. - 24. The Supreme Court in the case of Fredrick Zaabwe Vs Orient Bank & Others SCCA No, 4 of 2006, defined fraud to mean the intentional perversion of the truth by a person for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or her or to surrender a legal right. It is a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations or concealment of that which deceives and it is intended to deceive another so that he or she shall act upon it to his or her legal injury.

# 25. In Kampala Bottlers Ltd vs Damanico (U) Ltd, SCCA No.22 of 1992, it was held that;

"fraud must be strictly proved, the burden being heavier than one on balance of *probabilities generally applied in civil matters..... The party must prove that the* fraud was attributed to the transferee. It must be attributable either directly or by necessary implication, that is; the transferee must be guilty of some fraudulent act or must have known of such act by somebody else and taken advantage of such act."

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Summary

- 26. Order 6 rule 3 of the Civil Procedure Rules read together with the case of Kampala Bottlers Ltd -Vs- Damanico (U) Ltd, (S. C. Civil Appeal NO. 22/92), state the position that where fraud is pleaded, particulars of the fraud must be specifically given. Also see *Okello vs. Uganda National Examinations Board CA No. 12/1987 reported in [1993]* II *KALR 133 at 135; Lubega vs. Barclays Bank [1990* - *1994] EA* 294. - 27. Under paragraph 15 of the Plaint, the Plaintiffs aver that the particulars of fraud against the defendants are as follows;

#### *UPARTICULARS OF FRAUD*

- *i. The 1st Defendant purporting to acquire an interest on land well aware of the Plaintiffs' interests.* - *ii. The 1st Defendant's act of obtaining a lease title without a prior lease application and offer.* - *lll. The 2nd Defendant creating a parallel Certificate of Title for land that is already allocated to duly registered proprietors, who are in possession.* - *iv. The 3rd Defendant threatening to cancel the Plaintiffs' titles without power to do so.* - *v. The 2nd and 3rd Defendants' actions of granting a title to the 1st Defendant without considering the interests of occupants.* - *vi. The Defendants conspiring to defeat the Plaintiffs' duly registered interests in the land."* - 28. In defence, the 1st Defendant denied the above particulars of fraud and contended that he acquired the suit land in good faith and through the legal procedures. That the 1st Defendant honestly and in good faith acquired the suit land and legally obtained a Certificate of Title after carrying out due diligence on the suit land and there were no existing Certificate Titles for the Plaintiffs. - 29. The 1st Defendant averred that the Plaintiffs attended a public hearing as scheduled and the public hearing was accordingly conducted and concluded where the 3rd Defendant cancelled the Plaintiffs' Certificates of title on grounds of errors, illegality and irregularities. That the 1st Defendant lawfully acquired the lease and attached a copy of the application and lease offer. That the 1st Defendant's title is the first in time

Page 9 of 25 and it takes precedence over other titles. That the purported Certificate of Titles comprised in MSK 436 & MSK 44R Folio 13, Block 57B, Plot 1 & 2 at Mawogola, Sembabule were cancelled by the 3rd Defendant on ground that it was obtained erroneously, wrongfully or/and illegally, and ordered the reinstatement of the 1st Defendant's Certificate of Title.

- 30. Karakure Fred, PWl, testified that he was aware that the suit land was allocated to the Late Rugundana Eria who was an Uncle to the 1st Defendant. That in the early 2000s, he was involved in settlement of the dispute over the suit land. That as Chairperson, he advised the 1st Defendant to settle the matter with the Late Eria Rugundana's family, in vain. That the 1st Defendant preferred to go to Court but the matters were never concluded, to the best of his knowledge. That the 1st Defendant was evicted from the suit land by a one Nfaki Beatrice after she obtained Letters of Administration in respect to the Estate of the Late Rugundana Eria. - 31. Counsel for the Plaintiff submitted that fraud flows from the 1st Defendant who he regarded as the mastermind. That being a relative to the Late Rugundana Eria, he knew that the latter had more children than the Late Samwiri Rwamakubo. That the said Samwiri Rwamakubo denied selling the suit land to him and the same could not be sold without concurrence of the rest of the members to the Estate of the Late Eria Rugundana. - 32. Counsel for the 1st Defendant submitted that the 1 stDefendant has always been in possession and followed the right procedure to apply for a lease for 5 years on the suit land which was subsequently extended for 49 years, and as thus the allegations of fraud pleaded by the Plaintiffs are farfetched and without merit. That all witnesses of the Plaintiffs allude to the fact that the suit land has always been a subject of a dispute, and asked why they proceeded and purchased the suit property with all the mentioned encumbrances if it was not for intentionally defrauding the 1st Defendant of his legal interest in the suit land. - 33. In my analysis of the evidence on record and submissions, it is observed that;

