[2023] UGHCFD 42

#### **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT KAMPALA**

#### **(FAMILY DIVISION)**

#### **CIVIL SUIT NO.295 OF 2017**

#### **LWANGA SAMUEL MAVUMIRIZI ::::::::::::::::::::::: PLAINTIFF**

#### **VERSUS**

- 1. **ADMINISTRATOR GENERAL** - 2. **C. KAYONDO** - 3. **C. KISAWO** - 4. **E. NAMUKASA** - 5. **G. NALUNKU** - 6. **H. N NKOMEZE** - 7. **H. P NAMUTEBI** - 8. **J. NAKIWOLO** - 9. **M. NAMULEMBE** - 10.**P. SSEGANE** - 11.**S. MUSISI** - 12.**T. MUKALAZI**

13.**COMMISSIONER LAND REGISTRATION:::::::::::::::::::::::::DEFENDANTS**

**Before: Justice Ketrah Kitariisibwa KAtunguka.**

## **Judgment**

## **Introduction:**

**1. Lwanga Samuel Mavumirizi (herein called t**he plaintiff); filed this suit against the **Administrator General, C. Kayondo, C. Kisawo, E. Namukasa, G. Nalunku, H. N Nkomeze, H. P Namutebi, J. Nakiwolo, M. Namulembe, P. Ssegane, S. Musisi, T. Mukalazi, and Commissioner Land registration** jointly; (herein called the defendants);seeking for a declaration that: the 1st defendant acted illegally albeit wilfully in failing to distribute the estate in accordance with his mandate; the 2nd to 13th defendants acted illegally and fraudulently when they transferred the entire 4.8 acres of land contrary to the transfer instrument; the plaintiff is entitled to his share of 0.35 acres as per the certificate of succession and final account less 4 decimals contributed to the cultural land; and orders: annulling the transfer of 4.8 acres of the suit land to the 2nd to 12th defendants and reverting the same to the estate for distribution; for cancellation of all the certificates of title in excess of 1.5 acres registered in the name of the 2nd to 12th defendants and any sales made consequent to the illegal registration; directing the Administrator General to distribute the estate and give the plaintiff his share in accordance with the certificate of succession;

- **2. IN THE ALTERNATIVE** and strictly **without prejudice** to the fore going; an order directing: the 13th defendants to transfer land comprised in Busiro Block 437 plot 198 land at Kabale and Wabikoko measuring 0.0720 hectares;(herein called 'the suit property') in the names of the plaintiff; the defendants jointly and severally to hand over and transfer the remaining 13 decimals to the plaintiffs or payment of UGX 35,000,000/= in compensation for the remaining acreage of 13 decimals, the title of which has never been handed over to the plaintiff; general damages; permanent injunction restraining the defendants jointly and severally or their agents from taking, alienating or anyway interfering with the plaintiff's interests on the suit land as a beneficiary thereof; interests at court rate from the date of judgment till payment in full; costs of the suit; any other or further relief court may deem fit; - **3.** The 1st defendant filed a written statement of defence denying the plaintiff's averments and praying that the suit should be dismissed with costs as it is a waste of court's time; similarly, the 2nd to the 12th defendants filed a written statement of defence praying that the suit be dismissed with costs to the defendants.

