[2021] UGHCLD 125

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

## CIVIL SUIT NO. 003 OF 2016

$\texttt{MBARAGA}\ \texttt{EVERest}.\texttt{mm}.\texttt{mm}.\texttt{mm}.\texttt{mm}.\texttt{mm}.\texttt{mm}.\texttt{p}\texttt{L}\texttt{A}\texttt{I}\texttt{N}\texttt{T}\texttt{I}\texttt{F}$

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## **VERSUS**

- 1. MUKABALAMBA ESTHER - 2. TADEO SERUMAGA - 10 - 3. NAJJENGO JOSEPHINE (Administrators of the estate of the late Apolinali $\textit{\textbf{K}asimagwa)}\textbf{.}\textbf{.}\textbf{.}\textbf{.}\textbf{.}\textbf{.}\textbf{.}\textbf{.}\$

# Before: Lady Justice Alexandra Nkonge Rugadya

### **JUDGMENT**

## **Introduction:**

The plaintiff, Mr. Everest Mbaraga instituted *Civil Suit No. 003 of 2016* against the defendants jointly and severally, seeking a declaration that he is the lawful owner of the suit land measuring 4.5 acres comprised in *Bulemezi Block 182, plot 45* formerly *plot 33*, land at Ntagala; an order $20$ cancel/survey and subdivision of the title of the land comprised in *plot 45* that was fraudulently subdivided from **plot 33, block 182;** a permanent injunction restraining the defendant jointly and severally from any further interference with the plaintiff's quiet enjoyment of his premises; damages of *Ugx 20,000,000/*; for trespass and costs of the suit.

#### $25$ **Representation:**

The plaintiff was represented by M/S Ochieng Associated Advocates & Solicitors, the 1^st defendant by $M/S R. M$ Ruhinda Advocates & Solicitors, while the 2^nd and 3^rd defendants were at some point represented by *M/S Rugambwa*, *Gadala Advocates*.

## **Brief facts:**

The facts as presented by the plaintiff are that he bought 4.5 acres from Mr. Daudi Musoke Kintu on 14^th January, 1990.

- Mr. Tadeo Serumaga and Ms Najjengo Josephine, respectively the 2^nd and 3^rd defendants, are $\mathsf{S}$ the administrators of the estate of the late Apollinali Kasimagwa, former registered owner of the land under which the suit kibanja is situate. The two had approached him with an offer which he accepted, to purchase the legal interest and obtain the title for a *kibanja* he had bought from the previous *kibanja* owner. - He paid the purchase price and transfer instruments were duly executed by the two 10 administrators, to enable him process the certificate of title into his names. He however discovered later that Ms Mukabalamba Esther, the 1^st defendant, had bought a portion of the kibanja land and is currently the registered proprietor of the land, later subdivided into plots 107 and 108. - It is the plaintiff's claim that the $2^{nd}$ and $3^{rd}$ defendant connived with the $1^{st}$ defendant and 15 without his knowledge and consent surveyed and enclosed off his portion measuring 4.5 acres, which was part of **plot 45**, formerly **plot 33**. They sold to him the entire land including the portion claimed as his and got it registered into her names.

He further contended that this was land which he had occupied and utilized without any interference and with the full knowledge and approval of the former registered owner of the land 20 as well as the administrators of the estate. The defendants also demolished and destroyed the plaintiff's building and materials, acts which he claimed entitled him to damages.

## Arguments by the 1^st defendant:

The 1^st defendant filed a defence and counterclaim. Efforts made to serve the 1^st defendant to secure her attendance did not yield any results. Although she filed a defence and counterclaim 25 she failed to turn up in court, and later became elusive.

Briefly, she claimed in her statement of defence that she had purchased the land in 2009 from the 2^nd and 3^rd defendants and that she and her family had been in possession of the suit property, deriving livelihood therefrom.

In the counterclaim, she sought a declaration that she was the lawful owner of the land as 30 indicated in her title; a permanent injunction to restrain the counter defendant from any further

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trespassing or interference with her quiet enjoyment of her premises; general damages; and costs.

## Arguments by the $2^{nd}$ and $3^{rd}$ defendants:

The 2^nd and 3^rd defendants represented by filed a defence. They were duly served but initially did not turn up during the trial. In their defence they did not deny knowledge of the plaintiff's interest and even offered to give the plaintiff additional land to compensate for any shortfall in the 4.5 acres bought by the plaintiff.

The 2^nd and 3^rd defendants who were unrepresented were present during the *locus* visit during which their evidence was taken on oath.

