[2024] UGHCLD 233

## THE REPUBLIC OF TIGANDA

## IN THE HIGH COT]RT OF T]GANDA AT KAMPALA

## (LAND DIVISION)

## CIVIL STIIT NO.233 OF 2OI3

KIL -KYEKAMI INVESTMENTS LIMITED: PI-AINTTFF

#### VERSTIS

ATTORNEYGENERAL-: DEFENDANT

## BEFORE HON. JUSTICE PHILLIP ODOKI

#### ,ILIDGEMENl'

#### Introduction:

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[] The Plaintiff instituted this suit against the Defendant seeking for, a declaration that Uganda Prisons is atrespasser on land comprised in LRV 4246Folio9 Plot 93 Block 299 land at Kyaggwe in Buikwe District (hereinafter referred to as 'the suit land); a permanent injunction to restrain the Defendant and its agents from trespassing on the suit land; general damages for trespass; and costs ofthe suit.

## The Plaintiff s case:

[2] The Plaintiffpleaded that it obtained a lease, for a period of5 years, of the suit land from the Uganda Land Commision on the 24n August 201lat a consideration ofUgs. 140,000,000/:. After obtaining the lease, its officials went to take possession. They were however shocked to find that prison authorities, without any consent and or authorization, had trespassed, occupied and continue

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to occupy the suit land for agricultural purposes. As a result of the action of Uganda Prisons, the Plaintiff is unable to utilize and develop the suit land.

#### The Defendant's case:

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[3] The Defendant denied all the allegations of the Plaintiff and filed a counterclaim against the Plaintiff and Uganda Land Commission. The Defendant pleaded that in 1970 the Govemment of Uganda bought the suit land from E. M. Mulira for the expansion of the Youthful Offenders Prison at Bugungu in Jinja. The Government of Uganda compensated all the squatters on the suit land. Thereafter, the Uganda Prison Service took physical possession and extensively developed the suit land by establishing thereon the Youthful Offenders Prison and a prison farm. The Defendant contends that the Plaintiff, without any color of right and with full knowledge of the physical presence ofUganda Prisons, applied for the suit land and was granted a lease of5 years by Uganda Land Commission without consulting the Uganda Prisons Service. The Defendant contends that the Plaintiff connived with oflicials of Uganda Land Commission to fraudulently deprive the Govemment of Uganda of the suit land. The Defendant further contends that Uganda Land Commission being a statutory custodian of all land owned, vested and/ or acquired by the Govemment of Uganda, has no legal mandate to unilaterally allocate or grant a lease on any land vested or owned by the Government of Uganda without obtaining the permission/ consent of the user govemment institution, agency, department or ministry. The Defendant prayed for, an order for cancellation of the certificate of title in the name of the Plaintiff; a declaration that the 2nd Counter defendant has no right to grant a lease on any land vested or owned by the Government of Uganda without obtaining the permission/ consent ofthe user govemment institution, agency, department or ministry; general damages; interest; and costs of the suit. On the 18n March 2020

the case against Uganda Land Commission was dismissed for non-service of summons to file a defence. The case thus proceeded only between the Plaintiffand the Defendant.

#### Aqreed facts:

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[4] The parties filed a joint scheduling memorandum in which they agreed that Uganda Prison Service is currently in possession of the suit land and the Plaintiff has a lease of the suit land granted by Uganda Land Commission.

#### Issues:

[5] The parties agreed in thejoint scheduling memorandum that the following issues should be for the determination of the court.

- i. Whether the Plaintiff lawfully acquired the suit land. - ii. Whether the Defendant has any proprietary interest in the suit land. - iii. Whether the parties are entitled to remedies sought?

[6] I have carefully examined the above issues as against the pleadings ofthe parties. In my vrew, the issues do not properly reflect the material proposition of law or facts affirmed by one party and denied by the other party. The Plaintiff alleged that it is the registered proprietor ofthe suit land. Without its consent and or authorization, Uganda prisons occupied the suit land for agricultural purposes and continue to trespass the suit land. The Defendant on the other hand denied any act of trespass. The Defendant contends that Plaintiff connived with officials of Uganda Land Commission to fraudulently deprive the Govemment of Uganda of the suit land.

[7] Under Order 15 Rule 5 of the Civil Procedure Rules, this Court has the power, at any trme before passing a decree, to amend or strike out any issues that appear to it to be wrongly framed

or introduced and to frame additional issues, on such terms as it thinks fit, as may be necessary for determining the matters in controversy between the parties'

[g] In my view, therefore, the proper issues for the determination of the court are:

- i. whether the Plaintiff secured registration of the suit land in its name by fraud. - ii. Whether the Defendant trespassed on the suit land - iii What remedies are available to the parties.