#### **The case.**

- **4.** The plaintiff is a biological son to the late Samuel Nsubuga(herein called **'the deceased'**) who died intestate in 1989;the deceased was the owner of the suit property comprised in Busiro Block 437 plot 11 land at Kabale and Wabikoko on Entebbe road Wakiso district measuring 4.80 acres; upon the demise of the deceased, the 1st defendant applied and was granted letters of administration for the estate; according to the succession certificate and final accounts authored and issued by the 1st defendant, the plaintiff being a biological son to the deceased was entitled to 35 decimals (0.35 acres) of the suit land. - **5.** Instead of distributing and/ or giving the plaintiff the 35 decimals (0.35 acres), the 1st defendant connived with the 13th defendant and the 2nd to the 12 defendants to transfer the entire 4.8 acres comprised in Busiro Block 437 plot 11 land at Kabale and Wabikoko on Entebbe road Wakiso district into the names of the 2nd – 12th defendants; the said transfer of the entire 4.8 acres was done with the consent and knowledge of the 1st defendant but without the knowledge or consent of the plaintiff; the defendants jointly and severally engaged in a fraudulent conspiracy to deprive the plaintiff of his beneficial interest in the suit land and an infringement on the plaintiff's rights to property; - **6.** The first defendant admits that it applied for letters of administration to the estate of the late Samuel Nsubuga with a Will annexed on 16/1/1990; executed its mandate with fairness to all beneficiaries and denies responsibility for the actions of the 2nd-12 defendants in as far as allegations of transferring land beyond 1.5 acres into their names is concerned. - **7.** The 2nd 12th defendants admit that the plaintiff is their sibling and a beneficiary to the estate of the deceased; but he got his share which is much more than all other beneficiaries' shares to which the 2nd -12 defendants seek a reduction for fair distribution; they deny the fraud imputed to them by the plaintiff and assert

that they are not registrars of title and have never transferred any land into their names beyond the said 1.5 acres; instead, they accuse the plaintiff of intermeddling into the estate of the deceased.

**8.** The 13th defendant did not file a written statement of defence in spite of service of court summons; and therefore it put itself out of court and has no locus standi to be heard (see: K*anji Devji versus Damor Jinabhai & Co. (19340) 1 E. A. C. A. 87***); f**ailure to file a defence was considered in **Prof. Oloka Onyango & Ors Vs Attorney General (Constitutional Petition No.6/2014)** when the Learned Justices were considering 0rder 8 rule 3 Civil Procedure Rules found that every allegation in a plaint, if not specifically or by necessary implication denied in a pleading by an opposite party, shall be taken to be admitted;

The 13th defendant is deemed to have filed its defence and admitted the plaintiff's claims; although the claims themselves must pass probity.

#### **Representation:**

- **9.** The Plaintiff is represented by counsel Oundo David Wandera of M/s Waymo Advocates; while the 1st defendant is represented by counsel Lwabona of M/s Administrator General Department; - **10.**When the matter came up for hearing on 18/6/2019; the plaintiff and his counsel and counsel for the 1st defendant were in court; the 2nd -12th defendants were absent; counsel for the plaintiff informed court that he could not access the 2nd to 12th defendants or their counsel's addresses and successfully prayed for an order for them to be served through substituted service; there is a Bukedde Newspaper and New Vision Newspaper both dated October 17th 2019 showing the advert of the hearing notices; and affidavit of service was filed on 25/11/2019 to that effect; the matter came up on the 28/11/2019 still the 2nd to 12th defendants were absent. - **11.**On 4/10/2022; the plaintiff and his counsel and counsel for the 1st defendant were present; the plaintiff's counsel orally prayed that the matter proceeds *ex*

*parte* under order 9 rule 20(1)(a) of the Civil Procedure Rules as against the 2nd to the 13th defendants; court considered the affidavits of service dated 10/5/2022 and 3/10/2022 the 13th defendant was served but failed to appear for court hearing on 4/10/2022; the 2nd to the 12 defendants had not appeared in court yet record shows that they were served through substituted service by advertising the hearing notice in Daily Monitor Newspaper of 9/9/2022 as confirmed by the affidavits of service dated 25/11/2019. Court ordered that the matter proceeds *ex parte* under Order 9 rule 20(1)(a) of the Civil Procedure Rules

# **Issues for court's determination:**

Counsel for the plaintiff and counsel for the 1st defendant agreed on the following issues: -

- 1. *Whether the plaintiff got his due share of 31 decimals from the estate of his late father Samuel Nsubuga?* - 2. *What remedies are available to the parties?*

