[2023] UGHCLD 323

### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA (rAND DTVTSTON) ctvtl sutT No.5'14 0F 2000

| EVARISTO MUGABI | | PLAINTIFF | |------------------|--------|-----------| | | VERSUS | | | ATTORNEY GENERAL | | DEFENDANT |

#### JUDGMENT EEFORE HON. I. ADY JUSIICE KANYANGE SUSAN

#### Background

The plaintiff Evaristo Mugabi sued the defendant Attorney General with other 1 1 defendants. He claimed that he was the owner of land comprised in kibuga block 29 plots 114 and 1 15. He sold land to Solome N. Walusimbi on the l2th March 1990. The said Solome Walusimbi breached the agreement and failed to pay thc full purchase price. The agent Bumbakali Mulamira who had the duplicate title allegedly told him it had got lost. The plaintiff obtained a special certificate of tit1e.

Later Bumbakali handed over the title deeds without his knowledgc to Solome. The said Solome presented forged transfer forms to the servants of the dcfendant and in collusion the land was transferred fraudulently. Solome N. Walusimbi sold plot 115 to Al1cn N. Nsubuga on 9th July 1999 and plot 115 to Rowana Rul'uza on 28th .lune 1999. Later Andrew Ruvuza aLnd Rowana Ruvuza soid plot 115 to Tonny Ba-fiirawa1a Kavuma, Allen N. Nsubuga sold plot 114 to Danicl

w

Nsubuga Kikapyo who registered it in thc names of his children trsther Nassuna, David Kasozi, Gcorge Mubiru, John Paui Miito and Edith Mulungi Namiiro.

Suit against the 2"d - 12th defendants were withdrawn by the plaintiff and he also settled with the 6th defendant Tonny Bafiirawala Kavuma. The caveat lodged by the ptaintiff on plot 114 was removed by the Registrar on 1"t February 1990 and the plaintiff said he was not notified. The plaintiff has thc 1"t special certificate of title to plots 115 and 114 of the suit property.

In their defence the l"t defendant dcnied any liability whatsoevcr rn the fraudulent acquisition of land by the said Solome N. Walusimbi. That the said Solome N. Walusimbi presented a duly signed transfer form for registration and that the caveat lodged by the plaintiff lapsed and. there was no collusion, or conspiracy in rcmoving the said caveat.

#### Representation

The plaintiff an Advocate and repre scntcd himsclf whilc thr: ^I"t defendant was represented by M/s Adongo Imelda a Scnior Statc Attorney from Attorney General's Chambers.

#### Issues

1. Whether the plaintiff has a cause of action against the defendant

- 2. Whether the defcndant's servants and or agents actcd fraudulently on the process of transferring thc suit property - 3. Whether the 1"t special ccrtificatc of titlc is valid - 4. What remedics arc availablc to thc partics

#### Resolution

## lWhether the plaintiff has a cause of action against the defendant.

A cause of action is defincd as every fact which is matcrial to bc proved to enable the plaintiff succeed on cvcry fact which if dcnicd the piaintiff must prove in ordcr to obtain a .. Iudgmcnt. It must bc disciosed when its shown that the plaintilf had a right that was violated, resulting in damage and thc delcndant is liablc. This position was reiterated in the Suprcme Court dccision of Tororo

## Cement Co Ltd versus Fokina International Ltd SCCA no 2 of 2o0L

The question whether a plaint discloses a causc o[ action must bc determined upon perusai of the plaint alone togethcr with anything attached to so as to form part of it. sec Kabonge versus Road Tarmack Ltd versus Npart CA no 3 of 2OOO.

In the amendcd consolidated plaint, in paragraph 3 thc plaintiff alleged that he was the registered proprietor of the suit land. paragraph 12, that in collusion with or with assistance of thc


servants or agents of the l"t defendant thc forged transfer was presented by )"a defendant for registration. Paragraphl5,that the transactions constituted fraud.

Counsel for 1st defendant submitted thcrc is no cause of action as there was no conspiracy.

