[2023] UGHCLD 460

## **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT KAMPALA**

**(LAND DIVISION)**

#### **CIVIL SUIT NO. 185 of 2019**

# 5 **MUTANSIGWA BENON-----------------------------------------------------------------PLAINTIFF**

**V**

## **1. EDWARD MULINDWA**

# **2. JAMES KIMERA SEKIWANUKA**

**3. LAWRENCE LUTAAYA MPALANYI--------------------------------------------DEFENDANTS**

# **Before: Hon. Lady Justice Olive Kazaarwe Mukwaya JUDGMENT**

The Plaintiff brought this suit against the Defendants jointly and severally seeking the remedies below:

- 15 a) An order for cancellation of the certificates of title issued to the Defendants in respect of land comprised in Kyadondo Block 210 Plot 1340, Plot 1249 and Plot 1244 situated at Kyebando ( Nsooba Zone) Kawempe Division, Kampala (herein after referred to as the suit land) obtained through fraud. - b) An order for eviction of the Defendants from the suit land and demolition of houses 20 illegally erected on the suit land. - c) A permanent injunction restraining the Defendants, their servants and agents from entering upon the suit land. - d) General damages for trespass. - e) Interest on the decretal sum at the rate of 20% p.a computed from the date of 25 judgment until payment in full. - f) Costs of the suit.

## **THE PLAINTIFF'S CLAIM**

Mr. Mutansigwa Benon, the Plaintiff brought this suit in his capacity as a son and beneficiary of the estate of the late William Ssajjabbi who passed away in 1974. His late father was the registered owner of land comprised in Mailo Register Kyadondo Block 210 Plot 114 measuring 1.80 acres at Kyebando which is the mother title from which the suit 5 land emanates. After his father's demise, the estate was administered by the Administrator General. Sometime in early 2015, the Plaintiff discovered that the Defendants had entered upon and taken possession of the suit land without his consent.

They proceeded to erect three houses thereon despite having no right to do so.

Furthermore, on or about 17th December 2018, the Plaintiff carried out a search in the 10 land offices at Kampala and discovered that the Defendants had fraudulently registered themselves as owners of the said plots of land which were derived from the original Plot 114.

The Plaintiff contends that the Defendants are not entitled to own the said land since neither his late father nor his administrator ever sold the suit land to them or signed any 15 transfer instruments in their favour. The Plaintiff also discovered that the Defendants had

- fraudulently caused the subdivision of Plot 114 into Plots 1340, 1249 and 1244 which they registered into their names and acquired certificates for. He maintained that this subdivision was conducted fraudulently since neither his late father nor the administrator of his estate ever signed a mutation form authorizing the same. - 20 It is the Plaintiff's contention that the actions and conduct of the Defendants on the suit land are unlawful and they constitute trespass thereon. He also averred that they have unlawfully deprived him of the use of the suit land which has subjected him to damage and loss for which they should be held liable. Hence this suit.

#### **THE DEFENCE**

- 25 The Defendants denied all the Plaintiff's claim and averred that the estate of the late Ssajjabbi including the land comprised in Kyadondo Block 210 Plot 114 measuring 1.80 acres at Kyebando was distributed amongst the beneficiaries in 1992. After the distribution, the land was surveyed and the land for Kizza Michael was then comprised in Plot 1244, the land for Edward Mulindwa in Plot 1243 and Sepiriya Sempungu in Plot - 30 1249 who were all issued succession certificates by the Administrator General. They

subsequently used the same to get registered on their respective titles. The Defendants averred that the beneficiaries of the said land sold their land to the Defendants' immediate predecessors in title from whom the Defendants legally purchased their land. They averred that they have been in possession of their pieces of land for over 20 years which

5 they have developed and occupied without any claims or queries from the Plaintiff who is their neighbour. They thus contended that they have never committed any fraud or been party to it and that they are bonafide purchasers for value.

#### **EVIDENCE**

#### Plaintiff's evidence

- 10 PW1, Mr. Mutansigwa Benon testified that the Defendants possess forged certificates for the suit land which belonged to his father, the late William Ssajjabbi. When he reported the matter to the Administrator General, he and his co-beneficiaries were advised to go to Court. His colleagues refused to join him in this matter, however, due to the expenses involved. Copies of the duplicate certificate of succession and certificate of title for Plot - 15 1340 were admitted into evidence and marked Exb. P.1 and P.2 respectively. PW1 pointed out that the certificate of succession refers to 'Degeya' and yet the land is in 'Bulemezi'. Furthermore, the title indicates that his father was registered on 27th April 1993 and yet he had passed away in 1974.

After his father's death, letters of administration to his estate were issued on 8th July 1977 20 and a copy of the same was admitted and marked Exb. P.3. Mr. Mutansigwa informed this Court that he is still in possession of the original title for the entire suit land which indicates that his late father was registered on 18th March 1955. A copy of the title was tendered into evidence and marked Exb. P.4. He also testified that the Defendants' titles indicate that they obtained their titles in 1993 however at that point, his father had passed

25 on and could not have signed for the transfer of these titles as claimed by the Defendants. These facts confirmed the fraudulent transactions of the Defendants for which he prayed that Court find them liable and grant him the remedies sought in the Plaint.