# **Background.**

- **12.** The plaintiff together with the 2nd to the 12th defendants are biological children of the late Samuel Nsubuga who died testate on the 15th day of November 1989; the 1st defendant obtained letters of administration to administer the estate of the deceased on 16th of January 1990; the plaintiff was issued with a Certificate of Succession in 1995 showing that he is entitled to 0.35 acres of the suit land; during the distribution of the estate, it is alleged that the 1st defendant authorized the transfer of 1.5 acres to the 2nd to 12th defendants; the plaintiff avers that the 2nd to the 13th defendants with the aid of the 13th defendants transferred the entire suit land measuring 4.8 acres into their names; - **13.**After the plaintiff complained, several family meetings presided over by the 1st defendant were held; the 2nd to the 12th defendants gave the plaintiff a certificate of title comprised in Busiro Block 437 Plot 198 at Kabale and Wabikoko measuring 0.0720 hectares; the plaintiff also accepted to relinquish 4 decimals

of his share to be utilized as family burial grounds leaving him with a share of 31 decimals; it is the plaintiff's claim that upon surveying the land given to him by the 2nd to the 12th defendants he found that the said land was short of 13 decimals which he now claims against the 1st to 12th defendants.

#### **Determination.**

# Issue No.1: *Whether the plaintiff got his due share of 31 decimals from the estate of his late father Samuel Nsubuga?*

**14.**The plaintiff testified as PW1; in his witness statement admitted as his evidence in chief, he states that his case against the 1st defendant is failure to distribute to him his share of 0.35 acres of the suit land; he admits that out of his entitlement, he willfully relinquished 4 decimals as his contribution for the ancestral land; so he claims 0.31 acres from the suit land; the 2nd to the 12th defendants connived with the 1st defendant and transferred all the 4.8 acres into their names and have since sold off most of the land including the plaintiff's share; he intensified his demand for his share in 2013, and learnt after viewing a copy of the white page of the certificate of title that the suit land had been transferred from the 1st defendant to the 2nd - 12 defendants; when he kept on demanding for his share from the 1st defendant; around 2014, the defendants sent a one Major Kigozi to deliver to him a certificate of title of land comprised in Busiro Block 437 plot 198 who told him that the title was measuring 31 decimals; due to his illiteracy, he was confused by the said Major Kogozi; it is only when he consulted a surveyor to compute for him the area in the title of land comprised in Busiro Block 437 plot 198, that he found out he had received 0.0720 hectares approximately 0.1779 acres less than what he is entitled to; the 2nd to the 12th defendants have refused to sign for him transfer forms of land in Busiro Block 437 plot 198 into his names; they equally do not allow him to use the land whose certificate of title they gave him.

- **15.**Relying on Paulo Kaweesa V. Administrator General & 2 Others HCCS No.918 of 1993; counsel for the plaintiffs submitted that once a succession certificate is issued, the grantee thereof is entitled to the estate therein and not even the Administrator General has powers to alter or cancel a certificate of succession; because such powers are a preserve of the High Court; - **16.**The 1st defendant in its written statement of defence denies responsibility for the actions of the 2nd to the 12th defendants in as far as the allegations of transferring land beyond 1.5 acres into their names is concerned; through their representative Mr. Rwabona the 1st defendant chose not to lead any evidence; the defendants' omission or neglect to challenge the evidence in chief on a material or essential point by cross-examination, would lead to a presumption that the plaintiff's evidence is accepted (see: **James Sawoabiri and Anor V, Uganda Supreme Court Criminal Appeal No.5 of 1990);** - **17.**Counsel for the 1st defendant submitted that since the succession certificate was given to the plaintiff in 1999; and he discovered in 2013 after 14 years that there was a fraudulent transfer in respect of deceased's land by siblings, the law of limitation catches up with him; relying on Paulo Kaweesa V. Administrator General and 2 Others HCCS No.918 of 1993 counsel contended that when the 1st defendant issued a succession certificate to the plaintiff, its duty was discharged in respect of his share of 35 decimals in the deceased's estate. - **18.**The introduction of limitation is a point of law which must be resolved before considering the other issues; In **Yaya v Obur and Others [2020] UGHC 165;** court while citing *Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 696 court* held that;

*"A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the suit; a defendant wishing to rely on points of law as a preliminary issue is required to set out such points of law in the* *written statement of defence before the preliminary issue is regarded as properly raised. Some of the matters that must be specifically pleaded are mentioned in Order 6 Rule 6 of The Civil Procedure Rules and they include; fraud, the Limitation Act, release, payment, performance, or facts, showing illegality either by statute or common law… a defendant who intends to raise the defence of The Limitation Act or that the suit is statute barred (as in the instant case) must specifically plead that defence."*

