[2024] UGHC 1135

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT HOIMA

CIVIL SUIT NO. HCT-16-LD-CS-006 OF 2022 [Formerly Masindi Civil Suit No. 054 of 2009]

**:::::::::::PLAINTIFF YESERO MUGENYI::::::::::: VERSUS** 1. BARUGAHARA LILIAN **::::::::::::::::::DEFENDANTS** 2. BARUGAHARA MAJORIE 3. BARUGAHARA DAISY 4. BARUGAHARA DIDAS

## BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA

### **IUDGMENT**

#### **Background**

- In an amended plaint dated 23/6/2017, the Plaintiff brought this $[1]$ action against the Defendants seeking a declaration that he is the rightful owner of the suit land, an order for cancellation of title comprised in LRV 2931, Folio 18, Plot 36 Bugahya, Block 3, an eviction order, a permanent injunction to restrain the Defendants from further trespassing on the suit land, general and exemplary damages, mesne profits at the rate of shs.24m/= per year from the year of deprivation of use of the suit land until eviction, costs of the suit and interest on the decretal sum. - It was the Plaintiff's case that in 1977, he purchased 800 hectares $[2]$ of land adjoining his other land at Kikwite village, Hoima District where he has settled since 1968 from a one Ceaser Joseph Magara. - In 1986, that the Plaintiff applied to the District Land Committee $[3]$ for the grant of leasehold title of the suit land upon which on 10/2/1987, the District Land Committee inspected the land and transmitted its report to the Uganda Land Commission (ULC) for approval of the 800 hectares of leasehold and on 7/7/1987,

Uganda Land Commission considered his application and approved 600 hectares to be lease to the Plaintiff.

- In 1987, the Plaintiff accepted the lease offer of the 600 hectares $[4]$ upon which the Government Staff Surveyor commenced the survey of the land and accordingly compiled his report but the Plaintiff experienced several long delays in having his title deed processed to the extent that he had to petition the Minister of State, Lands to intervene for expedition of the title deed processing and issuance to the Plaintiff. It was in or about 1999/2001 that the Plaintiff learnt about encroachers and trespassers on the land and had to put out messages and several announcements in media to restrain the said encroachers/trespassers but in vain. Later, the Plaintiff discovered that the Defendants had curved Plot 36 Block 19 out of the suit land, the plot that is now the subject matter of the present action. - The Plaintiff contended that he has a good claim of right to the suit $[5]$ land which he bought from C. J. Magara, applied for it from the Uganda Land Commission for the grant of a leasehold title of which he was granted an offer and had been using it as his grazing area The Plaintiff further with some farm structures thereon. contended that the conduct of the Defendants was fraudulent and particularised fraud inter alia, as the Defendants' representing to the authorities that the suit land was available for leasing without occupation or dispute thereof, obstinately not heeding any warning and radio announcements and messages issued by the Plaintiff about his rights over the land and obtaining irregular documents purported to give title of the suit land to the Defendants. - On the other hand, the Defendants in their amended Written $[6]$ Statement of Defence (W. S. D) denied the Plaintiff's claims and contended that they are the rightful owners of the suit property/land, having utilised the land since 1994 by erecting houses and cultivation of crops without any disturbance until 2009 when the Plaintiff instituted the present claim.

- It was the Defendants' case that they purchased various $[7]$ portions/pieces of acres of land from different vendors; (a) 50 acres from one Valerio Baikaguza at Kyakaliba Village, Busisi, Hoima District on 30/10/1994. (b) 20 acres in the same area as above from a one Nyakoojo Joseph on $16/11/1997$ . (c) Another piece of land in the same area from a one Semei Itegerwa on $12/8/2000$ . - The Defendants averred that in 1995, they jointly applied for a $[8]$ lease offer which was granted by the Hoima District Land Board (HDLB) and in 2001, they were granted leasehold title for the initial period of 5 years but later in 2009, they applied for its freehold which has been frustrated by the Plaintiff. - The Defendants finally contended that upon their application for $[9]$ lease of the suit land, a team of surveyors carried out the survey and the Area Land Committee confirmed that the land at Kyakaliba Village was available and free from any dispute whatsoever thus the Plaintiff's claim of land at Kyakaliba is misconceived since as per the Plaintiff's purchase agreement of the purported suit land allege that he bought land at Butanjwa.

