[2011] UGHC 200

# **IM THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA**

## **CIVIL SUIT NO. 715 OF 2001**

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- **1. misurera KIVIIRI BATUMA ■)** - **2.** enoka buule sejongo - **3. EMMANUEL KATWE KASASA** - **4. SAMUEL BWETE** - **5. YUDU BUULE**

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## **VERSUS**

# **ATANANSI NTAAMA** JO

### / CERTIFIED TH:UE COPY OF TKE

**PLAINTIFFS**

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## **JUDGEMENT OF HON. MR. JUSTICE MOSES MUKIIBI**

The plaintiffs brought this action against the defendant for:

- (') Unlawful registration and fraudulent transfer of land comprised in Bululi Block 108 plot 4 situate at Singya village in Nakasongola District measuring approximately 198.7 hectares (490 acres) into the names of the defendant. - **(ii)** Cancellation of the certificate of title. - (iii) Revocation of Letters of Administration vide Katika'mu Grade 11 Magistrate's Court Administration Cause No. 3 of 1999, and /or a declaratory order that the same are null and void. - **(iv)** A permanent injunction to restrain the defendant his agents, servants and successors in title from occupying and use of the suit land.

The plaintiffs are joint administrators of the estate of the late Samwiri Musisi Senfuma. The latter was the lawful proprietor owner of the land comprised in Bululi Block 108 plot 4 situate at Singya (hereinafter referred to as the "suit land").

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The plaintiffs averred in the plaint as follows:-

- $(i)$ That the late Samwiri Musisi Senfuma died on the 1^st day of June, 1993. - $(ii)$ That the plaintiffs were duly appointed joint administrators of the deceased's estate vide Letters of Administration dranted on 27.10.1995 in High Court Administration Cause No. 373 of 1993

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- $(iii)$ That during the years 1998/1999 a one Rose Nagamba, being unknown to the plaintiffs and a fictitious and non-existing person, was fronted and or/held out to be a widow of the late Samwiri Musisi Senfuma (the deceased) and she applied to the magistrate Grade II Court at Katikamu for Letters of · Administration to administer the estate of the deceased. Letters of Administration dated 21.1.1999 were granted to Rose Nagawa in Administration Cause No. 3 of 1999. - That the said Letters of Administration were wrongly issued by $(iv)$ an incompetent Court. The said grant was presented to the Registrar of Titles at Bukalasa land office with an application to be registered as Administrator of the deceased's estate. The suit land was transferred vide Instrument No. BUK.54581 dated 11.2.1999. - That the said Rose Nagawa, the purported Administrator of the $(v)$ deceased's estate and vendor of the suit property, is not known to them, nor is she a relative, widow or beneficiary in relation to the deceased's estate. The said Rose Nagawa had no authority whatsoever to sell or not at all, and that the said Letters of Administration are null and void. - They learnt of the purported registration and subsequent $(vi)$ fraudulent transfer of the suit land into the defendant's names. In-order to protect their interests and those of other beneficiaries

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of the deceased's estate they caveated the certificate of title for the suit land

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The plaintiffs pleaded, as particulars of fraud the following:-

- (a) Presenting to the Registrar of Titles at the land office, Bukalasa, false documents to cause a survey, registration and transfer of the suit land, into the names of the purported vendor, fraudulently and well knowing that a one Rose Nagawa is not a member, widow or beneficiary of the deceased's estate, is unknown and a no-existing person but fronted for purposes of executing and fraudulently completing the transaction. - $(b)$ The Registrar of Titles was fraudulently induced to register and transfer the suit property into the names of a one Rose Nagawa (sic) purporting to be an Administrator of the deceased's estate. - (c) Whereas there were valid Letters of Administration issued to the plaintiffs by the High Court, presenting to the Registrar of Titles, Letters of Administration granted by a Magistrate Grade II dated 21.1.1999, which had been wrongly and fraudulently procured in favour of one Rose Nakagwa (sic) an unknown, fictitious and nonexisting person used to cause the transfer of the suit land. - (d) The defendant fraudulently causing area survey of the suit land. registering three transfers in respect of the suit land on the same day (11.2.1999) where by the defendant fraudulently got registered as proprietor, purporting to have bought the same. - (e) That the defendant had prior knowledge and adequate notice that the suit land belonged to the late Samwire Musisi Senfuma but fraudulently got it re-surveyed, registered and transferred into his name by presenting to the Registrar false documents to effect the necessary registration.

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The plaintiffs pleaded in the alternative that the defendant had acquired proprietory interest in the land adjacent to the deceased's suit land but he caused a re-survey of plot 4 without the necessary and proper consent of the plaintiffs and he wrongly and fraudulently procured registration and subsequent transfers.

The plaintiffs averred that they have been denied quiet use and possession of the suit land and the interest of all the other beneficiaries therein have been jeopardized, thus causing loss and damage.