- **19. Order 6 rule 6 of the Civil Procedure Rules** stipulates; "The defendant or plaintiff, as the case may be, shall raise by his or her pleading all matters which show the action or counterclaim not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence or reply, as the case may be, as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, as, for instance, fraud, limitation act, release, payment, performance, or facts, showing illegality either by statute or common law."; while a point of law must be addressed the moment it is raised, it should not be an ambush; it should be expected by the opposite party; - **20.**Perusal of the written statement of defence filed by the 1st defendant does not show that the 1st defendant pleaded the fact of limitation; during court hearing, the 1st defendant preferred not to lead evidence; the concept of limitation was brought up by counsel in the written submissions after closure of the trial process; this is an ambush to the plaintiff and contrary to fair trial and interest of justice because the plaintiff was not given opportunity to address it in his pleadings; - **21.**In the premises, the defence of the law of limitation has been irregularly raised; the preliminary point of law is overruled.

#### **Court's decision:**

- **22.**It is not disputed that the late Samuel Nsubuga died testate; evidence on record shows that the 1st defendant obtained letters of administration thereto with a will annexed, on 16/1/1990 vide High Court Administration Cause No.651 of 1989; Exhibit **Pexb.4** is a final account of the estate of the deceased filed by the 1st defendant on 24/10/1990; the account shows a distribution scheme of the suit land where the plaintiff was granted 0.35 acres. - **23.**Subsequently, the plaintiff was issued with a certificate of succession dated 15/6/1995 by the 1st defendant (**PExb3)**; the certificate shows that the plaintiff is entitled to 0.35 acres of the suit land as a beneficiary to the estate of the late Samuel Nsubuga; according to the certificate of title of the suit land comprised in Busiro Block 437 plot 11 land at Kabale and Wabikoko measuring 4.80 acres exhibited and marked as **Pexb.1;** the late Samuel Nsubuga was the registered proprietor of the suit land before the land being registered in the names of the 1st defendant on 25/6/1996 at 2:45pm; on the same day, after a time frame of 5 minutes, on 25/6/1996 at 2:50pm the land was registered into the names of the 2nd to the 12th defendants as tenants in common. - **24. Section 1 (j),** of the *Registration of Titles Act, Cap. 230,* defines letters of administration in the following terms: *"letters of administration" includes, in the case of the estate of a deceased African of Uganda, a certificate of succession or other document from a competent authority declaring the right of any person to deal with that estate, and "administrator" includes that person.";* - **25.**Court discussed the issue of certificates of succession in **Paulo Kaweesa V. The Administrator General & Others (Civil Suit No.918 of 1993) [2012] UGHC 109** also cited by counsel for the plaintiff and counsel for the 1st defendant**;** where it was held that; in accordance with the *Local Administrations (Performance of Functions) Instrument, 1967, (S1. No. 150 of 1967)*; the Administrator General's duty, only related, to issuance of Certificates of

Page 9 of 18 Succession in respect of estates already administered and distributed before 18th August, 1967; court stated that the Administrator General's role was merely an implementation function; that if the Administrator General genuinely believed that the estate had not been administered and distributed, the Administrator General had to apply to court to obtain letters of administration in relation to that property as envisaged under S.5(3) of the Administrator General's Act.

- **26.**PW1 (the plaintiff) told court that his original entitlement to the estate was 0.35 acres; that since he agreed to the removal of 4 decimals as his contribution towards the burial grounds, he is now entitled to 31 decimals of the suit land; he testified that he is not utilizing his 31 decimals; that it is the 3rd defendant who sent the plaintiff off the suit land and is now in occupation of the plaintiff's portion; - **27.**The 2nd to the 12th defendants in their defence contend that the plaintiff got a share much more than all other beneficiaries so the defendants seek a reduction for a fair distribution; no evidence was furnished by the defendants to prove that the plaintiff obtained a share bigger than he is entitled to in accordance with the certificate of succession; - **28.**The role of an administrator is to distribute the deceased's land to the beneficiaries; in **Anecho Haruna Musa v. Twaib Noah & 2 others HCCS No.0009/2008**; Court found that; *" since the administrator's role is merely distribution, it is for that reason that as from the date of the grant the beneficiary has, in equity, a proprietary interest in the estate property, which proprietary interest will be enforceable in equity against any subsequent holder of the property (whether the original property or substituted property into which it can be traced) other than a purchaser for value of the legal interest without notice.;"*

