[2024] UGHCLD 53

# THE REPUBLIC OF UGANDA

## IN T}IE HIGH COURT OF UGANDA AT KAMPALA

# LAND DIVISION

# ctvtL sutT No. 131 0F 2014

5 MUTAGUBYA STEPHEN---------- ---------------------PLAINTIFF

VS

1. NANTEZA REBECCA

2. PETER MITANDA

3. NASAZI LORINE

4. MUHUMUZA ROGERS 10

5. HOUSING FINANCE BANK LIMITED

6. COMMTSSTONER LAND REGTSTRATTON--------.---------------------------DEFENDANTS


JUDGMENT

The Plaintiff brought this action against the Defendants jointly and severally seeking;

- 1. A permanent injunction restraining the lsl Defendant from selling the Plaintiffs land (Kibanja), comprised in Block 377 Plol 84O Land at Seguku-Katale, Kazinga-Busawuula. herein referred to as the suit land, to the 2nd and 3'd Defendants. - 2. An order compelling the '1.1 Defendant to sign transfer forms in the Plaintiff s favour in respect to suit land. - 3. An order compelling the 1.t Defendant to add 25 decimals to the suit land, and transfer this additional land to the Plaintiff. - 4. An order of eviction of the 2nd and 3d Deiendants from the suit land. - 5. l\4esne profits from all three Defendants for depriving the Plaintiffs adequate use of his land. - 6. General damagesforthe inconveniences caused tothe Plaintiff.

7. Costs of the suit.

# **PLAINTIFF'S CLAIM**

$\mathsf{S}$

Mr. Mutagubya's claim is that since 1976 he has been a bonafide occupant of the suit Kibanja measuring approximately 75 decimals which was bequeathed to him by his grandmother, the late Samali Lukiya Nakaweesi. He has always enjoyed quiet possession, unchallenged by the subsequent registered proprietors on the Mailo title, up until the time 1^st Defendant, Ms. Nanteza became registered proprietor.

In 2012, Mr. Mutagubya agreed to purchase the registerable interest in his Kibanja from the 1^st Defendant at a total consideration of UGX 25,000,000/=. He paid UGX 9,500,000/= 10 upon execution of the agreement. When he approached Ms. Nanteza to clear the balance, she took him to a surveyor whom she instructed to do all that it takes to help him get his title, including receiving the balance on her behalf.

After completing the payment of the balance to the surveyor, he handed to Mr. Mutagubya 15 the certificate of title and advised him to get signed transfer forms from Ms. Nanteza. Despite written requests from the Plaintiff's lawyers, the 1^st Defendant refused to hand over the signed transfer forms. Instead, she fraudulently sold part of his land to the 2^nd and 3^rd Defendants who have now constructed houses on it and fenced it off, in spite of her obligations under their contract of sale. Additionally, the title in the Plaintiff's 20 possession only has an area of 50 decimals and not 75 decimals which he originally paid for, which constitutes his registerable interest. Hence this suit for recovery of his land.

# THE 1^ST DEFENDANT'S DEFENCE AND COUNTERCLAIM

Ms. Nanteza denied the Plaintiff's claim and filed a Counterclaim against the Plaintiff, 25 adding Mr. Gitta Jesse (Surveyor), as the 2^nd Counter defendant and Mr. Mulumba Hannington, as the 3^rd Counter defendant.

She contended that the Plaintiff has neither been a bonafide occupant of the suit land nor has he ever enjoyed quiet possession. Ms. Nanteza admitted that she entered into a sale agreement with the Plaintiff for his purchase of her land measuring 55ft x 34ft at UGX

25,000,000/=. But according to her, Mr. Mutagubya paid only UGX 9,500,000/= and has never paid the balance.

ln response lo the claim that she authorised someone to receive her balance, lvls. Nanleza was emphatic that this was not true. Her version of events is that the 2nd Counter Defendant, Mr. Gitta, the surveyor, mutated her land into Plots 840 and 839 without her consent and handed the suit land certificate of title to the 3'd Counter Defendant, Mr.

Under her counterclaim, l\4s. Nanteza sought the following orders;

Mulumba Hannington, who is currently, holding onto it without cause.