The plaintiffs prayed for judgment against the defendant for:-

- $(i)$ a declaratory order that the suit land is the property of the deceased: - $(ii)$ That the entries made on the certificate of title under Instruments No. BUK 54581, BUK 54582 and BUK 54583 dated 11.2.1999 be cancelled and / or expunded therefrom. - (iii) That the Letters of Administration issued by Katikamu Grade II Magistrate's Court in Administration Cause No. 3 of 1999 be revoked and / or declared null and void. - A permanent injunction restraining the defendant, his agents, $(iv)$ servants and successors in title from occupying and use of the suit land. - Costs of the suit. $(v)$

The defendants in his written statement of defence, pleaded as follows:-

1. In answer to the claim against him the defendant pleads that he is a bona (sic) fide purchaser of value without notice of the plaintiffs' interests in the land in question. All allegations of fraud set out the plaint (sic) are specifically denied and the plaintiffs are put to strict proof thereof. Crystrem Inte

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2. (a) The defendant was a licensee or tenant by occupancy on the land in question having been permitted to graze his cattle on the land by the registered owner Samwiri Musisi Senfuma from July 1986 till he bought the same in December, 1998 from Senfuma's widow Rose Nagawa and Administrator of his estate. (A photocopy of the sale agreement was attached)..

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- (b) Plaintiff No.3 Kasasa is the person who convinced the defendant that Rose Nagawa had Powers from the Court to sell the land. - (c) Part payment to Rose Nagawa was made in the presence of Kasasa, plaintiff No. 3 who witnessed the sale agreement. - (d) Summons were served upon the defendant in the presence of Kasasa, Plaintiff No.3 and Kiviri, plaintiff No. 1 and the defendant pointed it out that Kasasa was involved in the sale of the land. When plaintiff No.1 inquired from Kasasa, the latter kept quiet. - Plaintiff No. 3 Kasasa was present together with Rose Nagawa $(e)$ at Kukalasa land office when the transfer into the defendant's names was effected. - 3. The plaintiffs are not entitled to any of the prayers sought in the plaint. The defendant prays that the plaintiff's suit be dismissed with costs.

The plaintiffs replied to the defendant's written statement of defence as follows:-

- The plaintiffs jointly and severally join issue with the defendant $(i)$ on his amended written statement of defence. $\cdot$ - The plaintiffs have capacity and authority to sue and be sued as $(ii)$ joint administrators of the deceased's estate. **CERTIFIED TITUES**

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$(iii)$ The plaintiffs shall aver and contend that there is no mis-joinder of causes of action whatsoever.

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$(iv)$ The plaintiffs shall adduce evidence to prove that the defendant is not a bonafide purchaser for value without notice. The defendant concedes knowledge of the interests of the deceased in the suit land.

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- $(v)$ The plaintiff shall reiterate that one Rose Nagawa is not known to them, and was not even mentioned in the deceased's will as a widow. - $(vi)$ The plaintiffs shall aver that the purported sale agreement dated 16^th September, 1999 (sic) was concocted merely for purposes of shown defence. The purported sale preceded obtaining Letters of Administration which were dated 21.1.1999 which are also challenged. - $(vii)$ Other matters alleged in the written statement of denfence are .denied.

When the suit came up for hearing the plaintiffs were represented by Learned counsel Mr. Edward Mugogo and the defendant was represented by Learned Counsel Mr. Majori Charles. At the scheduling conference some facts were agreed upon. It was also agreed that certain documents be tendered and admitted in evidence by consent.

- It was agreed that the plaintiffs are the administrators of the 1. estate of the late Samuel Musisi Senfuma (the deceased). A Photostat copy of a grant of Letters of Administration dated 27/10/1995 issued under Administration Cause No. 373 of 1993 by the High Court was admitted in evidence as Exhibit P1. - It was agreed that the suit land had been transferred to the $2.$ defendant.

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A certified true copy of the white page of original land Register/Certificate of Title for Bululi Block 108 plot 4 showing one Atanansi Ntaama as registered proprietor was admitted in evidence as exhibit P.2.

$3.$ A photocopy of an application to be registered as Administrator made by Rose Nagawa dated 9.2.1999 was admitted in evidence as Exhibit $P.3$ .

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- A certified true copy of an Instrument of transfer executed by 4. Rose Nagawa and Atanansi Ntaama in respect of land comprised in Block 108 plot 4 was admitted in evidence as exhibit $P.4$ . - 5. A certified true copy of a group of Letters of Administration dated 21.1.1999 issued to Rose Nagawa under Administration Cause No. 3 of 1999 by E. D. S. Kayongo Esq Magistrate Grade II in the chief Magistrate's Court at Katikamu in respect of the estate of the late Samwirei Musisi Senfuma was admitted in evidence as Exhibit P.5. - 6. A Photostat copy of a caveat and it s supporting affidavit registered as encumbrance on block 108 plot 4 (the suit land), lodged by Misusera Kiviri Batuma, was admitted in evidence as Exhibit P.6. - A Photostat copy of mutation forms leading to the creation of plot 7. 4 of Block 108 was admitted in evidence as Exhibit P.7. - A Photostat copy of a Blue page for land comprised in Bululi 8. Block 108 plot showing Rose Nagawa as registered proprietor was admitted in evidence as Exhibit P.8. - An uncertified copy of a print showing plots Nos. 1, 2, 3 and 4 of 9. land comprised in Bululi Block 108 situate at Singya was admitted in evidence as Exhibit P.9. - 10. It was agreed that as a result of mutation plot no. 4 was created and registered in the names of the defendant.

11. It was also agreed as a fact that the defendant is in possession and use of the suit land. **CENTRIED TRUE**

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Five issues were framed and agreed upon by both Counsel for the determination of this suit. These are:

(1) Whether the late Samuel Musisi Senfuma is the lawful owner of the suit land.