10 **Issues:**

- 1) Whether the plaintiff is the lawful owner of the suit land measuring 4.5 acres of the suit land: - 2) Whether the transaction between the $1^{st}$ and $2^{nd}$ and $3^{rd}$ defendants was *fraudulent/unlawful;*

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3) What remedies are available to the parties.

### 1ssue No: Whether the plaintiff is the lawful owner of the suit land measuring 4.5 acres 20 of the suit land:

By virtue of section 101 (1) of Evidence Act, Cap. 6, whoever desires court to give judgment to any legal right or liability depending on the existence of any facts he/she asserts must prove that those facts exist. (George William Kakoma v Attorney General [2010] HCB 1 at page $78).$

25 The burden of proof lies therefore with the plaintiff who has the duty to furnish evidence whose level of probity is such that a reasonable man, might hold more probable the conclusion which the plaintiff contend, on a balance of probabilities. (Sebuliba vs Cooperative Bank Ltd. [1982] HCB 130; Oketha vs Attorney General Civil Suit No. 0069 of 2004. The principle equally applies to this case where proceedings were *exparte*.

#### 30 **Analysis of the evidence:**

The plaintiff relied on a hand written sale agreement PExh 9 (a). DW2, Mr, Dauda Kintu Musoke in that transaction had sold the *kibanja* at Ntagala, which was sitting on Polinali Musoke's land. The purchase amount of *Ugx 50,000/*= had been paid in cash.

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**DW2** was not a witness during the trial but was present during the locus visit, took oath and confirmed to court that he had bought the land from jajja Polinali, which he later sold to the plaintiff.

- **PExh 10** is an acknowledgment by the $2^{nd}$ and $3^{rd}$ defendants of receipt of money from the plaintiff, dated 22^nd day of July, 2011. It makes reference to a sale agreement dated 23^rd $\mathsf{S}$ November, 2010 by which the plaintiff intending to acquire legal interest had paid *Ugx* **2,000,000/=** out of total sum of *Ugx* 9,000,000/= for the 4.5 acres. *PExh* 10 indicates that the balance of *Ugx 7,000,000/-* was also later received by the two defendants, and these were facts which were disputed. - The said document was not only confirmation of the kibanja interest acquired as early as 1990 10 but was also that the plaintiff also subsequently took appropriate steps to acquire legal ownership of that same portion of land in 2010.

The administrators allowed him to carry out the survey which showed that actual area was not 4.5 acres but 4.25 acres. By that agreement, instruments of transfer duly executed were irrevocably relinquished, together with any interest originally claimed by the defendants.

The administrators had also committed themselves to add more land to the plaintiff, in the event that what was available did not add up to the 4.5 acres which he was entitled to. Furthermore, by that deed **PExh 10**, the purchaser was to commission a surveyor to delineate the 4.5 acres.

The entire process was to be completed with the handover of deed plans to the lawyers, who were to lodge the same with the Bukalasa, land office for the creation of a certificate of title to the 20 land, and thereafter hand over the certificate to the plaintiff. The parties had endorsed the agreement, in the presence of Mugisha Patrick and Dorothy Nandugga Kabugo, an advocate.

According to the $2^{nd}$ defendant who testified as **DW1**, a survey of the land had been conducted in the presence of both the plaintiff and the 1st defendant, but in the absence of the administrators.

Asked by court whether the administrators had the title, **DW1's** response was that the administrators had only the mother title for **plot No.33**, which they however did not avail to court. He told court that although there was no dispute in respect of the sizes sold to the 1^st defendant and plaintiff they remained uncertain about the boundary of the plaintiff's land.

**PExh 1** dated $2^{nd}$ July, 2011 was the transfer form signed by the $2^{nd}$ and $3^{rd}$ defendant and the 30 plaintiff as the purchaser. **PExh 2** was the mutation form. **PExh 3** was the area schedule which shows that **plot 45** had been divided into **plots 47 and 48**, which was balance by residue.

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**PExh 4,** a certificate of title showed that the $1^{st}$ defendant was the registered owner of **plot 45**. **PExh 5** was a warning of court action by the 1^st defendant through *M/S Mugarura*, *Kwarisiima* & Co. Advocates dated 11^th February, 2014. In her WSD she also referred to the sale agreement marked 'B', as proof of how she had acquired the land, but which she did not attach to her defence.

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In response to the 1^st issue therefore, and going by the admissions made by the administrators of the estate and as per the unchallenged evidence adduced by the plaintiff, I am inclined to believe the plaintiff's claim that he holds a valid equitable interest in the suit kibanja, which he had acquired prior to that of the $1^{st}$ defendant.