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- i. The Certificate of Title for Leasehold Register Volume MSK436 Folio ¹³was issued for plot 3, Mawogola-Sembabule in the names of Nfaki Beatrice as an Administrator of the Estate of the late Rugundana Eria, vide Administration Cause No. 708 of 2014 Registered under Instrument Number MSK00027565 of 14/11/2019; - ii. The above said Certificate of Title was then transferred into the names of Kyabahwa Justus of Cell II, Kaliro Ward, Kabula - Lyantonde registered under instrument number MSK00027889 of 28.11.2019, and thereafter into the names of Katsinde George under Instrument Number MSK00032084 of 22.10.2020. - iii. Katsinde George then subdivided the land into Plot 1 Block Ranch 57B\*3 currently registered under Leasehold Register Volume MSK444 Folio 13 issued under Instrument Number MSK00033413 of 28/01/2021 & Plot 2 remaining as a residue on Leasehold Register Volume MSK436 Folio 13. - iv. The Certificate of title for Leasehold Register Volume 4246 Folio 11 captured on the Land Information System, indicates that it was issued in respect to Plot 57B3 Masaka Ranching Scheme measuring approximately 84.6 Hectares in the names of Rubarekyera George of Mawogola Sembabule under Instrument Number 454270 of 26.8.2011 for a 5 -year lease w.e.f 1st January, 2011. - v. The said above lease was extended to 49 years under Instrument Number 476758 of 29th October, 2012 in the names of Rubarekyera George. The said Instrument was checked and confirmed as genuine by the 3rd Defendant. - 34. The question to be asked is how the 1st Defendant acquired the said Certificate of title on the suit land. It is clear that the 1st Defendant obtained

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an initial lease offer that was later on extended for 49 years vide instrument number 476758 in 2011. On the other hand, Katsinde George got registered under Instrument Number MSK00032084 of 22.10.2020 that is approximately 9 years after the 1st Defendant had been registered. There is no rational explanation how the Plaintiff could obtain a Certificate of title over an existing Certificate of title on the same suit land. The 3rd Defendant which is the custodian of registration of lands categorically stated under paragraph 7 and 8 of the 3rd Defendant's Written Statement of Defence that the said lease offer and Certificate to the late Rugundana and the purported lease extension was rejected for lack of an allocation form.

- 35. In view of the above, the Plaintiffs have not clearly proved in their particulars and there is no evidence that the 1st Defendant and the other Defendants were fraudulent. The process through which the 1st Defendant was registered on the title is quite clear basing on the lease offer. I am unbale to believe the Plaintiffs' averments that the 1st Defendant obtained the Certificate on the suit land through fraud. The Plaintiffs have not satisfied their legal burden to prove beyond mere balance of probabilities, that the process of obtaining the Certificate of Title over the suit land was fraudulent as their argumen^tlacks evidence since they have failed to impute fraud against the 1st Defendant. - 36. It is cardinal principle of law that the threshold for proving fraud, which is rooted in dishonesty, is a high one such that inadvertent errors short of actual and deliberate dishonesty would not be sufficient to discharge the burden of proof. The reason is that fraud is a serious allegation, and the Court is required to look into all the particulars of fraud, examine all the evidence and apply the strict rules of evidence. Fraud may never be established by doubtful, vague, speculative, or inconclusive evidence. *See Christine Hope Kanyima versus Mercantile Credit Bank Limited and another Misc. Cause No. 0085 of 2021.*

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³7\_ Having found that the Plaintiffs have failed to prove fraud against the 1st Defendant and that the 1st Defendant properly got registered on the suit land and he is the appropriate registered proprietor, it is my finding that the Plaintiffs do not have a legitimate claim against the 1st Defendant over the suit land. Issue 1 is therefore answered in the negative and Issue 2 answered in affirmative.