## **Counsel legal representation**

- [10] The Plaintiff was represented by Mr. Moses Tugume of M/s Tugme-Byensi & Co. Advocates, Kampala while the Defendants were represented by Mr. Martin Musigire of M/s LMN Advocates, Kampala. - [11] During a scheduled conference, it was as agreed upon fact that the Defendants are occupying the suit land which they had gotten an initial lease of 5 years which expired. The parties also agreed on the following issues:

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1. Who is the lawful owner of the suit land.

- 2. Whether the defendants secured registration of the suit land by fraud. - 3. What remedies are available to the parties.

# Issue No. 1: Whether the Plaintiff is the lawful owner of the suit land.

Issue No.2: Whether the Defendants secured registration of the suit land by fraud.

- [12] In their submissions, both Counsel framed the $1^{st}$ issue as "who is the lawful owner of the suit land". The Defendants however, in their pleadings did not file any counterclaim. In the absence of any counterclaim by the Defendants for the suit land, I find the $1^{\rm st}$ submissions framed by both Counsel in their issue $as$ inappropriate, thus I have appropriately framed it: "whether the Plaintiff is the rightful owner of the suit land". - [13] Counsel for the Plaintiff submitted that on 10/11/2973, the Plaintiff's neighbour, C. J. Magara sold to the Plaintiff 800 hectares of land adjoining the Plaintiff's land at the time and thereafter, the Plaintiff applied to ULC through the District Land Committee of Hoima District for a leasehold thereof. After the Hoima District Land Committee had inspected the land and submitted a report to ULC, on 7/7/1987, under minute 38/87, only 600 hectares were approved and on $14/7/1987$ , a lease offer for the 600 hectares was granted to the Plaintiff. - [14] Counsel submitted further that between 1999-2001, the Plaintiff learnt of some people who were stealthily growing seasonal crops on his land and he had to issue several written messages at all the conspicuous places on the suit land and several announcements in the media to restrain the said encroachers/trespassers and also put on notice Members of the public by way of caveat emptor. It was later on when the Plaintiff started processing the title deed(s) for the land that he discovered that the Defendants had curved Plot 36 Block 9 Bugahya out of the Plaintiff's 600 hectares of

land, the subject matter of this action in which the Plaintiff inter alia, seeks an order for cancellation.

- [15] It is the contention of Counsel for the Plaintiff that the Defendants committed acts of fraud in the acquisition of the suit land and got registered as proprietors fraudulently. That when the Plaintiff executed a purchase agreement on $11/11/1977$ (P. Exh.1), applied and got a lease offer from ULC (P. Exhs: 3-5), the suit land which was part of the Plaintiff's 800 hectares was not occupied by anyone else except C. J. Magara's/Plaintiff's animal farm. That indeed, when Hoima District Land Committee inspected the land, its report to ULC was that the 800 hectares of land were not occupied by any other person except the Plaintiff. - [16] Counsel contended further that the Defendants made false representations when they deliberately and fraudulently filled land Form 2, an application for rural land (D. Exh.1), for the land they never owned. That according to Lillian Barugahara (DW1), during cross-examination, all the purchasers of the 3 pieces of land that form the suit land were made on behalf of herself and the other Defendants on 30/10/1994, 16/11/1997 and 12/8/2000 and the application for the suit land was made on $12/9/1994$ , i.e. before the purchase or acquisition of the said 3 pieces of land that form the suit land by the Defendants. - [17] Besides, Counsel for the Plaintiff argued that a perusal of the purported purchase agreements of the 3 pieces of land that form the suit land by the Defendants (P. Exhs:17, 18 & 29), show that the Defendants were purchasing bibanja interests and not land, that none of the Defendants executed either of the impugned agreements to confer either of them any interest. That the Defendants in their pursuance of fraud were evading to disclose their identities during the purported purchase of the 3 pieces of land that form the suit land thus their use of pseudo names for purposes of disguising their identities.

