[2024] UGCommC 346

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION)

## **CIVIL SUIT NO. 0554 OF 2020**

EVE RWENZO MUKAMURIZA ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### 1. KARUGABA NICK KERRY

#### 2. NDEMA THOMAS

3. EASY CASH LIMITED ::::::::::::::::::::::::::::::::::::

#### (Before: Hon. Lady Justice Patricia Mutesi)

#### **JUDGMENT**

### **Background**

- The Plaintiff brought this suit against the Defendants seeking an order for $1.$ the entry of her name as proprietor on the certificate of title for the land comprised on Kyadondo Block 218 Plot 808 situate at Najera ("the suit land"), cancellation of the mortgage on that certificate of title, damages for appropriation of the suit land, a permanent injunction restraining the Defendants from dealing in the suit land, interest on the damages and costs of the suit. - Briefly, the Plaintiff's case is that she purchased the suit land from one Erisa $2.$ Kirabira and left the same in the custody of the 1st Defendant, who was her fiancé at the time, when she left to go and start staying in the United States of America (U. S. A). She asserts that she later constructed a residential house on the suit land by sending money to the 1^st Defendant and her brothers, and the 1st Defendant then started staying in the house on the suit land. That whereas she asked him to process a certificate of title for the suit land in her names, he fraudulently processed it in his names as the proprietor thereof. Further that he also connived with the 2^nd Defendant and took out a mortgage over the suit land without her consent, and the 1^st and 2^nd

Defendants have continued to take out other mortgages on the suit land for their own benefit.

The Defendants did not file defences to the suit despite being served with 3. the summons to file a defence. This prompted the Court to enter a default judgment against them jointly. The 2^nd Defendant later filed and prosecuted Misc. Application No. 1557 of 2021 in which he obtained an order setting aside that default judgment as against him. He then filed a written statement of defence in which he claimed that the plaint does not disclose a cause of action against him. He also denied having been party to any mortgage with the $1^{st}$ or $3^{rd}$ Defendants.

## **Issue arising**

- This case has given rise to the following issues for the Court's determination: 4. - 1. Whether this suit is barred by the statute of limitations. - 2. Whether the plaint in this suit discloses a cause of action against the 2^nd Defendant. - 3. Whether the Plaintiff departed from her pleadings at the hearing. - 4. Whether the Plaintiff purchased the suit land in 2004 as claimed. - 5. Whether the 1^st Defendant procured his registration as proprietor of the suit land on 28^th April 2005 through fraud. - 6. Whether the $1^{st}$ Defendant mortgaged the suit land to the $3^{rd}$ Defendant on 6^th May 2010 through fraud. - 7. Whether the $2^{nd}$ Defendant procured his registration as proprietor of the suit land on 29^th September 2023 through fraud. - 8. What reliefs are available to the parties.

# **Representation and hearing**

At the hearing, the Plaintiff was represented by Mr. Ekima Emmanuel of M/s 5. Omongole & Co. Advocates while the 2^nd Defendant was jointly represented by Mr. Ngonde Davis and Ms. Anena Samantha Okello of M/s Okello Oryem & Co. Advocates. The Plaintiff led her evidence through 4 witnesses. PW1 was Roger Rwenzo, PW2 was Tito Ntagorera, PW3 was Isaac Rwenzo and

PW4 was the Plaintiff herself. The Plaintiff also adduced and relied on 18 documents which were admitted into evidence and exhibited consecutively as P. Ex.1 to P. Ex.18. The 2^nd Defendant did not lead any evidence.

