[2025] UGHCLD 107

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

# **CIVIL SUIT NO. 2727 OF 2016**

### (FORMERLY NAKAWA CIVIL SUIT NO.727/2015)

#### RICHARD KIGGWE::::::::::::::::::::::::::::::::::: (ADMINISTRATOR OF THE ESTATE OF THE LATE MUTOGO 10 **YOKANA)**

#### **VERSUS**

**JOSEPH** MUBIRU:::::::::::::::::::::::::::::::DEFENDANT **KIZITO** (ADMINISTRATOR OF THE ESTATE OF THE LATE JOHN **SSEBANA KIZITO)** 15

# BEFORE HON LADY JUSTICE ELIZABETH JANE ALIVIDZA JUDGMENT

#### REPRESENTATION

The Plaintiff was represented by Counsel Obiro Ekirapa Isaac. $20$ The Defendant was unrepresented.

# INTRODUCTION AND BACKGROUND

The Plaintiff brought this suit against the Defendant seeking orders for;

a) Declaration that the late John Ssebana Kizito was not a 25 bonafide purchaser for valuable consideration for land comprised in Block 169 Plots 227 and 228 Kyadondo, land situate at Kabubu Wakiso dstrict (herein after referred to as the suit land) and that the same comprised part of the estate of the late Mutogo Yokana. 30

- b) An order directing the Registrar of titles to cancel the registration of the late John SsebanaKizito as proprietor of the suit land. - c) An order that the Defendant obtains a certificate of title for only - 01 acre on the suit land at such location as will be agreed upon with the Plaintiff. - d) General damages - e) Exemplary damages - f) Interest on (d) and (e) from the date of judgment until payment in full at the rate of 24%o per annum.

The Plaintiff contends that the late Mutongo Yokana died intestate on the 2l"t of March 1963. He was the registered proprietor of land comprised in Kyadondo Block 169 Plot 75 measuring 28.70 Acres. That the land of the late Mutogo Yokana was distributed among his children. That the late Eria l{tgozi as heir was given 05 Acres which he later sold to the late John SsebanaKizito.

That when the late John SsebanaKizito was given the land title to subdivide the 05 acres purchased from the late EriaKigozi, the late John SsebanaKizito transferred the entire suit land into his narne.

50 The Plaintiff contends that the beneficiaries of the Estate of the deceased occupied and utilized the suit land from 1963 and only discovered the fraud by the late John Ssebana Kizito in the year 20 ¹³ when a portion of the suit land was graded following a subdivision and sale of the same.

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55 The then Defendant (Ssebana Kizito) filed a written statement of defence denying the allegations. He contended that in 1983, he purchased the suit land from EriaKigozi and the land was free from all encumbrances.

60 That the Defendant paid to EriaKigozi half of the purchase price and the two agreed to pay the other half after effecting the transfer of title into the narnes of the Defendant.

That after sometime, the said Eria Kigozi returned to the Defendant with the title for plot 75 duly transferred into the Defendant's names. That the Defendant then effected the balance of the purchase price to Eria Kigozi.

That thereafter, the Defendant took possession of the land which he started using as the absolute owner in its entirety. That he purchased the entire title of 28.70 acres.

70 During the hearing of the suit, John Ssebana l{tzito, the Defendant passed on. He was replaced with Kizito Joseph Mubiru the administrator of his estate who was granted letters of probate vide family division AC NO. Ll3l of 2017.

# ISSUES

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The parties filed a Joint Scheduling Memorandum on 1 1th September 2019, th.e following issues were agreed on;

- 1. Whether the late John SsebanaKizito lawfully transferred the Suit Land to his name? - 2. Whether the Plaintiff is entitled to the reliefs sought.

80 The Plaintiff adduced the evidence of four witnesses PW1 Lameck Kigoz| PW2 Yosamu Lubwama, PW3 Silvesti Kato and PW4 Kiggwe Richard. During the earlier part of the trial, the Defendant was represented and even cross exatnined PW1, PW2, PW3 and PW4.