- [18] Counsel for the Defendants on the other hand submitted that the Plaintiff failed to prove ownership of the suit land to the required standard of balance on the probabilities, Nsubuga vs Kavuma That whereas the Plaintiff claim that he [1978] HCB 307. purchased the suit land from C. J. Magara as per the purported purchase agreement executed (P. Exh.1), the agreement was in respect of unregistered and un-surveyed land of 800 hectares located at Butanjwa which does not include the suit land which belong to the Defendants located at Kyakaliba. Counsel argued that the land the Plaintiff purchased from C. J. Magara and the one that the Defendants purchased from Valerio Baikaguza, Joseph Nyakoojo and Semei Itegerwa are different pieces of land found in two different places. - [19] Secondly, Counsel submitted that it is trite law that the production of a certificate of title is conclusive proof of ownership and it takes predence over any other adverse claims, Ss. 59 & 64 RTA save for fraud, Kampala Bottlers Ltd vs Damanico (U) Ltd S. C. C. A. No. 22 of 1992 [1994-95] HCB 19 and Vivo Energy (U) Ltd vs Shire Petroleum Co. Ltd & 2 ors H. C. C. A. No. 8/2016.

He argued that in the instant case the Defendants vividly demonstrated that they are the lawful owners of the suit land having purchased it from different individuals and acquired a lease which they converted to freehold and are now registered proprietors of the suit land. That the Plaintiff's allegation that the Defendants who are the joint registered proprietors obtained registration by fraud is a mere allegation based on informed assertions.

- [20] As regards whether the Defendants secured registration of the suit land by fraud, Counsel for the Defendants submitted that there is no evidence that was adduced by the Plaintiff attributing fraud to the Defendants during the process of having the suit land registered in their names. - [21] On the claim by the Plaintiff that at the time the District Land Committee inspected the land, the Defendants and those they

claim to have purchased the suit land from were not in occupation of the land, Counsel for the Defendants argued that the Defendants could not be on the Plaintiff's land because the suit land at Kyakaliba which the Defendants took immediate possession of upon purchase in 1994 is different from the Plaintiff's purported land located at Butanjwa.

- [22] As regards the discrepancies in the dates on the application form for the lease over the suit land by the Defendants (D. Exh.1) and purchase dates of the 3 pieces of land that form the suit land by the Defendants, Counsel explained that the law follows logic. That it is very possible to fill a lease application form in anticipation of purchasing unregistered land and that this is what the Defendants did while still negotiating with the vendors of the suit land. - [23] Lastly, Counsel for the Defendants submitted that the purported sale agreement adduced by the Plaintiff claiming to have purchased the suit land from C. J. Magara is highly suspect since Magara's signature on the agreement is significally different from his known signature which indicates a forgery and that as regards the claim by the Plaintiff that the Defendants purchased Bibanja and not land, that this is misconceived since Lillian Barugahara (DW3) during cross-examination explained to court that the Defendants purchased land and not Bibanja. - [24] In the determination of this suit, this court considers burden of proof in civil suits. It is trite law that he or she who assets must prove and the burden of proof therefore rests on the person who must fail if no evidence is given on the existence of facts which he or she asserts. The standard of proof required to be met by the party seeking to discharge the legal burden of proof, in this case the Plaintiff, is on a balance of probabilities, S. 101 of the Evidence Act and Nsubuga vs Kavuma supra). - [25] In his bid to prove his case, the Plaintiff, Yesero Mugenyi (PW1) testified that he bought the suit land measuring approximately 800 hectares from a one Ceaser Magara who was the owner of the land

and executed a purchase agreement to that effect (P. Exh.1). That the said vendor, Magara used to utilise the land for beef and dairy farming and therefore it had a dip, kraal and gardens of crops. That apart from the vendor, it had no other occupants. That upon purchase, he took possession of the entire suit land and stocked it with his own animals and continued to develop it with employees staving thereon.

