[2025] UGHC 103

#### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT HOIMA CIVIL SUIT NO. 0110 OF 2024 (Formerly MSD C. S No.41 of 2017)

MURULI BABIIHA CHRISTOPHER ::::::::::::::::::::::::::::::::::::

## **VERSUS**

**1. ALITUHA YUSUF** 2. KAIJA ANDREA ::::::::::::::::::::::::::::::::::::

# Before: Justice Byaruhanga Jesse Rugyema

## **JUDGMENT**

- The Plaintiff in this suit sued the Defendants jointly and severally for the $[1]$ following declarations and orders; a declaration that the land comprised in Block 48, Plot 66 (currently 94) at Kisweka, Block 44, Plot 40 land at Kinte and Block 44, Plot 45 all situated in Kagadi (formerly Kibaale district) belongs to the plaintiff, an order compelling the Commissioner Land Registration to rectify the register by cancelling the names of the defendants and reinstate the plaintiff as registered proprietor, an order of specific performance compelling the defendants to hand over the certificates of titles for the suit land back to the plaintiff, general damages and costs. - The Plaintiff contends that on dated 15/05/2007, he and the defendants $[2]$ entered into an agreement for hire of the certificates of titles for land comprised in Block 48, Plot 66 land at Kisweka, Block 44, Plot 40 land at Kinte and Block 44, plot 45 all situate in Kagadi District formerly Kibale District. It is the Plaintiff's case that the defendants were required to hold the said certificates of title for a period of 5 years until $15/05/2012$ when they would hand over the titles duly transferred back in the names of the plaintiff. The plaintiff discovered he had been defrauded of his land which is family land and he lodged a caveat and reported a criminal case at Bwikara police post but was unble to recover his certificates of title.

The plaintiff particularized fraud and misrepresentation as follows;

a) Tricking the plaintiff to sign a transfer form for the land in favour of the defendants without consideration.

- b) Transferring the titles in the names of the defendants and violating the terms of the agreement after 5 years by not surrendering the titles and ownership back to the plaintiff. - c) Grabbing the Plaintiff's land without a sale agreement. - The plaintiff averred that the defendants have permanently decided to grab $[3]$ his land and have filed C. S No.037 of 2017 to evict the relatives of the plaintiff yet the defendants did not purchase the suit land. As a result of the defendants' actions, the plaintiff has been denied his legal right to repossess his certificates of title arising from the fraudulent misrepresentation by the defendants. - The 1^st & 2^nd Defendants on the other hand filed their respective Written $[4]$ denied the Plaintiff's Statement of Defence (WSD). The $1^{st}$ Defendant allegations and raised a preliminary objection that the plaint reveals no cause of action against him for he was not a party to the hire agreement. That he lawfully acquired the suit property by purchase from the Plaintiff who executed transfer forms in his favour. That the sale agreement between the $1^{\rm st}$ Defendant and the Plaintiff in respect of the 2 plots was stolen from the $1^{\rm st}$ Defendant in an armed robbery which was reported to police under Kibaale CRB 138/2009. The 1^st Defendant further denied knowledge of the 3^rd plot described as Block 44, plot 45. - The $1^{st}$ Defendant contended further that it is the Plaintiff who is fraudulent $[5]$ and dishonest for denying the legal validity of documents i.e land transfer forms duly executed, lodging a claim for 3 plots yet the transaction was in respect of 2 plots and presenting a non-existent/forged hire agreement without witnesses. - The 2^nd Defendant also denied the Plaintiff's allegations and contended that $[6]$ the plaintiff is not entitled to the reliefs and prayers in the plaint as against the 2^nd defendant. He denied executing the purported hire agreement and raised a preliminary objection that the plaintiff has no cause of action against him as he neither possess the land titles in issue nor are they registered in his names. - The case was scheduled for hearing on the 23^rd/8/2022 but the defendants $[7]$ were not present in court. Upon satisfying itself that the defendants had been

duly served with the hearing notices, court directed that the matter proceeds exparte.

