[2023] UGHCLD 138

#### **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMP ALA [LAND DIVISION] CIVIL SUIT NO. HCT-00-LD-CS-2212-2016**

# MARY MONICA TENYWA KITEME .**·**.**·**.**·**.**·**.**·**.**·**.**·**.**·**.**·**.**·**.**·**.**·**.**·**.**·**.**·**.**·**.**·**.**·**.**·**.**·**.**·**.**·**.**·**.**·**.**·**.**·**.**·**.**·**.**·**.**·**.**·**.**·**. **·PLAINTIFF**

#### *VERSUS*

#### **1. ROSELINE NIW AMANYA TWESIGYE**

#### **2. PREMIER CREDIT LIMITED**

#### **3. COMMISSIONER LAND REGISTRATION ::::::::::::::::DEFENDANTS**

## *BEFORE: HON. JUSTICE BERNARD NAMANYA*

### *JUDGMENT*

## *Introduction:*

- 1. The disputed land is situated at Kilinya, Bweyogerere. The case involves the existence of two certificates of title for the same parcel of land, both verified by the Commissioner for Land Registration to be authentic - a scenario that is sometimes describes as double titling. While the certificates of title have two different plot numbers, that is to say, Kyadondo Block 234 Plot 1320 and Kyadondo Block 234 Plot 310, on the ground the disputed land is the same except for the difference in the acreage on the two certificates of title. The plaintiffs certificate of title is Plot 1320, and the !5¹defendant's certificate of title is Plot 310. One these two title deeds must be immediately cancelled. - 2. This suit was brought by ordinary plaint against the defendants for the following reliefs: i) a declaration of trespass against the defendants; ii) a permanent injunction restraining the defendants, its employees, servants, agents and

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workmen from selling, dealing in and/or interfering with the suit property; iii) an order for cancellation of the pt defendant's certificate of title comprised in Kyadondo Block 234 Plot 310 Land at Kilinya; iv) general damages; v) interest on general damages at court rate from the date of judgment untill full payment; and vi) costs of the suit.

#### *Background:*

- 3. The plaintiff is the registered proprietor of land comprised in Wakiso, Kyadondo Block 234 Plot 1320 Land at Kilinya measuring approximately *0.058 hectares.* The plaintiff enjoyed quiet possession of the suit land until the 20th day of November 2015, when Hot Pursuit Auctioneers and Court Bailiffs, acting on behalf of the 2 nd defendant, advertised her property for sale in the Monitor newspaper. After numerous inquiries, the plaintiff discovered that the pt defendant mortgaged the suit land to the 2 nd defendant (Premier Credit Limited) using the certificate of title for Kyadondo Block 234 Plot 310 Land at Kilinya measuring *0.16 hectares.* The I" defendant defaulted on the loan facility, prompting the 2 nd defendant advertise the suit land for sale. - 4. The l " defendant filed her written statement of defence stating inter alia, that she mortgaged the suit land to the 2 nd defendant (Premier Credit Limited) and that she is the rightful owner of the suit land. - 5. The 2 nd defendant filed its written statement of defence stating inter alia, that the 2 nd defendant carried out a search on the suit land which search revealed that the I" defendant was the registered proprietor. The 2nd defendant accordingly accepted the land as security for a loan and registered a mortgage on the same.

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When the $1^{st}$ defendant defaulted on the repayment of the loan, the $2^{nd}$ defendant advertised the suit land for sale in compliance with the law.

## **Representation:**

At the hearing of the suit, the plaintiff was represented by Ms. Namulunga Susan 6. of M/s Musangala Advocates & Solicitors. The 1^st defendant was represented by *Mr. Chris Kabuga of M/s Kabuga & Partners Advocates.* The $2^{nd}$ defendant was represented by Mr. Frank Tumusiime of M/s Frank Tumusiime & Co Advocates. The 3^rd defendant did not participate in the court proceedings but Mr. Sekitto Moses, Ag. Principal Registrar of Titles appeared in court and gave evidence on behalf of the $3^rd$ defendant.