- [26] In 1986, the Plaintiff testified that he made an application to have the land registered under the Registration of Titles Act (P. Exh.2). That upon inspection, his application for lease was approved for 600 hectares and given an offer to that effect by ULC (P. Exh.4). He had to apply for the remaining 200 hectares separately. - [27] The Plaintiff testified further that however, the process of registration of the land came to halt because of the re-organisation of the land department, the survey department had been abolished and land office was being transferred from Fort-portal to Masindi until when he sought the intervention of the Minister of Lands, Mr. Baguma Isoke and with his intervention (P. Exh.7), the process of registration he had started in 1989 resumed with the Government Surveyor a one Kyamanywa Peter who was given instructions to re-survey the land in 2000. It was during the survey that he discovered that a number of people had encroached on the land who included the Hoima District Administration, a one Abel Balemesa and the Defendants. - [28] It is the Plaintiff's contention that he responded to these encroachers by writing to the Land Board complaining that his land had been encroached on and that the Board should not issue any certificate of title to anybody on that land (P. Exh.8) and even put up a number of announcements on the radio to warn people that the land was his and it should not be encroached on (P. Exh.13). That though he was able to recover the portion of the land Hoima encroached $\overline{on}$ $bv$ way $of$ had Administration District compensation of 17 hectares and the remainder returned to him (P. Exhs.14 & 15) and the other Abel Balemesa had encroached on by a way of a court judgment/decree (P. Exh.16), he had to sue the Defendants for the 16 hectares of the land they encroached on hence the present suit to cancel the impugned certificate of title for Plot 36 Block 19 Bugahya that comprise the 16 hectares.

- [29] The Defendants on the other hand, through Lillian Barugahara (DW1) testified that she and her family purchased 50 acres of land from Valerio Baikaguza on 30/10/1994, 20 acres from Nyakoojo Joseph on 16/11/1997 and another piece of land from Semei Itegerwa on 12/8/2000 (P. Exhs. 17, 18 & 19) all the land being located at Kyakaliba Village, Busisi Sub-County, Hoima District of which on 12/9/1994, they applied for a lease of 49 years from Hoima District Land Board (D. Exh.1). That upon an inspection report of the land by the District Land Committee, they were under Min.3/95(37) of $24/7/1995$ , granted a lease for 5 years. On 23/4/2009, they applied for conversion of the lease into freehold (which they obtained on $7/1/2014$ ). - [30] The defendants contended that this land (suit land) is in Kyakaliba village and not Butanjwa village where the Plaintiff claim to had purchased his land.

[31] Counsel for the Plaintiff in his submissions in rejoinder alluded to the issue of limitation of the present suit. I find that the issue of limitation did not arise either in the facts for this court or during the submissions of Counsel for the Defendants. In any case, the law on limitation for cases based on fraud is that time begins to the moment the fraud is discovered, **Patrick** from $run$ Lyamulemye vs Steven Kwiringira & 3 ors H. C. C. S. No 118 of 2019 and S. 25 (a) of the Limitation Act.

In this case, as per the Plaintiff's pleadings, he discovered the encroachment and fraud by the Defendants and others in around 1999/2001 and the suit was filed in 2009 thus within the 12 years prescribed by S.5 of the Limitation Act.

[32] As regards whether the Plaintiff purchased the suit land located at Kyakaliba village or land at Butanjwa village, the Plaintiff adduced evidence during cross-examination thus:

"The land I bought from C. J. Magara was described as being on land in Butanjwa at that time in 1977 but when we came to survey, it was beyond Butanjwa village......."

- [33] In his submissions in rejoinder, Counsel for the Plaintiff explained that originally the suit land was in a single village but with time, it split up into more than one village to create more than one administrative unit. - [34] The Plaintiff having explained that at the time he purchased the suit land in 1977 from C. J. Magara (P. Exh.1) the location of the land in question was **Butanjwa**, it was incumbent on the Defendants to rebut such evidence which they failed to do so during the trial in their defence because the evidential burden of establishing the facts shifted to the Defendants to rebut the assertion of the Plaintiff and establish otherwise, Kabaco (U) Ltd vs Turyahikayo Bonny H. C. C. S. No. 14 of 2021. Besides, I find that as per the land sale agreement P. Exh.18, also relied upon by the Defendants, one of the pieces of land that the Defendants claim and affirm that forms part of the suit land is bordered by Bulera T. T. C. in the north which belonged to the Plaintiff and therefore, the location of the suit land is in the same area. Sulaiman Mugenyi (DW2), the area L. C. I Chairperson of Kyakaliba village stated during cross-examination that he witnessed the agreement of sale of land/kibanja by Valerio (DW3) to the 1^st Defendant (DW1) and Valerio (DW3) himself conceded that he knew Magara who had cattle and used to graze around the suit land. - [35] Though Valerio (DW3) claimed that Magara did not acquire any land but was grazing on land communally with others, there is no evidence to support this claim. Instead, he elucidated that the land Magara used to graze cattle on is the land that is now comprised of Bulera T. T. C., Balemesa and the suit land signifying that it was one entire land thus corroborating the evidence of the Plaintiff