I find that since plaintiff alleges his land was fraudulcntly transfcrred by help of the 1"t defendants scrvants, thcn hc has a right, that was allegedly violated by the l't defendant. Issucs of fraud and connivance are all triablc issucs.

I thereby find that there is a cause of action.

# 2. Whether the defendant's servants and of agents acted fraudulently on the process of transferring the suit property'

Fraud has been defined in the casc of Zaabwe versus Orient Bank Ltd & others SCCA No.4 of 2OO6 to mcan an intentional pcrvcrsion of truth for purposcs of inducing another in reliancc upon it to part with some valuablc thing bclonging to him or to surrendcr a 1cgal right. A false representation of a mattcr of fact whcther by words or conduct by false or misleading allcgations or by conccalmcnt of that which deceives and is intended to dcccivc anothcr so that hc shall act upon it to his legal injury.


In Kampala Bottlers Ltd versus Damanico (U) Ltd SCCA No.22 of L992 it was held that fraud must bc strictly provcd thc burden bcing heavier than one on balancc of probabilitics gcncrally applicd in civii matters, it was further hcld that 'thc party must provc that the fraud was attributed to the transfcree it must bc attributable cithcr dircctly or by necessary implication that is the transfcrce must be guilty of some fraudulent act or must have known of such act by somcbody else and take advantage of such act.

The plaintiff Evaristo Mugabi statcd that in March 1990 hc instructed one Bumbakali Mulzrmira to sel1 his land compriscd in kibuga Block 29 plot i14 and 115 locatcd at Mulago vil1agc. FIc introduccd Soiome Naluwoza Walusimbi as thc buyer on 12 ' March 1990.

They agreed at 16 million shilling and shc was to pay down-payment of Shs.5,5OO,OOO on 30-06-1990 though period was cxtended. A transfer was made and he remained with it. During May 1990 the agent Bumbakali Mulamira reportcd loss of duplicate certificate of title. He applied for special certificatc of titic which was issucd on 05-09- 1990.

Between March 1990 and August 1990 the 2"d dcfendant and his agent lodged a forged transfcr form which was not dated, did not show consideration, it was embossed without consideration, misspclt his name and his signature was pr-rrportcd to havc been signcd bcforc

c

b (

Bernard Gwisa. That officials at Land Registry colluded or assisted the 2"d defendant to register forged transfer plot 114 on 28-02-7990 and plot 115 on 26-06-1991.

Entry on each page was made on 28-02-1990 though lodgment on the register was 28-02-199 1. Hc lodgcd a caveat on 13th-9-199 1 and the officials of the defendzrnt conspircd to rcmove it without giving him notice.

On 09-07-1999 the 1"t defendant's servants registered a transfer of suit property to the 3'd defendant and on the 09th. Iuly 1999 issued a second special certificate to the 1"1 defendant knowing hc had the first one. He also stated the particulars of fraud to wit.

- Registering a fraudulent / forged transfer depriving him of plot ¹14 on 28-02-1990 and plot 1 15 on 28th Junc 199 ¹ - Registering thc transfcr instead of rcjccting it bccausc of the apparent irregularities on its face - Issuing the 2"d special certificatc of title to plots 115 and 114 when they kncw that hc had the first spccial certificates of titlc - Registering the 2nd defendant transfers to the ,3'd, 4'h, and 5th defendants when they knew he had spccial certificatcs of titles to plots 114 and 115 - Removing caveat on the suit property without first giving him notice as required

- Colluding with the 2"d defendant to defraud him by falsifying entries on the register - Issuing a2"d certificate of titlc to plot 115 on 09-08-1999 - Registering a cavcat by thc 2nd dclcndant on the suit propcrty

PW2 - Eddy Nsamba a registcrcd valucr valucd thc unimprovcd land at Mulago. Plot 114 at Shs.46O,00O,OO0/: and plot 115 at 500,000,000/:. He said thc land was now occupicd by othcr pcoplc.

PW3 - Namuwaya Catherine a Principlc Government Analyst tendered. in a laboratory report authored by O1anya Joseph Okong where it was found that Evaristo Mugabi did not write thc qucstioncd signatures on the photocopy of land transfcr forms for Block 29 plots 114 and 115.

