[2018] UGHC 37

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MPIGI

## CIVIL SUIT NO. 30 OF 2017

KUSHABA RONALD.................................... $\mathsf{S}$

### **VERSUS**

1. COMMISSIONER FOR LAND REGISTRATION, .................................... 2. JANE BITAALI BISASO

#### BEFORE: HIS LORDSHIP HON. MR WILSON MASALU MUSENE 10

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### Judgment

The Plaintiff Kushaba Ronald sued the Defendants for a declaration that the 2^nd Defendant fraudulently obtained registration on the Plaintiff's land known as Gomba Block 83 Plot 5 situate at Kagenyi, a declaration that the suit property belongs to the Plaintiff, a declaration that the Certificate of title of the 2^nd Defendants title is null and void for fraud, an order for cancellation of the respective Certificates of title with their subdivision and substitution with the Plaintiff as the registered proprietor of the said titles, a permanent injunction restraining the Defendants and their agents, and any other person claiming under them from dealing with the suit property in any way whatsoever, general damages and costs of the suit.

The 1^st Defendant in her defence averred that the 2^nd Defendant was the registered proprietor of the suit land which comprised in Gomba Block 83 Plot 6 originating from Plot 1 of the same block which was subdivided into plots 2, 3, 4 and 5 which was a residue by balance. They added that the said plot was 25 taken over by the Administrator General who got registered on the title thereof as the Administrator of the estate of the Late Lulandabala Saulo. The Administrator General then subdivided the said Plot 5 into Plots 6 and 7 and transferred Plot 6 measuring approximately 40 acres to K. Zirimala who was a beneficiary of the estate of the Late Lulandabala Saulo. Jane Kulumba having 30 acquired a registerable interest in Plot 6, from K. Zirimala sold the same to the 2^nd Defendant Jane Bitaali the current registered proprietor.

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The 2^nd Defendant in her defence averred that the 1^st Defendant, through its powers of rectification under the Land Act, subdivided Plot 5 and created Plots $6$ and $7$ .

The Plaintiff was represented by M/s Katabarwa Herbert & Co. Advocates, the 1^st Defendant was represented by the Office of Titles, Kampala, and M/s Kampala Associated Advocates appeared for the 2^nd Defendant.

Issues:

- 1. Whether the Plaintiff lawfully acquired the suit land? - 2. Whether the $2^{nd}$ Defendant was fraudulently registered? - 3. What are the remedies available to the parties?

# Issue 1: Whether the Plaintiff lawfully acquired the suit land?

Counsel for the Plaintiff submitted that the land in dispute originally belonged to the late Lulandabala Saulo measuring 596.8 acres whereof he had given 40 acres to Kezironi Zirimala having originally owned 636.8 acres. The different pieces of land were registered under different instrument numbers. Upon the death of Lulandabala Saulo, Edward Sekikongo and Agiri Namatovu alias Faisi created Plots 2, 3 and 4 form the 596.8 acres in the years 1996 and 1999. Block 83 Plot 5 became a residue by balance measuring 91.708 hectares and was sold to Nkaada Daniel in 2003 as per the testimony of Niyonzima Vincent (DW1) which was corroborated by DW3. Nakaada Daniel (PW3) confirmed purchasing the land described as Block 83 Plot 5 and he also sold the same to Sanyu Patrick (PW2) and Sserwada Steven.

It was further submitted, that PW2 Sanyu Patrick sold to the Plaintiff in 2007 who started utilizing the land and transferred the same into his names.

- Counsel for the Plaintiff added that the 2^nd Defendant stated that her father $25$ bought a kibanja of 40 acres from Kezironi however, there was no sale agreement adduced to prove the same and Kezironi did not own a kibanja so he could not sell one since he was a registered proprietor with legal interest by 1945. - Further submissions were, that the 2^nd Defendant was unable to show Court 30 where her homestead was during the locus visit after telling Court that she grew up on the suit land with her siblings. On the contrary her homestead was found on the neighbouring land that is not in dispute. That the $2^{nd}$ Defendant's evidence also had contradictions to the effect that her father bought the suit land from Kezironi where as Jane Kalumba is said to have 35 asked the 2^nd Defendant's family to sell their land to her and that Kezironi

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actually did transfer the 2^nd Defendant's family's land to Jane Kalumba and they never complained.