# **Preliminary objection**

# Whether the plaint discloses a cause of action against the $1^st$ defendant.

- It is a settled position of the law that the question as to whether a plaint $[8]$ discloses a cause of action is determined upon the perusal of the plaint alone and any attachments to it and on the assumption that the averments in the plaint are true; Attorney General Vs Oluoch (1972) EA 392. The essential elements required to establish a cause of action i.e, that the plaintiff enjoyed a right, that the right has been violated and the the defendant is liable should be disclosed, Auto Garage Vs Motokov No.3 (1971) EA 514 at page 517. - In the instant case, the plaint alleges he owned land comprised in Block 48, $[9]$ plot 66 at Kisweka, Block 44 plot 40 & 45 at Kinte all situate in Kagadi (formerly Kibaale district) which he hired to the $1^{\mbox{\tiny st}}$ & $2^{\mbox{\tiny nd}}$ defendants by way of execution of a hire agreement, the $2^{nd}$ defendant being an agent of the $1^{st}$ defendants fraudulently alleges the that plaintiff defendant. The misprepresented to the plaintiff by tricking him into signing transfer forms yet the transaction was hire of the plaintiff's certificates of title of the suit land and as a result, the plaintiff has been denied his legal right to repossess his certificates of title arising from the fraudulent misrepresentation by the defendants. From the foregoing, I find that the plaintiff enjoyed his proprietory rights in the suit properties, which rights were allegedly violated by the defendants' action of fraudulent transfer of the properties and he holds the defendants liable. The plaint in this case accordingly discloses a cause of action against the $1^{st}$ and $2^{nd}$ defendants. In the premises, I dismiss the preliminary objection.

#### **Issues**

- The following issues were framed during the joint scheduling conference for $[10]$ determination. - 1. Whether the Defendants acquired the suit land lawfully. - 2. Whether the defendants breached the terms of hire agreement dated 15^th August, 2007. - 3. What remedies are available to the parties.

## **Counsel Legal representation**

The Plaintiff was represented by Mr. John Ssematiko of M/s Byamugisha, $[111]$ Lubega, Ochieng & Co Advocates, Kampala while the Defendants were represented by Mr. Byamukama James of M/s Byamukama, Kaboneke & Co. Advocates, Kampala.

## Burden and standard of proof

It is trite law that in all Civil Cases, pursuant to Section 101(1) of the $[12]$ Evidence Act Cap 6, whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts are in existence. It is further a cardinal principle of law that in Civil Suits all evidence is proved on a balance of probabilities, See Miller Vs Minister of Pensions [1947] 2 AllE. R 372 and Katumba Vs Kenya Airways, Civil Appeal 9 of 2008 (SCU). Therefore in this case, the plaintiff has a duty to prove his case of ownership of the suit properties on the balance of probalities and the 1^st defendant to prove his claim that he purchased the suit land from the plaintiff, on the same standard of proof.

# **Issues 1: Whether the Defendants acquired the suit land** lawfully.

Counsel for the Plaintiff submitted that the defenfants fraudulently acquired $[13]$ the suit land by misrepresenting to the plaintiff to sign transfer forms thereby enabling registration of the suit land in the names of the 1^st defendant. That a hire agreement was executed between the parties where the defendants undertook to transfer the titles back to the plaintiff after using them for a period of 5 years. That instead of executing powers of attorney with the plaintiff, transfer forms were signed which was fraudulent on the part of the defendants. Counsel relied on the case of Kampala Bottlers Ltd Vs Damanico (U)Ltd, SCCA No.22 of 1992 to support his argument that the defendants intentionally perverted the truth to induce the plaintiff to give them his land titles as security for acquiring loan facilities but the defendants instead had ill intentions to permanently deprive the plaintiff of his land which amounts to fraud.