PW2, Ms. Sarah Nakayima, the Plaintiff's older sister corroborated the Plaintiff's evidence in all material particulars. She testified that the Plaintiff brought this suit against the

30 Defendants for recovery of the suit which she confirmed belonged to their late father. She

added that the suit land is comprised in Mailo Register, Kyadondo Block 210 Plot 114 measuring 1.80 acres at Kyebando, Nsooba, Kawempe Division, Kampala. She explained that their late father's homestead was and is still on the suit land including several houses belonging to her and their other siblings. And since their late father died in 1974, no part

5 of the said land has ever been sold or transferred to any other person. She also maintained that the Defendants have never been allowed to enter and settle on the suit land. Ms. Nakayima added that the Defendants committed fraud on the suit land by creating false plots and false certificates of title out of the original certificate of title whereas the original title for the Plot 114 is still in existence and in the Plaintiff's custody 10 who is keeping it on behalf of their late father's family.

#### Defendants' Evidence

DW1, Mr. James Kimera Sekiwanuka who is also the 2nd Defendant in this matter testified that sometime in the year 1993, he was introduced to a one Hajji Yunus Vule who was selling his land in Kyebando and he opted to buy it. After visiting the land, the vendor

15 showed him a copy of his land title and they proceeded together to the land office at Parliamentary Avenue where DW1 was given confirmation that it was authentic. DW1 also contacted the then LC1 Chairman of the area, the late Lubega Frank who assured him that the vendor Hajji Vule was the rightful owner of the land.

Later, Mr. Kimera negotiated with the vendor and paid the purchase price for the land. 20 The vendor duly signed for him transfer forms and the land was transferred into his names on 24th August 1993 as per a copy of the title marked Exb. D.2. Upon purchase, he secured approved plans from the City Council of Kampala for construction of his residential house. A copy of the approved plans was tendered into evidence and marked Exb. D. 3. Thereafter, DW1 started developing his land with his residential house which

25 he completed and started occupying sometime in 1994. DW1 went on to testify that he came to know the Plaintiff in 2000 when he wanted to expand on his compound. He then contacted Hajji Vule who notified him that the Plaintiff's family owned the neighbouring portion to his land. Mr. Kimera approached the Plaintiff to inquire whether they would sell the said portion of land to him but he declined. DW1 further stated that the Plaintiff stays in the premises next to his land and that in all the time he has known him, the Plaintiff has never laid any claim against his land until he instituted this suit.

DW2, Mr. Edward Mulindwa the 1 st Defendant testified that in 1995 he was informed by Hajji Vule, his neighbour and friend, that a one Hassan Mayanja was selling land. He 5 explained that Hajji Vule was a very prominent person in the area and had previously bought a neighbouring portion of land from Sepiriya Sempungu, one of the beneficiaries of the estate of the late Ssajjabbi. DW2 made further inquiries from the area LC1 Chairman, the late Lubega Frank who confirmed that the land was owned by Hassan Mayanja who had bought it from Edward Mulindwa, one of the beneficiaries of the late 10 Ssajjabbi. Since DW2 was busy with work at that time, Hajji Vule helped him to complete

the purchase process and the land was transferred into his names on 10th October 1995.

Mr. Mulindwa later sold part of that land to Nakalembe and Fred Kayongo necessitating subdivision of the title to create his remaining interest on Plot 1340 (Exb. D.3). Sometime in 1998, he commenced construction of rental premises which he completed in 2000 and 15 they have been occupied since. Likewise, Nakalembe and Kayongo developed their portions in 1995 and have been in uninterrupted occupation ever since then. He added that he has known the Plaintiff since 1982 when he(DW2) started living in Kyebando where the Plaintiff is resident. And they both live in the same vicinity. In all that time, the Plaintiff has never laid any claim to his land until the institution of this suit.

DW3, Mr. Lawrence Lutaaya Mpalanyi who is also the 3rd 20 Defendant in this matter testified that he started staying in Kyebando in 1979 as a tenant in the premises owned by Nasser Maseruka who is a brother to the Plaintiff. Sometime in 1993, he was informed by his wife that the late Ssajjabbi's estate had been distributed and some family members were selling their shares of the land. He then discovered that Michael Kizza was selling his

- 25 portion, a fact which he confirmed from the said Kizza himself who also that told him he needed money to finalise the survey process. DW3 asked him for proof of distribution of the estate and he gave him a copy of the distribution scheme the family that had been forwarded to the Administrator General. A copy was admitted and marked Exb. D.1. They then proceeded to his lawyer's offices at Rubaga who carried out a search at the land - 30 office that verified that the land belonged to the late Ssajjabbi's estate. Thereafter, they

agreed on the terms of payment and a sale agreement was drawn up by his lawyers which was signed.

