[2001] UGHC 124

## THE REPUBLIC OF UGANDA

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## IN THE HIGH COURT OF UGANDA, AT MBARARA **CIVIL SUIT NO.** 33 **OF 1995**

PLAINTIFFS 1. ISMAIL MUGUTA) 2. JOAB MUJUNGU...

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## YESSE ITERURA DEFENDANT BEFORE: THE HON. JUSTICE V. F. MUSOKE-KIBUUKA

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defendant in (his case. Plot No. 33, Sheema Block 2. measuring approximately 4.74 hectares, is the subject of this dispute, fl is. therefore, referred to in this judgment, as the "disputed land." Il is situated at Kabwohe, Kagango, Sheema, in Bushenyi District. Il was registered a.-, a freehold estate under Instrument No. MBR 7003. on 711' March 1975. flic registered proprietor is Yese Iterura. the

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out in Phe defendant is the elder brother of the two plaintiffs. In their plaint, the plaintiffs claim that they and the defendant were natural sons of . Abe4!' [{wandongyero who died \v;r. back in 1941. 'Hie plaintiffs claim that their lather was a lay preacher in the promt Church of Uganda and that lie owned T a 'Albania" or customary holding at Kabwolie over ihc'land now in dispute.^ .iiiiiaiis claimed ihai .i-w-i vi • i<waiidong\ w.o's death, they^harccl isibanja equally with iheii eiJci brother, the defendant in iLiisjaiil. .

However, the defendant who was the oldest of the three, exercised considerable control over the land for some time before the defendants were old enough to manage their own affairs.

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While the first plaintiff established a home on the disputed land, the second plaintiff did not. He, instead, acquired another piece of land elsewhere where he built a home. However, the second plaintiff remained owner of his share of the customary holding in the disputed land. During the month of February 1995, the second plaintiff tried to construct a house on his portion of the customary holding. But the defendant stopped him claiming that he owned the entire land and had been registered as freehold proprietor under the Adjudication Policy which was effected under the Public Lands Adjudication Rules, 1958.

It was at that point that the plaintiffs got to know that the defendant had brought the entire customary holding under the Registration of Titles Act. In their pleadings, the plaintiffs claim that the defendant did so fraudulently. They specify four particulars of fraud, namely, causing the surveying of the land without their knowledge ignoring their customary interests, withholding information regarding their customary interests from the Registrar of Titles and causing the certificate of title to be issued in the defendant's personal name.

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I'hc plaintiffs pray for a declaration land. They pray for an ordei Rceisiration io cancel or recti f\ : |Tie\ pray for the costs of(his cowl. that they own a customary interest in the directing the Commissioner of Land •itificate .if litle'on the giouial of frat\$d.

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In his written statement of defence, the defendant, denied all the allegations and claims of the plaintiffs save that he brought the disputed land under the Registration of Titles Act and that he is the registered proprietor of the land in dispute and that he and the plaintiff are sons of the deceased and that the first plaintiff lives on the disputed land. He stated that he acquired the land in dispute of his own. He acquired it from the Muluka Land Committee. The defendant contends that he gave part of the disputed land to his young brother, the first plaintiff who was then landless. He denies that Abel Rwandongyero; the parties' father owned any personal kibanja at Kabwohe. According to the defendant, the late Abel Rwandongyero lived and died on church land at Kabwohe where he was also buried. The defendant prays the case be dismissed with costs.

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By the time this case was cause-listed for hearing, the second plaintiff had died. Nobody had been granted probate or Letters of Administration of his estate. In the absence of a personal representative, the case proceeded with, onlv, the first plaintiff as the claimant. It was the understanding, of both counsel, that the remedies sought by the first plaintiff, if granted, would, in effect benefit the estate of his deceased brother.

V?: The defendant did not appear in court. It was staled by his advocate, Mr. Mwene-Kahima, that he was bed-ridden, lie granted general Powers of 5-° **•ft** Attorney to his daughter, Joan Tukahirwa, who stood in for him throughout the hearing of this suit.

Hie issues, agreed upon by both counsel, are:

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as a ai whether Abel Rwandongyero owned the disputed land kibanja;

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b) whether the plaintiff was entitled to a share ofthe dispute land;

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c) whether the defendant obtained the certificate oftitle fraudulently;

d) whether the plaintiff is entitled to the remedies sought in the plaint It is the position of the law that in civil matters, the standard of proof is on a balance of probabilities. It is also the law that the burden of proof lies upon the plaintiffto prove his case on a balance of probabilities. That remains the position even where the case proceeds ex-parte. Kityo vs Kadoma (1982) HCB 58

He **LO** On the first issue, the plaintiff gave evidence in person as PW1. produced three witnesses. They were, Asenasio Rutimbirayo, PW3, Perpetua Bwitiriire, PW4 and Kezekiya Karutugu, PW5. All the three plaintiff's witnesses neatly corroborated the plaintiffs evidence to the effect that the disputed land was the customary holding of Abel Rwandongyero. And that he left it to his widow and children when he died in 1941.

