[2001] UGHC 118

# THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT FORT PORTAL

CIVIL APPEAL NO. DR. 17/99 (Original Kasese Civil Suit No. 5/90)

| 1.<br>2.<br>3.<br>4. | YOSAFATI<br>MATTEE<br>TIMOTHY<br>BALUKU<br>DAUDIRUSAYA<br>DAUDI<br>BYENGONZI | >- | APPELLANTS | | |----------------------|------------------------------------------------------------------------------|----|------------|--| | | | | VERSUS | |

1. 2. COSTA BWAMBALE JOSEPH MATTE

RESPONDENT

# BEFORE: THE HONOURABLE MR. JUSTICE ELDAD MWANGUSYA

#### JUDGEMENT

This is an appeal against the Judgement of Her Worship JULIA ACIA, CHIEF MAGISTRATE, Kasese delivered on the 18th October 1999 in which the appellants' Suit against the respondents was dismissed with costs.

The appellants' claim against the respondents was for trespass, destruction of crops and for cancellation of a Tittle to Bunyangabu Block 84 Plot ¹¹ at Kihyo Busongora. The facts giving rise to this claim are that the Land in issue is registered in the name ofJOSEPH MATTE, the second respondent in this appeal. Prior to his registration of this Land the appellants were occupants on that land and tried to have it registered in their names only to find that the second respondent had already registered it in his name. The appellants claimed that the 2nd respondent had obtained the title by fraud and sought to have it cancelled. The trial Magistrate rejected their claim holding that no fraud had been proved against the 2nd respondent. Hence this appeal.

The memorandum of appeal raises the following grounds:-

- 1. That the learned trial Magistrate erred in Law and in fact in holding that the appellants had no interests in land prior to the respondent's registration. - 2. The trial Magistrate erred in Law in holding that there was no fraud on the part of the respondent. - The trial Magistrate evaluated the evidence before her with bias towards the respondent.

Mr. Musana, Counsel for the appellant argued only the first and second grounds of appeal. He abandoned the third ground of appeal because quite clearly there was no bias apparent or otherwise in the way the trial Magistrate conducted the trial.

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Whatever judgement was arrived at and whatever errors might have been committed were not because she was biased towards the respondent.

On the first ground of appeal Musana submitted that the trial Magistrate's conclusion that the appellant had no interest in the Land in dispute was based on an erroneous finding offact. The finding ofthe trial Magistrate on this point was as follows:-

"The plaintiffs in their evidence have tried to establish that they were settled and had interest which the defendant defeated when he had his interest registered against their unregistered interest. From the evidence ofthe defendant he got title to the said Land in 1984. The plaintiffs claimed to have moved in the area in 1982 and barely two years after they settled in the area the defendant had title to the Land. As for P. W.2 by 1986 he was still in the process of acquiring the 300 acres by way of purchase. It is my considered view that the defendant did not procure registration to defeat the interest ofthe unregistered settlers. This title deeds were acquired before even P. W. I, P. W.2 and P. W.4 acquired the places ofLand they said was by way of purchase. P. W. 3 told Court the agreement ofsale of Land made in respect ofsale got burnt in the house. At the lime ofregistration oftitle for defendant the plaintiffs could not be said to have acquired any unregistered interest in the Land which the defendant by fraud had registered in his names."

¹ have studied the evidence on record and apart from Timothy Baluku (P. W.l) who \\ testified that he started living in the area in 1982 and purchased some land in 1986 . j) (i.e. after the respondent had acquired his title) the rest ofthe appellants who testified f at the trial stated that they had lived on the land in dispute from the year 1962 during A the Rwenzururu uprising. Sadi Kanyama (P. W.5), an elder who assisted them to acquire the land testified to that fact. Even Timothy Baluku who acquired his land by purchase in 1986 bought from persons whom he found living on the land when he */* went to the area in 1982. So contrary to the defendants testimony that he acquired empty land there was overwhelming evidence that the appellants had lived on the land and had unregistered interest which was defeated by registration ofthe respondent's interest on the same Land. There, is, therefore merit in the first ground of appeal which is allowed.