- 1. A declaration that the Plaintiffi '1sr Cou nterdefendant breached the contract of sale of 18rh February 20'10 and is not a bonafide occupant at all. - 2. A declaration that the payments allegedly made by the Plaintiff to Mr. Gitta Jesse were not authorised by the Counter-claimant and were not in respect of the suit land. - 3. An order that the contract of sale be rescinded - 4. An order that the Counter -claimant's original title be returned to her with an order that all entries in respect of Plot 839 and 840 be cancelled. - 5. General damages for breach of contract. - 6. Costs of the Counter-Claim.

20 Before the commencement of the hearing, Ms. Nanteza withdrew her claim against the 2^d Counter Defendant, Mr. Gitta Jesse.

#### EVIDENCE

### Plaintiff's Evidence

The Plaintiff, Mr. Mutagubya Steven, testified that he and his siblings lived on the suit land, a 3 acre Kibanja. lt was given to them by their grandmother one Lukiya Nakaweesi

2s after the death of her sister, the late Samalie Namusoke and they have lived there for over 50 years. During this period, they developed the Kibanja by constructing permanent houses and their grandparents are buried on it. Their landlord then was the late Kayinani Seninde, a resident of Sseguku Kyadondo to whom they paid Busuulu as Kibanja holders as per Exb. P.1. When he died, he was succeeded by a one Sebaggala Elifazi, who later

distributed his estate among severar beneficiaries who incruded Ms. Nanteza, the 1sr Defendant. The distribufion was subject to all the overriding interests on it, including theirs. And each of the beneficiaries to the estate had a duty to discuss with the people then occupying the property distributed to him or her.

- 5 Mr' rvrutagubya testified that he is entiaed to the registerabre interest in the suit Kibanja. It was following the foregoing diskibution that Ms. Nanteza, the registered proprietor, approached them to purchase their registerable interests in the property. To that end, Mr. Mutagubya agreed with Ms. Nanteza in a written undertaking, Exb. p.2, to pay UGX 25,000,000/= to her for the 75 decimats allocated to him. On the 18rh February 2010, he - made a deposit payment of UGX 9,5oo,ooo/= to Ms. Nanteza, in the presence of the rate Emmanuel Jjagwe, Steven Walusimbi and one Kakembo Joshua her relative. ln return, Ms. Nanteza had the duty to survey\_off Mr. l\rutagubya,s 75 decimals but instead, she disappeared. Mr. Mutagubya started rooking for her to receive the barance in accordance with their agreement and when he failed to trace her, on advice of his lawyers, he wrote to her a formal communication through the LC1 Chairperson, Zone 5 NIr. Kijongolo, 10 15

ng him that he wished to make his payment to Ms. Nanteza, through him. A copy of the letter was admitted and marked Exb. p ³

20 Following that communication, Ms. Nanteza appeared but she did not receive the money. What she did was to introduce him to a company called property Envoys lnternational Limited where she told him to pay the balance. And from 4rh April 2O1O to the .l3rh November 20'13, the plaintiff made several payments which totalled UGX 23,000,000/= and the receipts were issued by Mr. Gitta Jesse. copies were admitted and marked Exb. P.4 A-D. lt was agreed that the balance of UGX 2,0OO,0OO/= be paid upon detivery of the title to him. After that, Mr. [rutagubya went to the islands to do farming. When he returned he found the 2nd and 3'd Defendants had constructed on part of the land a foundation of houses. Consequenfly, he reported a case to the Land protection Unit in Kibuliwhich was of no help. He engaged the services of a rawyer, Mr. Lure Godfrey to fire a case. several other authorities among whom was the Lc1 chairman, the porice Land protection unit were also informed. ln addition, Mr. Mutagubya pursued Ms. Nanteza,s surveyor, l\.4r. Gitta Jesse of Property Envoys lnternational Limited. 25 30

Mr. Gitta informed lvlr. Mutagubya that Ms. Nanteza owed him UGX 18,000,000i = and he would only be able to give Mr. Mutagubya his certificate of title after the amount had been paid. Despite the Plaintiff's continued demands for his title, [i]r. Gitta refused to hand it over saying he was holding it as a lien for the amount due to him.