## Evidence resented:

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[9] The Plaintiffadduced 1 witness, Denis Makuba, a director of the Plaintiffcompany. He testified as pWl. In addition, the Plaintiff adduced 14 documents which were admified in evidence as exhibits. They were, the lease (EP1); the certificate of title of the suit land (EP2), the statutory notice of intention to sue (EP3); land maps (EP4 (1), EP4 (2) and EP5); statements ofsearch (EP6 and EP7); application for a lease (EP8); lease oft.er form (EP9); receipts (EPl0, EPl1, EPl2 and EP13); and a deed Print (EPl4).

[10] The Defendant called one witness, George Muge, a Commissioner of Prisons. He testified as DWl. In addition, the Defendant adduced 28 documents which were admitted in evidence as exhibits. They were, notice of intention to sue (EDI); letter ofthe Secretary to the Treasury (ED2); letter of Commissioner of Prisons (ED3); conespondences (ED4 - ED25), a certificate of title for FHR Vol. 220 Folio l0 known as Bugungu Prisons 148.4 acres at Kyagwe registered in the name of Uganda Land Commission (ED26); a certificate of title for FHR Vol. 220 Folio l0 known as Reform School at Bugungu, Kyagwe registered in the name ofUganda Land commission (ED26); and request for representation (ED28).

# o Lesal reDresentation and submissions:

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[11] At the hearing, the Plaintiff was represented by Ms. Tumuhairwe Harriet of lWs Okecha Baranyanga & Co. Advocates. The Defendant on the other hand was represented by Ms. Suzan Akello Apito, a State Attorney from the Attomey General's Chambers. Upon closure of the hearing, the Court gave counsel directives to file written submission, which directives were duly complied with. I have given the submissions the due consideration in the determination ofthe issues before the Court.

## Burden and standard of proof:

[12] The burden of proof in civil matters lies upon the person who asserts or alleges. Any person who, wishes the court to believe the existence of any particular fact or desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts, must prove that those facts exist. (See section ¹⁰¹ r02 I nce Act 6 of the laws of Usanda). The opposite part can only be called to dispute or rebut what has been proved by the other party (See Sebuliba versus Co-ooerative Bank 0982) HCB 129).

[13] The standard ofproofrequired is on the balance of probabilities. In Miller versus Minister of Pensions (1947)2 ALL ER 372 Lord Denning stated;

"That the degree is well settled. It must carry a reosonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: 'we think it is more probable than not,' the burden of proof is discharged, f the prohabilities are equdl, it is noL"

## Analvsis and determination of the Court:

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## Issue 1: Whether the Plaintiffsecured registration of the suit land in its name by fraud.

[4] It is common ground that the Plaintiffwas registered as the proprietor of the suit land on the 25e of August 201 l. Under the Torrens system of land registration, which was first pioneered in South Australia in 1858 by Sir Roberts Torrens and was introduced in Uganda in 1908 by the Registrati0rt ofLand Titles Ordinance, 1908 andhas been applied srnce then, a Certificate of Title once issued cannot be impeached (called into question its integrity or validity) or defeasible (annulled or made void). Once issued, the certificate oftitle becomes conclusive evidence that the person named in it is the proprietor ofthe land. The principle of indefeasibility of title, overlooks any informality or irregularity in the registration process, but only considers the regisfation itself as conclusive evidence of ownership of the land. The principle of indefeasibility of title is recognizedinSections59ofthe@whichprovidesthat;

#### " 59. CertiJicate to be conclusive evidence of title

No cerltficate of title issued upon an application to bring lund under this Act shall he impeac hed or de/bcts i ble by reason or on accounl 4 uny informalitv or ir in lhe upplicalbn or in the Droceedinps previo ofthe certrficate, and every certificdte of title issued under this Act shall be received in all courts as evidence ol the purliculurs sel fi)rth in lhe certificdte and o.f the entry o.f the certrficate in the Register Book, and shall be conclusive evidence that the person named in lhe certificale as lhe proprielor o{or huving unv esldte or interesl in orpower to appoint or dispose ofthe land described in the certificctte is sei:ed or possessed of thul estate or interest or hds that power "Underlined for emphasis

^Il5] However, under Section 77 of the Registration of Titles Act, a certificate of title procured or made by fraud is void. The Section provides that:

"Any certificute of title, entry, removal of incumbrances or cdncelation, in the Register Book, procured or made by fraud, shall be void as against all parties or privies to lhe fraud. "