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- (2) Whether the defendant is a bonafide purchaser for value. - (3) Whether the defendant was fraudulently registered as proprietor of the suit land. - (4) Whether the Letters of Administration issued under Administration Cause No.3 of 1999 are null and void. - (5) Remedies available to the plaintiff.

Fraud means actual fraud or some act of dishonesty. A person deprived of any land by fraud may bring action to recover the land against the person registered as proprietor of that land through fraud or against a person deriving title otherwise than as a transferee bona fide for value from a person registered though fraud. See section 176 (C) of the Registration of Titles Act.

Cases Waimiha Saw Milling Co. Ltd vs Waione Timber Co. ltd (1926) A. C 101 (Privy Council). David Sejjaaka Nalima vs Rebecca Musoke, Court of Appeal No. 12 of 1985 (Odoki, J. A as he then was). Fraud must be specifically pleaded and particulars of the fraud alleged must be stated on the face of the pleading. Once fraud is proved on the part of a registered proprietor the certificate of title may be cancelled. For fraud to constitute a good ground for cancellation of a certificate of title the fraud must reside in the transferee. Kampala Bottlers Ltd vs Damanico (U) Ltd SCCA No. 22 of 1992 (unreported). It is our law that fraud must be proved strictly. The burden is heavier than on a balance of probabilities generally applied in Civil matters. Ntege Mayambala vs Christopher Mwanje Civil Appeal No. 72 of 1993 (reported) in 1994 1 KALR 67.

CENT & DIRU COPY OF THE ORIGINAL The defendant seeks refuge under the doctrine of a bonafide purchaser. This common law doctrine is provided for under Section of the Registration of Titles Act. The effect of the Section is that once a registered proprietor has purchased the property in good faith his title cannot be impeached on account of the ground of the previous registered proprietor. A bona fide purchaser therefore obtains a good title even if he purchases from a proprietor who previously obtained by fraud. However, before a purchaser can claim the protection of Section of the Registration of Titles Act he must act in good faith. If he is guilty of fraud he will cease to be innocent and therefore lose the protection. David Sejjaaka Nalima vs Rebecca Musoke (supra). **CERTIFIED TRUE**

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## Nalongo Namubiru (PW4) testified as follows:

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The late Senfuma Musisi was her husband. Her husband had a home at Mpande village. She stayed there with her husband. She was alone at that place. When she left she was replaced by Ruth Naggayi. At the time Senfuma Musisi died he had Ruth Naggayi as a wife. The witness stayed at Mpande village for 15 years. During that period she did not know of any co-wife called Rose Nagawa. She did not know of any herdsman who rented her husband's land. She did not recall any one called Ntaama. She did not see the defendant at Mpande village. Ruth Naggayi died and was buried at her father's kibanja at Mpande village.

## Yayero Musisi Kasasa (PW3) testified as follows:

The late Samuel Senfuma Musisi was his father. The late Mangalita Nambi Nalungwa was his mother. Senfuma Musisi died in mid-1993. He was residing at Mpande village, in Bulemezi Luwero District. They have many Mother's in their family. The witness does not know Rose Nagawa. She is not one of their mothers. The mother who stayed at Mpande village until their father died was called Ruth Naggayi. She is the mother of the last two children. She died in 2000 at Mpande village. The witness

does not know Atanansi Ntaama. As a family they did not have Rose Nagawa in the list of mothers.

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Emmanuel Kasasa Katwe (PW2), the 3^rd plaintiff, testified as follows:-He knows Senfuma Samuel Musisi, his Cousin, who died in 1993. The deceased had a wife called Ruth Naggayi who passed away in 2001. The witness was not aware of the land at Singya. He received information about it from the children of the late Samuel Musisi. He did not know the current occupant of the land. He did not know any Rose Nagawa as a wife of the deceased. Rose Nagawa never contacted him concerning the land at Singya which was sold to Ntaama. The witness had never seen Ntaama and did not know him. He did not know the agreement which had been written in Luganda dated 16^th December, 1998. It was not true that he had participated in the sale transaction. His initials are E. K. The initials on the Agreement were E. B. It was not his handwriting. He never participated in the sale of that property.

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In answer to questions put to him in cross –examination the witnesses stated as follows:-

He is called Emmanuel Kasasa Siyita Mukyoto Geresomu Katwe. He had never seen the Agreement. He had never heard of the people whose names were written on the document. He did not know anything concerning land at Singya, Nabiswera. He had not heard any dispute concerning the suit land. He did not know anything concerning that land. The land title (Exhibit P2) showed Atanansi Ntaama as the registered owner of the land. He had never seen him. He did not know any Rose Nagawa. He had never been at the land office at Bukalasa with Rose Nagawa.