#### **Issues 3 and 4**

# **Whether the Plaintiffs' have valid and legal Certificates of Title in respect to the suit land.**

#### **Whether the Plaintiffs acquired the suit land fraudulently?**

- 38. Counsel for the Plaintiffs submitted that the Plaintiffs carried out the requisite due diligence and that, they were not aware of any fraud. PWl testified that he knew that the land belonged to the Estate of the Late Rugundana Eria. For avoidance of doubt, he authored a letter confirming this before the purchase. PW2Ainamaani Kennedy testified that together with his brothers, they conducted a search at the registry at Masaka, prior to the purchase and confirmed that the land was registered in the names of Nfaki Beatrice but in the process of transfer to Kyabahwa Justus. That prior to the search, they went to the land for a physical search which at the time was occupied by Kyabahwa Justus. They were with Kyabahwa Justus himself, the LCl and LC2 Chairpersons and Kyarimpa Annet (PW4) who confirmed that Kyabahwa Justus had bought the land from her Estate. The 2nd Plaintiff (PW3) testified that he bought his land from Kamaida Amos after verifying that indeed Nfaki Beatrice was a duly appointed Administrator of the Estate of the Late Rugundana Eria and confirming with the local authorities. - 39. Counsel for the Plaintiff concluded that prior to the purchase, Justus Kyabahwa was in possession of the land, and the Certificates of Title were existent at the material time, that the 1st Defendant never made known his interest and the local authorities and neighbours were consulted. It was

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Counsel's submission that th Pl . tif e a1n fs are bonafide purchasers of value without notice of any fraud or prior interests.

- ⁴o. On the otherhand, the 1st Defendant's Counsel submitted that the Plaintiffs did not only neglect to carry out due diligence or ignored to make inquiries b~fore purchase but also acted fraudulently to procure the Certificates of Title. That the Plaintiffs' titles **(LRV MSK 436 Folio 13 Block 5783 Plots 1** & **³Mawogola Sembabule** were cancelled by the Commissioner for Land Registration for having been illegally, wrongfully and erroneously obtained/ issued as evidenced by **DElO** & **DEll.** That this is sufficient evidence to prove that the said titles were void abnitio and ought to be cancelled from the Land Register. That the Plaintiffs deliberately declined to undertake due diligence, or/ and intentionally purchased the suit property well knowing the interests of the 1st Defendant but purposed to defraud him, and as thus they are not bonafide purchasers for value without any notice of fraud. That PW4 Kyarimpa Annette testified that the 1st Defendant Rubarekyera George has been in possession of the suit land, and she further confirmed that the family of Rugundana Eria has never lived on the suit land. That there have always been disputes on the suit land which were not resolved, and the Plaintiffs were well informed of the wrangles. - 41. That the Plaintiffs did not exercise due diligence before their alleged purchase of the suit land. The purported search Certificate of shows the following; -That the search was done a day after the alleged transaction. The purchase took place on 21st January 2020 yet the alleged search is dated 22nd January 2020; The alleged Search Certificate is not even signed by the Registrar of Titles and hence cannot be relied on by this Court; The impugned Search Certificate further shows that the registered proprietor of land is Nfaki Beatrice yet the Plaintiffs claim to have bought the same from Kyabahwa Justus per the sale agreement dated 22nd January 2020 who was not a registered proprietor of the suit land at the time; The Plaintiffs never took trouble to establish who was the owner of the suit property, even after establishing that the one Kyabahwa Justus was not registered they never bothered to carry out due diligence as required or they ~ook it upon themselves to defraud the 1st Defendant of his interest"in the suit property.

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42. That the assumption that Mr. Kyabahwa Justus had purchased the same from Nfaki and was in the process of transferring was speculative and a risk that was taken on by the Plaintiffs well knowing the consequences. The said Nfaki Beatrice had created her title illegally well aware that there was an existing title in the names of the 1st Defendant/ Counter Claimant and hence her baseless title could not transfer any lawful interest in the suit land to a ³rd party who even has knowledge to believe that the same is illegal.