Eventually, the title was delivered to Mr. Mutagubya's lawyer, Mr. Mulumba, but it was missing 25 decimals out of the 75 decimals owing to him. Upon engaging another surveyor, it was discovered that the legal title that Ms. Nanteza contracted to sell to the Plaintiff was not 75 decimals but only 50 decimals and 15 decimals of the land was being built on by the 2nd and 3rd Defendant as indicated in a copy of the survey report marked Exb. P.5. 10

To prevent further encroachment, the Plaintiff filed an application for an iniunction to stop the Defendants from constructing on the suit land, which was granted, but ignored by the Defendants. Copies of photographs showing the status quo at the material time and after the contempt were admitted and marked Exb. P.6 A-F and P.7 respectively.

An added fact is that a short time after his agreement with Ms. Nanteza, l\,4 r. Mutagubya, sold off the land to a one Hon. Ebbie Ekwaw, but she has not been able to access it because of Ms. Nanteza's actions. Therefore, Hon. Ekwaw had lvlr. Mutagubya arrested and detained for several months. This criminal case is still continuing under CRB No.4283 of 2018 which has subjected him to undue inconvenience, stress and mental anguish for which he prays that the Court awards him general damages. 15 20

Mr. Sensozi Gideon, the Plaintiff's son corroborated his testimony

# 1"t Defendan t's Evidence

Ms. Joyce Gunze Habaasa, a registered surveyor with Terrain Consult, testified as DW1. On 28rh October 2015 she was instructed by Ms. Nanteza to carry out a boundary opening and verification survey of the Kibanja as previously held by N,4r. Mutagubya on former Plot 124 as per the agreement of sale dated lBth February 2010. She explained that the Kibanja was found to partly sit on Busiro Block 377 Plot 760, 838 and part of 840. And that it is only Plot 839 which appears to have been further subdivided to create Plots 839 and 840. The Kibanja for Mr. Mutagubya occupies an arca ol 70 decimals on the Ms.

Nanteza's land and the area of Plot 840 as per print is 92 decimals. Ms. Habaasa concluded that the total acreage of Mr. Mutagubya's Kibanja was 0.70 acres or 0.282 hectares and yet he is in possession of land title for Plot 840 which computes to 0.378 ha which is 92 decimals.

- DW2, Ms. Nanteza Rebecca, the 1^st Defendant, testified that on the 18^th February 2010 5 she entered into an agreement with the Plaintiff for him to purchase his Kibanja interest on her land comprised in Busiro Block 377 Plot 124. The land measured 55ft x 345ft and the agreed consideration was UGX 25,000,000/= of which the Plaintiff paid UGX 9,000,000/=. The balance of UGX. 15,500,000/= was supposed to be paid within 3 weeks - and thereafter she would subdivide and transfer for him his share. A copy of the 10 agreement was admitted and marked Exb. D.1. She further clarified that the Kibanja she was selling was only measured in feet and they did have any surveyor to measure it in acres or otherwise. She added that as a landlord she is aware that the survey is always done at the cost of the transferee and she did not agree with the Plaintiff to receive the balance of the purchase price on her behalf. And the balance remained unpaid beyond 15 the agreed three -week period and her efforts to locate Mr. Mutagubya to pay were unsuccessful.

Ms. Nanteza further testified that at all material times, she has always lived on the land adjacent to the said Kibanja and Mr. Mutagubya was not living on the suit land which was a bush. On 3^rd August 2010, she received a letter written by M/S Bazirengede & Co. Advocates claiming that she had refused to receive the balance and asking her to collect it from them as per Exb. D.2. When Mr. Bazirengede Muhammad personally brought the letter to her and she asked him for the balance, he just went away and never returned. She further asserted that it is not true that she introduced the Plaintiff to Property Envoys International Limited and instructed him to pay them her balance after the said communication. Therefore, the Plaintiff's claim that he paid that company money on her behalf was false because she never authorised him to make those payments and there is no proof that he authorised him. She denied any knowledge of the receipts marked Exb. D.4 to D.7 made to that effect.