- To prove his case, the Plaintiff, Muruli Babiiha Christopher testified as PW1. $\cdot$ [14] In his witness statement, PW1 adduced evidence that the $1^{st}$ & $2^{nd}$ defendants who are brothers and also his friends, approached him and requested him to temporarily transfer his certificates of title into the names of the $1^{\mathfrak s\mathfrak t}$ defendant to enable him use them as security. An agreement for hire of $PW1's$ certificates of title for land comprised in Buyaga Block 48, plot 66 at Kisweka and Block 44, plot 40 land at Kinte situate in Kagadi district. Though the plaintiff had pleaded also Block 44, plot 45 land at Kinte as one of the claimed certificate of title, it is apparent that in evidence he abandoned claim for the certificate of title of this plot. PW1 stated that only parties to the hire agreement were present i.e, the plaintiff, the $1^{st}$ and $2^{nd}$ defendant without anyother witnesses because the defendants had requested him not to involve anyother people due to the business enemies they have in Muhorro Trading Centre. - It is the evidence of PW1 in paragraph 8 of his witness statement that on the $[15]$ day of execution of the hire agreement, the $1^{st}$ defendant informed him that the $2^{nd}$ defendant was rushing to Kampala for a meeting and that he ( $2^{nd}$ defendant) would therefore sign the agreement upon returning to Kagadi which he did not do. That the 2^nd defendant using his thumb print, signed the hire agreement on behalf of his brother, the 1^st defendant, and the plantiff signed the transfer instruments in favour of the 1^st defendant. - I have carefully examined the paintiff's exhibits that were admitted in $[16]$ evidence. The agreement for hire of the certificates of title and its English translation were admitted & marked P. Exh.3 and the certificates of title were marked P. Exhs.1&2 respectively, caveat lodged by the plaintiff marked P. Exh.4 and the judgment in Crim. Case No.310/2017 Ug Vs Kaija Andrew, the 2^nd defendant (P. Exh.5). As per the hire agreement (P. Exh.3), the defendants were to hold or rent the plaintiff's certificate of titles from $15/05/2007$ to $15/05/2012$ (a period of 5 years) and also pay to the plaintiff Ugx 1,120,000/= per annum. The translation of the agreement $(P. Exh.3)$ in part reads thus;

"We Alituha Yusufu and Kaija Andrea of Muhorro Trading Centre, children of Mr. Kaija Karoli of Nyamasa, LC1 Bwikara Sub County, Kibaale District have rented land titles (Certificates) mentioned above from Muzei Muruli Babiiha Christopher of Nyamasi LC1, Bwikara Sub County, Kibaale District.

The duration of rent commences on $15/05/2007$ and ends on $15/05/2012$ , a period of (05) years..."(emphasis)

It was stipulated in the agreement that the names on the titles be changed from the plaintiff's names to Alituha Yusufu, the $1^st$ defendant's name so as to enable him use the titles. It was also a term of the agreement that the after a period of 5 years, the defendants would transfer the names on the titles from Alituha Yusufu to the plaintiff's names, Muzei Muruli Babiiha Christopher or his heir. It was also indicated that the land titles had been handed over to Andrea Kaija, the $2^{nd}$ defendant.

- In my view, the above is clear and credible evidence that the agreement that $[17]$ was executed between the plaintiff and the defendants was for rent and/or hire of the plaintiff's certificates of title. - The defendants' claims in the pleadings are that the plaintiff sold 2 plots to $[18]$ the 1^st defendant is not supported by any evidence, for example, a sale agreement. Nowhere in his $WSD$ did the 1^st defendant indicate the consideration he paid to the plaintiff for purchase of the suit land, for this court to appreciate his claim that he purchased the said plots from the plaintiff. 2ndly, the 1^st defendant's claim that the purchase agreement was stolen from him together with other items in an armed robbery is not backed or supported by any evidence as the report hhe allegedly made to police vide CRB 138/2009 was not adduced in court as evidence and therefore, the claim is devoid of any merit. The plaintiff by duly endorsing the transfer forms in favour of the defendants was to enable the defendants put to use the certificates of title to the purpose they hired them for as per the hire agreement, i.e use them as security but not to be used as evidence of sale. - The defendants having adduced no evidence to counter the plaintiff's claims, $[19]$ in absence of any cogent evidence of purchase of the suit land by the $1^{\ensuremath{\text{st}}}$ defendant contrary to the plaintiff's testimony, I find the plaintiff's evidence adduced in court clear and credible. The plaintiff has therefore proved his case on the balance of probabilities that he executed a hire agreement with the $1^{st}$ & 2^nd defendants for hire of his certificates of title. The defendants did not acquire the suit properties by way of purchase so as to confer them any rights to deal with properties and or transfer them into their names contrary to the hire agreement terms that governed the parties.