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$10$ Atanansi Ntaama (DW10, the defendant, testified as follows: He is 76 years old. He resides at Singya, Nakasongola District. He is a herdsman. He did not acquire land fraudulently. At first he got it from his boss Musisi in July, 1986. He found Musisi at his home in Mpande -Kalule. The witness was introduced to Musisi by one Lutaakome. He asked Musisi to allow him to graze his cattle in his land. Musisi told him that since the land was being used by wild animals, he could not refuse to allow him to graze his cattle on the land. Musisi did not charge him anything. Musisi asked him to look after that land. The witness used to visit Musisi from time to time. He would give Musisi butter and milk. Musisi used to love him as son. Musisi was about 80 years old. The witness grazed on that land from 1986 until 1998. Musisi's wife called Rose Nagawa came with E. B. Kasasa. The witness knew that Rose Nagawa was Musisi's wife. She used to reside at Musisi's home as a wife at Mpande village. He had seen her in Musisi's home from July, 1986. He saw her until she died. She was the only wife at Musisi's home. Rose Nagawa and Kasasa found him at Singya grazing on the land. They told him that if he did not want to buy the land they would sell it to someone else. They negotiated the price and he bought the land. When Rose Nagawa and Kasasa came he paid a deposit in the presence of the LCS at Singya. The chairman LCI was called Byaruhanga Hillary. An agreement was made. The witness paid a deposit of Shs. 400,000/=. They had agreed on the purchase price of Shs. $3,500,000/$ =. He paid the balance after they had given to him the certificate of title. He paid the sum of Shs. 400,000/= to Kasasa who counted it and gave it to Nagawa. After they had given him the certificate of title he went to the Bank and got the money. The witness, Kasasa and Nagawa went to some house where the witness handed over the sum of Shs. 3,100,000/= to Kasasa. Kasasa counted the money and gave it to Rose Nagawa. They wrote on the Agreement an acknowledgment of receipt of the balance. The agreement was signed by Rose Nagawa, E. B Kasasa, Byaruhanga Hilary, Ssali and

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Musoke. Musoke was a boda boda rider who brought E. B. Kasasa and Rose Nagawa on a motor cycle. On 12.2.1999 the witness paid the balance of Shs. 3, 100,000/ $=$ to them and they gave him the certificate of title. Rose Nagawa died at Mpande village, at the home of the late Musisi. He last saw her when she was very ill at Mpande village. When he went to Musisi's home he met there two male children whom Nagawa had born for Musisi. The elder boy is called Kyobe while the younger boy is called Kyagera.

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The witness saw E. B Kasasa again when he came with Misusera Kiviri to his home. (misusera Kiviri was actually sitting in Court). E. B Kasasa resides at Bbaale village. He did not deal with the Kasasa who had testified in Court. The witness had not heard of a person called Ruth Naggayi. He did not know a wife of Musisi called Ruth Naggayi. He knew Rose Nagawa. (Witness is shown a document) This is an agreement which Rose Nagawa made for the witness when she was selling the land to him. The agreement shows the sum of shs.3.5M as the purchase price. The witness paid that money to Rose Nagawa. (The English translation of the agreement was admitted in evidence as exhibit D. I.

On 12.2.1999 the witness completed payment of the purchase price and was given the certificate of title. He has the certificate of title. The title was originally in the names of Musisi Senfuma. The names of the Rose Nagawa were registered on the certificate of title. Thereafter the witness's names were registered on the title. He went to Bukalasa land office. The people who sold the land to him asked him to go with them to Bukalasa land office so that they could transfer the land to him. He paid the balance at Kasana after he had seen his names registered on the certificate of title. He keeps the duplicate certificate of title at home. He has developments on the land. The suit land is on a hill. All the surrounding land belongs to the witness. The disputed land is not fenced. The witness

does not know why the plaintiffs sued him. Before he purchased the land COPY OF received a letter inviting him to buy it if he wanted.

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Upon cross examination the witness testified as follows:-Before he purchased the land he had known Samwiri Musisi as his boss. Senfuma Musisi owned the land which he eventually bought. During Senfuma's lifetime the witness owned the land surrounding Senfuma's land. He was grazing cattle on his land. He had homes on his land. Samwiri Senfuma's land was not developed. He was grazing his cattle on Senfuma's land with his consent. He did not buy the disputed land from Samwiri Senfuma. At the time, he was grazing cattle on Senfuma's land he did not know if he had a title. He knew Senfuma, his wife and the young children. From the time he started grazing on the disputed land when ever he went to Musisi' home to take him gifts he used to find Rose Nagawa there. He used to find her at Musisi's home at Mpande. He negotiated the purchase price with Rose Nagawa and A. B Kasasa. The sale agreement was written by the LCI Secretary of Singya village. (Witness was shown exhibit P. IV the transfer). $\cdot$

The witness went to Bukalasa Land office with the sellers. He saw his names and those of his father on the document. He signed it at Bukalasa land office. Ssali Ben (Ben) (DW2) testified as follows:- He is aged 34 years. He resides at Singya LCI. He is the secretary of LCI Singya. He has been the secretary since 1996. He knows the defendant as a fellow resident of the same village. The defendant came with three people to their LCI office.

The three people were:

A boda rider, one Kasasa and a lady called Rose Nagawa. The defendant introduced these people to the witness. The defendant said that Rose Nagawa was going to sell land to him. The bargain had been completed. The defendant wanted the LCI Committee to make an

agreement for them. The chairman called Byaruhanga Hillary wrote an agreement. The witness was present and he signed the agreement. Rose Nagawa, Kasasa and Boda boda rider also <signed.it>. The defendant did not sign the agreement.. (The witness identified the agreement). It is the agreement dated 16.12.1998. (Witness described Roase Nagawa). The witness saw the defendant counting money, a sum of Shs. 400,000/= and paying it to Rose Nagawa. Then they wrote the agreement.