$\mathbf{6}$

Responding to the allegation that she had disappeared, Ms. Nanteza denied receiving the letters dated 6rh November 20'13 and 18rh November /2013 marked Exb. D.9 and D.10. She pointed out that they contradict the earlier letter written by Mr. Bazirengede asking her to receive the balance. They seem to acknowledge that the balance of UGX 5,500,000/= was still outstanding and that she was supposed to collect it. Yet the Plaintiff claims to have paid the balance of UGX 13,500,000/= leaving a balance of UGX 2,000,000/=. She further denied any knowledge of the document dated 27th November 2013 marked Exb. D.1 1 which indicated that the 3'd Counter defendant received the title of lhe suit land on behalf of the Plaintiff. Ms. Nanteza insisted that she did not authorise Mr. Gitta Jesse to receive UGX 3,700,000/= as her last instalment. She maintained that the Plaintiff never paid her the balance oi UGX 15,500,000/= and he illegally connived with Mr. Gitta to create Plot 840 out of her land and hand over title to the 3'd Counter

defendant.

When the Plaintiff failed to pay the balance, he resorted to threats to get Ms. Nanteza to

release the mother title to him. She reported these threats to Kajjansi Police, Officer in Charge, Criminal lnvestigations Department, Katwe and Kibuli. The Plaintiff was summoned by the Police but he did not appear. Ms. Nanleza clarified that Mr. Gitta Jesse was known to her as a surveyor who has done work on her land in respect of other people and he still had her mother title. She only took the Plaintiff to him to confirm that the title 15

- was with Mr. Gitta who would survey the Plaintiff's Kibanja after she had received her purchase price. But without her knowledge and authorlty, the Plaintiff got in touch with Mr. Gitta and connived to defraud her of her land since he had her mother title. She further asserted that she never sold any part of the suit land to the 2nd Oefendant or anybody else and she denied having taken part in executing the agreement dated 25rh September 2A - 2009 marked Exb. D.13 between herself c/o lvlr. Gitta Jesse and lvlr. lMusisi Fred Ssozi c/o the 2"d Defendant. 25

### 2"d Defendant's Defence

Mr. Peter Mitanda, the 2nd Defendant, DW3, denied the Plaintiffs claim and averred that he is neither the owner nor proprietor of the suit Iand and the orders sought cannot apply 30 to him. He distanced himself from the transaction in which lvls. Nanteza sold land

comprised in Busiro Block 377 Plot 126 at Seguku Katale to one Mr. Musisi Fred Ssozi. Mr. Mitanda contends that all he did was give UGX 18,000,000/= on behalf of the said Musisi Fred Ssozi to Mr. Gitta who received it on behalf of Ms. Nanteza.

DW3, added that he and Mr. Musisi Fred Ssozi are cousins. Mr. Ssozi requested Mr. $\mathsf{S}$ Mitanda to purchase the land described as Busiro Block 377 Plot 760 measuring approximately 0.06 hectares at Seguku, on his behalf. Through Mr. Gitta, a surveyor familiar with the land, Mr. Mitanda was introduced to the 1^st Defendant, Ms. Nanteza as the owner of the land. A search at the land registry revealed that the land was registered in the name of Salongo Ssebagala Elifazi as per Exb. D.15. Ms. Nanteza, when contacted 10 to explain, informed him that she was the beneficial owner of the land. After Mr. Mitanda inspected the land, which was a bush and unutilised, the purchase price was agreed at UGX. 18,000,000/=, and Ms. Nanteza referred him to Mr. Gitta, whom she described as her agent for purposes of the sale. She instructed him to pay the money to Mr. Gitta and to execute an agreement with him since he was in possession of the titles to her land. 15

On 25^th September 2009, DW3 proceeded to Mr. Gitta's office and paid the purchase price. A copy of the agreement was admitted and marked Exb. D.13. Mr. Gitta then informed him that the title deed for the suit land was in the process of sub division and that it would be handed to him or his cousin, Mr. Ssozi, at a later date. Subsequently, on 11^th November 2010, Ms. Nanteza signed transfer forms in favour of Mr. Ssozi and 20 handed them over together with passport size photos as seen in Exb. D.15. Immediately after conclusion of the purchase, Mr. Ssozi moved onto the land and started construction of rental houses in 2009. Exb. D.16 is a letter authored by Ms. Nanteza addressed to Mr. Mitanda informing him that part of the fence that Mr. Ssozi built had encroached onto someone else's land.