The plaintiff submitted that registrars falsified entries on the land registers in favour of Soiomc Naluwoza Waiusirnbi. Thcy also removed caveat without notifying him. That the suit land was transferred on 28-02-1990 yet hc first met Walusimbi on l2-O3- 1990. That the land was transferrcd on 28-02-1990 yet affidavit of Solomereads 2l-O9-199O.

The defendant submitted that they did not act lraudulcntly but it is the plaintiff who did as he asked lor a special certificatc on 2oth

/, February 1990 which was issued on 15th March 1990 but transactcd with the duplicate certificate at thc beginning of March 1990. That also a notice to caveator of application to remove caveat which was dispatched to the plaintiff on his addrcss of Mugabi & Co. Advocates plot 2 Wilson Road P O Box 5360 - Kampala and cndorscd thereon by plaintiff but he did not comply with requirements within 60 days, therefore the period lapsed.

The certificate of title of Block 29 ptot No.115 indicates it was registered in the narnes of Solomc Naluwoza Walusimbi on the 28- O2-199O. The encumbrance's page shows that the plaintitf Mugabi lodged a caveat on 13th September 199 1 and it lapsed. While on certificate of Block 29 plot 114 land was transferred lrom thc namcs of the plaintiff to Solome Naluwoza Walusimbi on 28th . Junc 199 1 and caveat by the plaintiff lodged on 1 3th Se ptcmber 199 I and it shows it lapsed.

The plaintiff alleges that the transfer form uscd by Solome Naiuwoza Walusimbi to transfer land was not signed by him as shc had not paid consideration for the land despite thcir agrccment. His witness PW2 tendered in a report authored by Olanya Joseph indicating hc did not sign thc transfer forms.

In thc case of Nazmudin Gulam Hussein Viram versus Nicholas Roussous Supreme Court Civil Appeal no 1 of 2o,o6 Basing on thc

q

handwriting experts evidence Justice Tabaro found that thc transfcr deed was forged.

In instant case the plaintiffs evidcnce on thc forgcd translcr forms was not rebutted by any defencc evidcncc, thus I find that thc transfer forms transferring land to Solome Naluwoza were forgcd.

The plaintiff also alleged that his cavcat was lapsed without giving him notice by the defendant's agents and it was transferred to third parties.

I have examined the titles and found that plaintiff lodged cavcat on 13th September 199 1 on plots 115 and 114 and it lapsed.

Section 1^40l2l of the Registration of Titles Act prescribes thc lcgal process for the removal of the caveat.

It states that 'Except in the case of a cavcat lodged by or on bchaif of a beneficiary claiming under any Will or scttlcment or by the Registrar, every caveat lodged against a proprictor shall bc dccmcd to have lapsed upon the expiration of sixty days after notice being given to the caveator that the proprietor has applied for the removal of the caveat.

In the casc of Emmy Tumwine and 6 others versus Administrator General and Saul Kisiribombo Rumanda Civil Suit no 92 of 2010 lady Justicc Nkongc Rugadya hcld that it is a vioiation o[ S.1aO(2) ot the Registration of Titles Act for thc proprictor not to have notilicd the plaintiffs of the intcnded removal of thc cavcat.

While in the case of Teopista Mugenze versus Pascal Byron Mugenze & 2 others civil suit No.166 of L992 Lady Justicc Monica Mugenyi had this to say 'that thc removal of thc cavcat lodged by thc plaintiff with blatant disregard for prcscribcd lcgal proccss did smirk of dishonest dcalings in land.'

The defendant submitted that a noticc to rcmove caveat was dispatched to the plaintiff on his addrcss, hc did not comply with the requirements and the period clapscd.

In the caveat lodged by the plaintiff dated 11th September 199 1 for Block2g plots 1 14 and 115 land at Muiago hc appointed M/s Mugabi and Co. Advocates plot No.2 Wilson Road P O Box 5360 Kampala as the place at which notices and procccdings related to thc caveat may be served.