(PW1) as regards its location. It has to be recalled that the Plaintiff was able to recover the land Bulera T. T. C and Balemesa had unlawfully encroached upon and or trespassed and occupied through court action (P. Exhs. 14-16).

- [36] In the premises, I find that the suit land is part and parcel of the land the Plaintiff purchased from C. J. Magara. - [37] As regards occupation of the suit land, the Plaintiff explained that on purchase of the land in 1977, other than the vendor, there was no other person in occupation and indeed, when the District Land Committee inspected the land in 1986 (P. Exh.2) at the time, there was no one on the land save for 2 permanent houses and a cattle dip of the owner as also reflected on P. Exh.1. The Plaintiff lost possession of the suit land to the Defendants in 1994 when they took possession without his knowledge. - [38] The Defendants relied on 3 purchase agreements for 3 pieces of land purchased from Valerio Baikaguza dated 30/10/1994 (P. Exh.17), Nyakoojo Joseph dated 16/11/1997 and Semei Itegerwa dated $12/8/2000$ . Counsel for the Plaintiff submitted that the 1^st Defendant/DW1 testified that all the purchases of the 3 pieces of land form the suit land which the Defendants applied for on 12/9/1994 which was not possible for there was no way the Defendants would apply for land they had not yet purchased. - [39] Counsel for the Defendants on the other hand asserted in his submissions that it is possible by law and logic for one to file a lease application form in anticipation of purchasing unregistered land. I don't agree with this proposition as put out by Counsel for the Defendants. Unless one is actuated by fraud, he or she cannot make an application for land and file it with the land authority as was done in this case before owning it. - [40] Fraud was defined in Fredrick Zaabwe vs Orient Bank & ors S. C. C. A. No. 4 of 2006 [2007] Vol. 1 HCB 240 as an intentional perversion of the truth by a person for the purpose of inducing

another in reliance upon it to part with some valuable thing belonging to him or her to surrender a legal right. In David Sejjaaka Nalima vs Rebecca Musoke Civil Appeal No. 12/1985 (C. A), fraud was defined to mean "actual fraud or some act of dishonesty" under S.59 RTA, possession of a certificate of title is conclusive proof of ownership of the person named there as proprietor and under S.176, RTA is in absolute bar and estoppel for an action or ejection or recovery of land save for fraud. The standard or proof of fraud is heavier than the ordinary balance of probabilities generally applied in civil matters.

[41] In the instant case, discrepancy in the dates on the application form for the lease over the suit land (D. Exh.1) and the purchase of land dates which show that the application for land was made before the acquisition is evidence of fraud. The hurry by the Defendants to apply and file an application for the land that they had not acquired is a good example of "sharp practice Odoki, JA (as he then was) referred to in David Sejjaaka Nalima vs Rebecca Musoke which amounts to fraud. The 1^st Defendant (DW1) who herself was at the time a member of the HDLC and therefore was well conversant with how land matters are processed, during cross-examination, failed to explain the discrepancies of the dates and merely wondered thus:

"I am not able to explain why my application for the land was before purchase of the land".

One cannot apply for lease of land he or she anticipates to acquire in future in this case the Defendants claim to had applied for land they later acquired even after one year which is not possible.

[42] Lastly, a look at the Defendants' purchase agreements (P. Exhs.17, 18 & 19), it is clear that Valerio Baikaguza (DW3) and Semei Itegerwa purported to sell land/bibanja interests and not This is however not very registered land to the Defendants. important in this case. What is at stake is whether the Defendants actually purchased unregistered land from these 2 vendors. Nyakoojo Joseph on his part, sold the Defendants mere gardens and not unregistered land. The gardens must have been on

somebody's land. The Defendants did neither explain whose land these gardens were located on or bothered to carryout due diligence to find out whose land it was. The Defendants did not adduce evidence on how these vendors came to acquire these purported equitable interests they sold to the Defendants.

