[2023] UGHC 509

## **THE REPUBLIC OF UGANDA**

## **CIVIL SUIT NO. HCT-17-LD-0029-2022**

# *(FORMERLY LAND DIVISION CIVIL SUIT 395 OF 2017)*

- **1. NAKAYIZI EVA BOSSA** - **2. KALUMBA CORNELIUS JOSEPH** - **3. NABUNYA LOUISE KWAGALA** - **4. MUSOMA JOHN** - **5. LUBULWA FRED( Administrators of the estate of the late Kibirige Sezi)……………………………………………PLAINTIFFS V** - **1. SEMUYIRE DAN RUBYOGO** - **2. KATEERS GODFREY KIHUTU** - **3. CHIEF REGISTRAR OF TITLES………….. DEFENDANTS**

## **BEFORE LADY JUSTICE HENRIETTA WOLAYO JUDGMENT**

Introduction

- 1. The suit was filed on 1.7.2017 but subsequently, the plaintiffs filed an Amended Plaint on 23.10.2019 grounded in trespass to land comprised in Bulemezi Block 921 LRV 1300 Plots 3 and 4 measuring 1055 hectares and wrongful acquisition of a special certificate by the first and second defendant to the suit land. - 2. The plaintiffs sued as legal representatives of Sezi Kibirige based on a grant of letters of administration issued on 5.7.2019 from the Family Division under Administrative Cause No. 0390 of 2019. A death certificate issued by NIRA records the said Kibirige died on 8.2. 2019.

#### Preliminary issue

- 3. Counsel for the defendants submitted that the suit is res judicata on the basis of **High Court Civil Cause No**. **0110 of 2015 Sezi Kibirige V Commissioner Land Registration** where Kibirige sought orders of certiorari quashing the decision of the Commissioner Land Registration declaring Kibirige's registration irregular on account of absence of Semuyire's consent to transfer land. My sister Oguli J as she then was dismissed the application after finding that the commissioner did not act illegally as she had powers under Section 91 of the Land Act Cap. 227 as amended, to cancel certificates of title on proof of the grounds therein. - 4. Counsel for the plaintiff rightly submitted that the suit is not res judicata because the said application was simply an application for judicial review which did not delve into issues of proprietorship and there was no opportunity to cross examine witnesses. In any case, the defendants Semuyire Dan Rubyogo and Katera Godfrey Kihutu were not party to the proceedings. I am in agreement with the submissions of counsel for the plaintiff that judicial review is concerned mostly with procedural improprieties, issues of illegal exercise of power and irrational decisions and therefore the current suit cannot be res judicata as it seeks to inquire into the rightful owner of the suit land. This objection to the suit is overruled.

The pleadings

5. The gist of the plaintiffs' case is that their late father Kibirige lawfully purchased the said land from its registered proprietors Leonidas Semuyire and Paul Serunjogi in 1984, entered possession and acquired the registered interest in 1985. Furthermore, that in 2002, Kibirige discovered that the first and second defendants, who are grandsons of late Semuyire had entered the land without his consent. It was further the plaintiffs' case that subsequently, in 2014, the two defendants fraudulently got a special certificate of title to the land, claiming that Kibirige had fraudulently acquired the registered interest.

- 6. In their Written Statement of Defence, the first and second defendants Semuyire Dan Rwabyogo and Katera Godfrey Kihutu averred that Paul Serunjogi transferred their land to Kibirige without the consent of the family of late Semuyire and the Administrator General who was administering it. Furthermore, that the plaintiffs' predecessor Kibirige bought 1/10 of the land which was Serunjogi's interest but instead caused the transfer of the whole land including Semuyire's 9/10 of the land. - 7. The two defendants further averred that they are now the registered proprietors of the portion measuring 9/10 which belonged to Semuyire. The two defendants had letters of administration in respect of the estate of late Semuyire obtained on 14.5.2014 under **Administration Cause No. 0816 of 2014** from the Family Division of the High Court. They deny allegations of fraud in procuring their title. - 8. The third defendant Commissioner Land Registration, did not file a defence hence all references to defendants shall refer to the first and second defendant.

## Background facts

9. Hearing of this case commenced on 28.9.2020 before my brother Bashaijja J who recorded testimonies of seven plaintiffs' witnesses and two defence witnesses. Thereafter, the file was transferred to Luwero High Court Circuit and I heard the remaining three defence witnesses and visited the locus in quo on 26.5.23. It was at the locus visit that parties were given a schedule to file written submissions and judgment reserved for delivery on notice.