Then in 2O2l ti;re Defendant filed a preliminary objection questioning the viability of the suit in light of the decision of the Court of Appeal

8s in Mariam Nanteza and 3 others Vs Nasani Ru-nmunono qnd another Ciuil Appeal no 28 if 2013.

Eventually this Court was allocated the case file for further management a-fter a long delay. After considering written submissions from Counsel, this Court determined in a ruling dated 30l5l2O23 that the viability of the suit in light of the above Court of Appeal decision is untenable as the Plaintiff is asking Court to decide on whether the Defendant brought 5 acres or the whole suit property which is a matter that can only be determined by evidence.

95 On 17th January 2024, this Court issued hearing notices to be served on the Defendant by way of substituted service. On the 24th January 2024, the hearing notices were published in the Daily monitor newspaper at page 33. The Defendant did not appear for the hearing. this matter then proceeded exparte.

# LOCUS

100 This Court visited locus on tl:.e 19 ll2l2o24. Court observed that there is a trading center and access road at the beginning of the suit tand. PW1 testified that the 5 acres are in plot227 but the Defendant

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105 took over all land plot 228. He pointed out that the land goes all the way to the hill. The Court moved down the hill where the banana plantation where the suit land ends. Court had an overview of the whole suit land and identified the 5 acres alleged to have been sold to the Defendant. PW3 Kato who stays in the suit land, showed the Court his house down the hill. A sketch map was drawn and form part of the evidence.

# 110 BURDEN OF PROOF

The burden of proof in civil proceedings lies upon he who alleges. Section 101 of the euidence Act, Cap 8 provides that;

(1) Whoeuer desires any court to giue judgement as to ang legal right or liabilitg dependent on the existence of facts uthich he or she osserts

115 must proue that those facts ertsf.

> (2) When q person is bound to proue the existence of ang fact, it is said that the burden of proof lies on that person.

Section 103 of the Euidence Acl provides that;

1,20 The burden of proof as to ang partianlar fact lies on that person who wishes the court to belieue in its existence, unless it is prouided bg ang law that the proof of that fact shall lie on ang particular person.

In line with the above provisions, the burden of proof in civil proceedings normally lies upon the Plaintiff and the standard of proof is on a balance of probabilities.

L25 To decide in the Plaintiffs favour, this Court has to be satisfied that the Plaintiff has furnished evidence whose level of probity is such

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that a reasonable marl, even in a case such as this where the Defendant has not adduced any evidence, might hold that the more probable conclusion is that for which the Plaintiff contends. This is possible since the standard of proof is on the balance of probabilities/ preponderance of evidence (see Lancaster u. Blackwell Colliery Co. Ltd 1918 WC Rep 345 and Sebuliba u. Cooperatiue Bank Ltd t19821 HCB l sot.

# RESOLUTTON

135 Issue 7; Whether the late John Ssebana Kizito lawfullg transferred the Suit Land to his name?

The Plaintiff contends that the Defendant illegally transferred the suit land to his name. That the late Eria Kigozi gave the late Ssebana the certificate of title for the suit land to transfer 5 acres. That however

140 the late Ssebana Kizito transferred and registered the entire 28.70 acres into his names without purchasing the same.

The Plaintiff raised the following particulars of fraud in his amended Plaint;

- a. Registration of the entire suit land measuing 28.70 acres into the - Late John Ssebana Kizito's name without purchasing the sqme. - b. Subdiuiding and creating certificates of title onland exceeding 05 acres due to the late Jon Sseban Kizito. - c. Registering the suit land in order to defeat the interest of the beneficiaies which the late John Ssebana Kizito is fullg aware of;

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d. Purporting to otan the entire 28.70 qcres uithout paging ualuable consideration for the same.

It is trite law that a certilicate of title is conclusive proof of ownership of land and it takes priority over any adverse claims.

