[2025] UGHC 287

# THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT KIBOGA

#### LAND CIVIL SUIT NO.0004 OF 2024

## (Formerly LD-CS NO.002 OF 2016 at Mubende)

## 1. KYAMANYWA DEOGRATIOUS

- 2. KYAMANYWA DAVID - 3. NYANGOMA GETRUDE **:::::::::::::::: PLAINTIFFS** (Being administrators of the Estate of the late Karubanga Merizeldo)

#### **VERSUS**

- 1. AMAMA JOHN (Purportedly administrator of the estate of the late Hermenegedo Kalubanga) - 2. MUKIMBIRI RONALD - 3. POST BANK UGANDA LTD - 4. COMMISSIONER LAND REGISTRATION

**::::::: DEFENDANTS**

# BEFORE: HON. MR JUSTICE KAREMANI JAMSON, K

#### **JUDGMENT**

## **Introduction**

Kyamanywa Deogratious, Kyamanywa David and Nyangoma Getrude (hereinafter referred to as the plaintiffs) brought this suit against Amama John, Mukimbiri Ronald, Post Bank Uganda Ltd and Commissioner Land Registration (hereinafter referred to as the defendants) seeking the following orders;

a) A declaration that the 1^st defendant fraudulently obtained letters of administration of the estate of late Hermenegeldo Kalubanga

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- b) A declaration that the $1^{st}$ and $2^{nd}$ defendants were wrongly and fraudulently registered on the certificate of title for suit land comprised in Singo Block 769 Plot 3 Land at Nsambya. - c) A declaration that the 3^rd defendant's encumbrance was wrongly registered on the certificate of title for the suit land. - d) An order for the $3^rd$ defendant to surrender the duplicate certificate of title for he suit land. - e) An order for the $4^{th}$ defendant to cancel the entry of the $2^{nd}$ defendant from the original certificate of title. - f) An order of cancellation of the letters of administration granted to the $1^{st}$ defendant vide High Court (Nakawa) Administration cause No. 195 of 2009. - g) An order directing the 4^th defendant to reinstate the certificate of title on the name of Hermenegeldo Kalubanga - h) An order directing the 4^th defendant to cancel the entry of the encumbrance by the 3^rd defendant - i) An order of permanent injunction restraining the defendants or their agents from claiming ownership of the land in dispute. - j) An order awarding general damages, and costs of the suit.

# **Brief facts.**

The brief facts of the case as can be extracted from the plaint are that the plaintiffs are the grandchildren and administrators of the estate of the Karubanga Hermenegedo also known as Merizeldo (herein after referred to as the deceased). That the deceased's four biological children have since all passed on as well. That the deceased was a registered lawful proprietor of land comprised in Singo Block 769 Plot 3 land at Nsambya, Kiboga district measuring approximately 256.35 hectares. (herein after referred to as the suit land). The plaintiffs did not have possession of the certificate of title for the suit land. That upon being granted letters of administration for the estate of the deceased, a search showed that the suit land had been transferred from the deceased's name to the name of the $1^{st}$ defendant. The $1^{st}$ defendant later transferred the suit land from the to the 2^nd defendant. The 2^nd defendant mortgaged the suit land with the $3^{rd}$ defendant.

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The 2^nd defendant in his defence averred that he conducted due diligence before purchasing the suit land and that the 1^st defendant had an unquestionable title to the land. He denied any fraud imputed to him.

The $3^{rd}$ defendant in its defence contended that the $2^{nd}$ defendant legally executed a mortgage in its favour of land comprised in Plot no. 3 Block 769 at Nsambya, Mutuba II Kiboga District. That the said title was in the name of the $2^{nd}$ defendant and that it is a bona fide lender for value without notice of any fraud. It denied any fraud on its part.

The 3^rd defendant further contended that in 2014 the 1^st $2^{nd}$ and 3^rd defendants were sued by a one Tamale Tofa Nkurunziza vide civil suit no. 194 od 2014 over the same claim and the matter was concluded by consent.

The 1^st and 4^th defendants never filed written statements of defence. They continuously failed to appear despite being effectively served with court process. This court ordered that the matter proceeds ex parte against the two defendants.

The $2^{nd}$ defendant despite filing a written statement of defence did not adduce any evidence. The $3^{rd}$ defendant presented evidence in her defence hence this judgment.