- In his testimony, PW1 (Roger Rwenzo) told the Court that he is the Plaintiff's 6. brother. He said that around 2015, the Plaintiff, the owner of the suit land, called him and told him that she was having challenges finishing the house on the suit land because the 1^st Defendant to whom she had been sending money for that purpose, among other people, was not giving her recorded evidence of the work done. She asked him to take over the works. At the time, the house on the suit land was at the stage of installing windows, doors, ceiling board and a septic tank. She sent him money and he had the house's septic tank, windows and doors installed. He also bought other materials for the construction. - 7. PW1 further stated that the Plaintiff later told him that the 1^st Defendant had registered the suit land in his names instead of her names, and that she was planning to seek legal assistance to recover her land. She introduced PW1 to her lawyers M/s Omongole & Co. Advocates, who applied for a search report in respect of the suit land. That report confirmed that the 1^st Defendant was the owner of the suit land and that a mortgage had also been registered to the 3^rd Defendant on the suit land on 6^th May 2010. - PW2 (Tito Ntagorera) testified that the Plaintiff is his sister and that she has 8. been staying in the U. S. A. since 2000. Around 2007, the Plaintiff told him that she wanted to buy land in Najera. She told him to go with the $1^{st}$ Defendant (her fiancé at the time) to conclude the purchase the suit land. She sent the $1^st$ Defendant the money for the purchase price. However, the $1^st$ Defendant went alone and paid the then proprietor of the land his absence. The $1^{\rm st}$ Defendant later took him to see the land. He asked to see the sale agreement that for the suit land but the 1^st Defendant told him that he would talk to the Plaintiff directly about the matter. - PW2 stated that he later discovered that the 1^st Defendant had bought the 9. suit land in his own names only thereby leaving out the Plaintiff. He later

learnt from her that she suspected that the 1^st Defendant wanted to get a loan since he was looking for money to go abroad. At the time, the Plaintiff was still not believing that her boyfriend could do such a thing to her and she was still trying to justify his actions. PW2 also later found out that the 1st Defendant had mortgaged the suit land to the 3rd Defendant to secure a loan and that the certificate of title was in the posession of the 2^nd Defendant. The 1^st Defendant failed to pay back the loan.

- Finally, PW2 stated that, when the Plaintiff's advocates conducted a search 10. on the suit land, they confirmed that the 1^st Defendant is the owner of the land. The search report also indicated that the suit land is encumbered with a mortgage registered to the 3^rd Defendant on 6^th May 2010. On 22^nd October 2020, the Plaintiff lodged a caveat on the certificate of title to the suit land forbidding the registration of any change in proprietorship or any dealing on the suit land. That before filing the main suit, the Plaintiff had constructed a small house on the land with her own money. Although the house is incomplete, it is habitable. She agreed with the 1^st Defendant that he could move into the house in that state since she was tired of paying rent for him and he stays in the house to this day. PW2 has since learnt that the suit land is now registered in the names of the 2^nd Defendant as proprietor thereof. - PW3 (Isaac Rwenzo) testified that he is the Plaintiff's brother. He confirmed 11. that the Plaintiff bought the suit land using her own hard-earned money. That she sent the purchase money to the 1^st Defendant and he bought the suit land. Sometime around 2008, she asked PW3 to supervise the construction of her residential house on the suit land. He approached an engineer who went with him to the suit land and drew the house design. The Plaintiff sent money to him to purchase construction materials like bricks, sand and iron sheets. He purchased those materials and then supervised the foundation works, raising of the walls, roofing works and plumbing works. - PW3 said that he could not continue with his supervisory role on the house 12. works due to his job which required him to move to Rwanda. His brother, PW1, took over the supervision. It was after all the said events that he learnt

that the 1^st Defendant had fraudulently registered himself on the title of the suit land as proprietor thereof without the Plaintiff's knowledge. He also recently learnt that the 2^nd Defendant has been registered as the owner of the suit land without the Plaintiff's knowledge yet she had lodged a caveat on the suit land prior to that.