- **29.**In this case, there is no evidence that prior to the 1st defendant obtaining letters of administration, the estate had been administered; therefore, upon the grant in 1990, the 1st defendant's mandate was to effect distribution of the estate to the beneficiaries as per the will of the late Samuel Nsubuga; which according to the certificate of succession, they legally did; the 1st defendant denies authorizing the transfer of land beyond the 1.5 acres which the 2nd-12th defendants were entitled to; this was not proved. - **30.**The 1st defendant in response to the letter of the Deputy Registrar Family Division dated 12/07/2012; requiring the former to file inventory in respect of the estate of late Samuel Nsubuga(admitted as Pexb 13;) filed final accounts Pexb 4 where the 35 decimals were given to the plaintiff and a total of 1.5 acres were given to the 2nd to 12th defendants; in response to a letter from Balondemu, Candia & Wandera Advocates to the Administrator General dated 3/2/2016 the Administrator General vide letter dated 22nd March 2016 admitted as Pexb 9, confirmed that they transferred 1.5 acres of land out of Busiro Block 43 plot 11 land at Kabale and Wabikoko to the 2nd to 12th defendants; - **31.**The position of the law is that the plaintiff having been issued with a certificate of succession, he became the administrator or owner of his portion which measured 0.35 acres out of the suit land; there exists no evidence which the 13th defendant relied on to transfer the entire suit land into the names of the 2nd to the 12th defendants; it is against this background that; I find the 13th defendant had no authority or basis to transfer the entire estate to the 2nd-12th defendants in disregard of the plaintiff's portion; - **32.**The plaintiff contends that the 2nd to the 12th defendants were fraudulent when they transferred the entire 4.8 acres into their names instead of 1.5 acres, which acts were condoned by the 1st defendant and facilitated by the 13th defendant; **section 101 of the Evidence** act provides that whoever desires 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. The burden of pleading and proving fraud lies on the person alleging it and the standard of proof is beyond mere balance of probabilities required in ordinary civil cases though not beyond reasonable doubt as in criminal cases (see *Sebuliba v. Cooperative bank Limited [1987] HCB 130* **and** *M. Kibalya v. Kibalya [1994-95] HCB 80).* The burden of proving fraud therefore lies on the plaintiff.

- **33.**Fraud an actual act of dishonesty must be specifically pleaded and clearly either directly or by implication attributed to the defendant(see **Waimiha Saw Milling Co. Ltd vs. Waione Timber Co. Ltd (1926) AC 101; and Kampala Bottlers Ltd vs. Damanico (U) Ltd, SCCA No.22 of 1992;** and**J. W. Kazoora V Rukuba, Civil Appeal No. 13 of 1992);** - **34.**According to the certificate of title of the suit land, the 1st defendant was registered on 25/6/1996 at 2:45pm; while the 2nd to the 12th defendants were registered thereto on 25/6/1996 at 2:50pm; it appears that by the time the 1st defendant was ready to be registered the property had been valued by the Government valuer, stamp duty assessed and paid, receipts lodged at the land registry, transfer forms endorsed and filed for registration and completed all in a moment; to aid the whole transaction take a difference of 5 minutes to have the transfer to the 2nd to 12th defendants effected; while one may argue that it is impossible(see: **Anna Nabatanzi Lule & Others V. Anselm Semakula & Others UGHCLD No.94 of 2010 (unreported** where such short time intervals were found to be implication of fraud) I do not agree; unless fraud can be proved otherwise, I do not find timelines on their own implying fraud; - **35. Section 59 of the Registration of Titles Act** provides that a Certificate of title by a registered person is conclusive evidence of ownership of land described therein and once a person is registered as proprietor of land, his title is indefeasible except for fraud. **Section 176 (c) of the Registration of Titles** Act states that a registered proprietor of land is protected, save for fraud 'fraud'.