# Representation.

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The plaintiffs were represented by Mr. Paul Mukiibi of M/S Mukiibi & Kyeyune Advocates and Legal Consultants while the $3^{rd}$ defendant was represented by Mr. Erick Eloket of M/S Arcadia Advocates.

Both counsel filed written submissions which have been considered in this judgment.

# Issues agreed upon for determination

- 1. Whether the suit land forms part of the estate of the late Karubanga Merizeldo for which the plaintiffs are administrators. - 2. Whether the letters of administration granted to the $1^{st}$ defendant in respect of the estate of the late Amelegeto Kalubanga by the High Court of Uganda at Nakawa vide Administration Cause no. 195 of 2009 on the 19^th day of June 2009 were validly granted.

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- 3. Whether the suit land comprised in Singo Block 769 Plot 3, land at Nsambya, Kiboga District was fraudulently transferred into the names of the 1^st defendant and eventually the $2^{nd}$ defendant? - 4. Whether the $3^{rd}$ defendant is a bona fide mortgagee of the suit land? - 5. What are the remedies available to the parties?

# **Burden and standard of proof in civil matters**

The legal burden of proof in civil matters lies upon that person who would fail if no evidence was given at all on either side. See: Sections 0101, 102 and 103 of the Evidence Act cap 8.

The standard of proof in civil matters is on a balance of probabilities. This has been described by some scholars like Mariam Abu Hussein as 50% plus one test. See the case of Wangala Philip V Steel and Tube Industries Limited; Civil Suit No.212 of 2018 at Civil Division of **High Court (unreported)**

In this case the burden of proof lies on the plaintiffs to prove their case against the defendants on balance of probabilities. See: Sebuliba V Co-operative Bank Ltd (1982) HCB 129, Nsubuga V Kavuma (1978) HCB 307.

# Resolution of issues.

1. Whether the suit land forms part of the estate of the late Karubanga Merizeldo of which the plaintiffs are administrators.

The learned counsel for the plaintiffs submitted that PW1 the 1^st plaintiff led evidence to prove that the plaintiffs are grandchildren of the deceased and had always and at all times known him as Karubanga Merizeldo. That their grandfather had informed them that he was called Hermenegeldo but because the name was difficult to pronounce, many people called him Merizeldo and that it is the name he kept on using and that is the name the plaintiffs knew. That it is the reason why by the time they applied for letters of administration, the name Merizeldo was used.

Counsel submitted that the plaintiffs led evidence to show and prove that Merizeldo and Hermenelgeldo was one and the same person who is their grandfather. That this evidence was corroborated by the evidence of PW2 Lubega David and PW3 Kintu Stanslas.

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On the other hand, the learned counsel for the 3^rd defendant submitted that the letters of administration held by the plaintiffs bears the name of the deceased as Karubanga Merizeldo. That the certificate of title for the land in question bears the name Hermenegeldo Kalubanga which makes it clear that the name that appears in the letters of administration and the certificate of title are of completely different people. That whereas the plaintiffs contend that the two are one and the same person, they did not bother to apply to court for rectification of the letters of administration to reflect the true owner. That this casts a lot of doubt on the allegations by the plaintiffs that Karubanga Merizeldo and Hermenegeldo Kalubanga are one and the same person.

## Analysis of court.

Based on the submission of both parties, it is important to first establish whether Karubanga Merizeldo and Karubanga Hermenegeldo are one and the same person or not.

The plaintiffs contend that it is the same person but the $3^{rd}$ defendant disputes this.

Exh. P13 is a copy of letters of administration of the estate of the late Amelegeto Kalubanga granted to Amama John (1^st defendant) vide Nakawa Administration cause no. 195 of 2009. The said letters of administration reflected the deceased to be a resident of Kayenje Kabula, Kibibi Mpigi district and that the 1^st defendant is the son of the deceased.

Exh. P.7 is the certificate of title of the suit land and it reflects that the title was first registered in the name of Hermenegeldo Kalubanga, then later to Amama John (1^st defendant) in 2010 as the administrator of the estate of Hermenegeldo Kalubanga vide administration cause no. 195 of 2009 and then transferred into the name of Mukimbiri Ronald (2^nd defendant) who is still the registered proprietor having been registered in 2010.

Exh P.1 is a copy of letters of administration of the estate of the late Karubanga Merizeldo granted to the plaintiffs in 2014 vide Masindi Administration Cause no. 0020 of 2014.