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Upon cross examination the witness testified as follows:

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**n** IO He came to Singya LCI village in 1993. The land which was sold is situated at Singya village. When he came to the village he found the defendant grazing his cattle on that land. Prior to making the agreement he had never seen Rose Nagawa. He wrote his names on the agreement. He saw the defendant counting money and paying it to Rose Nagawa. An agreement was made in favour of. the defendant. The chairman left the village. They made an agreement as proof of the transaction. They did not witness the payment of the balance. The defendant showed the witness the agreement for payment of the balance. In re-examination the witness told Court that Rose Nagawa informed the chairman of the Block and plot number for the land. Rose Nagawa gave to the LC Officials her names. The witness did not know why the agreement for sale had the plot number for the land as "2" while the certificate of title reads plot No.4.

> The defendant was recalled to produce the original agreement. The original vernacular agreement dated 16.12.1998 relating to the sale of the suit land was admitted in evidence and marked Exhibit . DIA. In my view issues 2 and 3 have to be considered together. Issue No.1 can only be answered after issues 2 and 3 have been determined.

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Whether the defendant is a bonafide purchaser for value.

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Whether the defendant was fraudulently registered as proprietor of the suit land. Counsel for the plaintiffs submitted that it is a settled principle of law that the onus is on the defendant to establish the plea of a bonafide purchaser for value without notice. Counsel cited: **Mpangazire & anor vs Nchumizi (1992 -1993) HCB 148.** According to Counsel, it was held in that case that a purchaser would not qualify to be a purchaser of value without notice if he carelessly bought land without inquiring to know whether the land belongs to the seller and whether he/she has any interest, power of attorney and/or authority to sell the land.

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Counsel contended that the defendant knew Samuel Musisi Senfuma as the owner of the land. Counsel submitted that the-defendant neglected to take precaution by ascertaining when the alleged widow (seller) had authority to sell the land.

Learned Counsel then dealt with the defendant's plea of a bonafide purchaser for valuable consideration without notice. He cited: David Sejjaaka Nalima vs Rebecca Musoke (Supra): The Court said that **a** purchaser who has put in that plea may be interrogated and tested to the extent as to the valuable consideration which he has given in order to show the bonafide or malafide.of his purchase and also the presence or absence of notice. Counsel submitted that the defendant was interrogated and the testimony and documents exhibited squarely challenged his plea.

On the question of fraud learned Counsel cited:

Kampala Bottlers **Ltd** vs Damanico (U) **Ltd** (supra). It was held that fraud must be directed to the party who gained registration through fraud.

**If** ¹⁵

"Fraud must be attributable to the transferee I must add here it must attributable either directly or by necessary implication. By this I mean the transferee must be guilty of some fraudulent act. Or must have known of such act by somebody else and taken advantage of such act". (Wambuzi , C. J as he then was). Learned Counsel pointed out some parts of the evidence which according to him, prove fraud. These are:-

> $(i)$ The defendant entering into a sale agreement with the alleged widow dated 16.12.1998 when he knew that she had no authority to sell.

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The defendant signing transfer forms as the purchaser when he knew that Rose Nagawa had obtained Letters of Ádministration from a Magistrate's Court Grade II at Katikamu.

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The defendant omitting to sign the sale agreement which required to him to pay a substantial consideration.

Counsel submitted that the evidence on record is sufficient to prove fraud to the required standard which impeaches the defendant's title. He submitted that the said fraud is attributable to the defendant as the registered proprietor.

Learned Counsel for the defendant filed two sets of submissions. I have carefully read and considered those submissions. I find it necessary to establish from the evidence on record who exactly Rose Nagawa was.

Yayero Musisi Kasasa (PW3), the son of the late Samuel Senfuma Musisi testified in his evidence in chief as follows:

"The last mother who was staying at Mpande village, who was there until $my$ father died, and who continued staying there thereafter was called Ruth Naggayi. She is the mother of the last two children. She died in 2000 at Mpande Bulemezi."

The child called Kyobe, now aged about 11-12 years and a son of Ruth Naggayi is the customary heir of our father". COPY OF THE ORIGINAL

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Nalongo Namubiru (PW4) testified as follows:

"I know the late Senfuma Musisi. He was my husband. My husband had a home at Mpande village. I stayed there with my husband. After I had left I was replaced by Ruth Naggayi. At the time Senfuma Musisi died he had that widow Ruth Naggayi"

In response to cross- examination she testified follows:-

"when I left Mpande village I was replaced by Ruth Naggayi. She died. She was buried at Mpande village at her father's kibanja". Atanansi Ntaama (DW1) the defendant testified as follows:-

Musisi's wife called Rose Nagawa came with E. B Kasasa. The witness knew that Rose Nagawa was Musisi's wife. She used to reside at Musisi's home as a wife at Mpande village. He had seen her in Musisi's home from July, 1986. He saw her until she died. She was the only wife at musisi's home.

Rose Nagawa died at Mpande village, at the home of the late Musisi. He last saw her when she was very ill at Mpande village. When he went to Musisi's home he met there two male children whom Nagawa had born of Musisi. Those boys used to stay at home. The children belonged to Nagawa. The elder boy is called Kyobe while the younger boy is called Kyagera.