[20] The first issue is therefore in the premises resolved in the negative. The resolution of this issue disposes off the $2^{nd}$ issue because the defendants by their action of alienating the suit properties to themseslves contrary to the hire agreement (P. Exh.3) amounted to breach of the hire agreement in question. The $2^{nd}$ issue therefore is found in the affirmative.

## **Remedies**

## **General damages**

- It is well settled law that general damages are the direct or probable $[21]$ consequence of the act complained of, See Kampala District Land Board & Anor Vs Venancio Babweyana, Civil Appeal No. 2 of 2003 (SC). Such consequence might be loss of use, loss of profit, physical inconvenience, mental distress, pain and suffering, as per Kiryabwire J in Assist (U) Ltd Vs Italian Asphalt and Haulage Ltd & Anor HCCS No. 1291 of 1999, (unreported), at page 35. - Having found that the transaction between the plaintiff and the defendants $[22]$ was for hire of the plaintiff's certificates of title, it therefore follows that the defendants breached the terms of agreement which required the 1^st defendant to hold the certificates of title for a period of 5 years and thereafter, have them transferred back into the names of the plaintiff. Having discovered the fraud committed by the defendants, the plaintiff lodged a caveat (P. Exh.4) and registered a criminal case at police which resulted into the successful prosecution, conviction and sentence of the 2^nd defendant, see (P. Exh. 5). From the foregoing, I find that the plaintiff suffered inconvenience, psychological torture and mental anguish due to the actions of the defendants which were intended to deprive him of his right to ownership and use of his land. Counsel for the plaintiff prayed for **Ugx 300,000,000/=** as damages which figure I find rather too high. In the premises, I award the Plaintiff general damages of Ugx $80,000,000/$ = as appropriate in the circumstances of this case considering the fact that titles were being hired at Ugx 1,120,000/= p.a and the other incoveniences, stress and or trauma and suffering he has suffered.

## **Interest**

Under S.26(2) of the CPA, the court has power to award interest on damages $[22]$ in a suit. In Mohanlal Kakubhai Radia Vs Warid telcom (U)Ltd, HCCS No.0224 of 2011, it was held that a successful plaintiff is entitled to interest at a rate which would not neglect the prevailing economic value of money but which

would insulate him/her against inflation and currency depreciation in the event that the money ordered to be recorvered is not paid promptly when it falls due. In view of the above, this court awards interest on the general damages awarded to the plaintiff at 18% p.a from the date of this judgment to payment in full.

#### Costs

- In Mungecha Vs AG [1987] HCB 55, Manyindo J, held that under S.26 (1) CPA $[23]$ (now S.27), costs should follow the event unless Court orders otherwise. In the present case, I do accordingly award the Plaintiff costs of the suit. - In conclusion. Judgment is entered in favour of the plaintiff in the following $[24]$ terms: - a) The Plaintiff is declared the lawful owner of the suit land comprised in Block 48 plot 66 (currently 94) at Kisweka and Block 44 plot 40 at Kinte situate in Kagadi District formerly Kibaale. - b) The Defendants are declared trespassers on the suit land and they are ordered to surrender to the Plaintiff the certificates of title for the above described land. - c) A permanent injunction is issued restraining the defendants or their agents from interfering with the quiet possession of the suit land by the plaintiff. - d) The Commissioner Land Registration is directed to rectify the register by deregistering the defendants and reinstating the names of the Plaintiff on the above certificates of title. - e) The Plaintiff is awarded general damages of $Ugx$ 80,000,000/= to be paid jointly and severally by the defendants. - f) Under S.27(1) CPA, Costs fillow the event. The Plaintiff is awarded costs of this suit.

Dated at Hoima this 17^th day of January, 2025.

Byaruhanga Jesse Rugyema JUDGE.