- [43] What is however most astonishing is that none of the purported purchases, the Defendants executed the agreements of purchase (P. Exhs.17, 18 & 19) by their known signatures which appear on their application for the land. In absence of any explanation as to why there are no clear buyers, I find that no interest passed to the Defendants by virtue of the said agreements. The agreements appear to had been a result of an afterthought, either to correct an already committed fraud or were intended to perpetuate an existing fraud. - [44] On the other hand, the Plaintiff adduced cognate evidence as to how he acquired the suit land by way of purchase from a one C. J. Magara (P. Exh.1). One of the purported vendors of the suit land to Baikaguza (DW3), during cross-Defendants. Valerio the examination conceded that indeed, C. J. Magara had interest on the suit land where he used to graze his cattle. This is indeed, the Plaintiff's case. The claim that Magara's signature on the sale agreement to the Plaintiff (P. Exh.1) is a suspect on the grounds that it is different from his known signature and therefore a forgery is without proof. - [45] It is not clear where Counsel got this notion. The Defendants neither adduced evidence regarding the alleged forged signature of Magara nor did Counsel provide a sample of Magara's known signature to enable court appreciate his argument. What Counsel is doing by raising the issue that Magara's signature is a suspect and therefore a forgery amounts to adducing evidence from the bar which this court has to out-rightly reject. The alleged forgery of Magara's signature was neither pleaded nor contested in evidence.

[46] As a result of the foregoing **issues 1 & 2** are found in favour of the Plaintiff. The Plaintiff is the rightful owner of the suit land. The Defendants secured registration of the land by fraud.

# **Issue No.3: What remedies are available to the parties**

[47] This court having found that the Plaintiff is the lawful owner of the suit land and that the Defendant secured registration of the land by fraud, it follows that the judgment would be entered in favour of the Plaintiff for the following:

# **Declaration of ownership** $(a)$ The Plaintiff is the rightful owner of the suit land located at Butanjwa/Kyakaliba, Busiisi Sub-County, Hoima District.

#### **Cancellation of title** $(b)$

The Defendants having been found to had acquired no interest in the suit land and having fraudulently registered the Plaintiff's land in their names, it is ordered that the said certificate of title comprised in LRV 1461 Folio 7 Plot 36 Bugahya Block 19, at Kyakaliba, Busiisi, Hoima District measuring 16.86ha be accordingly cancelled for fraud.

#### General damages. $(c)$

The award of general damages is at the discretion of the court and the law presumes damages to be the natural consequence of the Defendants' act; JF Nsubuga vs A. G. H. C. C. S. No. 13 of 1993. The Plaintiff has been denied utilisation of the suit land since 1994 but did not adduce evidence as to what happened to his animals he had on the land or any other physical harm he has suffered other than from the inconvenience, torture and stress that must have resulted from the Defendants' conduct. In the premises, I award the Plaintiff general damages of ugx. 64,000,000/=.

### Exemplary/punitive damages and mesne profits $(d)$

No evidence was adduced by the Plaintiff to prove the above damages. The fact however that the $1^st$ Defendant admitted that she was a member of the District Land Board and used her position to grab and fraudulently acquire land is evidence of impunity on her part which entitles the Plaintiff exemplary damages. I award damages of ugx. 8,000,000/=. As regards mesne profits, no

evidence was adduced by the Plaintiff to prove those profits which the Defendants must have actually received or might have received from the suit land or what the Plaintiff used to earn from the suit land before the wrongful possession (S.2m CPA).

## **Eviction order and a permanent injunction.** $(e)$

The Plaintiff as the successful party in recovery of land, he is accordingly granted an eviction order and/or vacant possession of the suit land against the Defendants and a permanent injunction restraining the Defendants, their family members, agents and anybody claiming under them from committing any further act of trespass on the suit land.

Costs of the suit. $(f)$

Under S. 27 CPA, costs follow the event. The Plaintiff as the successful party, is awarded the costs of this suit.

Dated at Hoima this $6^{th}$ day of December, 2024.

Byaruhanga Jesse Rugyema **JUDGE**