## The plaintiff's evidence:

- The plaintiff produced 1 (one) witness to prove her case. PW1 (Mary Monica $7.$ Tenywa Kiteme). - The plaintiff adduced evidence of the following documents that were exhibited: 8. - $Exh. P1 A$ copy of certified certificate of title for land comprised in Block $i)$ 234 Plot 1320 in the names of Mary Monica Tenywa Kiteme; - Exh. P2A Prepayment meter installation date capture form, serial No. $ii)$ 378084; - Ex. P2B Prepayment meter installation date capture form No. iii) 2052929930; - $iv)$ $Exh. P3 - A$ receipt book.

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Bernerohlameny

## The defendants' evidence:

- The 1^st defendant produced 1 witness DW2 (Roseline Niwamanya Twesigye). 9. The 2^nd defendant produced 1 witness – DW1 (William Bakunzi Kwizera). The 3^rd defendant (Commissioner for Land Registration) produced 1 witness – DW3 (Sekitto Moses, Ag. Principal Registrar of Titles). - The 1^st and 2^nd defendants adduced evidence of the following documents that $10.$ were exhibited: - Exh. D1 The loan agreement between Premier Credit Limited and i). Niwamanya Roseline Twesigye; - ii). Exh. D2 Valuation Report by WROK Valuation Consultants Limited; - iii). Exh. D3 Search Report; - iv). Exh. D4 A copy of the Certificate of Title for Block 234 Plot 310 in the names of Niwamanya Roseline; - v). Exh. D5 A copy of the Release of Mortgage from KCB; - vi). Exh. D6 A copy of the sale agreement between Mpooya Seith and Niwamanya Roseline; - vii). Exh. $D7 A$ copy of the Powers of Attorney. - The 3^rd defendant adduced evidence of the following documents that were 11. exhibited: - C. L. R Exh. No.1 A copy of Certificate of Title for Block 234 Plot 1320 $i)$ . in the names of Mary Monica Tenywa Kiteme; - ii). C. L. R Exh. No.2 Transfer from from Kitaata Fred to Mary Monica Tenywa Kiteme;

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Bernarchlamony

- iii). C. L. R Exh. No.3 A copy of Certificate of Title for Block 234 Plot 310 in the names of Niwamanya Roseline; - iv). C. L. R Exh. No.4 A copy of the Area Schedule Form; - v). C. L. R Exh. No.5 A copy of Certificate of Title for Block 234 Plot 1321 in the names of Luwanga Mulengani F. D; - vi). C. L. R Exh. No.6 Copy of the list of entries (Part I) - vii). C. L. R Exh. No.7 Copy of the list of entries (Part II)

#### *Locus in quo visit:*

- On the 6^th day of February 2023, I carried out a locus in quo visit to the suit land 12. in the presence of counsel for the plaintiff and the $1^{st}$ and $2^{nd}$ defendants. - The witnesses present included: Mary Monica Tenywa Kiteme (for the plaintiff), $13.$ and Roseline Niwamanya Twesigye (for the 1^st defendant) and William Bakunzi (for the $2^{nd}$ defendant). - $14.$ The plaintiff (Mary Monica Tenywa Kiteme), 1^st defendant (Roseline Niwamanya Twesigye) and the 2^nd defendant (William Bakuzi) gave evidence at the locus in quo visit. - Roseline Niwamanya Twesigye was cross examined by counsel Frank 15. Tumusiime and Tumwebaze Emmanuel respectively. - 16. The findings at the locus in quo visit are incorporated in my analysis of the evidence below.

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Bernerstlamenye

## Issues to be determined by the court:

- According to the Joint Scheduling Memorandum dated 13^th February 2018, the 17. following issues were agreed on for the court's determination: - Whether the $1^{st}$ and $2^{nd}$ defendants trespassed on the suit property? i). - Whether the 3rd defendant is liable for any wrong doing? $ii)$ . - iii). Whether there are any remedies available to the parties?

# <u>Issue No.1: Whether the 1^st and $2^{nd}$ defendants trespassed on the suit property?</u>

According to the Supreme Court of Uganda in the case of Justine E. M. N. Lutaya 18. v. Stirling Civil Engineering Company Ltd, Civil Appeal No. 11 of 2002 (per *Mulenga, J. SC):*

> "Trespass to land occurs when a person makes an unauthorised entry upon land, and thereby interferes, or portends to interfere, with another person's lawful possession of that land."