## **Analysis.**

- 43. This defence of bonafide purchaser for value without notice is for those who act honesty without any negligent errors nor intentional actions. The key point is that the one alleging being bonafide must have, (i) not been aware of other existing interests, (ii) must have paid valuable consideration and (iii) must have obtained a legal interest but not an equitable interest in the land. *(See Owembabazi Enid v Guarantee Trust Bank and others, Civil Suit No. ⁰⁰⁶³Of 2019).* A purchaser of land who does not undertake the otherwise expected investigation of title which will often ordinarily involve him in quite elaborate inquiries, is bound by interests or equities relating to that land of which he had actual or constructive notice *(see Williams and Glyn's Bank Ltd v Boland, [1981] AC 487; Uganda Posts and Telecommunications vs Abraham Kitumba SCCA No.* 36 *of 1995),* failure to make reasonable inquiries or ignorance or negligence was held to form particulars of the offence of fraud. - 44. When a purchaser has actual knowledge of facts and circumstances that would impel a reasonably cautious person to make such inquiry or when the purchaser has knowledge of a defect or the lack of title in the vendor or of sufficient facts to induce a reasonably prudent person to inquire into the status of the title of the property, his or her mere refusal to believe that such defect exists, or his or her willful closing of his or her eyes to the possibility of the existence of a defect in the vendor's title will not mak~ t}le purchaser an innocent purchaser for value if it later develops that th~ title was in fact

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defective, and it appears that he or she would have had such notice of the defect had he or she acted with that measure of precaution which may reasonably be required of a prudent person in a like situation.

- 45. It is a cardinal view that lands are not vegetables that are bought from unknown sellers. They are valuable properties and buyers are expected to make thorough investigations, not only of the land but of the sellers before purchase. (Sir John Bageire vs Ausi Matovu Court of Appeal CA No. 7 of 1996). Reasonable inquiries are a must. Such inquiries include a proper search at the land office, physical search at the land, ascertaining the historiography of the land and survey of the land to be conducted to establish the boundaries before committing any funds in a land sale transaction. - 46. The above is proved not only by oral testimonies but by a proper Search Certificate/Report, evidence of consultations from the neighbours, local leaders, previous owners, registered owners. Whereas there a Search Report purported to be from the Land Registrar, the same is not signed, not stamped and moreover, it is addressed to a one Aineobwengye Nelson who is not one of the Plaintiffs nor a party to this suit. The said report is dated 22^nd January 2020, and the Plaintiffs seek to rely on it when the sale had already been made on the 21^st day January 2020. The Plaintiffs' averment that they conducted a search at land registry is not true if at all what they rely to show that they made an official search. This indicates a clear untruthfulness on part of the Plaintiffs seeking to rely on it. - 47. Thus, the Plaintiffs' failure to ascertain the whereabouts of the 1^st Defendant and failure to inquire more about the dispute over land involving the 1st Defendant in respect of the suit land is deliberate. Constructive notice applies if a purchaser knows facts which made "it imperative to seek an explanation, because in the absence of an explanation it was obvious that the transaction was probably improper" (see Macmillan v. Bishopsgate Investment Trust (No. 3) [1995] 1 WLR 978). When it is established that such a purchaser acquired knowledge of circumstances which would put an

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Smutuch

honest and reasonable man on inquiry and yet he did not undertake the necessary inquires, such a purchaser cannot claim to have bought in good faith. The ascertainment of good faith, or lack of it, and the determination of whether due diligence and prudence were exercised or not, are questions of fact which require evidence. The burden of proof to establish the status of a purchaser in good faith lies upon the one who asserts it. This burden cannot be discharged by mere invocation of the legal presumption of good faith.

- 48. A person omits to make the usual investigations lays himself or herself open to be affected by constructive notice. Later interest holders are deemed to know of interests that they would have discovered if they had asked the usual questions about the property, and are bound by them. A later interest holder must be diligent and act in a reasonable manner, making all those investigations that an acquirer of an interest in land is normally expected to make. He or she will be affected only when they omit to investigate the vendor's title properly, or to make reasonable enquiries as to deeds or facts which come to his or her knowledge. The later interest holder is deemed to have notice of anything which he or she has failed to discover because he or she did not investigate the title properly or if he or she did not inquire for deeds or inspect them. The equitable doctrine of notice provides that a later interest holder is bound by any right which he or she would have discovered if he or she had made the ordinary investigations of deeds, disputes, and other facts which affect the ownership of land. - 49. The onus is on the later interest holder to establish himself or herself as such; and it is a heavy burden to discharge. The later interest holder must show that his or her absence of notice was "genuine and honest" (see Midland Bank Trust Co Ltd v. Green (No.1) [1981] A. C. 513). Court examines the facts against the nature of the estate and the various co-existing interests vested therein. - 50. Premised on the above analysis and considering the evidence on record, it is therefore my finding that the Plaintiffs are not bonafide purchasers for value without notice of the existing interests of the 1^st Defendant. The Plaintiffs do