He (the defendant) had not heard of a person called Ruth Nagaya. He did know a wife of Musisi called Ruth Naggayi. He knew Rose Nagawa. From the foregoing evidence on record it is clear that the plaintiffs and the defendant refer to the same person, Musisi Senfuma's last wife, but by different names. I find that evidence sufficient to conclude that infact the

The child called Kyobe, now aged about 11-12 years and a son of Ruth Naggayi is the customary heir of our father". **CERTIFIED TRUE COPY OF THE ORIGINAL**

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Nalongo Namubiru (PW4) testified as follows:

"I know the late Senfuma Musisi. He was my husband. My husband had a home at Mpande village. I stayed there with my husband. After I had left I was replaced by Ruth Naggayi. At the time Senfuma Musisi died he had that widow Ruth Naggayi"

In response to cross- examination she testified follows:-

"when I left Mpande village I was replaced by Ruth Naggayi. She died. She was buried at Mpande village at her father's kibanja". Atanansi Ntaama (DW1) the defendant testified as follows:-

Musisi's wife called Rose Nagawa came with E. B Kasasa. The witness knew that Rose Nagawa was Musisi's wife. She used to reside at Musisi's home as a wife at Mpande village. He had seen her in Musisi's home from July, 1986. He saw her until she died. She was the only wife at musisi's home.

Rose Nagawa died at Mpande village, at the home of the late Musisi. He last saw her when she was very ill at Mpande village. When he went to Musisi's home he met there two male children whom Nagawa had born of Musisi. Those boys used to stay at home. The children belonged to Nagawa. The elder boy is called Kyobe while the younger boy is called Kyagera.

He (the defendant) had not heard of a person called Ruth Nagaya. He did not know a wife of Musisi called Ruth Naggayi. He knew Rose Nagawa. From the foregoing evidence on record it is clear that the plaintiffs and the defendant refer to the same person, Musisi Senfuma's last wife, but by different names. I find that evidence sufficient to conclude that infact the

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6) Misusera Kiviiri Batuma (PW1) lodged a caveat on the land register for Bululi Block 108 Plot 4 on 29.5.2001 under Instrument BUK 55466. By simple calculation it was a period of four years and Seven months after the period which had been prescribed for rendering an account to court had expired.

The administrators had failed to register themselves on the land register as such within one year from the date of their grant.

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7) The widow of the late Musisi Senfuma continued to live in the matrimonial home at Mpande village until she passed away in 2000 Or 2001.

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8) The defendant continued to graze his cattle on the suit land until ■the said widow died.

In my view, if the administrators had wanted to know the status of the suit land from either the defendant or the widow between 27/10/1995 (the date of the grant of Letters of Administration) and December, 1998, they would have been told. Apparently, the administrators also failed to inquire about the suit land during that time.

- **9)** No evidence has been adduced to show that the defendant knew about the existence of the administrators of the estate of the late Senfuma Musisi during the period between 27/10/1995 and December 1998. - 10) According to the defendant it was Musisi's wife whom he knew as Rose Nagawa, who came with one E. B. Kasasa and offered to sell to him the suit land. No evidence contrary. By simple calculation from July 1986 the defendant had known Musisi's wife for twelve years. ^I find it reasonable to infer from the facts on record that the defendant must have known that musisi Senfuma had died. Did the defendant seek to know whether Musisi's .yvife had authority to sell the suit land? ' (Fu TRrB" cos y Of-THR raiGhMAL

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The defendant had been in occupation of the suit land from July, 1986 for a period of twelve years. He was not a stranger to the widow. Nor was the widow a stranger to him. What kind of inquiries would be expected in such circumstances?. According to the defendant the widow and E. B. Kasasa told him that if he did not want to buy the land they would sell it to someone else. He told court that they negotiated the price and he bought the land. Was this an act of dishonesty? It is my view that the defendant wanted the land and he had to express his interest by negotiating with the widow. I think he wanted to bind the widow and prevent her from seeking other buyers.

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- 11) The defendant took the widow and E. B. Kasasa to the Local Council 1 officials of Singya to write an agreement. Saali Ben (DW2) told Court that it was the chairman LCI called Byaruhanga Hillary who wrote the agreement. Ssali Ben (DW2) was the LCI Secretary of Singya. He was present and he signed the agreement. - 12) Ssali Ben (DW2) testified that he saw the defendant counting a sum of Shs 400, $000/$ = which was paid to Rose Nagawa. The defendant told court that he paid a deposit of Shs. $400,000/$ = out of an agreed purchase price of shs 3, 500,000/=. It was stated in the agreement (Exhibit D1) that balance of Shs $3,100,000/$ = would be paid when the title had been transferred. The defendant was dealing with a widow he knew. He was already in possession of the land. In my view the defendant felt he was in a secure position. He must have insisted that he would pay the bigger portion of the purchase price if the title to the land was transferred into his names.

In my view such a condition was precautionary. Would a purchaser acting in collusion with the seller to commit fraud insist on such a condition as that

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security for his money? And more so before the local authorities of the area?

13) Rose Nagawa obtained Letters of Administration dated 21/1/1999 from court of a Magistrate Grade II at Katikamu (Exhibit P.5).

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No evidence has been adduced by the plaintiffs to prove that the defendant was involved in the process leading to the issue of the said grant.