- PW4 (the Plaintiff) told the Court that in 2000, she moved to the U. S. A. and 13. that she is now a permanent resident there. In that same year, she planned with her boyfriend at the time, the 1^st Defendant, to buy land in Uganda. He encouraged her to buy the land and assured her that he was available to help. In 2004, the 1^st Defendant identified land in Najjera and told her that it would cost UGX 7,000,000. That she sent the said money to him in installments through Western Union money transfer but she cannot trace the remittance reports. When she finished payment, she asked him to process a certificate of title in her names. She planned to construct a house on the suit land with the $1^{st}$ Defendant's supervision which he was okay with. - PW4 testified that in 2005, she started sending money to the 1^st Defendant 14. for construction, also through Western Union. Without her knowledge, the 1st Defendant used most of the construction money for his own needs which made the construction project delay. It also strained their relationship. To this day, the house is incomplete yet she has continued to send him money for construction. The 1^st Defendant was never forthcoming in sending her pictures of the construction site, despite her several requests. - PW4 further stated that after persistently asking the $1^{st}$ Defendant what was 15. going on, he confessed to her that he and a friend called Thomas Ndema (the 2^nd Defendant) had taken the land title for the suit land to a money lender (the 3^rd Defendant) and that they had used the suit land to secure a loan for a business venture. She conducted a search and discovered that indeed the 3^rd Defendant had registered an encumbrance on the land. She tried so hard to tell the $1^{st}$ Defendant that the $2^{nd}$ Defendant was merely using him for selfish interests but the $1^{\ensuremath{\text{st}}}$ Defendant did not listen. She told the $1^{\ensuremath{\text{st}}}$ Defendant that she had investigated the 2^nd Defendant and found out that

he was not an honest person and that he had been arraigned in several court rooms. This scared the 1^st Defendant who promised to confront the 2^nd Defendant but all in vain.

- PW4 finally testified that the 1^st Defendant was soon hospitalized at Butabika 16. Hospital. After his recovery, the 1^st Defendant changed and stopped listening to her. He only spoke to the 2^nd Defendant as his hero, business partner and best friend. The Plaintiff instructed her lawyers to serve a demand notice on all the 3 Defendants in this case which they did. She lodged a caveat on the suit land and the 1st Defendant applied to remove it. Despite her lawyers' response in objection to that application, the caveat was removed. Later, the 2^nd Defendant was registered as proprietor of the suit land. She again lodged a caveat on the land after that entry. - 17. The Court conducted a locus visit to the suit land. From that visit, the Court confirmed that the suit land is developed with a residential house in which the 1^st Defendant resides. - After the hearing, counsel for the Plaintiff and the 2^nd Defendant filed written 18. submissions to argue their respective cases. I have carefully considered those submissions, the laws and authorities cited therein and all other materials on the record in reaching this decision.

## **Resolution of Issues**

- Before delving into the resolution of the issues, I am aware of Section 101(1) 19. of the Evidence Act that requires whoever desires a court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts to prove that those facts exist. I am also aware of Section 103 of the Evidence Act which is to the effect that the burden of proof as to any particular fact lies on the person who wishes court to believe in its existence, unless it is provided by any law that the proof of that fact lies on a particular person. - In all civil cases of this nature, the burden lies on the plaintiff to prove the 20. existence of his or her rights and the liability of the defendant for breach of

those rights on a balance of probabilities. In Miller v Minister of Pensions [1947]2 All ER 372, Lord Denning expounded on the meaning of the phrase "balance of probabilities" when he stated that:

"... The degree is well settled. It must carry a reasonable degree of probability but not too high as is required in a criminal case. If evidence is such that the tribunal can say, we think it more probable than not, the burden of proof is discharged, but if the probabilities are equal, it is not." Emphasis mine.

- However, allegations of fraud, though civil in nature, are more serious than 21. most other civil claims. For this reason, they have to be specifically pleaded and strictly proven. It is now generally accepted that fraud must be proved strictly and to the satisfaction of the court, the burden being heavier and the standard being higher than a mere balance of probabilities ordinarily applied by courts in civil matters (see Kampala Bottlers Ltd v Damanico (U) Ltd, SCCA No. 22 of 1992). - I cite these laws and principles with approval and I will be guided by them in 22. evaluating the evidence in this case.

Issue 1: Whether this suit is barred by the statute of limitations.

- The Plaintiff's case is that she purchased the suit land sometime in 2004. She 23. asserts that she did the purchase through her then boyfriend, the $1^{\ensuremath{\text{st}}}$ Defendant, who is the one that dealt with the former owner of the suit land (one Erisa Kirabira) on her behalf and delivered all the installment payments of the UGX 7,000,000 purchase price to him. It is after she completed paying all the installments that she requested the 1^st Defendant to process the certificate of title for the suit land in her name. - According to Annexure B to the Plaint (a report of a search conducted on the 24. suit land at the Lands registry on 15^th July 2020), the 1^st Defendant procured registration as proprietor to the suit land on 28^th April 2005 at 11:14am under Instrument No. KLA273311. The Plaintiff's contention is that in doing so, the 1^st Defendant betrayed her trust and fraudulently appropriated the suit land

to himself thereby permanently depriving her of her interests in the suit land. She thus brought this suit to recover the ownership and possession of the suit land from the 1^st Defendant.