- I conducted a locus in quo visit to the suit land on the 6^th February 2023, and 19. confirmed that the suit land is situated at Kilinya, Bweyogerere, Wakiso district, and is developed with 6 rental units. It is enclosed in a brick wall fence. The suit land is occupied by the plaintiff (Mary Monica Tenywa Kiteme). - Both the plaintiff (Mary Monica Tenywa Kiteme) and the 1^st defendant (Roseline 20. Niwamanya Twesigye) claim ownership of the same piece of land. - The case before me is one of double titling, one parcel of land having two title 21. deeds, with different owners, both verified by the Commissioner for Land

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Lermantameng

Registration to be authentic documents. But of course, a single parcel of land cannot have two title deeds, which means that one of them must be cancelled.

- 22. The plaintiff produced a copy of the certificate of title (Exh. P 1) for the suit land comprised in Kyadondo Block 234 Plot 1320 Land at Kilinya. It shows that the she was entered as the registered proprietor of the land on the 16th April 1999. The plaintiff subsequently mortgaged the land to Bank of Uganda as security for repayment of a loan obtained in her capacity as an employee of Bank of Uganda. - 23. The I" defendant contends that she is the registered proprietor of land comprised in Kyadondo Block 234 *Plot* 310 Land at Kilinya. She produced a copy of the certificate of title for the land (Exh. D4) which shows that the pt defendant was entered as the registered proprietor of the land on the 28th September 2007. - 24. The I" defendant obtained a loan facility of Uganda shillings 35 million from the 2 nd defendant pursuant to a loan agreement dated 20 th November 2014 (Exh. Dl). She presented a certificate of title for the land comprised in Block 234 Plot 310 Land at Kilinya to the 2 nd defendant as security for the repayment of the loan. She defaulted on the loan repayment, and the 2 nd defendant attempted to sell the suit property, prompting the plaintiff to commence the current legal proceedings. - 25. The plaintiff has a burden of proof to adduce evidence on the balance of probabilities that the I" and 2 nd defendants are trespassers on the suit land. *See sections 101, 102, 103 & 106 o(the Evidence Act (Cap 6).* - 26. The plaintiff testified that she purchased the suit land in the year 1988 from the late Fred Kitatta, and it was registered in her name in 1999. After the purchase, she started constructing houses and rental units on the land in the year 2002.

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Around the year 2014, the plaintiff obtained a loan from Bank of Uganda, where she is employed, to help her finish the construction of the rental units.

- The 1^st defendant claims to have purchased the land on the 22^nd December 2006. 27. By this time, the plaintiff was firmly in occupation of the land having started construction of the rental units in the year 2002. - In determining whether the $1^{st}$ and $2^{nd}$ defendants are trespassers on the land, it is 28. also necessary to consider the circumstances under which the 1^st defendant obtained registration as the registered proprietor of the land, and later mortgaged the suit land to the $2^{nd}$ defendant. - By the time the 1^st defendant purported to purchase the land in 2006, the plaintiff 29. was in occupation of the land and was doing construction on the land. How could the 1^st defendant fail to establish the fact of the plaintiff's possession of the land? How could she fail to notice the construction of the rental units that was underway at the time? - Prior to purchasing the suit land, the 1^st defendant who was aware of the existence 30. of rental units did not bother to find out about their ownership. In her evidence in chief, she testified that:

"It was after buying that I asked about the ownership of the rentals." Before buying, I never asked the tenants about the owner of the rentals. I have never taken possession of the land."

The 1^st defendant claims to have purchased the suit land from a one Mpooya Seith 31. on the 22^nd December 2006 (Exh. D6) at Uganda shillings 50 million. In her evidence in chief, the 1^st defendant testified that after being entered as the

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Bernsard Marnery

registered proprietor of the land, she used the title deed to get a loan from Kenya Commercial Bank (KCB Bank). Subsequently, she used the same title deed to get a loan from the 3 rd defendant (Premier Credit Ltd), which she failed to repay.