155 Section 59 of the Registration of Titles Act Cap 240 provides;

"No certificate of title issued upon an application to bing land under this Act shall be impeached or defeasible bg reason or on account of ang informality or inegularitg in the application or in the proceedings preuious to the registration of the certificate, and euery certificate of

title issued under this Act shall be receiued in all courts as euidence of the particulars set forth in the certificate qnd of the entry of the certificate in the Register Book, and shall be conclusiue euidence that the person named in the certificate q.s the proprietor of or hauing ang estate or interest in or power to appoint or dispose of the land descibed in the certificate is seized or possessed of that estqte or interest or has that poraer." 160 165

In the case ol Kqsifa Namusisi and Others V Francis M. K Ntabaazi S. C. C. A No. 4 Of 2OO4 Odoki CJ held that; "The cardinal principle of registration of title is that a certificate of title is conclusiue euidence of title. It is also well settled that a certif.cate of title is onlg indefeasible in a few instances rthich qre listed in section 176 of the Registration of Titles Act. The section protects a registered propietor against ejectment except in cases of fraud, among others"

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175 Fraud is defined as an intentional perversion of truth for purposes of inducing another to part with some va-luable thing belonging to him/her or to surrender a legal right, a fa-lse representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which deceives and is intended to deceive another so that he shall act upon it to his legal injury. See

180 Fredick J K Zaabwe us. Orient Bank & 5 others SCCA No. 4 of20O6.

Has the Plaintiff proved fraud on part of the Defendant which would render ownership voidable?

It is well settled that fraud must be attributable to the transferee either directly or by necessary implication and that the transferee must be guilty of some fraudulent act or must have known of such acts by somebody else and taken advantage of it see Kampala Bottlers us. Damanico (U) Ltd SCCA No.22/ 92.

I remind myself that in any allegation of fraud, the standard of proof is heavier than on a mere balance of probabilities as generally applied

1eo in civil matters. (also see Kampala Bottlers us. Damanico (U) Ltd supra)

In Laaen Maiorie u. James Okot Okumu : Hiqh Court Ciuil Aooeal No. 74 of 201 6, that was cited by Counsel, Court held that a title may be vitiated by fraud, error, or illegality manifesting itself at any stage of

195 the process leading to and including the final registration and issuance of Title.

The Plaintiff avers that the suit land belonged to the estate of the late Yokana Mutogo. The evidence by PWl is that he found the book kept by his late father Kigozi Daniel the Nagaya. That the book is where the last funeral rites were recorded. That it indicated that the land belonged to Yokana Mutogo of Kabubu.

PWl further told Court that he never saw Yokana but found the information in the book that lists the suit land as part of Yokana's property including other property. That it also shows how he distributed the suit land and his other property. After the death of Mutogo, the land was distributed between his children, that he got information about distribution from his mother and uncles Nandyose Serina and Kato Lubwama.

210 215 220 Court's attention is drawn to a copy of the book was adduced as PEXl copy of the book of Siga clan showing distribution of Yokaana Mutogo's land. According to the book, the late Yokana Mutogro died on 3.d March 1963 and was succeeded by Eryia Kigozl On distribution of the estate, the late Eriya Krgozi was given 5 acres at Kabale village one cow and a bicycle. He was a-lso given Kibanja at Kazo and the house on it. That the first son was given 5 acres at Kabale containing his home and one cow. Kasalina Nakisanze was given 10 acres at Kabale and two cows, Federesi Nakku was given 4 acres which are on F. C.8783 at Nagulu and one cow, Sereina Nandyose was given 5 acres at Kabubu where he was burried including the house in it and the Kibanja and one cow, Mariya

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Nakimuli was given 3 and a ha-lf acres at Nagulu on F. C. 8783, 5 acres at Kabale and one cow.

I a-lso noted that the certificate of title PEXS shows that the suit land's description was changed from Kabale to Kabubu.

225 PW2 Yosamu Lubwama testified that Yokana had land at Kabale, Kabubu Wakiso district. That it was 28 acres. That his father told him and his mother that he was named heir of Yokana and the title was given to him.