**/5" Jo** PW3, Asanasio Rutimbirayo, was particularly, a very impressive witness, indeed, ^l ie is an excellent gentleman and a very extraordinary person to say the least. He was 90 years old when he testified in court having been born in 19(19. But he moves with the unusual ease of a sixty-year-old person. All hi? faculties appeared to be in excellent conditions. When this court visited the locus in quo, he was able to stand and move about the length and breadth ol the disputed land showing the court the various structures and objects which he had mentioned earlier in his evidence. Besides, this- particular wimess left me with the impression that he had grown up in an age whJn icliine the truth was second nature and he had kept io that norin'over all those years.

PW3 had worked with Abel Rwandongyero at the church at Kabwohe from 1931 to 1941, when Rwandongyero died. The witness was about 32 years old then. He knew where Rwandongyero's kibanja was. According to him, it was quite adjacent to the church's land and about half a kilometre away from the church at Kabwohe. When Rwandongyero died in 1941, PW3 was one of people who removed his body from his house for burial at the church. PW3 confirmed that the disputed land was the customary holding of Abel Rwandongyero and that Abel Rwandongyero never resided on church land at Kabwohe. He was buried on church land not because he was landless but because the Christians wished that he be buried at the church in appreciation of his selfless service to the church. ^I had not the slightest difficult in believing the c\ idencc of PW3.

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PW4, Perpetua Bwitiriire. was another equally extraordinary witness. She is the daughter of the late Abel Rwandongyero and, therefore, sister to both plaintiff and defendant. She too is a very senior citizen aged 81 years. She trained and worked as a teacher for several years before she retired. When her father died i:i 1941, she was aged 22 years. She was, therefore, a mature person who would have fully known whether her father owned a customary holding or not and if he did, where the customary holding was. At the locus, PW4 showed ll-is court where the house of her father used io be. She also showed the court the sports at which her grandfather and lie mother, the wile of the lab Rwandongyero were hurried on the disputed land. ^I ler idcnce was in >rc or less in harmony w'ith that of PWI-.

According to PW4, the disputed land was first owned by her grandfather, called Ibrahim Mahegure. Upon the death of Ibrahim Mahegure, the customary holding became that of Abel Rwandongyero. When Abel Rwandongyero died in 1941, he left his wife and three male children in the land. I hose were the plaintiff, the defendant and Mujungu. The widow of Abel Rwandongyero died in 1952. She, like Ibrahim Mahegure,was burried in the disputed land. During the visit to the locus by the court, PW4 had no difficulties in locating the spots where both Ibrahim Mahegure, the father of Abel Rwandongyero, and her own mother,were buried in the disputed land.

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Similarly, PW4 gave me the impression of ^a thoroughly truthful witness. ^I had no reason to disbelieve her evidence.

PW5, Kezekia Karintunga. who was aged 84 when he testified in court and he too grew up al Kabwohe mission and acquired his own customary holding in the same village in 1944. He has since lived there. He corroborated the evidence of both the plaintiff and the two earlier witnesses, that is to say PW3 and PW4. PW5 Loo appeared to me to be an impecably truthful witness.

To contradict the evidence of die plaintiff and his witnesses, the defendant, \$ on this particular issue adduced the evidence of DWI, Kaleshuinba Gideon •ind DW3 Alfred Bushaii i. The evidence of the two witnesses was to the effect that both the plaint:If and the defendant lived on church land where ilicir father had lived mill his death in 1941 and that in 1969 Or 1970, thcl defendant applied for public land which was adjacent to the'church land. The J. , :■ " • A\*

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unoccupied and it was granted to him and he registered it in his own names. land was

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In my well-considered assessment and from their demeanor in court, both those witnesses gave me the impression of being ureliable witnesses. DW2, upon serious cross-examination, could not sustain his obvious lies. He broke down and completely got lost. Al the locus, it was very clear to me that both witnesses were not truthful in their claim that the disputed land was not the customary holding of the late Abel Kwandongyero. DW3 showed this court an incredible location, on the church land, which he claimed as being' the spot where Kwandongyero\s home had been. He did not appear to me to be serious or convinced in that claim.

I. therefore, find, and without any doubt whatever, that the disputed land belonged to the late Abel Rwandogycro as a customary holding. The plaintiff, therefore, has proved the first issue on the balance of probabilities.

The second issue is whether the plaintiff had a customary interest in the disputed land.