The second ground raises the issue ofthe manner in which the respondent obtained the land title because according to Section 56 ofthe Registration ofTitles Act production ofthe Certificate to title in the names ofthe respondent is sufficient proof of ownership ofthe Land in dispute unless the cases falls within the provisions of Section 184 ofthe Registration ofTitles Act. The said Section provides as follows:-

"No action of ejectment or other action for the recovery of any Land shall lie or be sustained against the person registered as proprietor under the provisions ofthis Act, except in any ofthe following cases -

- (a) the case of a mortgagee as against a mortgagor in default; - (b) the case of a lessor against a lessee in default. - (c) The case of a person deprived of any Land by fraud as against the person registered as proprietor ofsuch land through fraud or as against a person deriving otherwise than as a transferee bonafide for value from or through a person registered though fraud;

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- (d) \_The case of a person deprived of or claiming any land in any Certificate oftitle of other land or ofits boundaries as against the registered proprietor ofsuch other land not being a transferee thereofbonafide for value. - (e) The case of a registered proprietor claiming under a certificate oftitle prior in date ofregistration under the provisions of this Act in any case in which two or more Certificates oftitle may be registered under the provisions ofthis Act in respect of the same land, and in any case other than as aforesaid the production ofthe registered Certificate oftitle or lease shall be held in every Court to be an absolute bar and estoppel to any such action against the person named in such document as the grantee, owner, proprietor or lessee ofthe land therein described, any rule of Law or equity to the contrary notwithstanding."

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The principles on which fraud is founded in a case like this one have been established by our Courts and the cases ofJ. W. R. KAZZORA VERSUS ML. S RUKUBA Supreme Court Civil Appeal No. ¹³ of 1992 (Unreported) and KAMPALA BOTTLERS LTD VERSUS DAMANICO (U) LTD. Supreme Court Civil Appeal No. 22 of 1992 (Un reported) are two ofthe leading authorities. These principles are as follows:-

- (1) Where fraud is intended to be charged, there must be a clear and distinct allegation offraud upon the proceedings and though it is not necessary that the word fraud should be used the facts must be stated to show distinctly that fraud is charged. Paragraph 8 ofthe plaint satisfies this requirement. It was stated as follows:- - " The plaintiff will aver and contend that the said title was obtained fraudulently for:- - (a) No inspection was carried out; - (b) No survey was made;

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- (c) The proper procedures were not followed. - (d) The second defendant obtained title to defeat unregistered interests. A letter from the District Administrator's office to this effect is attached hereto as Annexture "G". - (2) Having stated that the title was obtained fraudulently the plaintiffs now respondents were required to prove these allegations. In the case ofR. G. PATEL VERSUS LALJI MAKANJI [1957] E. A. 315 it was held that "the burden is upon the party alleging the fraud to strictly prove that fraud, and although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required." This case was cited with approval in the case of Kazzora cited above.

In the instant case the allegations stated in paragraph ⁸ ofthe plaint were proved. The evidence of Baguma Vicent (P. W.2) a Surveyor established that neither Survey nor inspection was done before the respondent acquired the title and that of all the respondents established that they had unregistered interests in the Land that were defeated by this registration ofTitle by the respondent. This brings me to the third principle which I proceed to examine.

(3) Fraud must be attributable either directly or by necessary implication to the transferee, i.e. the transferee must be guilty ofsome fraudulent act or must have known ofsuch act by somebody else, and take advantage ofsuch act. What is to be determined by this Court is whether or not the acts alleged in paragraph 8 already stated were fraudulent and were attributable to the respondent who as a result of those acts is now the registered proprietor ofthe Land in dispute.