[16] In addition, under Section 176 (c) of the Registration of Titles Act, where any person is deprived of land by a registered proprietor by fraud, the registered proprietor losses the protection under the law. The person who is deprived ofthe land can maintain an action for ejectment or other actions for recovery ofthe land. Section 176 (c) ofthe Registration of Titles Act thus provides that:

## "176. Regktered proprietot prutected against ejectment ucept in certain cases

No action of ejectment or other aclionfor recovery of any land shall lie or be maintained against the person registered as proprietor under this Act, except in any of the following cuses

(a)

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(b)

(c) the case of a person deprived of land by fraud as dgdinst the person registered as proplietor of that land through fraud or ds against d person deriving other\eise that as o transferee bonafide for value from or through a person so registered throughfraud;"

fl7l ln Fedrick J. K Zaabwe versus Orient Bank Lttl & 5 others SCCA No. 01 of 2006, Katureebe, JSC relied on Black's Law Dictionary 6h Edition page 660, where fraud was defined as "An intentional perversion of truth for the purpose of inducing another in reliance upon it to parl with some valuable thing belonging to him or to surrender a legal right. A false representation ofa matter offact, whether by words or by conduct, byfalse or misleading allegations, or by concealment of that which deceives and is intended lo deceive another so thal he shall acl upon it to his legal injury. Anything calculated to deceive, whether by a single act or combination, or by suppression of truth, o/ suggestion of what is false, whether it is by direct falsehood or innuendo by speech or silence, word of mouth, or look or gesture ... A g,eneric term, embracing all multfarious, means which human ingenuity can devise, and which are resorled to by one individual to get advantage over another byfalse suggestions or by suppression of truth, and includes all surprise, trick, cunning, dissembling, und any unfair way by which another is cheated. "Bad faith" and "fraud" are synonymout, and also synonymow of dishonesty, infidelity, fuithlessness, per/idy, unfairness, etc. ...

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

ll 8l ln Kamnala Bottlets Ltd - Darutnico (U) Ltd, \$. C. Civil Aooeal No. 22/92). Wambuzi, C. J stated at page 7 of his judgment that

"...fraud must be dttributdble lo the transferee. I must add here that it must be attributoble either directly or by necessary implication. By this I mean the transferee must be guilty of some fraudulent acl or must have lcnown ofsuch act by somebody else and taken advantage of such act. "

^Il9] The leamed Chief Justice further stated that

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"l;urlher, I think it is generally accepted that fraud must be proved strictly, the burden being heavier than on o balance oJ probabilities generally applied in civil mdtters."

## 120) \n Vivo Enern Usanda Ud v Tumwesigye JSC at page 12 held that;

"Direct evidence is not the only way to prove know ledge of.fraud by the transferee. The knowledge can be inferred from circumslontiol evidence. "

[21] In the present case, the Defendant adduced uncontroverted evidence that in 1970 the Government of Uganda purchased from E. M. Mulira private mailo land comprised in Kyagwe Block 299 Plot 30 (measuring 282 acres) and Plot 32 (measuring 20 acres) for the expansion of the Youthful Offenders Prison at Bugungu in Jinja. See: ED4 ED25). It is also very clear from the statement ofsearch and the area schedule attached to it (EP7) that that suit land arose as a result ofa subdivision ofPlot 30. The suit land was thereafter registered in the name ofthe 2nd Counter - defendant.

[22) The Defendant pleaded that the Plaintiff secured registration of the suit land through fraud. One of the particulars of the fraud, which was attributed to the Plaintiff, was that the Plaintiff applied for the lease ofthe suit land when there was clear physical possession ofthe suit land by Uganda Prisons and a prison farm. P. W I testified that after purchase of the suit land from E. M. Mulira, the 29 squatters who were on the suit land were all compensated (ED22). Thereafter, Uganda Prisons Service extensively developed the suit land, established thereon an extension farm, Bugungu Prisons and an institution for Young Offenders. He further testified that since 1970, Uganda Prisons Service took possession without any interference. According to him, Uganda Prisons Service only got to know about the Plaintiff in 2012 when the Plaintiff issued to the Defendant a notice of intention to sue.