After the subdivision, Kizza's interest was comprised in Plot 1244 which was transferred into his name on 27th April 1993 and then into DW3's name on 20th May 1993 as per a 5 copy of the certificate of title marked Exb. D.4. Mr. Mpalanyi started constructing rentals on the said land sometime in 1993 which he completed in 1994. He moved into one of the rental premises where he has been living to date. All the time he has known the Plaintiff which was before the distribution of the estate, he has never laid any claim to his land.

10 DW4, Hajji Yunus Vule corroborated the Defendants' evidence in all material particulars. He added that he has been staying in Kyebando since 1990 and was a neighbour to the family of the late Ssajjabbi. Sometime in 1993, he was approached by the late Sepiriya Sempungu who was selling his portion of land which he had inherited from his father's estate that he bought. Later on, he put the land on market for resell and was approached 15 by the relatives of DW1 who was desirous of buying the land.

DW5, Mr. Kizza Michael, a son and one of the beneficiaries of the estate of the late Ssajjabbi also corroborated the Defendants' evidence in all substantial particulars. He testified that after their father's demise, his estate including the 1.80 acres comprised in Block 210 Plot 114 at Kyebando was distributed amongst the beneficiaries. Thereafter,

- 20 the head of the family of the late Nasanairi Maseruka Ssajjabbi wrote to the Administrator General on the 15th December 1992 forwarding the distribution of the estate of the late William Ssajjabbi. The said distribution was signed by all the present beneficiaries including the Plaintiff. He went ahead to list the beneficiaries of the said land which included the Plaintiff, the late Nasser Maseruka and Sekawungu William as tenants in - 25 common of a house on 0.11 acres, Ndagire Jessica, Nakawungu Annet, Nakasi Margaret, Harriet Nakitende & Nabaseruka Robinah as tenants in common on 0.09 acres, Sarah Nakayima 0.50 acres, himself on 0.25 acres, the late Mulindwa Edward 0.22 acres, the late Nasser Maseruka 0.23 acres, the late Sempungu 0.20 acres and Mr. Nsereko 0.20 acres. He also maintained that the Plaintiff does not have any interest in the sold 3 plots - 30 as each of them was sold by the lawful beneficiaries in their lifetime.

#### REPRESENTATION

The Plaintiff was represented by Mr. Lutaakome Simeon from M/S Lutaakome and Co. Advocates while the Defendants were represented by Mr. Sebaggala Ali from M/S MSM & Co. Advocates.

5 Counsel for the Defendants filed written submissions which I have considered.

## **ISSUES**

- 1. Whether the suit was time barred? - 2. Whether the plaint discloses a cause of action against the Defendants? - 3. Whether the Defendants fraudulently acquired the suit land? - 10 4. Remedies available to the parties?

# **DETERMINATION BY THE COURT**

#### **Issue 1**

# **Whether the suit was time barred?**

In their defence, the Defendants jointly pleaded that they had been in occupation of the 15 suit land for over 24 years with the full knowledge of the Plaintiff. This fact was augmented by the Plaintiff's evidence; Exb. P.2, certificate of title wherein the 1st Defendant is registered as proprietor on the 10th October 1993; Exb. P.5, certificate of title in the name of the 2nd Defendant who was registered in August 1993.

Before this court, the Defendants led evidence of their acquisition of the suit land which 20 was originally owned by the Plaintiff's deceased father. DW1, DW2, and DW3, the Defendants testified unequivocally that the Plaintiff has always been aware of their respective acquisition and occupation of the suit land. DW4, the 72-year-old Local Council Chairman of both parties amply corroborated the testimonies of the 1st and 2nd Defendants. And it was only in 2019 that he instituted this suit against them claiming that

25 they fraudulently acquired the land. The Defendants therefore maintained that this suit was time barred.

A perusal of the Plaintiff's reply to the defence reveals that he did not rebut the claim that this suit was barred by limitation. Actually, under paragraph 7 of the reply, he admitted that; 'the Defendants stayed in the same locality where the Plaintiff stays'.

#### **Section 5 of the Limitation Act Cap 80** provides;

*No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or her or, if it first accrued to some person through whom he or she claims, to that person.*

- 5 Counsel for the Defendants highlighted the evidence pointing to the dates of acquisition of the suit land by the respective Defendants and the Plaintiff's testimony where he admitted that the Defendants are his neighbours who he has seen since the time they occupied the suit land. He therefore submitted that even if the Plaintiff's claim against the Defendants, it was time barred and the suit should be dismissed on this ground. - 10 Even without the submissions of Counsel for the Plaintiff, I am satisfied that the Plaintiff failed to demonstrate that there was just cause for his failure to bring this suit within the statutory time limits for suits for the recovery of land. The Plaintiff's complaint according to paragraph 11 (1) of the plaint was triggered by the registration of the Defendants on the suit land which took place in 1993. Under cross examination he acknowledged that - 15 the Defendants had spent over 20 years on the suit land and they have permanent houses on it.

**In conclusion, I agree with Counsel for the Defendants that this suit is barred by limitation and is dismissed with costs. It follows that the other issues raised have no legal basis since this suit never should have been filed at all.**

**Olive Kazaarwe Mukwaya JUDGE**

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**13 th** 25 **August 2023**

**Delivered by email to Counsel for the Defendants.**