# The 3^rd Counter Defendant's Evidence

Mr. Mulumba Hannington, the 3^rd Counter Defendant, testified that the title which is sought to be recovered from him came into his custody in his capacity as an advocate for the Plaintiff. In or about 2013, the Plaintiff, Mr. Mutagubya, gave him instructions to recover his land from the 1^st Defendant measuring approximately 70 decimals. By a letter dated 181h November 2013, he asked the 1"1 Defendant, Ms. Nanteza, to collect her money which was by then amounting to UGX 5,500,000/=. Acting on her instructions, he paid the money to Mr. Gitta Jesse of Property Envoys lnternational Limited who in turn delivered the title to Mr. Mutagubya, hence the acknowledgment marked Exb. CDl.

- By a letter dated srh December 2013, he notifled Ms. Nanteza that they had complied with her request and that they had received the title comprised in Block 377 Plots 839 and 840. After receipt of the title, Mr. Mulumba handed it over to Mr. Mutagubya on the 3rd day ofApril 2014, as indlcated in a copy ofthe acknowledgement marked Exb. CD2. As a law firm, they asked Ms. Nanteza to execute a transfer form in Mr. Mutagubya's favour, - which she failed to do, hence this suit. l\.4r. Mutebi maintains that the suit does not disclose any cause of action against him, because all that was done, was within the law therefore it ought to be dismissed with costs. 10

### REPRESENTATION

The Plaintiffs was represented by Mr. Mohammed Bazirengede of Bazirengede & Co Advocates and the 1st Defendant was represented by M/S Tumwesigye Louis and Co Advocates.

Locus visit took place on the 8th June 2023

Counsel filed written submissions which I have duly considered

The following issues were formulated for Court's resolution;

20 lssues

- 1. Whether the Plaintiff is entitled to the legal interest in the 75 decimals of his Kibanja? - 2. whether the 2nd defendant lawfully acquired interest in the suit land from the 1"t defendant? - 3. Whether the'l"t defendant has a valid claim against the 3'd counter defendant? - 4. What remedies are available to the parties?

#### RESOLUTION

### Issue 1

# Whether the Plaintiff is entitled to the legal interest in the 75 decimals of his Kibanja?

The Plaintiff's claim to the suit land is that he was a tenant by occupancy. His claim, as

- he demonstrated by the Busulu receipts marked Exb. P.1, is that for over 50 years, his $\mathsf{S}$ family owned a Kibanja in the vicinity of the suit land and the 75 decimals is his beneficial share therein. To take ownership of this portion, he entered into an agreement, as envisaged under section 36 of the Land Act, to purchase the legal interest of his Kibanja measuring 75 decimals from the 1^st Defendant, the registered proprietor, on the 18^th 10 - February 2010. I have reproduced a copy of the agreement, Exb. P.2, below;

Sseguku Kyadondo L. C1 Zone 5 Ggomba, Ssabagabo- Makindye 18-2-2010

I Nanteza Rebecca of Sseguku Kyadondo L. C1 Zone 5 Gomb. Ssabagabo Makindye the owner of the land 15 on Block 377 Plot 124 Busiro. I have allowed Mutagubya Stephen to buy his Kibanja interest. His Kibanja is as follows; below he separates with Ssemwanga from the sunset he borders with Jjagwe Emmanuel-Above he borders with Betty Kiregeya and from Jjagwe ft55 (fifty- five feet only) from there as you are sloping to Sempa's Kibanja ft. 345 from the sunrise from Ssemwanga's boundary to the boundary behind 20 ft. 55 (fifty -five feet).

I have sold it to him at shs 25,000,000/= (twenty -five million shillings only). He has so far paid shs. 9,500,000/= (nine million five hundred thousand shillings only). The balance will be paid after 3 weeks from today. After that I will make him a transfer and a mutation form and he takes his share.

- $\overline{I}$ the vendor- Nanteza Rebecca 0774858268 - $|$ who has paid – Mutagubya Stephen

Witnesses: (Kakembo Joshua

(Jjagwe Emmanuel

The crux of the Plaintiff's claim is that while he made full payment of the purchase price, 30 albeit out of the 3 -week agreed period, he has so far received a title to 50 decimals of the suit land and has never been granted vacant possession to any of it. On the other hand, the 1^st Defendant maintains that she never received any more money after the

agreement was executed. She stated that she made several verbal attempts to request her balance, in vain.