- 14) Rose Nagawa duly applied to the Registrar of titles under the Registration of titles Act to be registered as administrator of the estate of the late Samwiri Musisi Senfuma in respect of Bululi Block 108 plot 4, the suit land. The plaintiffs have not adduced anyevidence to show what role, if any, the defendant played in making this application. It has not been proved that the defendant was even aware of this process. - 15) During cross examination the defendant was asked the particulars of the land which he bought. He answered that the particulars had been stated in the agreement (Exhibit.) as Block 108 plot 2. He answered that it was on the basis of that agreement that he had paid the purchase price. The defendant was shown the transfer (exhibit PIV). He was asked for what block and plot the transfer had been made. He answered: "for block 108 plot 2" He was handed exhibit P. IV and asked what plot number was on the transfer". He answered: "The court can assist me and cannot see properly. The block no. is 108 the plot no. is 4 and I can see plot No.4"

He was handed the sale agreement (Exhibit...). He answered: "In the agreement there is plot No.2. I bought the same land". The defendant was asked to explain the difference".

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COPY OF THE GRIGHTAL

He said: "It was upon them because I had given them a lot of money. It was in application. They added on 2 to make it 4 in appreciation. I was interested in getting the title deed. I don't know what they did. They know better. I was interested in the title deed. I have just known today that I bought plot No.4".

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The Mutation Form (Exhibit P. VII) shows that plot No.2 had an area of 259.4 hectares. It also shows on the area schedule attached that plot 4 was 198.64 hectares.

In the agreement (exhibit D.1) Rose Nagawa sold her land measuring 491 acres at Singya on Block 108 Plot 2 Bululi. Ssali Ben (DW2) told ourt that it was Rose Nagawa who informed the chairman of the block and plot number for the land. The defendant told court that the sellers in appreciation of the purchase money, added on plot 2 to make it 4. He said he did not know what they did. Apparently the defendant did not know that plot No.2 had an area of 259.4 hectares and that to get 491 acres the subject matter of the sale there had to be are survey of plot 2 and a sub-division. The plaintiffs did not adduce any evidence to prove that the defendant was involved in the re-survey.

An uncertified copy of a print showing plots Nos. 1, 3 and 4 of block 108 situate at Singya was admitted in evidence as Exhibit P.9. it was agreed as a fact that as a result of Mutation Plot No.4 was created. The plaintiffs did not adduce any evidence to show the registered owners of plots 1 and 3 of Bululi Block 108. it was not established if the defendant has any relationship with those plots. If two plots Nos. 3 and 4 were curved out the original plot No.2 who became the owner of plot No.3?

In the circumstances I do believe the defendant when he answered that he did not know what the sellers did to change plot no.2 to become plot $No.4.$

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16) The defendant testified that the people who sold that land to him asked him to go with them to Bukalasa land office so that they could transfer the land to him. He went to Bukalasa land office. In cross-examination the defendant was shown Exhibit P. IV. he answered as follows:

"I can see my names and those of my father. I see my signature on this document. I signed it at Bukalasa land office. I had gone there for the sellers to transfer the title deed".

A certified true copy of the land register (known as the white page) (Exhibit $P.2$ ) shows that the transfer was registered on 11/2/1999 as Instrument No. BUK 54583. I have looked at the transfer (Exhibit P.4) and noted the defendant's signature. The handwriting tells that the defendant is semi-illiterate. He could not have prepared the transfer document. Apparently he could not read its contents within in the English Language. The defendant testified that on 12.2.1999 he completed payment of the purchase price. He was given the certificate of title. He paid the balance of the purchase price at kasana after seeing that his names were registered on the certificate of title. He told court that he went to the Bank and withdrew the money. He gave the money to Kasasa who counted it and gave it to Rose Nagawa. It was Shs. 3,100,000/=. He told Court that they wrote an acknowledgment of receipt of the balance on the agreement (exhibit DIA). I have looked at the vernacular agreement (Exhibit DIA) and noted the endorsement thereon dated 12.2.1999. signed by Rose Nagawa. I have also read the word "balance" and the sum: Shs 3,100,000/= as part of the said endorsement. The said TRUE acknowledgment was translated on Exhibit DI. COFY OF THE OCICINAL $10$

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Ssali Ben (DW3) testified that they (as LCs) did not witness the payment REG STRAND TOP-THE DATE: The defendant showed them the agreement for payment of the balance.

The defendant put in a plea of bonafide purchaser for valuable consideration without notice. He was interrogated and tested so as to prove the valuable consideration which he gave. I believe his evidence about the payment of the purchase money. I find that he made a purchase bonafide. I agree that the plaintiffs upon being grated Letters of Administration acquired a registrable interest in the suit land. However, they made no effort to disclose their existence to the defendant and several years elapsed. I find that the defendant had no notice of their existence or their interest in the suit land as administrators of the deceased's estate.