## Issue No. 2: Whether the transaction between the 1^st and $2^{nd}$ and $3^{rd}$ defendants was 10 fraudulent/unlawful:

Trespass to land will occur when a person makes an unauthorized entry upon land and thereby interferes or portends to interfere, with another person's lawful possession of that land.

Needless to say, a tort of trespass to land is committed, not against the land, but against the

person who is in actual possession of the land. (See: Justine E. M Lutaaya vs Stirling Civil 15 Engineering Company Ltd. Civil Appeal No. 11 of 2002). Such possession may be physical or constructive.

The plaintiff in *paragraph 11* of his statement stated that his interest was created in 1990 and from his evidence had paid for the legal interest in 2010 for the same land which he later established had been sold to the 1^st defendant.

On their part, the 2^nd and 3^rd defendant admitted that there was an error in survey which was carried out in their absence by which the plaintiff's kibanja became part of the land for the 1st defendant.

By virtue of section 58 of the Evidence Act, Cap. 6, facts admitted need not be proved. That provision is equally applicable to the 1^st defendant who constructively admitted the plaintiff's 25 assertions when she failed to turn up in court to pursue her defence. See: Asuman B Kiwala versus Chief Registrar of Titles HC MA NO. 106/2004 (2004) KALR – pages 518 – 519.

Fraud is such grotesque monster that courts should hound it wherever it rears its head and

wherever it seeks to take cover behind any legislation. It unravels everything and vitiates all 30 transactions. (Fam International Ltd and Ahmad Farah vs Mohamed El Fith [1994]KARL 307). Thus where fraud is alleged, not only must it be specifically pleaded, it must also be proved beyond the standard required in any ordinary suit.

N. Joly

It is also stated under **section 176 RTA** that no action of ejectment or other action for recovery of any land shall lie or be sustained against the person registered as proprietor under the Act, except where for instance a person is deprived of any land by fraud.

- The particulars of fraud as pleaded in this case were: the 2^nd and 3^rd defendants sold the kibanja $\mathsf{S}$ to the 1^st defendant without giving the first option as a sitting occupant and owner thereof to purchase the legal interest; surveying and subdividing **plot 33** to create, inter alia, **plot 45** measuring 10 acres including the plaintiff's land measuring 4.5 acres without any compensation, despite knowledge of his presence and interest therein; concealing the plaintiff's interest in the suit land so as to defeat and defraud his interest. - In summary, the allegation of fraud were two-fold: disposing of property to the 1^st defendant 10 while fully aware of the plaintiff's interests therein; and the alleged act by the 1^st defendant of entering into the transaction, impliedly without exercising due diligence.

The 1^st defendant in her WSD denied the alleged connivance with the two administrators. She further denied knowledge of the claim that the plaintiff had at all material time been in ownership

15 of the land bought from one Dauda Musoke, the former *kibanja* owner. She also maintained in her defence that she had no knowledge of the arrangement between her co-defendants and the plaintiff by which they had agreed to curve off the 4.5 acres for him.

In *paragraph* 8 it was also her defence that she had done due diligence, searched the registry and got to learn that the 2^nd and 3^rd defendants were the registered owners. That since she had found the land vacant and unencumbered her assertion was that she had lawfully acquired the legal interest from her co-defendants; and therefore also rejected the claims by the plaintiff that she had committed fraud or acts of intrusion on the land to merit the prayer sought for

The second contention by the plaintiff was that his efforts to lodge a caveat on **plot 45** to protect 25 his interest was frustrated on account of the missing white page in the registry. (PExh 8, dated 18^th February, 2014).

In Vivo Energy Uganda Ltd vs Lydia Kisitu CACA NO. 193 of 2013, court while laying emphasis on the need for thorough investigation by a prospective purchaser of an interest in land, declared that where records of the alleged instruments of transfer were missing from the registrar's office the court's conclusion would be that there was sufficient circumstantial evidence

to establish fraud.

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cancellation of her titles to **plot 45..**

Courts have thus set standard rules which would help in determining whether due diligence was exercised by a prospective buyer prior to the purchase. These would require involvement by the

11. Load LCs, neighbors; and a search statement from the land registry. The objective of these processes is to establish that what is physical on the ground is synced to what is physical on the official record. There is no proof that this had been done in fulfillment of that objective.