Counsel for the Plaintiff relied on the cases of Ernest Kabyanga v Sanyu Patrick & 4 Others Civil Suit No.3O4 of 2002, H. M Kadingidi v Essence Alphonse HCCS No. 289 of 1986 and lsmail Jaffer Allibhai & 2 Others v Nandlal Harjivan Karia & Anor SCCA No. 53 of 1995 to submit on the principle that a purchaser to a contract is entitled to the equitable remedy of specific performance. Counsel submitted that the legal interest in the land passed on to the Plaintiff upon execution of the agreement.

ln reply, Counsel for the lsrDefendant submitted that the locus visit made it abundantly clear that the Plaintiff had nothing on the land, there were no graves as he claimed. This coupled with the fact that the busulu receipts were not in his names and that he failed to make complete payment of the purchase price were a demonstration that the Plaintiff had

no legal interest in the suit land. 15

> ^Ifind that at no time was the authenticity of Exb. P.2, the agreement between the Plaintiff and the lstDefendant challenged. ln that agreement, the 1'r Defendant described herself as the registered owner and she described the Plaintiff as a Kibanja holder. By doing so,

- the lsrDefendant acknowledged the Plaintiffs interest in the land, the subject matter of the agreement and received a payment of UGX. 9,000,000/= against that understanding. It was therefore not open to her advocate to use these proceedings as a platform to dispute the Plaintiffs Kibanja interest, when his client had derived a benefit from it. 20 - 25 My understanding of the provisions of section 36(1) of the Land Act which governs transactions of this nature, is that after the parties enter a mutual agreement, which I find that the Plaintiff and the 1sr Defendant did, as indicated by her receipt oi the UGX 9,000,000i=, they are bound by the provisions of section 36(2) which provides for the practical steps for putting their agreement into effect. The entire section provides;

36. Mutual agreement between tenant by occupancy and registered owner

(1) A registered owner and a tenant by occupancy may mutually agree that the land in which a tenant by occupancy has an interest be subdivided in such portions as the parties may agree with each party having exclusive occupancy or ownership of such portions as may be agreed or that the parties become joint proprietors of the land either as joint

tenants or as tenants in common, and where they agree to be tenants in common, the $\mathsf{S}$ shares of each in the land on such terms and conditions as they may agree.

(2) Where the parties agree to subdivide the land and become owners of individual portions of the subdivided land or where the parties agree to become joint

proprietors of the land, they shall provide the Commissioner with documentary 10 evidence of their agreement and certified survey plans where applicable, and the Commissioner shall— (a) make the appropriate entries on the certificate of title of the land;

(b) issue new certificates of title to the parties;

(c) inform the recorder of the changes that must be made to the certificate of occupancy, including where relevant the cancellation of the certificate. (Emphasis added)

The provisions of Section 36 place an equal burden and responsibility upon both the registered owner and the tenant by occupancy to ensure that the process of subdivision 20 is completed before the Commissioner Land Registration. It is a mandatory duty that must be jointly executed until each party is in possession of their respective titles.

In the suit before me, it is Plaintiff's claim that he made all the payments of the balance on the purchase price to a Mr. Gitta, whom he knew to be the 1^st Defendant's surveyor 25 and in return he was issued with receipts marked Exb. P.4 A-D. The 1^st Defendant who denied receiving the monies sued Mr. Gitta and then just before the hearing, she withdrew the suit against him. He was also not called as a witness by either party.

Be that is may, there is a surveyor who testified for the 1^st Defendant, Ms. Joyce Gunze 30 Habaasa, DW1. She testified that on the 28^th October 2015, she was instructed by the 1^st

Defendant to carry out a boundary opening and verification survey of the Kibania as previously held by Mr. Mutagubya on former Plot 764 as per the agreement of 18rh February 2010. She found that the Kibanja occupies an area of 70 decimals on the 1'r Defendant's land. lt was her conclusion that the total acreage of the Plaintiffs Kibanja