Furthermore, that the in paragraph 7 of the $2^{nd}$ Defendant's witness statement she stated that her and her husband bought the registered interest from Jane Kalumba which is not true because the purchaser was Bisaso John Kauki and the 2^nd Defendant was a mere witness and the said Bisaso John Kauki and Jane Kalumba were never called as witnesses in Court. Thus, with the Contradictions in the $2^{nd}$ Defendant's evidence it is only clear that the Plaintiff is the lawful owner of the suit land and he was not accorded a hearing by the 1^st Defendant during the rectifying of the Register.

$10$

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The 1^st Defendant in her submissions noted that Christopher Bossa Sserunkuma never obtained letters of Administration nor did he acquire a

- Certificate of title to the suit land and only made an averment that he was a grandson of the late Lulandabala. That he had no authority to deal with the deceased's estate. They added that Nkaada Daniel got registered on the 15 Certificate of title under an instrument number for subdivision and not a transfer. And that the said Nkaada could not pass on what he did not have because he could not explain how he got his interest and the person he dealt with had no authority and thus, this interest should be cancelled. - Counsel for the 1^st Defendant further submitted that the Plaintiff was notified $20$ of the intention to rectify the Register through the post office as required by law and he was invited for a public hearing. That the Plaintiff also admitted receiving a letter from the 1^st Defendant informing him about the intentions to effect changes in the register. Thus, the 1^st Defendant complied with the provisions of the law specifically Section 91 (2) (f) and $2(a)$ of the Land Act in $25$ regard to communication of the notice which invited the Plaintiff to be accorded the right to be heard by the 1^st Defendant.

In the submission for the 2^nd Defendant Counsel stated that the Plaintiff premises his title on being a bonafide purchaser for value without notice and it is trite law that that burden is on the person who sets it up. Counsel cited the case of Ndimwibo & 3 Others versus Ampaire, Civil Appeal No. 65 of 2011 where it was held that;

"It suffices to describe a bondafide purchaser as a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the bonafide doctrine as was held in the case of Hannington Njuki versus William Nyanzi, *H. C. C. S No. 434/1996 must prove that;*

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- 1. He holds a certificate of title - *2. He purchased the property in good faith* - *3. He had no knowledge of the fraud* - 4. He purchased for valuable consideration - 5. The vendors had apparent title - 6. He purchased without notice of any fraud - 7. He was not party to the fraud.

A bonafide purchaser of a legal estate for value without notice has absolute, unqualified and answerable defence against the claims of any prior equitable owner. The burden to establish or prove the plea lies on a person who sets it up. It is a single plea and is not sufficiently made out by proving purchase for *value and leaving it to the opposite party to prove notice if he can.*"

Counsel for the $2^{nd}$ Defendant therefore submitted that the plaintiff had to satisfy the above and he is actually a party to fraud. That the sale agreement had a different consideration from the transfer form and PW2 told Court that $15$ the true sum was that on the sale agreement which was also stated by the Plaintiff. Thus, the value on the transfer form was deliberately underrated and this led to Government losing revenue. That this act was illegal and his title should be impeached. In the case of Friends Estate Limited versu Haji Numani Mubiakulamusa, H. C. CS No. 612 of 2014, it was held that; $20$

"It is now settled that where a party understates the value of property to cheat" Government of revenue, the acquisition of such property is tainted with fraud and illegality, and as such a person cannot be considered bona fide in respect to the property because bona fide includes "without any fraud" or participation in the wrong doing. See: Mudiima & 5 Others versus Kayanja & 2 Others, H. C. C. S No. 232 of 2009: Samuel Kizito Mubiru & Another versus *W. Byensibe & Another, H. C. C. S No. 513 of 1983. On this account alone, the* Defendant's title would be impeached for fraud and illegality."