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[23] P. W. I on the other hand testified that in October 2010, together with his partner, they identified the suit land as an appropriate investment that they would use to grow their portfolio. They then conducted a search and established that the land betonged to Uganda Land Commission. They also conducted a physical search and found that the place was highly bushy with shrubs, a forest and a swamp. He further testified that on the l7n December 2010 the Plaintiffapplied for a lease of the suit land and the Plaintiffwas subsequently \$anted a lease of the suit land on the 24th August 201 l. He further stated that when the Plaintiffwent to take possession of the suit land, the Plaintiff found the Defendant's servants (Uganda Prisons) digging on the suit land, thereby denying the Plaintiffaccess of the suit land.

l24l I have read the application for a lease by the Plaintiff (EP8). The Plaintiff stated in the application lhat, "We have been occupying part of the lund having been currying out subsistence /itrming. " It is onthebasis ofthis application that the Plaintiffwas granted a lease on the suit land by Uganda Land Commission. However, in his testimony, P. W.l did not make any mention of the Plaintiff occupying any part ofthe suit land before it was granted the lease. He instead stated that they conducted a physical search ofthe suit land. Had the Plaintiffbeen in occupation before the grant of the lease, I doubt if P. W.l would have failed to give testimony of that occupation and the circumstances under which the Plaintiff was in occupation, in light of the evidence of the Defendant that upon acquisition of the suit land, all the squatters were compensated. In my view, the statement in the application lor the lease that the Plaintiff was in occupation of the suit land before applying lor the lease was clearly intended to deceive Uganda Land Commission that the Plaintiffwas in possession of the suit land whereas not.

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[25] In addition, apart from merely asserting that the suit land was highly bushy wrth shrubs, ^a forest and a swamp, no evidence was adduced by the Plaintiff to prove that assertion. The Defendant on the other hand adduced evidence to prove that Uganda Prisons service has been in occupation ofthe suit land since 1970 and compensated all the squatters. See: ED20 - ED25.

[26] I have therefore found the evidence ofthe Defendant regarding occupation and use ofthe suit land since 1970 believable. On the other hand, I have found the evidence by the Plaintiffthat the suit land was bushy extremely unbelievable since it was being used by Uganda Prisons Service as a farm. I have found the statement in application for lease by the Plaintiff that it had been occupying part of the suit land for subsistence farming a lie to hoodwink Uganda Land Commission to give it a lease. In my view, that act constitutes fraud.

[27] In the end, I find that the Plaintiff secured registration ofthe suit land into its name through fraud. The fraud is directly attributable to the Plaintiff who wrote the application for the lease. lssue I therefore is answered in the affirmative.

o Issue 2: Whether the Defendant tresoassed on the suit land.

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[27] The law on trespass is fairly settled. ln Justine E. M. N Lulava vs Sterline Civil Enpineerins Comoanv Ltd Civil Aooeal No. I l of 2002, at page 6, Mulenga, J. S. C held that;

"Trespass b land occurs when a person makes un unauthorized entry upon land, and lhereby interferes, or porteruls to inlerfere, with another person's law/ul possession ofthut land. Needless to suy, the tort of tresposs lo larul is commilted, not against the land, but agtinst the person who is in aclual or constructive possession of the land. "

## l28l ln Sheik Muhammed Lubowa versus Kitara Enterorises Lttl, Court of Aooeal Civil Aopeol No. 4 of 198, at page 4, Manyindo V-P held that;

"... it seems cleal to me lhal in order to prove the alleged trespass, it was incumbent on the appellunt to prove that the disputed land indeed belonged to him, that the respondent had entered upon thot land and that lhat entry was unlawful in thdt il was made withoul ltis permission or tllat the respondent had no claim or right or interest in the land."

[29] In the present case, the Defendant was in physical possession of the suit land before the Plaintiff fraudulently secured registration on the suit land. The continuous occupation by Uganda Prisons on the land is premised on the fact that the land was acquired by the Govemment of Uganda for its use. The entry ofthe Defendant on the suit land cannot be said to be unlawful. The Defendant has a claim of right on the suit land, having purchased it from E. M. Mulira. I therefore find that the Plaintiff failed to prove that the Defendant trespassed on the suit [and. Issue 2 is accordingly answered in the negative.

## o Issue 3: What remedies are available to the oarties?

[30] Having found that the Plaintiff failed to prove its case to the required standard, the Plaintiffs suit is dismissed with costs to the Defendant. On the other hand, I have found that that Plaintiff secured registration of its name on the certificate of title through fraud. Section 177 of the Registration of Titles Act empowers this Court to order for cancellation ofa certificate oftitle. The Registrar of Titles is according ordered to cancel the registration of the certificate of title in the name of the Plaintiff. The Plaintiff is also ordered to pay the Defendant the costs of the counterclaim.

I so order.

Dated this l3d Day of September 2024.

1',

Phillip Odoki

JT]DGE