I take note of the fact that whereas Exh. P13 letter of administration to Amama John reflects the name Amelegeto Kalubanga and Exh. P.7 the certificate of title for the land in dispute reflects the name Hermenegeldo Kalubanga, I am inclined to believe and conclude that the two documents refer to the same name. This is based on the fact that the Administration

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Cause number reflected in both documents is the same i.e. Administration Cause No.195 of 2009.

What remains to be determined now is whether Karubanga Merizeldo and Hermenegeldo Kalubanga are one and the same person.

The plaintiffled evidence to show that they knew their late grandfather to be called Merizeldo. That they later discovered that his official documents contained the name Hermenegeldo instead of Merizeldo. That the name Merizeldo came about when people failed to properly pronounce the name Hermenegeldo. This evidence was not challenged by the defendants. The 1^st defendant who claimed to be a son of the deceased never appeared in court to challenge that evidence of the plaintiffs.

In the case of Trust Ventures Ltd V Power Foam (U) Ltd HCCS No. 669 of 2017; it was observed by court that a misnomer refers to a mistake in naming a person, place or thing in a legal instrument which can be corrected by an amendment to the pleadings.

It is also a well-established principle that a misnomer can under certain circumstances be rectified by amendment replacing the name appearing on the Plaint or Written Statement of Defence with what the parties believe to be the right litigant. See also **Attorney General V** Sanyu Television (1998) CS No. 614 of 1998, Kyaninga Royal Cottages Limited V Kyaninga Lodge Limited HCMA 551 OF 2018.

It is my considered position that the above principle can equally apply where there is a mistake in names on different documents.

Based on the above I am convinced that Merizeldo Karubanga, Hermegeldo Kalubanga and Amelegeto Kalubanga are one and the same person. Henceforth the correct name of the deceased is Hermenegeldo Kalubanga aka Merizeldo.

Having established and concluded as above, it is my position that the suit land comprised in Singo Plot 3 Block 769 land at Nsambya Kiboga District formerly registered in the name of Hermenegeldo Kalubanga formed part of the estate of the late Hermenegeldo Kalubanga.

2. Whether the letters of administration granted to the $1^st$ defendant in respect of the estate of the late Amelegeto Kalubanga by the High Court of Uganda at Nakawa vide administration cause no. 195 of 2009 on the 19^th day of June 2009 were validly granted.

The plaintiffs adduced evidence in a bid to show that there was fraud in obtaining the letters of administration so as to justify revocation of the same.

The learned counsel for the plaintiffs submitted that the letters of administration granted vide Nakawa Administration Cause no. 195 of 2009 were invalid because they were issued to the $1^st$ defendant as a son of the deceased when the said $1^st$ defendant was not a son of the deceased. Further that the grant was made in respect of deceased who was residing at Kayenje Kabula, Kabibi Mpigi District yet the deceased was a resident of Rwenkobe-Kaibalya cell, Kihomboza ward, Bujumbura, Hoima Municipality, Hoima district.

The learned counsel for the 3^rd defendant submitted that letters of administration granted to the 1^st defendant are still valid until revoked. That the plaintiffs have not adduced any evidence to warrant revocation of the letters of administration granted to the 1^st defendant.

# Analysis by the court

Letters of administration is a document issued by court to someone giving him/her power to manage and distribute the estate of the decease. Letters of administration entitle the administrator to manage the deceased person's assets. It follows therefore that after the grant of letters of administration, no person other than the person to whom the same has been granted has the power to act as a representative of the deceased until the letters of administration have been recalled or revoked. See: Katushabe Generous V Tukamuhebwa Godfrey HCCS No. 043 of 2021.

It is trite law that a grant remains valid until revoked. Even in cases where a grant has been obtained by fraud as long as the grant remains unrevoked, the grantee represents the estate of the deceased.

Section 230 (1) of the Succession Act cap 268 as amended provides for revocation of letters of administration for a just cause.

#### **Sub section 2 states;**

In this section, just cause means;

- a) that the proceedings to obtain the grant were defective in substance; - b) that the grant was obtained fraudulently by making a false suggestion, or by concealing from the *court something material to the case;* - c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though the allegation was made in ignorance or inadvertently; - d) that the grant has become useless and inoperative through circumstances; - e) that the person to whom the grant was made has willfully and without reasonable cause omitted to exhibit an inventory or account in accordance with Part XXXIV of this Act, or has exhibited under that Part an inventory or account which is untrue in a material respect; or - *f) that the person to whom the grant was made has mismanaged the estate.*

The plaintiffs in this case allege that the 1^st defendant misrepresented himself as the only son of the deceased in his petition for letters of administration. Further that the 1^st defendant misdirected the court on the residence of the deceased person.