- It has been argued by counsel for the 2^nd Defendant that this suit is barred 25. by the statute of limitations. Counsel for the 2^nd Defendant submitted that Section 5 of the Limitation Act bars the filing of any action in court for the recovery of land after the expiration of 12 years from the date on which the right of action accrued. Counsel concluded that since the search report for the suit land which is annexed as Annexure B to the plaint shows that the 1st Defendant was registered as proprietor of the suit land on 28^th April 2005, the right of action arose on that day and lapsed on 27^th April 2017. As such, that right had long lapsed by 11^th August 2020 when this suit was filed. - I acknowledge that, under Section 5 of the Limitation Act, no action shall be 26. brought by any person to recover any land after the expiration of 12 years from the date on which the right of action arose to him or her. Nonetheless, I am also alive to Sections 22 - 25 of the Limitation Act which prescribe some exceptions to the limitation periods set out in that Act. Specifically, Section 25(a) of the Limitation Act provides that, where an action is based upon the fraud of the defendant, the period of limitation shall not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it. - In paragraph 5(d) of the plaint, the Plaintiff contended that she had only got 27. to know about the 1^st Defendant's registration as the proprietor of the suit land "recently". In paragraph 5(e) of the plaint, she further asserted that the $1^st$ and $2^nd$ Defendants had connived to fraudulently take out a mortgage with the 3^rd Defendant using the suit land without her approval and that all the Defendants had continued to re-mortgage and profiteer from the suit land. To the latter paragraph, she annexed a copy of a search report for the suit land dated 15^th July 2020 which confirmed the impugned registration of the 1^st Defendant as proprietor and the 3^rd Defendant as mortgagee of the land. - As counsel for the 2^nd Defendant rightly submitted, in considering a defence 28. of limitation or any exception thereto, the Court must only look at the plaint and its annexures. This Court has, indeed, on several occasions, clarified that if there are exceptions to the Limitation Act, the same must be pleaded. It is also trite law that a plaint which is brought after the time prescribed by the Limitation Act has lapsed but which does not expressly plead any exception to the limitation is flawed and bad in law. (See Odyek Alex & Anor v Gena Yokonani, HCCA No. 9 of 2017). - Having reviewed the plaint in its entirety, I find that the Plaintiff pleaded the 29. exception to limitation that is set out in Section 25(a) of the Limitation Act. Paragraphs 5(d) and 5(e) of the plaint read together with Annexure B to the plaint adequately disclose that the Plaintiff only discovered the fraud alleged therein after her lawyers obtained a search report from the Lands registry on 15^th July 2020 confirming that the 1^st Defendant is the registered proprietor of the suit land and that the 3^rd Defendant is the mortgagee of the land. It is, therefore, my considered finding that this suit is not barred by the statute of limitations because the Plaintiff had only discovered the fraud alleged in the plaint less than one month before this suit was filed.

## Issue 2: Whether the plaint in this suit discloses a cause of action against the 2^nd Defendant.

A cause of action means every fact which is material to be proved to enable 30. the plaintiff to succeed, or every fact which, if denied, the plaintiff must prove to obtain judgment. In considering whether a plaint discloses a cause of action, a court must look at whether the plaintiff enjoyed a right, whether that right was violated and whether the defendant is liable for the violation. (See Tororo Cement Co. Ltd v Frokina International Ltd, SCCA No. 2 of 2001). In Katuramu David & Anor v Bundibugyo District Local Government, HCCS No. 7 of 2019, this Court also clarified that, in determining whether a plaint discloses a cause of action, a court must look at the plaint and its annexures, if any, and nowhere else.