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Counsel for the $2^{nd}$ Defendant went to submit that in the alternative the Plaintiff did not lawfully acquire the suit land as it is still part of the estate of Lulandabala Saulo. That Sserunkuma who sold to Nkaada Daniel did not have Letters of Administration because they had been granted to the Administrator General in 2001. Nkaada Daniel did not even complete paying the consideration for the purchase of the land. Thus, the Plaintiff to succeed as a bonafide purchaser has to prove that the people he purchased from had the 35 authority to sell.

I have carefully considered the submissions on both sides on this issue. A review of the evidence on record reveals that PW1 Kushaba Ronald in cross-

examination stated that when he was buying the land he did a search and found Nkaada Daniel as the first owner as per exhibit marked PE-1. That he did not see Serwada or Sewufu Patrick as registered proprietors; from whom he bought the suit land and the transfer was effected by Nkaada Daniel. The question remains how did Nkaada Daniel get on the land in question.

PW2 Sanyu Patrick during cross examination stated that the suit land originally belonged to Kezironi and Lulandabala and he bought from Nkaada Daniel who in turn told him that he bought from Christopher Bbosa.

PW3 Nkaada Daniel during cross examination by Counsel for the 2^nd Defendant indeed confirmed that he bought the land from Bbosa Christopher who told him that the money would enable him to process what was at the Administrator General and transfer to PW3. That he was not given any documents from the Administrator General.

Further that at the time he bought he knew that the land formed part of the estate of Lulandabala Saulo, however, he did not know if anyone was 15 administering the said estate. Why did Nkaada Daniel purchase blindly when he knew the same was part of Lulandabala's Estate.

This Court finds and holds that Christopher Bbosa Ssserunkuma never obtained letters of Administration nor did he acquire a certificate of title to the suit land and therefore he had no authority to deal with the Estate of $20$ Lulandabala Saulo. Thus, Christopher Bossa Sserunkuma who never had a title to the suit land could not pass on the same to Nkaada Daniel. It was also brought to the attention of this Court that the instrument number pursuant to which Nkaada Daniel got registered on the Certificate of title was an instrument number for a subdivision and not a transfer. $25$

The 1^st Defendant's witness Mr. Niyonzima Vincent (Registrar of Titles) testified in paragraph 12 of his additional sworn statement that the Administrator general took over the administration of the estate of the late Lulandabal Saulo and was registered as such. The registration of Nkaada Daniel does not have a basis and the person he claims to have derived his title had no Letters of Administration or authority to deal with the estate of the Late Saulo Lulandabala. Therefore Nkaada Daniel could not pass on what he did not have and the Plaintiff cannot claim to be a bonafide purchase for valuable consideration without notice of adverse claims. The Plaintiff did not acquire the suit land lawfully since the person that sold the suit land originally did not 35 have the authority to sell and all the subsequent purchasers could not have obtained title when the person who originally sold had none. Issue No. 1 is

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therefore resolved in the negative. The Plaintiff did not acquire the disputed land lawfully.

Issue 2: Whether the 2^nd Defendant was fraudulently registered on the certificate of title?

Counsel for the Plaintiff submitted that the $2^{nd}$ Defendant is a neighbour to the $\mathsf{S}$ suit land and saw the Plaintiff settle on the land in dispute and during locus it was clearly seen that the $2^nd$ Defendant shares a common boundary with the land in dispute. That the $2^{nd}$ Defendant did not adduce any proof of her claim in the suit land and nor did she bring any proof to show that the purchaser Bisaso was her husband from whom she derived her interest. $10$

Further, that the 1^st Defendant registered the Administrator General on the disputed land on 4/8/2008 at 3:40pm, Kezironi Zirimal on 5/8/2008 at 8:52am and then Jane Kalumba 13/8/2009 at 9:34am. That transfers were being effected almost every day.