- **36. Section 64 (1) of the Registration of Tittles Act** which provides: -"*Notwithstanding the existence in any other person of any estate or interest, whether derived by grant or otherwise, which but for this act might be held to be paramount or to have priority, the proprietor of land or of any estate or interest in the land under the operation of this Act shall except in the case of fraud, hold the land or estate or interest in the land subject to the encumbrances as are notified on the folium of the Registrar Book constituted by the certificate of title but absolutely freed from all other encumbrances*." - **37.** On the whole, the transferee must be guilty of some fraudulent act or must have known of such act by somebody else and participated in it or taken advantage of it; no evidence had been adduced to impute fraud directly or by implication as against the 1st defendant; before effecting the registration of the 2nd to the 12th defendants on to the suit land, the 13th defendant ought to have inquired about the instrument from which the 1st defendant was transferring the suit land to the 2nd – 12th defendants; I find that the 2nd to the 13th defendants are privy to the fraudulent transactions relating to the transfer of the whole suit land instead of taking into account the plaintiff's entitlement; - **38.**It is uncontested that the 2nd -12th defendants having had knowledge of the fact that the entire piece of land was transferred into their names in 1996; they collectively kept the certificate of title with intention of depriving the other beneficiaries to the estate of their shares; the 1st defendant had already given the plaintiff the succession certificate for his .35 decimals so the title ought to have been for the balance; - **39.**The defendants claim to have agreed to redistribute because the plaintiff had gotten a larger piece of land which needed to be equitably shared among all beneficiaries; they therefore acknowledge that the plaintiff was entitled to.35 decimals minus his 4 decimals contribution towards the burial grounds; if they

had disagreed with the distribution scheme by the Administrator General they ought to have challenged it in courts of law; they did not.

- **40.**The plaintiff led evidence that he is in possession of a duplicate certificate of title in Busiro Block 437 plot 198 at Kabale and Wabikoko which is in the names of the 2nd to the 12th defendants; however, no certificate of search from the Ministry of Lands was presented as proof of the said fact and a confirmation to whether the said plot is still registered in the defendants' names; there is also no proof that the 2nd to the 12th defendants agreed to transfer this alternative plot to the plaintiff as compensation of his share in the estate; - **41.**In summary, I find that the plaintiff did not get his due share of 31 decimals from the estate of his late father Samuel Nsubuga; to which he is legally entitled as a beneficiary to the estate; having handed over the certificate of succession to the plaintiff the role of the 1st defendant would have been extinguished as far as the plaintiff's 35 decimals are concerned; the 13th defendant ought to have verified ownership with the 1st defendant before transferring the whole estate land into the names of the 2nd to the 12th defendants without taking into account the succession certificate already issued to the plaintiff; the 2nd -13th defendants according to their defence knew of the plaintiff's entitlement but willfully took advantage of the negligent actions of the 13th defendant to deprive the plaintiff of his legal share in the estate.

The plaintiff did not get his due share of 31 decimals from the estate of his late father Samuel Nsubuga. Issue one is answered in negative; he is entitled to the balance of 13 decimals.

## Issue No.2: **What remedies are available to the parties.**

**42.** The plaintiff prayed for an order for cancellation of all the certificates of title in excess of the 1.5 acres registered in the names of the 2nd to 12th defendants and any sales made consequent to the illegal registration; or in the

alternative to be given UGX 35,000,000 as compensation thereof;Pursuant to **section 33 of** *The Judicature Act,* this court may grant absolutely or on such terms and conditions as it thinks just, all such remedies as any of the parties to a cause or matter is entitled to in respect of any legal or equitable claim properly brought before it, so that as far as possible all matters in controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings concerning any of those matters avoided.