Counsel for the 2^nd Defendant contended that the plaint in this suit does not 31. disclose a cause of action against the $2^nd$ Defendant because no facts were pleaded against the 2^nd Defendant in the entire plaint. However, as counsel for the Plaintiff pointed out, this is simply not true. The Plaintiff pleaded, in paragraph 5(e) of the plaint, that the $1^{st}$ and $2^{nd}$ Defendants connived and fraudulently took out a mortgage with the 3^rd Defendant using the suit land without her approval, and that they continued to re-mortgage and profiteer from the suit land. As such, I find that the plaint in this suit discloses a cause of action against the 2^nd Defendant.

## Issue 3: Whether the Plaintiff departed from her pleadings at the hearing.

- Counsel for the 2^nd Defendant submitted that the Plaintiff departed from her 32. pleadings at the trial when she adduced oral and documentary evidence at the hearing in a bid to prove that the $2^nd$ Defendant is now the registered owner of the suit land. Counsel for the $2^nd$ Defendant submitted that the plaint sought orders to issue against the 1^st Defendant as proprietor and that no evidence of any unpleaded changes in proprietorship can be considered at the trial or at judgment stage. In reply, counsel for the Plaintiff submitted that the Plaintiff generally pleaded in the plaint for a declaration that the suit land belongs to her and that her presentation of evidence proving a change in proprietorship only proves that the Defendants are fraudulent which also means that the suit land rightfully belongs to her. - Order 6 Rules 6 and 7 of the Civil Procedure Rules prohibit departure from 33. one's pleadings. They prescribe that no party shall introduce a new fact by way of evidence at the trial of a case which fact was not initially expressly relayed in that party's pleadings. In the case of Interfreight Forwarders (U) Ltd v East African Development Bank, SCCA No. 33 of 1992, the Supreme Court explained that:

"The system of pleadings is necessary in litigation. It operates to define and deliver it with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the court will be called upon to adjudicate between them. It thus serves the double purposes of informing each party of what is the case of the opposite party which will govern the interlocutory proceedings before the trial and which the court will have to determine at the trial. See Bullen & Lake and Jacob's Precedents of pleading 12^th Edition, page 3. Thus, issues are formed on the case of the parties so disclosed in the pleadings and evidence is directed at the trial to the proof of the case so set and covered by the issues framed therein. A party is expected and is bound to prove the case as alleged by him and as covered in the issues framed. He will not be allowed to succeed on a case not so set up by him and be allowed at the trial to change his case or set up a case inconsistent with what he alleged in his pleadings except by way of amendment of the pleadings." Emphasis mine.

I cite the above dictum with approval. Without amending one's pleadings, one cannot set up a case, through evidence adduced at the trial, which differs from the one pleaded.

- After carefully and thoroughly analyzing the plaint, I agree with counsel for 34. the 2^nd Defendant that the Plaintiff departed from her pleadings at the trial. The plaint alleges that the 1^st Defendant is the current registered proprietor of the suit land. Indeed, the search report of the suit land which is annexed as Annexure B to the plaint states that the $1^{st}$ Defendant is the registered proprietor of the suit land. The prayer for cancellation of the entry on the proprietor's part of the certificate of title of the suit land is sought as against the 1^st Defendant as proprietor of the suit land. However, at the trial, the Plaintiff adduced another report for a search conducted in the Land Registry on the suit land on 12^th December 2023 (P. Ex.18) showing that the registered proprietor of the suit land is the 2^nd Defendant. - It is obvious that P. Ex.18 constitutes an attempt to introduce a new issue into 35. the suit which is whether the 2^nd Defendant's registration as the proprietor of the suit land was tainted with fraud. Indeed, at the hearing of the Suit and in submissions, the Plaintiff, her witnesses and her counsel all alluded to the

fresh and unpleaded fact which is that the 2^nd Defendant is now registered as the proprietor of the suit land. I acknowledge that there could have been a change in proprietorship of the suit land before or during the trial, but, in agreement with the case of Interfreight Forwarders (U) Ltd v East African Development Bank (supra), the correct course of action for the Plaintiff and her counsel was to apply to amend the plaint to introduce that change and not to try and sneak that change and evidence thereof onto the court record through evidence and submissions. I, thus, find that the Plaintiff departed from her pleadings at the hearing.