- 32. It is surprising that the l " defendant never picked interest in taking possession of the suit land, despite the fact that she parted with Uganda shillings 50 million as the purchase price. Most importantly, the suit land was already developed with rental units, and was generating rental income. - 33. According to the pt defendant's testimony, she was not interested in taking possession of the land, and when in cross examination she was challenged as to why that was the case, she testified as follows:

*"Seith Mpooya promised to give me vacant possession within 3 months. During that time, Seith died. [. . .] I then used the title to get loans using it as security. I was not interested in the rental income from the tenants. I never collected rent from them. I wanted vacant possession so that I develop the land, build my own house. " (underlining is mine for emphasis).*

34. The lack of interest by the l " defendant in taking possession of the land, and in the rental income from the suit property suggests that the l " defendant was an active participant in the fraud that got her registered as the owner of the land. Why would the pt defendant part with Uganda shillings 50 million and not be interested in taking possession? Why was the I" defendant not interested in the rental income from the suit property? Why was the l " defendant just interested in using the title deed to obtain loan facilities from various financial institutions?

*Page 9 of 18* It seems to me that the I" defendant was aware that the title deed had been fraudulently procured and hence the lack of interest.

- 35. Under *section 176 (c)* of the *Registration of Titles Act (Cap 230),* a registered proprietor of land can be ejected on grounds of fraud. *See the case o(Kampala District Land Board & Chemical Distributors v. National Housing and Construction Corporation, Civil Appeal No. 2 of 2004, the Supreme Court of Uganda {per Ben;amin Odoki, CJ).* - 36. It is my finding therefore, that l " defendant's certificate of title was fraudulently obtained and must be cancelled. There is abundant evidence before me that the . l " defendant was fully aware that the suit land and its developments were occupied by the plaintiff at the time that the I" defendant purchased the same land and was entered as the registered proprietor of the land. The lack of interest by the l " defendant in occupying the suit land and its developments is evidence that the l " defendant was an active participant in the fraudulent acquisition of the certificate of title for the land. - 3 7. The position of the law is that that where there are two competing legal interests in the same parcel of land, the first of the legal interests to be registered or created takes priority over the second legal interest. - 38. In the case before me, the plaintiff having been entered as a registered proprietor of the land on the *16 th April J 999 (see li,xh. P 1)* as opposed to the pt defendant who was entered as registered proprietor of the land on the *28th September 2007 (see Exh. D4),* it follows that the plaintiff's legal interest takes priority over the pt defendant's legal interest.

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I am fortified in this conclusion by Megarry & Wade: The Law of Real Property, 39. 9^th Edition, Stuart Bridge, Elizabeth Cooke and Martin Dixon, Sweet & Maxwell, London, 2019 at paragraph 6-060 where the authors opine that:

> "[...] the date of the creation of an interest determines its priority: the first of the competing interests to be created has priority."

In the case of Lamwaka Lucy v. Laloyo Jalon, High Court (Gulu) Civil Appeal 40. No. 31 of 2017, Justice Stephen Mubiru held that:

> "In cases of a double sale of immovable property, the general rule is that interests in property take priority according to the order in which they are created. Ownership in the following order belongs to; (1) the first to register title in good faith; (2) then, the first possessor in good faith; and (3) finally, the buyer who in good faith presents *the oldest title.*"

In the case of *Vivo Energy (U) Ltd v. Shire Petroleum Company Ltd & 2 Others,* 41. High Court (Arua) Civil Appeal No. 8 of 2016, Justice Stephen Mubiru held that: "[...] once created, a legal interest will prevail against any purported creation of a subsequent legal interest, to the extent of any inconsistency."