This court had no opportunity of looking at the petition lodged by the 1^st defendant in court for the grant of the said letters of administration in Nakawa Administration Cause No. 195 of 2009 because it was not exhibited.

However, a copy of the grant of letters of administration reflects the 1^st defendant as a son of the deceased. It also reflects the address of the deceased as Kayenje Kabula, Kabibi Mpigi District.

In their evidence which was not challenged by the defendants, plaintiffs contended that they are grandsons and granddaughter of the deceased. They listed down the sons of the deceased as Isoke Alikanjero, Dominic Sabiti, Kabalagala Mark and Matama Suzana. Death certificates of the same children were tendered in court as exhibits P.8, P.9. P.10 and P.11.

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There is no evidence which was adduced to show that the 1^st defendant is also a son of the deceased.

It is therefore my conclusion that the plaintiffs proved that the 1^st defendant was not a son of the deceased. He misrepresented himself as a son of the deceased so as to acquire letters of administration of the estate of the deceased.

As for the address of the deceased, the plaintiff adduced evidence to show that the deceased was a resident of Rwenkobe-Kaibalya cell, Kihomboza ward, Bujumbura, Hoima Municipality, Hoima district Hoima District as opposed to Kayenje Kabula, Kabibi Mpigi District. There was no contrary evidence adduced defendants. I hence believe the plaintiffs' evidence.

The letters of administration granted to the 1^st defendant vide Nakawa Administration Cause No. 195 of 2009 were therefore granted based on false information and were hence not validly granted.

# 3. Whether the suit land comprised in Singo Block 769 Plot 3, land at Nsambya Kiboga District was fraudulently transferred into the name of the $1^{st}$ and the $2^{nd}$ defendants

The plaintiffs in this case pleaded fraud on the part of the defendants in transferring the certificate of title to the $1^{st}$ defendant and the $2^{nd}$ defendant.

Order 6 Rule 3 of CPR provides that where a party relies on any misrepresentation, fraud, breach of trust willful or undue influence and in all cases where particulars are necessary, the particulars with dates shall be stated in the pleadings.

According to the case of J. W. R Kazoora V M. L. S Rukuba SCCA No.13 of 1992, it was held that it is trite law that fraud must be specifically pleaded and strictly proved and cannot be left to be inferred from the facts.

In the case of **Kampala Bottlers Ltd v Damanico (U) Ltd SCCA No.22 of 1992** it was held that the burden of proof in fraud is higher than on a balance of probabilities generally applied in civil matters.

The plaintiff in this case having pleaded fraud were strictly required to prove the same

$u$ $10m$ Fraud is defined to include anything calculated to deceive whether by a single act or combination or suppression of truth or suggestion of what is false, whether it is by direct falsehood or innuendo by speech or silence, word of mouth or look or gesture. It includes dishonest dealings in land or sharp practice to deprive a person of an interest in land. See: Fredrick Zaabwe V Orient Bank and 5 Others SCCA No. 04/2006; Kampala District Land Board and Another V Venancio Babweyaka and 3 Others Civil Appeal No. 02 Of 2007.

The plaintiffs in their plaint under paragraph 6 they contended that the $1^st$ defendant by claiming that he was a son of the deceased in his petition for letters of administration when he was not and subsequently using the letters of administration acquired to get registered on the certificate of title in issue constituted fraud.

I have already found that the 1^st defendant is not a son of the deceased and that by claiming so he falsely represented himself to acquire the letters of administration that he acquired.

It was the undisputed evidence of the plaintiffs that upon obtaining letters of administration, the 1^st defendant caused the transfer of the suit land into his names as an administrator of the estate of the deceased. He went ahead to transfer the title to the 2^nd defendant. This is well reflected in Exh. P.7 which is the certificate of title of Singo Block 769 Plot 3 which is the suit land.

The $2^{nd}$ defendant contended in his defence that he bought the land after he had done due diligence and found out that the land in issue belonged to the 1^st defendant who was the vendor.