PW3 Silvesti Kato also testified that Mutogo owned land and had document of ownership that had a certificate of title for plot 75 Block 169. That the land was 28 acres. That after the death of Mutogo, the land was distributed between his children. That he got information about distribution from his mother and uncles Nandyose Serina and Kato Lubwama. That Kigozi Eriya got on the land, he was heir to Mutogo and got 5 acres of the land. 230 23s

PW4 Kiggwe Richard testified that he came to court when he found out that the certificate of title was registered into the names of Ssebana Kizito. That only 5 acres were sold to Ssebana and instead the certificate of title was transferred on 18 l05/L983.

I note that a copy of the certificate of title was adduced as PEX5 certificate of title for land comprised in Kyadondo Kabale Block 169 plot 228 with 28.70 acres. It shows that the late Yokana Mutogo was registered on the 20.12.1966. Further that Eriya Kigozi as administrator of the estate of the late Yokana Mutogo was registered 240

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²⁴⁵ on 18.5.83, and on the same day, the late John Ssebana Kizito was registered as the proprietor.

From the written statement of defence that was frled by the late Ssebana Kizito, he stated that he purchased the suit land from Eria Kigozi, free from a-11 encumbrances. That the defendant paid to Eria

Kigozi half of the purchase price and the two agreed to pay the other half after effecting the transfer of title into the narnes of the Defendant. 250

This Court notes that there is no sale agreement that was adduced by either party showing the transaction between the late Ssebana Kizito and the late ErraKigozi for the 5 acres, or the 28 acres that the

late Ssebana transferred to his narnes.

The Plaintiff has however adduced evidence to the effect that the suit land belonged to the estate of the late Yokana who distributed the same to his beneficiaries.

The evidence indicates that the late Eryia Kigozi received 5 acres that were sold to the late SsebanaKizito. Therefore, it is my finding that the suit land formed part of the estate of the late Yokana Mutogo. 260

As noted above, fraud must be attributable to the transferee and in this case, from the evidence, it is not disputed that the late Eria Kigozi was bequeathed 5 acres from the estate of the late Yokana Mutogo and that he sold his share to the late Ssebanal{tzito. However it is

not clear whether he was part of the fraud and the late Ssebana Kizito

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did not only transfer the 5 acres of land to himself, he transferred the entire 28 acres of land to himself.

In absence of proof that the whole 28 acres that included portions 270 belonging to other beneficiaries, the only conclusion is that the transfer into the Defendant's names was unlawful.

Unfortunately, there is insufficient proof to conclude there was fraud as alleged.

This issue is answered in the affirmative. 275

*Issue 2 whether the Plaintiff is entitled to the reliefs sought?*

The Plaintiff is seeking the following remedies;

a. Declaration that the late John Ssebana Kizito was not a bonafide purchaser for value for land comprised in Kyadondo blocks 227 and 228

without knowledge of any attendant dispute pertaining to the ownership thereof.

In the case of *Hajji Abdu Nasser Katende vs Vithalidas Haridas & Co.* LTD Court of Appeal (Civil Appeal NO. 84 of 2003) the Court of Appeal 285 while discussing the doctrine of a bona fide purchaser for value without notice stated the position of the law as follows at pages 21-22 of the lead Judgment of L. L M. Mukasa –Kikonyogo DCJ;-

"It suffices to describe a bona fide purchaser as a person who honestly intends to purchase the property offered for sale and does not intend 290

to acquire it u.trongly. For a purchase to successfullg rely on the bona fide doctrine as was held in case of HANNINGTON NJUKI VS WILLIAM NYANZI H. C. C. S IrO. 434 / 1996 must proue that; he holds a certificate title, he purchased the propertg in good ^o faith, he had no knowledge

295 of the fraud, he purchased for ualuable consideration, the uendors had apparent title, he purchased uithout notice of any fraud and he wqs not party to the fraud.

In this case, having found that the Defendant only purchased 5 acres however he was registered on the entire suit land and was hence unlaw{ully registered on the suit land, he therefore does not qualify to be a bona Iide purchaser for value.

b. cancellation of the Registration of the late John Ssebana as propietor of the suit land

305 This Court has found that the late Ssebana Kizito was unlawfully registered on the suit land. The Plaintiff adduced copies of search letters showing that the late SsebanaKizito is the current registered proprietor of land at Kabubu Kyadondo Block 169 plot 227, Plot 1727, plot 1728 plot 1729.