Where the same parcel of land has two different certificates of title, one of the 42. title deeds must be cancelled. In the case of *Mohammed Abdallah Garelnabi v.* Diana Irene Nayiga (Court of Appeal of Uganda Civil Appeal No. 231 of 2019), the Court of Appeal of Uganda (per Justice Catherine Bamugemerire, JA) held that:

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Lernorm arreague

"Actions for recovery of land are premised on proof of a better title than that of the person from whom the land is sought to be recovered. Clearly in this case both titles cannot be valid. The presence of two apparently valid titles in different names in respect of the same piece of land means that one of them has to be cancelled. The question is which of the parties holds better title? There can only be one main *proprietor at any one time.*"

- The plaintiff testified that the $2^{nd}$ defendant placed an advert on the perimeter 43. wall, and on the gate of the property that it was up for sale after the 1^st defendant defaulted on the loan facility. She testified that the $2^{nd}$ defendant's actions caused her loss of income as most of her tenants vacated the premises. - The 2^nd defendant's witness, Mr. William Bakunzi Kwizera, Zonal Manager, 44. testified that when the 1^st defendant defaulted on the loan facility, the 2^nd defendant hired Bailiffs to sell the land and its developments. The suit land was subsequently advertised for sale sometime in the year 2015. He also testified that prior to mortgaging the land, it was established that the suit land had rental units occupied by tenants. - It was submitted on behalf of the $2^{nd}$ defendant that they discovered the plaintiff's 45. legal interest in the land after attempting to sell the suit land pursuant to the mortgage with the 1^st defendant. The 2^nd defendant argued that they are not trespassers because whatever they did related to loan recovery, including advertising the suit property for sale, was pursuant to the provisions of sections 19 & 20 of the Mortgage Act (2009). The 2^nd defendant submitted that the plaintiff did not adduce evidence to prove that the $2^{nd}$ defendant knew about the plaintiff's

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Bernandameny

legal interest before granting a loan facility to the 1^st defendant, and creating the mortgage on the suit land.

I am satisfied with the evidence adduced by the $2^{nd}$ defendant that they did not 46. know about the legal interest of the plaintiff prior to granting a loan facility to the 1^st defendant, and mortgaging the suit land. The 2^nd defendant carried out a search at the land registry, and the search report dated the 19^th November 2014 indicated that the 1^st defendant was the registered proprietor of land comprised in Kyadondo Block 234 Plot 310 Land Kilinya (Exh. D3). The type of fraud committed in this case is not the type that a mortgagee or even his or her advocate could discover during an ordinary search at the land registry. See the case of St. Mark Educational Centre Limited v. Makerere University, Court of Appeal of Uganda Civil Appeal No. 40 of 1997. In this regard, the 2^nd defendant, Premier Credit Ltd, could not be said to have trespassed on the plaintiff's land.

47. DW3 (Mr. Sekitto Moses, Ag. Principal Registrar of Titles) testified as follows: "I carried out more investigations on the creation of the title for Plot 1320 and 1321. I discovered that the Instrument Number that created the two titles was still in the lodgement book (KLA 201818). It confirms that Plot 1320 and 1321 have their root in Instrument Number KLA 201818 (C. L. R Exh. No.6). I also looked at the Instrument Numbers for Plot 310 and confirmed the instrument numbers in the lodgement books (C. L. R Exh. No.7). From my analysis, it appears to be a case of double titling which can be resolved by visiting locus [...]. This will resolve the problem of *double titling.*"

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Des northamen

- 48. This court carried a locus in quo visit to the suit land and confirmed that both the plaintiff and the I" defendant lay claim to the same parcel of land. The court confirmed that the plaintiff (Mary Monica Tenywa Kiteme) is in complete and total occupation of the suit land. She owns rental units on the land. She constructed the rental units on the suit land. The rental units are occupied by the tenants who pay their rent to the plaintiff (Mary Monica Tenywa Kiteme). The plaintiff confidently guided court in the inspection of the suit land explaining how she constructed the rental units in phases. Although the l " defendant (Roselyn Niwamanya Twesigye) claims to own exactly the same parcel of land, she has never taken possession of the land, since she purported to purchase the land in the year 2006. The pt defendant who was present at the locus in quo failed to rebut the credible evidence adduced by the plaintiff. - 49. I must be categorical on the pt defendant's purported ownership of the suit land. The evidence adduced by the l " defendant is not credible at all. The l " defendant's evidence is laced with lies and unbelievable stories. I believe that the l " defendant fraudulently procured registration of the certificate of title for Plot 310, and her certificate of title must be cancelled. - 50. The evidence before me proves that the pt defendant (Roselyn Niwamanya Twesigye) is a trespasser on the suit land. There is no adequate evidence to prove that the 2 nd defendant (Premier Credit Ltd) is a trespasser on the suit land considering they are a victim of the pt defendant's fraudulent machinations.