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Samurah

not have valid and legal Certificates of title in respect to the suit land and their process of acquiring the suit land is marred with fraud. If they had taken keen interest, they would have known that the suit property had issues which prevents them from being bonafide purchasers for value without notice. There were many pointers that should have helped them to investigate further, but this they ignored and therefore cannot come out to claim that they were bonafide purchasers without notice.

51. Issue 3 is answered in the negative and issue 4 is answered in the affirmative.

### $$

# Whether the Plaintiffs' Certificate of titles were rightfully cancelled.

- 52. Counsel for the Plaintiffs submitted that in as far as there was fraud which is outside the 3^rd Defendant's jurisdiction and failure to accord the Plaintiffs herein a fair hearing, the Certificates of Title were wrongly cancelled. - 53. Counsel for the 1^st Defendant submitted that this is an issue of double titling or issuing a title over an existing title which was done erroneously or and illegally. That it is clear from evidence on record that the 1st Defendant complained about the titles that were issued erroneously on the suit land that was already titled, and as thus the Commissioner Land Registration on that basis caused cancellation of Certificate of Titles of the Plaintiffs on ground of having been issued in error, and not on the basis of fraud. That Court Witness (CW) Nabuuma Janata for Commissioner Land Registration testified in Court and confirmed that the Plaintiffs titles were cancelled on ground of having been issued in error.

# Analysis.

54. The provisions under Section 91 of the Land Act Cap 227 as amended in 2004 are clear, Section 91 $(1)$ of the Act provides as follows:

91(1) "Subject to the Registration of Titles Act, the Registrar shall, without referring a matter to a Court ... have power to take such steps as are necessary to give effect to

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James Ch this Act, whether by endorsement or alteration or cancellation of certificates of title, the issue of fresh certificates of title or otherwise."

Section 91 (2) of the Land Act as amended provides as follows -

"(2) The Commissioner shall, where a certificate of title or instrument-

- (a) is issued in - (b) *contains a wrong description of land or boundaries;* - (c) *contains an entry or endorsement made in error;* - (d) contains an illegal endorsement; - (e) is illegally or wrongfully obtained; or - $(f)$ is illegally or wrongfully retained;

give not less than twenty-one days' notice, of the intention to take the appropriate action, in the prescribed form to any party likely to be affected by any decision made under this section".

## 55. The Amendment Act 2004 introduced two new sub-sections under Section $91$ , to wit;

"(2a) The Commissioner shall conduct a hearing, giving the interested party under sub-section (2) an opportunity to be heard in accordance with the rules of natural justice, but subject to that duty, shall not be bound to comply with the rules of evidence applicable in a court of law.

(2b) Upon making a finding on the matter, the Commissioner shall communicate his or her decision in writing to the parties, giving the reasons for the decision made, and may call for the duplicate certificate of title or instrument for cancellation, or correction or delivery to the proper party."

Other sub-sections under Section 91 provide for the procedure and other aspects of exercise of these special powers of the Commissioner Land Registration.

56. In the present case, the grounds relied upon by the Commissioner Land Registration to make the decision and take the action is stated in the Amendment Order issued by the Registrar dated 15^th July 2015. On the first

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JUNEARD

*I* page of the Order, Ms. Sarah Kulat B R • . a asangwa, Commissioner Land egistration, stated as follows:

l

*I*

" *This office received a complaint dated 17th May,* 2022 *from M/s Eliakim* & *Edson A~vocates acting on behalf of their client George Rubarekyera to the effect that t~zr \_client is the registered proprietor of the above-mentioned land compnsed in Certificate of Title Leasehold Register Vqlume 4246 Folio 11 for Plot 57B3 Masaka Ranching Scheme in Mawogola Ssembabule District issued to him under instrument number 476758. Attached to the complaint was a copy of the Certificate of Title registered in the names of George Rubarekyera. It was alleged that they have however discovered that the abovementioned Certificates of Title were erroneously, illegally and irregularly issued over the existing Cert~ficate* o\_f *Title* o\_f *their client thus they requested that the said illegal titles Leasehold Register Volume MSK436 .folio 13 and Leasehold Register Volume MSK444 folio 13 issued over their client's title be cancelled."* (emphasis mine) •