## Issue 4: Whether the Plaintiff purchased the suit land in 2004 as claimed.

- This is largely an issue of fact which lies at the centre of the controversy in 36. this suit. Before delving into the questions of whether there was any fraud in the processes leading up to the impugned entries in the proprietorship and incumbrances parts of the certificate of title to the suit land, it is important for this Court to first understand and determine whether the Plaintiff actually purchased the suit land in 2004 as she claimed. That analysis necessitates a thorough review of the evidence of that purchase adduced by the Plaintiff. - The Plaintiff (PW4) testified that in 2000, she planned with the 1^st Defendant 37. who was her boyfriend at the time to purchase land in Uganda. She said that he encouraged her to proceed with that plan and assured her that he was available to help whenever she was to be ready to transact. Four years later in 2004, the 1^st Defendant identified for her land in Najjera (the suit land) and told her that the same would cost her UGX 7,000,000. She then sent him that money in installments through Western Union money transfer, though she cannot trace the remittance reports. - Tito Ntangorera (PW2) who is the Plaintiff's brother told the Court that she 38. instructed him to go with the 1^st Defendant to conclude the purchase of the suit land. He said that, however, the 1^st Defendant went alone and executed the deal in his absence and without his knowledge. When he learnt of this, he asked the 1^st Defendant for the purchase agreement but the 1^st Defendant did not give it to him and promised to allay his fears by explaining his actions

to the Plaintiff directly. Roger Rwenzo (PW1) and Isaac Rwenzo (PW3) both testified that they got involved in this matter after the impugned purchase of the suit land by the Plaintiff.

- The Plaintiff adduced 18 documentary exhibits in proof of her case. These 39. were an extract from the certificate of title for the suit land (P. Ex.1), receipts of payment for construction materials used to build the house on the suit land $(P. Ex.2 - P. Ex.9)$ , some photos of the incomplete house on the suit land (P. Ex.10), search reports on the suit land dated 15/07/2020, 30/11/2023 and 12/12/2023 (P. Ex.11, P. Ex.16 and P. Ex.18 respectively), a notice of intention to sue (P. Ex.12), caveats of 22/10/2020 and 12/12/2023 (P. Ex.13 and P. Ex.17 respectively), a notice to remove the caveat (P. Ex.14) and a response to that notice (P. Ex.14). - 40. The Plaintiff did not adduce the copy of the land purchase agreement for the suit land yet PW2 admitted that that agreement is there and that it named the 1^st Defendant as purchaser of the suit land. Worse still, the Plaintiff did not adduce any receipts of payment of the purchase price for the suit land or even her Western Union remittance reports showing that she sent money to the 1^st Defendant to pay for the suit land. The Plaintiff's 3 witnesses (PW2, PW3 and PW1) all neither witnessed nor participated in the pre-contractual negotiations leading up the alleged purchase of the suit land and so, save for hearsay, they cannot independently confirm to the Court what did or did not happen in that transaction. The Plaintiff was herself admittedly out of the country and she did not also take part in those negotiations or even sign the land purchase agreement. - Receipts of payment of the different installments of the purchase price could 41. have salvaged the Plaintiff's case. Her admission that she does not have any of the Western Union remittance reports showing that she ever sent the 1^st Defendant any money to pay the purchase price of the suit land further dents her case. There is, simply, no independent evidence to corroborate her claim that she purchased the suit land in 2004 as claimed. To make matters worse, none of the receipts for the construction materials said to have been used

on the house on the suit land is issued to and in the name of the Plaintiff as purchaser of those materials. If there was at least one such receipt issued in her name, the Court could have started to see some credibility in her claims. Furthermore, there was no documentary evidence admitted at the hearing corroborating PW1's and PW3's testimonies that the Plaintiff used to send them money electronically to buy materials and facilitate their supervision of construction on the suit land.