Whereas the facts reveal that at the time of purchase of the land by the $2^{nd}$ defendant it was registered in the name of the vendor, there is no indication that among his due diligence he visited the land in issue to ascertain the physical status.

When this court visited the locus in quo on $28/11/2024$ to ascertain the status of the suit land, it was observed that the suit land was occupied by various occupants who claim to be bibania holders from the inquiries this court made. Among the occupants is the $2^{nd}$ plaintiff.

From my own observation at locus and by looking at the structures and developments which included houses, crops like coffee whose photo were taken and are on this file, these occupants

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on the land have been on the suit land for approximately over thirty years. The 2^nd plaintiff had such a house and a coffee plantation on the suit land.

The defendants did not adduce any evidence to challenge these facts even by the 3^rd defendant which was represented at locus.

It was therefore clear to me that all the transaction in respect of this land were carried out without verification of its status.

In the case of Nabanoba Desiranta & Anor V Kayiwa Joseph & Anor Civil Suit No.497 of $2005$ it was held that before one enters into a transaction involving purchase of land, very serious inquiries should be done to establish what is on the ground. That this is so because the land tenure system is full of controversies.

I would also add to the above that the land transactions in this country have exhibited a lot of fraud and hence the necessity for every purchaser of land not to stop at verification of legal ownership of the land being purchased but also finding out the physical possession by the vendor. This calls for inspection of the land being purchased, being availed with the boundary status by the vendor and consulting with local leadership and neighbors of the land to ascertain ownership and physical possession of the land by the vendor. This ought to be done before executing the purchase agreement.

I do find that in the instant case the 1^st defendant transferred the land in dispute into his name fraudulently using fraudulently acquired letters of administration. He consequently transferred the same to the $2^nd$ defendant when the land was occupied and in possession of other people and he did not bother to ascertain or if he ascertained he ignored their presence on the land.

It is my considered position that times have changed and given the increased land wrangles in our society, for one to be considered a bona fide purchaser for value without notice of registered land, he or she, ought to have carried out verification not only from the land registry, but he/she should also exhibit physical verification of the status of the land being purchased by visiting that land, establishing its boundaries through opening of boundaries and consulting with the local authorities and neighbors of that land.

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A land sale agreement is one of the stages and it is actually the last one in acquisition of land through purchase. A series of activities ought to take place before the final execution of the agreement. These activities may include visiting the subject matter which is land, verifying its size, verifying its boundaries, verifying ownership and physical possession by the vendor.

This will go a long way to reduce on board room land transactions that lack strong physical and actual ground realities that have contributed to much of the land disputes in courts.

In John Bagaire v Ausi Matovu CA of 1996 it was observed that land is not vegetables that are bought from unknown sellers. That land is very valuable property and the buyers are expected to make thorough investigations relating not only to the land but also the seller before purchase.

In the instant case I find that the 1^st defendant fraudulently caused the transfer of the land in dispute from the name of Hermenegeldo Kalubanga into his name.

He further fraudulently caused the transfer of the same land into the name of the $2^{nd}$ defendant.

# 4. Whether the 3^rd defendant is a bona fide mortgagee of the suit land?

Whereas this was the framed issue, the learned counsel for the plaintiffs in his submissions averred that he had reservations on this issue because the concept of bona fide mortgagee is very strange and a foreign one. That the concept remains one of a bona fide purchaser for value without notice of a legal interest that is embedded in the Registration of Titles Act. That a mortgagee also falls under the category of a purchaser under the doctrine. Counsel thus proposed that the said issue be amended to read as to; whether the $3^rd$ defendant's mortgage under instrument no. 75166 was fraudulently entered.

In proving fraud, counsel for the plaintiff submitted that it was the evidence of PW1 that when the officials from Postbank came to the suit land with the $2^{nd}$ defendant to conduct a survey, they met stiff resistance from the residents on the land who included PW2 the caretaker of the suit land. That the $3^{rd}$ defendant before issuing the loan to the $2^{nd}$ defendant did not conduct due diligence because had it done so, it would have found out that the suit land did not belong to the $2^{nd}$ defendant and that there were tenants on the land.