According to Misusera Kiviiri Batuma (PWI) him, Erioka Buule Sejongo and Emma Samwire Musis Senfuma. Samuel Bwete and Yuda Buule were sons of the deceased. Rose Nagawa as the widow of the deceased who remained at the matrimonial home at Mpande village, could have known about the grant of Letters of Administration to the above named people. However, no evidence was adduced by the plaintiffs to prove such knowledge on the part of Rose Nagawa. Yayero Musisi Kasasa (PW3) testified that they were holding meetings annually with his paternal uncles and the children of the deceased to discuss the way forward about the estate. He told court that they used to hold that meetings at Kasubi at the home of Misusera Batuma. No evidence was adduced by the plaintiffs to show that there was such interaction with the widow as would have made her aware of their appointment as Administrators. Whatever the widow knew there was no evidence to prove that such knowledge was passed on to the defendant. In otherwords, there was no evidence to prove that the defendant knew about the capacity of the plaintiffs but he

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saw the widow process another grant fraudulently and chose to take advantage of such act. In the absence of such evidence I don't agree with submission of Counsel for the plaintiffs that fraud has been proved to the required standard. It has not been proved that the defendant is guilty of any fraudulent act, or that he was aware of some fraudulent act on that part of the widow which he took advantage of.

In the result I find that the defendant's plea that he was a bonafide purchaser for valuable consideration without notice succeeds. I also find that there was no evidence of fraud attributable to the defendant as the registered proprietor of the suit land so as to impeach the defendant's title.

In the circumstances, I must answer the first issue in the negative. The late Samuel Musisi Senfuma is no longer the lawful owner of the suit land.

In light of my findings on issues 1, 2 and 3 above considerations of issue No.4 is of no consequence to this case. However, I need to comment on the evidence of Emmanuel Kasasa Katwe (PW2). He explained to Court that he used to attend family meetings for the late Musisi Senfuma. He said that his name as applicant for Letters of Administration could have been included because of that. He confirmed that he never went to court in pursuit of the application for a grant. He explained to court that he was informed by the children of the deceased that his name had been included in the application. He said that he had not carried out any duties in relation to the grant of Letters of Administration. He confessed that he did not know some the people who had been made his co-administrators of the estate of the late Musisi Senfuma. He did not know how the estate had been administered. He was not aware if any inventory of the deceased's estate had been prepared. He told Court that he had never

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**n** to To say the least ^I find the revelations strange. ^I find it reasonable to infer that Emmanuel Kasasa Katwe never signed the application/petition for a grant of Letters of Administration. If any declaration was filed to accompany the petition he never signed the declaration. He was never identified in Court as one of the applicants. He was not shown the grant of Letters of Administration. ^I can only say that his name was included as applicant by forgery. It appears the grant was obtained fraudulently by making a false representation that EmManuel Kasasa Katwe was one of the applicants whereas he was not. This would constitute just cause within the meaning of Section 234 (2) (b) of the Succession Act (Cap.162) to justify a revocation of the grant of Letters of Administration.

> The foregoing notwithstanding a grant of Letters of Administration was made to the plaintiffs. Section 264 of the Succession Act provides: *"After any grant of probation or Letters of Administration, no person other than the person to whom the same has been granted shall have power to sue or prosecute any suit, or otherwise act- as representative of the decease, until the probate or Letters of Administration has or have been recalled or revoked"*

This provision appears to me to be the authority for saying that once a grant of probate or Letters of Administration has been made to a person no one can apply for another grant in respect of the same estate until the subsisting grant has been renounced and surrendered or revoked by a competent court. So, in the instant case, after the grant of Letters of Administration had been made to the plaintiffs, the widow' could not lawfully seek another grant from any Court.

To answer the fourth issue, it is hereby declared that the Letters of Administration which were issued under Administration Cause No.3 of 1999 were null and void. Therefore, the said Rose Nagawa, as a widow of the deceased, could not lawfully act, as a legal representative of the deceased.

However, in this case, the plaintiffs have failed to prove that the defendant acquired the suit land through fraud. Fraud by Rose Nagawa the widow, from whom the defendant acquired title, did not affect him because knowledge of it was not brought home to him. In the result, the plaintiffs' suit against the defendant fails. The suit is hereby dismissed with costs to the defendant.

MOSES MUKIIBI JUDGE 19.4.2011

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## **THE REPUBLIC OF UGANDA**

**14^5**

# **IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA LAND DIVISION**

#### **CIVIL SUIT No. 715 OF 2001**

**1. MISUSERA KIVIRI BATUMA**

**2. ENOKA BUULE SEJONGO**

3. **EMMANUEL KATWE KASASA**

**4. SAMUEL BWETE**

**5. YUDA BUULE** ----------------

**J**

**PLAINTIFFS** lo

**VERSUS**

**ATANANSI NTAAMA DEFENDANT**

### **(Before Hon Mr. Justice Moses Mukiibi)**

#### **DECREE**

This suit conning up for final disposal and determination this 7th day of June 2011 before His Worship, Mr. Batema N. D. A, Deputy Registrar, High Court, Land Division, on instructions of **Hon. Mr. Justice Moses Mukiibi,** in the presence of Mr. Edward Mugogo, Counsel for the plaintiffs and Mr. Charles Majorie Bamuzibire Counsel for the Defendant and in the presence of the Defendant,

#### **IT IS HEREBY ORDERED AND DECREED** that:

a) That the plaintiffs' suit against the Defendant fails and is hereby dismissed

b) The plaintiffs shall pay costs of this suit to the Defendant

**GIVEN UNDER** my hand and the seal of this Court this day of

**Deputy Registrar 4**

**Extracted By^** *M/s Nile Law Chambers FfrsWoor, National Insurance Corporation (NIC) Building Plot 3, Pilkington Road, P. O Box 28276 Kampala.*

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