- It is possible that the Plaintiff could have had an informal consensus with the 42. 1st Defendant for him to help her buy the suit land on her behalf in the honest belief that her romantic relationship with him would last forever. That may and caused her have blinded her not to formalize the terms on which he was to act for her in the transaction or even to ask him for the purchase agreement and the payment receipts, if any, from the former owner of the suit land. This may very well have been the case and the Plaintiff could have been a victim of a fraudulent lover, as she testified. While one would sympathise with her in such circumstances for being betrayed by someone she loved and trusted, this Court is legally bound to rationally decide this dispute by relying only the evidence that was adduced before it at the trial. - As I have already remarked, my considered deduction from these facts is that 43. the Plaintiff has not adequately corroborated, through independent evidence, her claims that she purchased the suit land in 2004 from the said Erisa Kirabira (former owner). The plaintiffs testimony and her testimonies of three witnesses are not those that would typically require corroboration in order to be admitted and relied on, and in making this deduction, the court is not making any such pronouncement. Instead the Court is simply reaffirming that, notwithstanding Section 133 of the Evidence Act whose effect is that even one witness can adequately testify to a fact to the Court's satisfaction, the Court is still bound to weigh all the evidence before it objectively and thoroughly so as to make a conclusive factual finding.

- The Court is also simply acknowledging the critical role that corroboration 44. evidence plays in definitively confirming the existence of a fact in issue or a relevant fact. In relation to the instant case, the failure to adduce a purchase agreement, any payment receipts for the purchase price, any Western Union remittance reports and any single witness who was present during the precontractual negotiation or the execution of the purchase agreement for the suit land has meant that the Plaintiff's claim that she purchased the suit land in 2004 is highly implausible on a balance of probabilities. I reiterate that, under Section 103 of the Evidence Act, it was the Plaintiff who wanted the Court to believe that she purchased the suit land in 2004 and who also had the duty to prove that fact on a preponderance of evidence. - 45. For that reason, the Court finds that there is no rational justification for it to conclude that the Plaintiff purchased the suit land in 2004 as she claimed in the plaint. The Court, accordingly, finds that the Plaintiff did not purchase the suit land in 2004 and that she does not have any single legal or equitable interest of a proprietary nature in the suit land. In view of that finding, it is no longer necessary for Court to delve into any of the other issues relating to the lawfulness of the impugned entries on the certificate of title for the suit land. Without proving, on a balance of probabilities, that she purchased the suit land in 2004 as claimed, the Plaintiff's entire case in this suit collapses and it would be of no consequence to her rights and interests whether those entries where properly made or not.

## **Reliefs**

I found that the Plaintiff has failed to prove that she purchased the suit land 46. from Erisa Kirabira in 2004 as she claimed or that she has any proprietary right or interest in the suit land whatsoever. As a result, none of the reliefs she sought in her plaint are available to her. Instead, as counsel for the 2^nd Defendant prayed, this Court is now bound to dismiss this suit at once on grounds that the Plaintiff does not have any proprietary rights in the suit land. Additionally, the Court finds that it must now set aside the default judgment it had entered against the $\mathbf{1}^{\text{st}}$ and $\mathbf{3}^{\text{rd}}$ Defendants on $25^{\text{th}}$ Januarv 2021 because that default judgment has been incurably infected and overtaken by the Plaintiff's failure to prove to the required standard that she bought the suit land in 2004 and that she has any proprietary rights in it. The Plaintiff cannot seek to enforce that judgment against the $1^{st}$ and $3^{rd}$ Defendants in respect of the suit land since she does not have any rights to or in it.

- A successful party in litigation is ordinarily entitled to recover his or her costs 47. of the litigation from the unsuccessful party unless Court, for good reason, orders otherwise. (See Section 27(1) of the Civil Procedure Act Cap 71 and Kwizera Eddie v Attorney General, SC Const. Appeal No. 01 of 2008). In the instant case, the 2^nd Defendant appeared and defended the suit. Since he has succeeded against the Plaintiff, I am unable to see any reason why he should not recover the costs he has spent in defending this suit from her. - Consequently, this suit fails and I make the following orders: 48. - The default judgment entered by this Honourable Court in this suit on 25^th Ĭ. January 2021 is set aside as against the $1^{st}$ and $3^{rd}$ Defendants. - This suit is hereby dismissed since the Plaintiff has failed to prove, to the ii. prescribed standard of proof, that she purchased the suit land in 2004 as she claimed and that she has any proprietary rights or interests in it. - Costs of this suit are awarded to the 2^nd Defendant. iii.

callula

Patricia Mutesi JUDGE $(31/12/2024)$