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The learned counsel for the 3^rd defendant concurred that under the Registration of Titles Act, a purchaser is defined to include a mortgagee or lender who takes the borrower's land as security for repayment of a loan. Counsel contended that the 3^rd defendant is a bona fide purchaser for value without notice. Counsel stated that a person dealing with registered land need only to confirm the ownership of the land from the register and not make further inquiries. That the suit land was mortgaged in good faith for valuable consideration and that the bank upon conducting due diligence disbursed to the $2^{nd}$ defendant a loan of Shs. 50,000,00/=. That the 3^rd defendant had no knowledge of any fraud if any by any party and neither was any evidence led by the plaintiffs to prove that the $3^rd$ defendant was privy to any fraud

Counsel further referred to Civil Suit no. 194 of 2014 Tofa Nkurunziza V Postbank Uganda **Ltd and Ors** where a consent judgment was entered between the parties and the $3^rd$ defendant was held to be a bona fide lender for value without notice.

## Analysis of court.

Section 1 of the Registration of Titles Act defines a proprietor to mean the owner whether in possession, remainder, reversion or otherwise of land, or of a lease or mortgage whose name appears or is entered as the proprietor of that land or lease or mortgage in the register book.

Based on the submissions by both counsel and the definition of a proprietor under the RTA, I will reframe the fourth issue to read as;

# Whether the $3^rd$ defendant is a bona fide purchaser for value without notice.

In the case of **Hannington Njuki V George William Musisi (1999) KALR 783** the court laid down elements to prove that one is a bona fide purchaser for value without notice. These are:

- *a) The purchaser holds a certificate of title.* - b) The purchaser purchased in good faith - c) Purchased for valuable consideration. - d) Had no knowledge of any fraud - e) The vendor had apparent valid title

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#### *f) Purchase was without fraud.*

The burden to prove that one is a bona fide purchaser for value without notice lies on the person setting it up. It is a simple plea and is not sufficiently made by proving purchase for value and leaving it to the plaintiff to prove notice if he or she can. See: Sejaaka Nalima V Musoke Scca No. $12/1985$ .

DW1 Jovce Kisakye in her evidence contended that the $2^nd$ defendant had obtained a loan from the $3^rd$ defendant and that a mortgage was executed to that effect. Copies of the loan application, loan facility agreement and mortgage agreement were tendered in evidence as (Exh. D1, Exh. D2 and Exh. D3 respectively).

Exh. P7 is a copy of the land title which shows an encumbrance of a mortgage by Post Bank Uganda Limited, the $3^{rd}$ defendant.

In cross examination, DW1 stated that whereas the application for a loan was made on $7/11/2010$ , the valuation of the land was made on $7/8/2010$ . This was confirmed by the evidence of DW2 Richard Ivan Nangalama who conducted the survey. DW2 stated that the survey was conducted at the request of the $2^{nd}$ defendant.

The learned counsel for the $3^{rd}$ defendant contended that whereas the survey was made at the request of the $2^{nd}$ defendant, the same was to be used by the bank in the said loan transaction.

It was the undisputed evidence of PW2 that when the surveyor came with the $2^{nd}$ defendant to survey the land, they were received with great resistance from the residents on the land. DW2 in cross examination averred that the $3^rd$ defendant never gave him instructions to survey the suit land and yet the survey report was addressed to the $3^rd$ defendant.

This implies that the survey report was produced at the request by the $2^{nd}$ defendant and that the 3^rd defendant did not carry out its own survey of the land. It relied on the survey allegedly conducted by the $2^{nd}$ defendant. A survey of the land by the $3^{rd}$ defendant would have constituted part of due diligence.

No evidence was led by the $3^rd$ defendant to prove that any of its officials ever visited the suit land to establish what was on the ground and to ascertain whether the land belonged to the $2^nd$ defendant before disbursing the loan to the $2^nd$ defendant and taking out a mortgage on the

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same land. Visiting the land would have rung a bell for the 3^rd defendant about the physical status of the land being fronted as a security.

In the case of Mary Buyondo V Equity Bank (HCCS No. 2890 of 2016) cited by counsel for the plaintiffs, the court ruled that carrying out a search at the Land Registry is not sufficient due diligence before transacting in property. Due diligence before transacting in land would require more than confirming the registered owner of the property on the certificate of title. The court followed the decision of **Sir John Bageire V Ausi Matovu (supra)** and the dicta of Hon. Justice Okello JA that lands are not vegetables which are bought from unknown sellers. Lands are very valuable properties and buyers are expected to make thorough investigations not only of the land but also of the owners before purchase.