- 5 was 0.70 acres or 0.282 hectares and yet he is in possession of a land title for Plot 840 which computes to 0.378 heclares which is 92 decimals. Again, by the 1'r Defendant's own evidence, the Plaintiff's legal interest in the suit land is acknowledged, with the only discrepancy being the acreage. - 10 ^Ifind that the failure by the parties to strictly adhere to the provisions of section 36 of the Land Act gave rise to this avoidable and protracted dispute. A joint sub-division and registration exercise would have expedited the lawful execution of the parties' intentions under their agreement. I find that there is need for the parties to return to their ag reement and give its effect using the path envisaged under the law to ascertain the Plaintiff's - 15 Kibanja acreage constituting his legal interest in the suit land once and for all. According to their agreement, the Plaintiffs legal interest is 70 decimals. Since he claims 75 decimals, the question of precise acreage shall be determined in a joint survey and subdivision verification exercise premised on the agreement between the Plaintiffand the 1sr Defendant daled 18rh February 2010. ,/ - 2A lssue 1 is resolved in the affirmative /,

### lssue 2

## whether the 2nd defendant lawfullv acquired interest in the suit land from the 1"t defendant?

A perusal of the evidence makes it abundantly clear that Mr. Peter Mitanda has never held interest in the suit land. His role was as an agent on behalf of his cousin, Musisi Fred Ssozi. Counsel for the 2nd Defendant relied on section '159 of the contracts Act 2010 which provides; 15

159. Enforcement and consequences of contract of agent

A contract entered into through an agent and obligations arising from acts done by the agent under the contract shall be enforced in the same manner and have the same legal consequences as if the contract was entered into or done by a principal. Counsel further relied on section 162(a) and (b) of the Act which states;

$\mathsf{S}$

162. Agent not to enforce or be bound by contracts on behalf of principal In the absence of any contract to the contrary, an agent shall not enforce a contract entered into by him or her on behalf of a principal and shall not be bound by the contract, except where—

(a) the contract is made by the agent for the sale or purchase of goods for a merchant 10 resident abroad:

(b) the agent does not disclose the name of the principal;

According to Counsel, 2^nd Defendant's the written statement of defence has been on record since 2017 and the 2^nd Defendant's role in the transaction has not been hidden.

He therefore prayed that the 2^nd Defendant's absentee principal not be condemned 15 unheard and the suit against him be dismissed.

Counsel for the Plaintiff's submissions were made on the basis that the 2^nd Defendant was rightly sued in his own right as a purchaser of the suit property the subject of DE13, the purchase agreement dated 25^th September 2009.

A perusal of the agreement indicates that it was made between Gitta Jesse on behalf of Margaret Nanteza, the 1^st Defendant, on one part and on behalf of Musisi Fred Ssozi on the other part. As rightly stated by the 2^nd Defendant, Mr. Musisi was never sued in his own right. Secondly the suit initially brought by the 1^st Defendant against her surveyor 25 was withdrawn. This effectually leaves the Plaintiff with a lopsided complaint. Both real parties to the agreement are not present and therefore I agree with Counsel for the 2^nd Defendant, that Mr. Musisi ought to have been sued in his own right so that he could defend the agreement complained of. Since this was not done, this issue is misconceived

and the agreement stands unchallenged in law until the contrary is proved. 30

## lssue 3

## Whether the 1"1 defendant has a valid claim aqainst the 3rd counter defendant?

The 3d Counter Defendant is an advocate. He acted in a strictly representative capacity and I find that there is no evidence to demonstrate that his actions attracted any liabilily of any kind.

lssue 3 is resolved in the negative.

## lssue 4

## What remedies are aYailable to the oarties?

I am satisfled that the Plaintiff is entitled to some remedies sought. And that the Counterclaim has no merit for reasons stated. 10

ln conclusion, the Counterclaim is dismissed with costs and this suit partially succeeds and judgment is entered for the Plaintiff and I order as follows;

- 1. lt is declared that the Plaintiff is the rightful owner of the Kibanja described in the agreement dated 18th February 2010 between himself and the 1st Defendant. 15 - 2. A ioint survey exercise to be carried out by the Plaintiff and 1"t Defendant to ascertain the Plaintiff's actual interest. - 3. The 1"r Defendant to sign transfer forms in the Plaintiff's favour in respect of his interest in (2) above. )o - 4. The Plaintiff to release the suit land certificate of title to the 1"1 Defendant for purpose of the transfer in (3) aboye. - 5. Costs of the suit to the Plaintiff.

Olive Kazaarwe ukwaya

JUDGE

29th February 2024

Delivered by email to Counsel for the Parties 30