Whether or not there was fraud and whether or not a party was a *bonafide* purchaser for value $\mathsf{S}$ without notice the question that a court would poise is whether the defendant honestly intended to purchase the suit property and did not intend to acquire it wrongfully. (David Sejjaka Nalima vs Rebecca Musoke SCCA No. 12 of 1985). Court would assume that a prospective purchaser who fails to carry out due diligence before purchasing the land is not bona fide.

A bona fide purchaser is defined in **Black's Law Dictionary 8^th Edition at page 1271** as:

"One who buys something for value without notice of another's claim to the property and without actual or constructive notice of any defects in or infirmities, claims, or equities against the seller's title; one who has good faith paid valuable consideration without notice of prior adverse claims."

Halsbury and Martin Modern Equity (Sweet and Maxwell) Ltd 1977, at page 27 provides:

"Prior equitable interest in land can only be defeated by a bonafide purchaser for value without prior notice. Then the equities are equal and his estate prevails. If he took with notice, the position is otherwise, as the equities are not equal. If he does acquire a legal estate, then the first in time that is the prior equitable interest prevails as equitable interests rank in the order of creation."

It is not in contention that the plaintiff has been in possession of the suit property since 1990. The defendants therefore had a lot to explain. For the $2^{nd}$ and $3^{rd}$ defendants the principle is applicable as per Bishopgates Motor Finance vs. Transport Brakes Ltd [1949] 1 KB 332, at **page 336-7** where court ruled that in the development of our law, some principles have striven for mastery.

For protection of property, no one can give better title than what he himself possesses. That legal principle was emphasized by the Supreme Court in Halling Manzoor vs. Serwan Singh Baram, SCCA No.9 of 2001, to the effect that a person cannot pass a title that he does not have.

30 After the land had been sold to the plaintiff as a kibanja in 1990, before the administrators could allow the 1st defendant to purchase the legal interest, they had to comply first with the requirements of section 35 (2) of the Land Act, Cap.227, that is, by the plaintiff the first option of buying the legal interest since he was already in occupation. By the time they purported to sell him that legal interest, they had already purportedly, sold it to the 1^st defendant.

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Regarding the 1^st defendant, a person who purchases an estate which he/she knows to be in occupation of another person other than the vendor is not a *bona fide* purchaser for value without notice of the fraud if he/she fails to make inquiries before such purchase is made. It is not enough to plead as the 1^st defendant had done, that due inquiries had been made, and leave it at that. The party must go ahead and prove it.

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Thus in Uganda Posts and Telecommunications vs Abraham Kitumba SCCA No. 36 of 1995), such failure to make reasonable inquiries or ignorance or negligence was held to form particulars of the offence of fraud.

As established from the locus visit, the plaintiff in this case had been in physical possession of 10 the kibanja since 1990, an assertion which was not challenged by the defendants, by way of evidence.

It is evident that the 1^st defendant never took the trouble to establish what was on the ground before purchasing the legal interest in that land. The defence evidence fell short of showing any justification as to why the 2^nd and 3^rd defendants who had knowledge of the plaintiff's earlier acquired interest accepted his money in 2010 amounting to *Ugx 9,000,000/=* as purchase price

15 for the legal interest, having already disposed of that same interest to the 1^st defendant in 2009, a fact which the 1^st defendant had constructive knowledge of.

In selling the same rights to two different persons, within a period of just two years, the 2^nd and 3^rd defendants acted dishonestly. It was sheer negligence for them to have allowed the 1^st 20 defendant to take off her share, without getting involved and without any duty of care to the plaintiff who was already in occupation.

As it also turned out, the 1^st defendant was not telling the entire truth since the court during locus visit was also able to see the plaintiff's homestead, which strengthened his claim that he had been in occupation of that land long before it was surveyed off by the 1^st defendant.

25 In response to the 2^nd issue therefore, it would not be wrong to conclude that the defendants had connived with the 1^st defendant and in so doing, acted fraudulently to deprive the plaintiff of his interest in the land. The 2^nd and 3^rd defendant also received money by falsely pretending to the plaintiff that they had a legal interest to pass onto him, whereas not.

## Issue No. 3: Remedies:

30 The plaintiff seeks a declaration that he is the lawful owner of the suit land measuring 4.5 acres comprised in **Bulemezi Block 182, plot 45** formerly **plot 33,** land at Ntagala; an order to cancel/survey and subdivision of the title of the land comprised in *plot 45* that was fraudulently subdivided from **plot 33, block 182;** a permanent injunction restraining the defendant jointly

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and severally from any further interference with the plaintiff's quiet enjoyment of his premises; damages of *Ugx 20,000,000/*; for trespass and costs of the suit.