The court stated that due diligence would require that a person who wishes to transact in land should consult the occupants and neighbors of the land about the true owners of the property before concluding the transaction.

Section 3 (1) (a) of the Mortgage Act, a mortgagee and a mortgagor have a duty to act honestly and in good faith.

Whereas DW1 averred that the appraising officer visited the land. The said Appraising Officer did come to court to explain what she found on the land if at all she visited the same. The witness DW1 did not know where the suit land was located.

All this show that the 3^rd defendant did not conduct due diligence before concluding that the suit land belonged to the $2^{nd}$ defendant or that there were occupants on the land.

When this court visited the locus, it was observed that there are occupants who look to have been residents thereon for approximately over 30 years. Had any officials from the bank visited the land prior to executing the mortgage, they would have found out the said occupants on the land and this would have put the $3^rd$ defendant on notice.

It is therefore my conclusion that whereas the plaintiffs did not prove that there was fraud on the part of the $3^{rd}$ defendant in obtaining the mortgage, the $3^{rd}$ defendant failed to prove that it exercised due diligence before taking out the mortgage.

The $3^{rd}$ defendant is therefore not a bona fide purchaser/motgagee for value without notice.

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## 5. What are the remedies available to the parties?

#### a) Permanent injunction

The plaintiffs prayed for a permanent injunction restraining the defendants and their agents from interfering with their possession of the suit land.

It is evident that the defendants especially the 3^rd defendant still lay calms on the suit land and hence need to restrain her. It is therefore fit and proper to restrain the defendants from further interference with the ownership and possession of the suit land by the plaintiffs. I hence issue a permanent injunction against the defendants.

#### a) General damages

The plaintiffs pleaded general damages but did not lead evidence to show exactly what they suffered. From the evidence adduced they have been in occupation of the land in dispute.

It is however very clear from the pleadings and proceedings in this case that the plaintiffs have since 2016 been involved in prosecuting this case.

The learned counsel for the plaintiffs submitted that the plaintiffs be awarded general damages for the inconvenience and physiological torture caused by the actions of the defendants.

In the case Uganda Post Limited -V- Consolate Mukadisi [2023] UGSC 58, the Supreme Court of Uganda held that general damages are the direct natural or probable consequence of the wrongful act complained of, and include damages for pain, suffering, and inconvenience, and their award is supported by Article $126(2)(c)$ of the Constitution of Uganda.

This matter has been in court since 2016 which is period of about 9 years. The plaintiffs have suffered psychological torture of knowing that their land was at verge of being taken by the defendants for all the years mentioned. For this I award them general damages of shs.30.000.000 $=$

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## b) $Costs$

According to Section 27 of Civil Procedure Act costs follow the events unless otherwise. I find no reason not to award the costs if this case to the plaintiffs. Costs awarded to plaintiffs.

All in all, judgment is entered in favour of the plaintiffs with the following orders: -

- 1. The suit land comprised of Singo Plot 3 Block 769 at Nsambya Kiboga District formerly registered in the name of Hermenegeldo Kalubanga forms part of the estate of the late Hermenegeldo Kalubanga. - 2. The letters of administration granted to the 1^st defendant vide Nakawa Administration Cause No. 195 of 2009 were not validly granted and are hereby revoked. - 3. The 1^st defendant fraudulently caused the transfer of the suit land from the name of Hermenegeldo Kalubanga into his name and later into the name of the 2^nd defendant. - 4. The $3^{rd}$ defendant is not a bona fide purchaser/mortgagee for value without notice. - 5. The $3^{rd}$ defendant is ordered to surrender the duplicate certificate of title for the suit land to the $4^th$ defendant. - 6. The $4^{th}$ defendant is ordered to cancel the entry of the $2^{nd}$ defendant on the original certificate of title and to reinstate the name of Hermenegeldo Kalubanga. - 7. The $4^th$ defendant is ordered to cancel the entry of the encumbrance by the $3^rd$ defendant on the certificate in issue. - 8. A permanent injunction restraining the defendants and their agents from interfering with the possession and ownership of the land in dispute by the plaintiffs is issued - 9. The plaintiffs are warded general damages of shs. $30.000.000=$ - 10. The costs of the suit are awarded to the plaintiffs.

I so order. $T$ $110M$

KAREMANI JAMSON. K $\Pi$ DGE 11.04.2025

Court: Dated, signed and delivered by email this 11^th day of April, 2025