The defendant tendered in a noticc to caveator of application to remove a caveat dated 15th February 1999. It was addresscd to Evaristo Mugabi and Co. Advocates P O Box 5360 Kampala and has a stamp of Uganda Posts and Tclecommunications corporation, certificate of posting.

L /(

I find that the notice of removal of Caveat was duly served on the plaintiff at his address P. O Box 5360 Kampa,la and no step was taken by him.

The plaintiff alleged that the scrvants of the dcfcndant acted fraudulently in thc proccss of transfcrring thc suit propcrty.

The standard of proof of fraud is wcll settled. Fraud must bc strictly proved. see Ratlal G Patel versus Banji Makanyi 1957 EA 314 pg 3L7

It is the duty of the plaintiff to provc his casc against the defendant. see Section 1O1 ofthe Evidence Act.

Fraud must also be attributable to thc transferee sce casc of Kampala Bottlers Ltd versus Damanico U Ltd (supra)

The plaintiff has not demonstrated in his cvidcncc how the commissioner land registration or govcrnmcnt made an intentional perversion of truth for the purposc of registcring a forged transfcr form. No concrete evidence was led to prove that thc scrvants of government knew the transfer was forged or that Solomc had not paid all the consideration.

The plaintiff dropped cases against Bumbakali thc brokcr and Solome the alleged transfcrce s and faultcd thc scrvants of government and is asking to bc paid 960,000,000 shillings as compensation.

In the case of Tucker Mubiru versus AG Civil Appeal no 84 of 2013 court of Appeal found that whcre govcrnmcnt is not a transfercc ol the suit land, it would ordinarily not bc liablc for fraud, and it would be impossible to impute fraud on the Attorney gcncral under the circumstanccs.

I thereby find that thc servants or agcnts of the delendant did not act fraudulently in transferring the suit property'

## 2. Whether the 1"t special certificates of title to the suit land now with the plaintiff are valid

The plaintiff submitted that he was issued with special certificates of title which were cxhibitcd in colrrt. Thcy arc now not thcrc and after their removal, the dcfendant sold and translcrrcd thc suit land to thc former defendants.

In reply the defendants submitted that thc plaintiff requcsted for ^a special certificate of title on premisc that thc original got losl and sarne was issued by the Registrar'

Section 70 of the Registration of Titles Act provides that if thc duplicate certificate of title is lost or destroycd or bccomcs so obliterated as to be useless, the pcrson having knowledge of thc circumstances may make a statutory dcclaration stating the facts and the particulars of all cncumbranccs aflecting thc land on thc title to the land to thc bcst of thc dcponent's knowlcdge information and belief and the Registrar ......may issuc a spccial ccrtificatc of titlc.

on 2orh February 1990 the plaintiff applicd for special certilicatcs of title of plot 115 though he said that Bumbakali told him titlc was lost in May 1990. Special certificates title wcre issued one of plot 115 on 15th March 1990 and that on plot 114 on 5th September 1990' Plaintiff claims he was introduced to Solome on 17th March 1990' I thus agree with counsel for defendant that plaintitf was dealing in the land especially plot 115 when he had both special certificatc and duplicate certificate of title.

Solome Walusimbi applicd for a 2"d special ccrtificate for plot ¹¹⁴ and stated that thc 1", special ccrtificatc of titlc and thc duplicatc certificate of title issued earlier have to be cancclled. In hcr aflidavit she stated that the 1"t special certi{icatc of title was applied for when she had the duplicate ccrtificate of title.

In order to put record right she applicd to canccl duplicate and 1't special certificates of title. The said Solome subscquently transfcrred the land to third parties.

I thus find that l"t special certificates of titlc are no longcr valid since they had been issued on basis that duplicatc certificate was lost but Solome had the duplicatc certificate of title and it was cancelled. A second special certificate of title on plot 114 was issued on 9^th August 1999.

In conclusion the plaintiff has failed to prove his case its hereby dismissed with costs.

## DATED AT KAMPALA THIS DAY OF

$\begin{array}{cccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc$

KANYANGE SUSAN AG JUDGE LAND DIVISION