Upon request by this court, a search certificate dated 22^nd February 2021 was presented which showed that **plot 108, block 182** measuring 1.3930 hectares was in the names of the 1^st defendant.

Together with *plot 107*, also claimed to be hers. The two plots had been curved out of *plot 45*. The total area was 10.45233 acres, which was 4 acres less than what they initially believed was available for sale to the 1^st defendant and the plaintiff. This implies that the two administrators sold before they surveyed the land and obtained undue benefit from the plaintiff in respect of a part which they did not even have.

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Section 177 of the Registration of the Titles Act, Cap. 230 grants this court powers to direct the commissioner, land registration to cancel a certificate of title and any entries made in respect of *plots 107 and 108*.

As admitted by the defendants, a survey had been conducted without their participation which had resulted in curving off a portion of land which rightfully belonged to the plaintiff. the plaintiff 15 further contended that in the process of demolition, he had also lost properties whose worth he did not present. According to him such actions entitled him to general damages of **Ugx** $20,000,000/=$ .

## General Damages:

Damages are the direct probable consequences of the act complained of. **Storms vs Hutchison** 20 (1905) AC 515; Kampala District Land Board & George Mitala vs Venansio Babweyana, Civil Appeal No. 2 of 2007.

The damages may accrue as a consequence due to loss of use, loss of profit, physical inconvenience, mental distress, pain and suffering. A plaintiff who suffers damage due to the wrongful act of the defendant must be put in the position he or she would have been in, had she not suffered the wrong.

In **Robert Caussens v Attorney General SCCA No.8 of 1999** it was pointed out that the object of the award of damages is to give the plaintiff compensation for the damage, loss or injury he or she has suffered.

30 In the assessment of the quantum of damages courts are mainly guided by the value of the subject matter, the economic inconvenience that the party was put through at the instance of the opposite party and the nature and extent of the breach. (Uganda Commercial Bank V Kigozi $[2002]$ ) 1 EA 305.

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Given the above inconveniences attributed to the defendants, an award of *Ugx 20,000,000/=* as general damages would therefore be justified.

Also deduced from the above findings, this court came to the following conclusion:

- 1. The $2^{nd}$ and $3^{rd}$ defendants (administrators of the estate of the late Apolinali $\mathsf{S}$ Kasimagwa) acknowledged the existence of kibanja interest of the plaintiff which he had acquired as early as the 1990s from Dauda Kintu Musoke. - 2. The $1$ ^st defendant's interest in the land comprised in plots 107 and 108 Bulemezi Block 182, formerly plot 45, land at Ntagala was subject to the plaintiff's earlier acquired interest since the latter interest had been first in time. - 3. By the time the $1^{st}$ defendant bought land from the administrators of the estate, the plaintiff was lawfully and quietly in occupation of the suit land, utilizing the same without any interruption from the registered owners; - 4. The defendants committed acts of fraud which deprived the plaintiff of his interest rightfully acquired by him. - 5. The creation of plot 45 out of plot 33 and thereafter plots 107 and 108, Bulemezi 20 Block 182, land at Ntagala was irregular in so far as it was curved out of land, a portion of which rightfully belonged to the plaintiff;

Accordingly, since the survey had been carried out without the involvement of the administrators 25 the 1^st defendant had obtained land that had already been purchased by the plaintiff, a fact which she had impliedly admitted when failed to turn up in court to offer to this court any better or contrary explanation.

As stated earlier, section 177 of the Registration of Titles Act, Cap. 230 gives this court powers to direct, as I now hereby do, the commissioner, land registration:

1. a) to correct the titles and entries irregularly entered in the names of the $1^{st}$ defendant in respect of plots 107 and 108, Bulemezi Block 182, land at Ntagala;

10 Unboug

- b) to oversee a re-survey of the land comprised in plots 107 and 108, formerly plot 45 and curve out an area of 4.5 acres which, as established by court rightfully belongs to the plaintiff; - $\mathsf{S}$

- c) to create another title for the $1^{st}$ defendant at her own cost, for the residue of the area after the 4.5 acres has been curved off. - 2. A permanent injunction issues, restraining the defendants jointly and severally from any further interference with the plaintiff's quiet possession and enjoyment of his premises; - 3. General damages of Ugx 20,000,000/ are awarded against the 1st defendant for trespass; - 4. Costs of the suit to be jointly met by the defendants. 15

I so order.

20 Alexandra Nkonge Rugadya

Judge

6^th June, 2021

Debuced hy email<br>16/6/2021<br>Abboey

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