57. The Commissioner then went ahead to invoke the powers conferred upon her under Section 91 of the Land Act and made the following orders;

" *NOW THEREFORE, by powers conferred upon me under Section 91 of the Land Act Cap* 22 7, *I hereby order that;*

- *1. The certificate of title for Leasehold Register Volume MSK436 Folio 13 for plot* 2 *Block Ranch 57B\*3, Mawogola* - *Sembabule in the names of Katsinde George registered under instrument number MSK00032084 of 22.10.2020 be cancelled forthwith.* - 2. *The Certificate of Title comprised in Leasehold Register Volume MSK444 Folio 13 issued under instrument number MSK00033413 of 28/01/2.021 registered in the names of Mark Nuwagaba under instrument number MSK00034895 of 22.04.2021 be cancelled.* - *3. The land comprised in Plot 57B3 Masaka Ranching Scheme be reinstated on the cadaster forthwith.* - *4. The Certificate of Title comprised in Leasehold Register Volume* 4246 *Folio 11 issued in respect to Plot 57B Masaka Ranching Scheme measuring approximately 84.6 Hectares in the names of Rubarekyera George of*

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Mawogola Sembabule issued under instrument number 454270 of 26.8.2011 be captured on the Land Information Systems."

- 58. The foregoing forms the 3^rd Defendant's decision and the premise upon which the said decision was taken. It is upon that decision that all subsequent actions complained of by the Plaintiffs were taken. As such, it is to that decision and its premises that the Court has to look in order to establish the grounds relied upon by the Commissioner in exercise of the special powers conferred upon her under Section 91 of the Land Act. From a plain and clear reading of the cited decision and the grounds thereof, there is no element of fraud as ground for the decision taken by the Commissioner. I have not found any basis of the allegation of fraud by the Plaintiffs. - 59. As shown above, no such matter of fraud is included as one of the reasons for the decision of the Commissioner. I do not see from where the Plaintiffs imported this ground. Even if the complaint made by the 1^st Defendant had made mention of fraud, which has not been shown to the Court to be the case, the moment such a ground did not form part of the Commissioner's investigation and decision, it cannot be invoked to challenge the clear decision of the Commissioner. Once the Commissioner established that an entry on the Register was illegally entered and that registration on the Certificate of Title was illegally obtained since there was an existing title over the same land, that was sufficient for her to invoke the powers conferred upon her under Section 91 of the Land Act. - 60. For the above reasons, it is clear to me that the decisions sought to be relied upon by Counsel for the Plaintiffs were cited totally out of context. The decisions in Hilda Namusoke & 3 Others vs Owalla's Home Investment Trust (E. A) Ltd & Another (supra) and Homs Co. Ltd & Another vs Commissioner Land Registration & Another Miscellaneous Cause No. 96 of 2022 cited by Counsel for the Plaintiff do set out the correct principles of the

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Samurah

l~w on th ^esubject but are substantially inapplicable to the facts and circumstances of the present case.

61 • In th ^epremises, the Plaintiffs' Certificates of Title were rightfully cancelled on the grounds as indicated in the Amendment Order.

Issue 5 is answered in the affirmative.

All in all, the Defendants have succeeded in all issues as per the above analysis.

**Issue 6.**

## **6. What remedies are available to the Parties?**

- 62. The 1st Defendant filed a Written Statement of Defence and a Counter-Claim, among others seeking general damages, interest and costs. The 3rd Defendant as well prayed for costs. - 63. The 1st Defendant prayed for general damages of not less than 5 Billion (Five Billion Shillings). That he had over 75 cows on the suit land some were killed other properties destroyed and he is living under stress for the financial loss caused to him, the justification provided submitted for general damages is as follows: - 1. Each cow costs Ugshs 5,000,000/- ^X75 Cows X 5 years, and cost of cows multiplied within the 5 years. - 2. The dam costs Ugshs 5,000,000/= - 3. Banana plantation and other properties Ugshs 500,000,000/= - 4. Costs for cancellation of Certificate of Titles. - 5. Costs incurred to reallocate and settle his family. - 64. That the 1st Defendant/ Counter Claimant was using the suit land is over 209 acres valued at a billion plus for commercial farming the expected income for the time he has not used his land should be compensated, it's in