- **43.***Section 77 of the Registration of Titles Act* provides that: *"Any certificate of title, entry, removal of encumbrance, or cancellation, in the Register Book, procured or made by fraud, shall be void as against all parties or privies to the fraud."* Having found that the 2nd to the 12th defendants fraudulently got registered on the suit land with the prior knowledge but in total disregard of the plaintiff's interest, their names ought to be cancelled from the certificate of title of the suit land so that the land reverts back to the Administrator General the administrator of the estate of the late Samuel Nsubuga and ownership registered in accordance with the distribution scheme to enable the plaintiff and several other beneficiaries sever off their shares. - **44.**However I have considered how long it has taken for this suit to be resolved; the possible transactions that may have been made in respect of the suit land by persons who may have been unaware of the fraudulent actions of the 2nd - 12th defendants; I find it in the interest of justice and in the quest for reduction of multiple suits to consider the alternative remedy as proposed by the plaintiff; the plaintiff in 2017 when he filed this case prayed for compensation for the 13 decimals at UGX 35,000,000/=;I would find the remedy fair.

## *Damages***:**

**45.**The decisions in **Kampala District Land Board & George Mitala V Venansio Babweyana, Civil Appeal No. 2 OF 2007** and **Kyagalanyi Coffee Ltd V Steven Tomusange, Civil Appeal No. 9 of 2001** are well settled law on award

Page 15 of 18

of damages by a trial court; damages are the direct probable consequences of the act complained of. Such consequences may be loss of use, loss of profit, physical inconvenience, mental distress, pain and suffering. Damages must be pleaded and proved.

**46.**The plaintiff claims that because of being denied the right to his entitlement he has suffered extreme loss, pain and mental anguish as a result of the action of the defendants; considering that in addition the value of the land may have appreciated, I award general damages of UGX 100,000,000/= (One hundred Million Shillings) to be paid by the 2nd - 12th defendants; within three months from this judgment.

## *Costs;*

**47.**It is trite law that costs follow the event and the successful party is entitled to costs. Section 27 of the Civil Procedure Act states; "provided that costs of any action, cause or other matter shall follow the event unless the court or the judge shall for good reason otherwise order." I do not find sufficient reasons to deny the plaintiff his costs.

The suit succeeds. I make the following declarations and orders:

- **1)** The plaintiff never got his full share of 31 decimals from the estate of his late father Samuel Nsubuga comprised in Busiro Block 437 plot 11 land at Kabale and Wabikoko. - **2)** The 2nd, 3rd, 4th,5th,6th,7th,8th,9th,10th,11th and 12th defendants shall pay the plaintiff UGX 35,000,000/=(thirty five million shillings only), in compensation for the remaining 13 decimals, the title of which has never been handed over to him. - **3)** The 2nd, 3rd, 4th,5th,6th,7th,8th,9th,10th,11th and 12th defendants fraudulently got themselves registered on the land comprised in Busiro Block 437 plot 11 land at Kabale and Wabikoko..

- **4)** The 13th defendant acted illegally when it transferred the entire 4.8 acres of land comprised in Busiro Block 437 plot 11 land at Kabale and Wabikoko. to the 2nd, 3rd, 4th,5th,6th,7th,8th,9th,10th,11th and 12th defendants. - **5)** The 1st defendant is directed to issue transfers in accordance with the distribution scheme for the estate of late Samuel Nsubuga, subject to the shares to which transfers have already been made; - **6)** The Commissioner for Land Registration is hereby ordered to cancel the registration of the 2nd, 3rd, 4th,5th,6th,7th,8th,9th,10th,11th and 12th defendants as the proprietors of land comprised in in Busiro Block 437 plot 11 land at Kabale and Wabikoko and to re-instate the 1st defendant. - **7)** General damages of 100,000,000/= are awarded to the plaintiff to be paid by the 2nd to the 12th defendants within three months from the day of judgment; - **8)** A permanent injunction is hereby issued restraining the defendants jointly and severally or their agents from taking, alienating or anyway interfering with the plaintiff's interests on the suit land as a beneficiary thereof - **9)** The 2nd, 3rd, 4th,5th,6th,7th,8th,9th,10th,11th and 12th defendants shall bear the costs of this case.

Ketrah Kitariisibwa Katunguka

Judge

31/03/2023

## Delivered by email

to[:dawandera@yahoo.co.uk,](mailto:dandera@yahoo.co.uk)wandaveo@gmail.com,mrwaboona@gmail.com

The dissatisfied party may appeal to the Court of Appeal of Uganda within 14 days of this judgment.