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#### *Issue No. 2: Whether the 3 rd defendant is liable for anv wrong doing*

51. The plaintiff did not adduce any evidence at all to prove any wrong doing on the part of the 3 rd defendant (Commissioner for Land Registration). Issue No. 2 is answered in the negative.

## *Issue No. 3: Whether there are anv remedies available to the parties*

# *General damages (or trespass:*

- 52. The plaintiff submitted she has been deprived of the use, enjoyment and quiet possession of her land as a result of the trespass to land committed by the l " defendant (Roselyn Niwamanya Twesigye ). - 53. I am satisfied that the pt defendant fraudulently acquired the certificate of title for Plot 310, mortgaged the suit land and its developments to the 2nd defendant who subsequently advertised the suit property for sale after the l " defendant defaulted, causing the plaintiffs tenants to vacate the premises. The plaintiff led evidence to prove that the rental units remained vacant for a long time. In 2015, the plaintiff had 5 tenants paying rent of Shs 1,750,000 per month. - 54. The pt defendant's trespass to the suit land has caused her loss of income, hardship, inconvenience and suffering. I am satisfied that the plaintiff is entitled to an award of general damages.

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55. I award general damages of Shs 20,000,000 (shillings twenty million) to be paid to the plaintiff (Mary Monica Tenywa Kiteme) by the pt defendant (Roselyn Niwamanya Twesigye ).

#### *Costs:*

56. According to *section 27* of the *Civil Procedure Act (Cap 7 ]),* costs follow the event. Since the suit against the l " defendant has succeeded, the plaintiff is awarded costs of the suit to be paid by the I st defendant (Roselyn Niwamanya Twesigye).

# *Final order of court:*

- 57. In conclusion, I grant the plaintiff (Mary Monica Tenywa Kiteme) the following reliefs: - I). A declaration that the I st defendant (Roselyn Niwamanya Twesigye) is a trespasser on land comprised in Kyadondo Block 234 Plot 1320 Land at Kilinya. - 2). An order directing the Commissioner for Land Registration to cancel the certificate of title for land comprised in Kyadondo Block 234 Plot 3 I 0 Land at Kilinya. - 3). A permanent injunction restraining the pt defendant (Roselyn Niwamanya Twesigye ), her servants, agents, and any other person acting on her behalf, from further trespass on land comprised in Kyadondo Block 234 Plot 1320 Land at Kilinya.

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- 4). An order directing the 1^st defendant (Roselyn Niwamanya Twesigye) to pay general damages of Shs 20,000,000 (Uganda shillings twenty million) to the plaintiff (Mary Monica Tenywa Kiteme). - 5). Interest of 25% per annum on general damages from the date of judgment until payment in full. - 6). An order directing the 1^st defendant (Roselyn Niwamanya Twesigye) to pay the costs of the suit.

### IT IS SO ORDERED.

$\hat{\mathbf{q}}$

BERNARD NA **JUDGE** 25^th May 2023

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# 25 May 2023 at 1:53pm

| Bojo Ivan & Sharon Basoma | Counsel for the plaintiff | |--------------------------------------|-------------------------------------------| | Chris Kabuga | Counsel for the 1 ^st defendant | | Nerima Lucy (holding brief for Frank | Counsel for the $2^{nd}$ defendant | | Tumusiime) | | | Sekabira Moses & Arinaitwe Sharon | Counsel for the $3rd$ defendant | | Plaintiff is in court | | | $1st$ defendant is in court | | | Liz Cheptoek | Court Clerk |

# Bojo Ivan:

We are ready to receive the Judgment.

#### Court:

Judgment delivered in open chambers.

BERNARD NAMANYA<br>JUDGE<br>25^th May 2023

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