[2024] UGHC 994

### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA

#### **HOLDEN AT MBALE**

#### CIVIL SUIT NO 19/2014

- <pre>.................................... MABONGA NATHAN - WATERA WINNIE BRENDA - 3. BUSIKU ESTHER SHARON (Administrator and Administrator of the Estate of Late Busiku Samuel Otongi

#### **VERSUS**

UGANDA LAND COMMISSION ::::::::::::::::::::::::::::::::::::

## **JUDGEMENT**

# BEFORE: HON JUSTICE GODFREY NAMUNDI

The Plaintiffs brought this action against the Defendants seeking several reliefs.

It is a claim based on trespass and fraudulent acquisition and Registration of land, creating LRV 3078 Folio PLOT 10 A Bunghokho Road which was initially part of Plot 10 belonging to the Plaintiffs.

The remedies sought are several and are contained in the Plaint but in summary, the Plaintiffs seek declarations that the Defendants actions in creating Plot 10 A were illegal, unlawful and fraudulent.

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| A TRUE COPY OF THE ONWINAL! | |-----------------------------| | 、大 | | DEPUTY REGISTRAR |


They seek cancellation of the Title for Plot 10, that the Plaintiffs' are the lawful owners of the suit land originally comprised in plot 10 but now known as Plot 10 A and 10 B.

They also seek Orders for eviction and vacant possession, and a permanent injunction against the Defendants, as well as general damages, costs and interests there on.

The Plaintiff claim that in 1995 their father the late Busike Samuel a sitting tenant was offered Plot 10 Bughokho Road by the Ministry of lands which he accepted and financed its purchase through housing finance Bank( $U)LTD$ .

That he built a brick wall fence engulfing the compound at the forefront.

That in 2005, the 2^nd Defendant in collusion with the 1^st Defendant subdivided Plot 10 and created Plots 10 A and B, with the $2^{nd}$ Defendant acquiring a 5 vear lease fraudulently over Plot 10 A with effect from 2002.

The 2^nd Defendant filed a statement of defence.

Therein, he denied the plaintiff's claims.

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He states that he applied for a vacant Plot in Mbale Town and having been granted the same he secured a certificate of Title for land comprised in LRV 3078 FOLIO Plot 10 A Bungokho Road Mbale.

Further that he is in physical and actual possession of the suit land.



He then raised a counter claim seeking general damages for anguish and financial loss occasioned on him as a result of the counter Defendants actions which include.

Securing a loan to carry out construction on the suit land but the counter Defendants have unlawfully entered and are in illegal occupation of Plot 10 A since 17/4/2020 which belongs to the counter Plaintiff.

He accordingly seeks Orders as follows.

- A declaration that he is the lawful owner of land comprised in Plot 10 A Bungokho Road Mbale. - A permanent Injunction against the Counter Defendants from Interfering in the 2^nd Defendants occupation and or possession of the suit land. - General damages and Costs of this counter claim.

In the reply to the counter claim, the counter Defendants reiterate their earlier claims.

They also state that the counter Plaintiff has never been a sitting tenant on the suit land.

Further that if he had any lease from the first Defendant it was for a period of 5 years which expired and 13 years down the road, any claims he may have are barred by operation of the law of limitation.

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The parties filed a joint scheduling memorandum having agreed on the following issues.

- 1. Whether the Defendants jointly and severally fraudulently sub divided and unlawfully leased Plot 10A Bungokho Road to the 2^nd Defendant - 2. Whether the 2^nd Defendant trespassed on the suit land comprised on Plot 10 A Bunghokho Road. - What are the remedies available.

The 1^st Defendant never filed statement of Defence to the Plaintiffs claims.

I also note that no issues were framed by the parties in respect of the counter claim.

Each party called several witnesses for cross examination having filed witness statements

The final Submission were however presented orally in court.

## **Courts Decision**

I have considered the pleadings by both parties, the evidence and the Submissions by both parties.

This court also visited the locus in quo and made several observations.

The way the disputed property was subdivided and demarcated leaves a lot to be desired.


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It was observed that the demarcation went through the middle of the disputed property.

The effect was that the sanitary lines, Septic tank and other facilities were to remain in the 2^nd Defendants allocated plot.

This is itself was irregular and unlawful.

## Fraud.

The Plaintiffs claim is based on fraud as against the two Defendants as well as trespass by the 2^nd Defendant.

The 2^nd Defendant heavily relies on the conditions specified in the allocation letter to the late Busiku that the property could be subdivided or dealt with as pleases the controlling authority (ULC).

It is not in dispute that the late Busiku deposited over 8 % of the Value of the property and hence gained an equitable interest in the property.

The deposit enabled him to ask for financing from Housing Finance Company to pay off the value of the property.

The evidence on record indicates the way the property was parcelled to create Plots10 A and 10 B which was in total disregard for the existing contract between the late Busiku and the Sewage facilities.


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I must say the 2^nd Defendants evidence indicates that he responded to an advertisement in the press that the property was available for purchase.

There is no cogent evidence that he was intentionally involved in fraudulent acts in acquiring the land.

Fraud must be strictly proved and must be attributable to the transferee.

Re:

# 1. Fredrick Zaabwe

# 2. kampala Bottlers

I find no evidence of fraud on the part of the 2^nd Defendant.

It follows that the claim of trespass against him cannot stand.

What remains therefore is that the 2^nd Defendant cannot be faulted for fraud or trespass.

In conclusion I find that the 1^st Defendant was responsible for the mess and confusion in this matter.

I find that the 1^st Defendants actions were illegal, irregular and were aimed at frustrating the interests of the Plaintiff.

I accordingly enter Judgment in favour of the Plaintiffs against the 1st Defendant and make the following Orders.

**ICERTIFY THAT THIS IS** THE ORIGINAL A TRUE COPY OF DEPUTY REGISTRA?

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- $\frac{1}{1}$ It is declared that the Plaintiffs are the rightful owners of the suit land comprised in plot 10 Bughokho Road which was wrongly subdivided A plots 10A and 10 B. - 2. It is ordered that the $2^nd$ Defendant gives vacant possession to the Plaintiffs. - 3. A permanent Injunction is to issue against both Defendants 1 and 2 restraining them from alienating, dealing with or tempering with the land comprised in LRV 3078 FOLIO Plot 10A (Plot10) Bughoho Road - 4. Any Titles that may have been created are to be cancelled and to revert to plot 10 as originally named. - 5. The first Defendant is to meet the Costs of this suit.

NAMUNDI GODFREY JUDGE.

ICERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL DEPUTY REGISTARY

Date 15/8/2024