Counsel for the Plaintiff also stated that whereas, the 2^nd Defendant claims to 15 have gotten interest in the suit land from her father who died in 1992 and Nkaada Daniel registered his interest on the same land in 2003 and the $2^nd$ Defendant did not complain and when it was transferred to the name of Jane Kalumba she still did not complain. That there was collusion between the 1^st and $2^{nd}$ Defendant, for the $2^{nd}$ Defendant to be registered as the registered $20$ proprietor of the suit land and the owner of the suit land. That Kezironi also never complained against the Plaintiff and this could mean that even Kezironi's registration was tainted with fraud. That with all these transfers being effected by the 1^st Defendant did not have any known surveys or survey reports. He concluded that the 2^ndDefendant could not even show where the $25$ mark stones were during the locus visit. Therefore, the Plaintiff is a bonafide purchaser for value without notice of any adverse claim and should be granted remedies as prayed for.

The 1^st Defendant on the other hand submitted that the Plaintiff's title has no roots and the $2^{nd}$ Defendant was rightly registered. They cited the case of 30 Commissioner Land Registration and Another versus Emmanuel Lukwajju, Civil Application No 12 of 2016 where it was held that the land Registry is a public office charged with administration of land in Uganda. It is an authority as to ownership and history of registered land, its evidence would generally be the most credible and capable of belief on issues of land ownership. Thus, the 35 1^st Plaintiff's title should be cancelled.

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Counsel for the $2^{nd}$ Defendant submitted that it is trite law that fraud must be attributable to the transferee, either directly or by necessary implication. The transferee must be guilty of some fraudulent act or must have known such act by somebody else and taken advantage of it as per the case of **Kampala Bottlers** Ltd versus Damanico (U) Ltd, Supreme Court Civil Appeal No. 22 of 1992.

In other words, it was the duty of the Plaintiff to prove fraud strictly beyond a mere balance of probabilities as stated in the case of Fredrick J. K. Zaabwe versus Orient Bank LTD & 5 Others, S. C. C. A NO. 04/2006.

This Court has also considered the events leading to the registration of the $2^{nd}$ Defendant as outlined in the submissions as follows;

- a. The late Lulandabala was originally registered on Final Certificate No. 10229 (FC) measuring approximately 636.8 acres. - b. The FC was updated to unascertained portion plots locally referred to as "blue pages" from which the late Kezironi Zirimala was registered on Block 83 of the same plot measuring approximately 40 acres. - c. The Administrator General was granted Letters of Administration by the High Court in 2001. - d. The Administrator General was registered on Plot 6 as the Administrator of the estate of the late Lulandabala on the basis of the above Letters of Administration. - e. On the basis of the said transfer, the Administrator General transferred Plot 6 to Kezironi Zirimala who later transferred to Jayne Kalumba. - f. Jayne Kalumba transferred the said plot 5 to the 2^nd Defendant who is now the current registered proprietor. - From the above events it can be seen that the $2^{nd}$ Defendant obtained her title $25$ lawfully as opposed to the Plaintiff whose title has no root. There is no proof of any fraud that was committed by the $2^{nd}$ Defendant and as such her title is protected under Section 176 of the Registration of Titles Act. The 1^st defendant as an official of Government mandated with the registration of land in Uganda confirmed that the 2^nd Defendant was rightly registered as the proprietor of 30 the suit land. This issue is also resolved in the negative.

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

The Plaintiff has failed to prove his case against the Defendants on a balance of probabilities. Judgment is entered in favour of the 2^nd Defendant with the following orders;

1. A declaration that the $2^{nd}$ Defendant is the lawful owner of the suit property.

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- 2. A declaration that the $2^{nd}$ Defendant lawfully obtained the Certificate of Title for land comprised in Gomba Block 83 Plot 5. - 3. A permanent injunction is granted restraining the Plaintiff from further trespassing on the suit land. - Lastly, on the issue of costs, I note that the parties are neighbours who should $\mathsf{S}$ live in harmony even after this case. Having a conflict in Court does not mean enmity. As a gesture of reconciliation, and in the exercise of this Courts' powers under Section 98 of the Civil Procedure Act and Section 33 of the Judicature Act, I order that each party meets their own costs.

**WILSON MASALU MUSENE**

JUDGE