The evidence of the plaintiff and his witnesses is that he and the defendant were the sons of the late Rwandongyero. That evidence is not in dispute. J. have already found that the disputed land belonged to the late Abel Rwandongvero as his customary holding. It is the laixUipon which he and Ins family resided as PW3 and P\V ^I testified, in support of PWl's evidence. **¹ , 1** It is also not in doubt that after Pwandongyero's death' the land was left to Ins widow and his children and (lint (he three male children, namely the defendant who was the oldest, the plaintiff and Mujungu divided the'land,

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*^a* **-** aftei the death of their mother into three parts each having a portion which he icgarded as his. ^I here is no statutory definition of customary tenure. But as the Court of Appeal of Uganda observed in, Matovu & 2 Others vs. Ssevviri And Another (1979) HCB 174, *"even in the absence of "bibanja" holding, customary tenure may be established by the cultivation only of seasonal crops or the grazing of cattle and related construction ofwells to water cattle... "* The plaintiff showed to this court his homestead which was a very old one. He also showed this court very old eucalyptus trees, in the lower part of his kibanja which he claimed he planted in 1948. They actually appeared Lo be very old. His evidence was quite credible. It was quite clear that the plaintiff enjoyed unfrucluary rights over the land.

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The claim of the defendant's witnesses to the effect that the defendant bought the disputed land as unoccupied public land in 1969 or 1970 was not supported by any credible evidence. That apart, that evidence cannot stand in view of the overwhelming evidence adduced by the plaintiff to the effect that the disputed land was a family property in which three brothers, the children ofthe late Abel Rwandongyero. had customary interests.

**\* -** Il is. therefore, clear lo me that the plaintiff had. and, indeed, he has proved, on the balance of probabilities, dial he had a customary interest In the disputed land.

Hie third issue, which is the more substantial issue of Lilis case, in relation to ihe order beiim sought by the plaintiff, is whether the plaintiff brought the . **\* i** disputed land under the Registration of Titles Act, fraudulently. ¹¹

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¹ he Registration ol Titles Act does not contain a definition of fraud. ^I lowever, this court, in the case of *Katarikawe vs. Katwiremu And Another,HCCS No. 2 of 1973,* adopted the definition of fraud contained in ^a Kenyan statute to the effect that *''[fraud shall, on the part of a person obtaining registration, include a proved knowledge of the existence of an unregistered interest on the part ofsome other person, whose interest he knowingly and wrongfully defeats by such registration'"* (Emphasis added.) The Court of Appeal of Uganda in the case of Matovu And 2 Others vs. *Ssevviri And Another* (Supra) approved of that definition of fraud in relation to the registration of titles. It stated, "If a person procures registration to defeat the unregistered interest on the part of another person of which he is proved to have had knowledge, then such person is guilty of fraud." (See holding No.9.)

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which is In the instant case, according to evidence on record, uncontroverted, the plaintiff and the defendant were brothers. They had lived in the same area from childhood. The plaintiff, therefore, knew very well the customary interests of his brothers in the family customary holding. The plaintiff did not only hold a customary interest per se but he had extensive physical developments on the land, ^l ie had placed' all his lixelihood in it. 'There is no evidence that the plaintiff was present or even knew of lhe inspection of the land or the survey of it so as to enable him make ^a representation under rule ¹⁰ of the Public Lands (Adjudication) Rules. It is quite clear that by secretly applying for the land and presenting himself to lhe Adjudication Committee, as sole customary holder ofthe land,' lhe defendant committed an act of fraud. ^I le purposively intended t<Tdefeat the customarv interest of the plaintiff in the disputed land and deprive the

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plaintiff ol that interest for ever. Il was an explicit act of dishonesty on the part of the defendant. Waimiha Saw Milling Co. Ltd. vs. Waione Timber Co. Ltd. (1926) AC 101

It was observed, by this court, in the case *of John Katarikawe vs. William Katviremu And Another* (Supra) that mere knowledge of the existence of an unregistered interest per se cannot be imputed as constituting fraud on the part of a defendant but that such knowledge must be shown to have been accompanied by a wrongful intention to defeat such existing interest. Also see the decision of the Supreme Court of Uganda in *David Seijaka Nalima v. Rebecca Musoke, Civil Appeal No. 12/85, (reported in 1992 KALR J 32)*

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**. r** In the instant case, it is not only the evidence to the effect that the defendant secretly applied and obtained his certificate of title over the land customarily held by him and his brothers that shows the wrongful intention, on the part of the defendant, to defeat and deprive the plaintiff and his late brother of their cuslomarv interest in the disputed land. But also there is the evidence of PWI that when his laic brother, Mujungu, attempted to construct a house on his own kibanja on the disputed land, the defendant rose up in arms against him telling the late Mujungu that the land now exclusively belonged to the defendant and that the late Mujungu had not the slightest right to construct a house upon it. This in my view is explicit evidence of a manifest intention or purpose, on the part of the defendant, to defeat the customary interest of the plaintiff and his brother in the land.