Mr. Bitagase, Counsel for the respondent submitted strongly that non-compliance with the preliminary stages alone cannot lead to impeachment of a registered proprietors title given the fact that it was not attributable to him but to the controlling authority. He cited the case of Kampala Bottlers versus Damanico to support his submissions. While Mr. Bitagase correctly stated the principle in the case cited I do not agree with his application ofthe principle to the facts ofthis case. The problem in this case is not only that the preliminary steps were not taken in acquisition ofthe title but also that the registered proprietor defeated the unregistered interests ofthe appellants which according to Mr. Musana, Counsel for the appellants amounts to fraud. I may even go further and state that if a Survey and inspection had been done it would have been found that the Land in question was under the occupation ofthe appellants and the insistence ofthe respondent that the Land was un-occupied is testimony that this fraud is attributable to him. Further, on the authority of . KATARIKAWE V. KATWIREMU 1977 HCB 189 it is fraud to acquire title to defeat the unregistered'interest of another.

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The trial Ag. ChiefMagistrate was alive to the issue of acquisition of a title to defeat the unregistered interest of another. She had this to say:-

" fraud from case precedents consists of dishonest dealing in Land. Acquiring title to defeat the unregistered interest of another. This is what would be termed fraudulently acquiring title. In the case of KATARIKAWE VS. KATWIREMU 1977 HCB 189 Justice Butagira as he then was held that fraud consists of dishonest dealing in Lands and that if one acquires title to defeat the unregistered interests of others that is fraud. See also Matovu and two others versus Senviri and another 1979 HCB 174 where it was held that if a person procures registration to defeat an unregistered interest on the part of another person of which he is proved to have knowledge, that such person is guilty offraud............ "

As I have already stated the appellants have been in the area since the year 1962 and not barely two years' and there is overwhelming evidence of their presence in form oftheir homes and crops. So for someone to acquire the area as empty Land must have done so fraudulently and this fraudulent acquisition is attributable to him and no one else because he is one who applied for the land as an empty area in the first place and was insisting that it was empty even at the time oftrial when there was evidence that the Land was under the occupation.

To me this disposes ofthis appeal which is allowed with an order that the Title acquired by the 2nd respondent in the manner described be cancelled. The 2nd respondent will also meet the costs ofthis case in this Court and in the Court below.

### Sgd. (ELDAD MWANGUSYA) JUDGE 12.04.2001.

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# Order:

The Deputy Registrar ofthis Court is directed to deliverjudgement ofthis court on 19.04.2001.

## Sgd. (ELDAD MWANGUSYA ) JUDGE 12.04.2001.

10/5/2001.

Mr. Musana representing the appellants, two of whom are present. 15t respondent present unrepresented.

Court:

Judgement is delivered at 9.45a.m.

# Sgd. (P. R. ONYER) DEPUTY REGISTRAR 10/5/2001.

Right of appeal, to the Court of Appeal within ¹⁴ days is explained. **t5**

## Sgd. (P. R. ONYER) DEPUTY REGISTRAR.

# *CCi'l'* **I** ¹ 10/5/2001. AL°A?-

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# THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT FORT PORTAL CIVIL APPEAL NO. DR. MFP 17/99 (Original Kasese Civil Suit No. 5/90)

- 1. YOSAFATI MATTEE ' - 2. TIMOTHY BALUKU - **^&gt;** APPELLANTS 3. DAUDI RUSAYA - 4. DAUDI BYENGONZI

#### VERSUS

- 1. COSTA BWAMBALE - 2. JOSEPH MATTEE

RESPONDENTS

# DECREE

THIS APPEAL coming on for final disposal before the Honourable MR. JUSTICE ELDAD MWANGUSYA in the presence of Mr. J. Musana Counsel for the Appellants, and in the presence of Mr. Deo Bitaguma Counsel for respondents.

# IT IS HEREBY ORDERED AND DECREED that:-

- 1. The appeal be and is hereby allowed. - **nd** 2. The certificate oftitle to Bunyangabu Block 84 Plot ¹¹ acquired by the 2 Respondent be and is hereby cancelled. - **nd** 3. The ² respondent pay the taxed costs ofthis Court and in the Court below.

We approve COUNSEL FOR THE APPELLANTS ONDENTS EXTRACTED this **LT** 2001. DE TY REGISTRAR! We approve COUNSEL FOR TH^CpS^ **Sayor.fept...'. Hl** GIVEN under my hand and Seal of this Honourable Court at Fort Portal this..tV. Y?lay of lYWA .2001.