310 Accordingly, this Court cancels the said certificates of title for plots 1727, plot 1728 and plot 1729 that were unlawfully transferred. However, I note that the Plaintiff concede to the fact that the late Ssebana Kizito purchased 5 acres that were bequeathed to Eriya Kigozi.

The estate of the late SsebanaKizitio is entitled to the said 5 acres. These 5 acres that were identified at the locus visit be retained by the Defendant's estate. I am aware that the exact plot number location ofthe 5 acres is not ascertained. 315

320 32s The Plaintiff a-lso prayed that this Court is pleased to cancel the Certificates of Title comprised in plot 169 registered in the name of Susanne Okello ,plot 1645 registered in the name of Ceaser Julius Kagoro, Plot 1666 and Plot 1683 registered in the name of Semakula Sulaiti, Plot 1719 registered in the name of Okao Jackline, Plol l72O registered in the name of Thomas T\rmusiime , Plot l72l registered in the name of Tayebwa Herbert Musasizi, Plot 1722 registered in the name of Bob Polycarp Ssekabira , Plot 1723 registered in the name of Ntwantwa Denis, Plot 1724 registered in the name of Simon peter Lubowa , Plot 1725 registered in the name of Grace Namata and Richard Sennoga, Plot 1726 registered in the name of Dewo Lubega.

330 Unfortunately, it is my finding that the Plaintiff has not proved or linked the proprietors of the said certificates of title to the alleged fraud committed by the late Ssebana Kizito and hence their titles cannot be impeached. They were not included in this cause of action. Accordingly, this prayer is denied.

- c. General damages - 335 General darnages are awarded at the discretion ofcourt; they should be awarded to compensate the aggrieved party for any inconvenience accrued as a result of the actions of the Defendant.

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In the case of Takiua Kashuahii & A'nor us. Kaiunqu Denis, CACA /[o. 85 of 2O1], it was held , inter alia, that there should be evidence upon which court can award general damages to restore some satisfaction, as far as money can do it, to the injured Plaintiff.

The Plaintiff avers that owing to the conduct of the late John Ssebana Kiito, he was put too much inconvenience and has suffered mental anguish, embarrassment and financial loss. Unfortunately I am not convinced to grant the general damages.

## d. Exemplary damages

The rationale behind the award of punitive or exemplar5r damages is to deter or punish, in the instant case this prayer is denied.

e. Costs

350 Under Section 27 of the Ciuil Procedure Act, costs follow the event. The Plaintiff being the successful party in this case is entitled to costs of the suit.

## CONCLUSION

I find in favour of the Plaintiff and make the following orders.

- 355 1. The Defendant unlaw{ully transferred the whole 28 acres. - 2. Certificate of titles in the narnes of the late Ssebana Kizito described as land at Kabubu Kyadondo Block 169 plot227,Plot ¹⁷²⁷, plot 1728 plot 1729 is canceled. - 3. Since the location of the 5 acres that were purchased I arn aware that the exact location of the 5 acres is not ascertained. as to the exact plot where these 5 acres are situated.

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- 4. Prayer for cancellation of titles for plot 1639, plot 1645, Plot 1666, Plot 1683, Plot 1719, Plot 1720, Plot 1721, Plot 1722, Plot 1723, Plot 1724, Plot 1725 and Plot 1726 is denied. - 5. It is not clear where the 5 acres that the Plaintiff agreed was brought by the Defendant are suitable. The parties can seek consequential orders to this effect. - 6. Prayer for general damage denied. - 7. Prayer for exemplary damages denied. - 8. Costs awarded to the Plaintiff. 370

So ordered

Tindza

Elizabeth Jane Alividza 375

Judge

27 June 2025

27^th June 2025

Judgment delivered on ECCMIS 380

Elizabeth Jane Alividza

Judge