Indeed, in *Appeal No..* die case *of Nampa/a Holliers Ltd,* v.y. *Dominica (I ^J Ltd., SC Civi^l qo[ ¹992^y* the Supreme Court of Uganda summarized life law

lelating to fraud in relation to the Registration of Titles Act. The Court emphasized the procedural aspects that fraud must be pleaded and it must be strictly proved. The standard of proof being higher than what is required ordinarily in civil matters, on a balance of probabilities. But, of course not being as high as what is required in criminal matters, beyond reasonable doubt. Also see *J. W. Kazora vs. M. B. S. Rukuba, SC Civil Appeal No. 13 of 1992* (unreported)

Secondly, it is the law that the kind of fraud that is relevant in order for a court to properly invoke its powers under section 185 of the Registration of Titles Act, is actual fraud and not constructive fraud. *Shokatali Abdulla Dhalla vs. Scidurudiii Merall. SC Civil Appeal No.32 of 1994.*

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In the instant case, the plainti ff pleaded particulars of fraud in paragraph 6 of the plaint. The evidence adduced by the plaintiff has proved on a balance of probabilities that the plaintiff had a customary interest in the disputed land which he had enjoyed for many years. It also proved that the defendant did not only have full knowledge of that interest but he purposively set out to defeat that interest and deprive the plaintiff of it. Thus committing fraud when be secretly applied lor land himself, registered and subsequently regarded himself as sole proprietor of the disputed land

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**2-0 4.** I.astlx, according to P'A'd, Karuhanga John, a registrar/)!' titles for Mbarara District, plot 53 Shccma. Block 2, was brought under the Registration of Titles Act, under (lie Public Lands (Adjudication) Rules 1958. Under Rulc^5 of those rules. Of those rules, il was provided:

"5. Where in any district or area to which these Rules have been applied, any person who is in occupation of any land by virtue of any customary right is desirous of being registered as proprietor of a freehold estate in respect thereof, such person may apply in the manner provided by these Rules to be adjudged the owner of such land by customary law."

According to the defendant's witnesses, DW2, George Kabwende and DW3, Alfred Bushaija, when the defendant applied for the disputed land in 1969, he and the plaintiff were both staying on church land where they had grown ١Ø up. The disputed land was unoccupied public land. The defendant merely applied for it under the adjudication policy. Of course, I have already stated that both those witnesses were untruthful and unreliable. But even if they had been truthful and, therefore, their evidence had been reliable, then this court would have found that the disputed land was wrongly brought under the Registration of Titles Act under the Public Lands (Adjudication) Rules $15$ 1958. Those rules applied only to public land which was being held by a customary tenant at the time when the application was made. That was the specific requirement of rule 5 of those rules. Accordingly, the adjudication and the subsequent issuance of the certificate of title would have been null and void because the Public Land Adjudication Rules would have been. applied to the disputed land.contrary to law.

The last issue is whether the plaintiff is entitled to the remedies which he seeks.

Since actual fraud has, in the instant case, been proved, and since the Registration of Titles Act. as was observed by the Court of Appeal, in HCB 2. S

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brothers. Matovu And 2 Others vs Sseuviri And Another, (Supra) was not intended to be used for the perpetuation of fraud, the title which was issued to the defendant shall pursuant to section 185 of the R. T. A., be rectified to encompass only the customary holding of the defendant. For the land, currently covered by the title, in the names of the defendant is not owned by him alone. It was at one time held by him in trust for himself and his Each brother eventually obtained a specific customary holding which must not be defeated but upheld.

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In the final result, I make the following declaration and order:

- **ⁱ o** a) Plot 33, Sheema Block 2, comprised the unregistered customary Interests ofthe defendant, the plainli ff and their brother, Mujungu. The defendant, at one lime, held the land in trust for himself and his brothers. The defendant secured a certificate of title over the entire land in his personal names, through fraud. Accordingly, the ^y indix idual customary holdings of each brother must be restored and separated from the defendant's title. - customary brothers. that it encompasses only the s • holding of the delcndaot and excludes those of his **w**respect of Plot 33. Sheema Block 2. so b) The Commissioner. Land Registration (Chief Registrar ofTitles) is Ordered to rectify the certificate of title issued to the defendant in - Owing to the special circumstances and peculiarities of this su^t, c) eacli parly shall meet its own costs.

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V. F. usoke-Kibuuka

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Judge 29/01/2001

## Order:

The Deputy Registrar of this court may, on a date fixed by him, deliver this judgment.

V. F. MUSUke^Rjbuuka

Judge 29/01/2001

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