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his evidence that he was illegally evicted, some of his cows killed, his properties destroyed. That the 1st Defendant/ Counter - Claimant an 85-yearold peasant has been put out of his land for now 5 years, he has had to hire alternative land for grazing his cattle. His dam was converted and used by the Plaintiffs at his detriment and he has incurred the cost of digging another dam.

- 65. That the Plaintiffs illegally evicted the 1st Defendant, he was maliciously prosecuted, illegal titles were created over his land and he went through the process of cancellation, he has been dragged to court on baseless claims. That he has been tortured psychologically, he is a man of advanced age (85 years) he has suffered emotional distress inconvenience as a result and is entitled to receive compensatory damages. That the 1st Defendant/ Counter - Claimant's temporary houses that he built on the suit land were destroyed by the Plaintiffs and his workers ran away thereby abandoning his cattle. - 66. Whereas Counsel submitted in explaining the claim for general damages as above, the same details were not pleaded and explained in the pleadings and neither have they been proved as special damages to require particulars. The ¹st Defendant did not lead any evidence to prove these claims. The above should have been pleaded and proved as special damages which was not done in this case. What he will be given are general damages that are meant to put him in the position he was before the inconvenience of the Plaintiffs 'actions. - 67. General damages are discretional and in awarding general damages, a party's conduct is thus key to the amount of damages awarded. If the action was accidental or inadvertent, damages are lower. If the said action was willful, damages are greater. And if it was in-between, i.e. the result of ^a party's negligence or indifference, then the damages are in-between as well. Considering that the Plaintiffs did not act truthful in their transactions as above and guided by fact that the 1st Defendant has been deprived of quiet

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*I I . I* ' •

and peaceful enjoyment of the suit land by the actions of the Plaintiffs, I will award general damages of Ugshs. 2,000,000,000/= (Two Billion Uganda shillings) as general damages for the inconvenience and suffering caused to the 1st Defendant/ Counter-Claimant, none use of his land for 5 years. This will attract interest of 20% per annum from the time of filing this suit till payment in full.

This award is premised on the fact that the 1st Defendant/ Counter-Claimant an 85-year-old peasant was put out of his land for now 5 years, he has had to hire alternative land for grazing his cattle which was about 70 in number. His dam was converted and used by the Plaintiffs to his detriment and he has incurred the cost of digging another dam, the Plaintiffs illegally evicted him from his land, his temporary houses that he built on the suit land were destroyed by the Plaintiffs and his workers ran away thereby abandoning his cattle, he was maliciously prosecuted, illegal titles were created over his land and he went through the process of cancellation, he has been dragged to Court on baseless claims he has also been tortured psychologically, he has suffered emotional distress, inconvenience as a result and is entitled to receive compensatory damages.

- 68. In summary, the suit is dismissed with costs to the 1st and 3rd Defendants and the 1st Defendant's Counter-claim succeeds. - 69. Therefore, judgment is entered for the Defendants against the Plaintiffs in the following terms; - a) A declaration that the suit land belongs to the 1st Defendant/ Counter-Claimant being the rightful registered proprietor. - b) A permanent injunction is issued restraining the Plaintiffs, their agents, employees and persons claiming under them, from further acts of trespass on the 1st Defendant's/Counter-Claimant's land nor interfering with his quiet enjoyment. - c) An eviction order is issued against the Plaintiffs/ C~t&".te-T-=Defendants.

*'-..)* ;/ **4** ,, ·,

Page **24** of **25** /~ .,, *-r*

- d) General damages of Ugshs. $2,000,000,000/$ = (Two Billion Uganda shillings) awarded to the 1^st Defendant/Counter - Claimant with interest of 20% per annum from the time of filing this suit till payment in full - e) Costs of the suit to the $1^{st}$ and $3^{rd}$ Defendants.

Judgment signed and read in open Court at Masaka this 21^st day of March, 2024

**AWRENCE TWEYANZE** JUDGE. 21^st March, 2024.