Agreed issues for trial in the joint scheduling memorandum dated 3.9.2020:

- a. Whether Kibirige Sezi was lawfully registered as proprietor of the suit land. - b. Whether the first and second defendants fraudulently claimed an interest in the suit land. - c. Whether the third defendant illegally cancelled Kibirige's proprietorship in the suit land. - d. Whether the first and second defendants are trespassing on the suit land. - e. Remedies.

## Burden of proof

10. In civil cases, the plaintiff has a legal the burden to prove its case. **Section 101 of the Evidence Act Cap. 6** stipulates that

*'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 exist'.*

11. The standard of proof required in civil cases is premised in case law. In **Bater v Bater [1951] 35 at 36-37**, Denning LJ had this to say on varying degrees of standards in civil cases.

*'…in civil cases, the case must be proved on a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject matter. A civil court, when considering a charge of fraud, will naturally require for itself a higher degree of probability than that which it would require when asking if negligence is established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature, but still it does require a degree of probability which is commensurate with the occasion'.*

In **Miller v Minister of Pensions [1947]2ALL ER** 372 at 373-374, Denning J when speaking on the degree of cogency of evidence required to discharge the burden of proof in civil cases had this to say:

*That degree is well settled. It must carry a reasonable degree of probability, but not as high as is required in a criminal case. If the evidence is such that the tribunal can say: 'we think it more probable than not, the burden is discharged but if the probabilities are equal, it is not' ¹*

¹ ¹ Cross & Tapper on Evidence, Eighth Edition, Butterworths, London, Dublin, Edinburgh, (1995)

Issue No. One: Whether Kibirige Sezi was lawfully registered as proprietor of the suit land.

- 12. It is not in dispute that Kibirige was registered as proprietor of the suit land on 6.11.1985 upon a transfer from Leonidas Semuyire and Paul Serunjogi, tenants in common in portions of 9/10 and 1/10 respectively so the issue to be resolved is whether he was registered lawfully as proprietor. The plaintiffs rely on a sale agreement, a transfer form, a certificate of title, a handwriting expert report and oral testimony to prove their case that Kibirige was lawfully registered as proprietor. - 13. The land transfer form in the plaintiffs' trial bundle is not marked but the certificate of title and sale agreement were tendered through PW1 Festo Kagwisagye. The hand writing expert report was tendered through PW 3 Silvia Chelangat.

#### The sale agreement Pexh.3

14. Plaintiffs exhibit No. 3 at page 2 of their trial bundle is a photocopy of a sale agreement in Luganda between Serunjogi Paul and Semuyire Leonadis on the one hand and Sezi Kibirige on the other. The English translation of this document shows that the agreement was executed at Kyawole and Kiswaga( Kilinda) on 20.7.1984 for sale of land comprised in Block 921 Plot 3 and 4 Bulemezi measuring 2606. 950 acres between Serunjogi Paul and Semuyire as sellers to the buyer Sezi Kibirige. The purchase price is recorded as 17,000,000/ paid in cash of which Serunjogi got 1,700,000/ while Semuyire got 15,300,000/. Witnesses to the said agreement are named as Semambo Yusuf and Kakembo John. It ends with the statement

*'He has paid all the money to us and is free to utilize the land as he wishes'.*

15. Counsel for the plaintiffs submitted that this agreement is proof that Kibirige lawfully acquired an interest in the suit land and he relied on the report by the handwriting expert in support.

### Report by the handwriting expert Pexh. 12

- 16. The plaintiffs adduced the testimony of a handwriting expert PW3 Silvia Chelangat, aged 40, police officer attached to the Directorate of Forensic Services. Her report dated 30.8.2017, shows that she carried out an analysis of Semuyire's signature on Pexh. 3, the sale agreement (questioned document) and compared it with the transfer form. She also used two other documents in Luganda dated 14.9.1984 and 25.8.1984 respectively as samples in addition to the undated transfer form. Unfortunately, I have failed to track these other two documents on record. - *17.* Chelangat PW3 found similarities in the design of letter '*a'* and connectivity of s-l in the signatures of Semuyire but, she also '*observed differences in manner of construction of the ending part of the signature and relative heights and proportion of letters.'* - *18.* She further noted that the transfer form is undated and it was difficult to establish whether the differences observed between this document and questioned sale agreement was due to time factor or natural variations in writing and her opinion was that the author of the

questioned document (sale agreement) is the same as the author of the sample documents including the undated transfer form.

- 19. From the foregoing analysis, it is evident that the focus of the expert was on the alleged sale agreement between Semuyire and Kibirige which is not helpful to the plaintiffs' case because it is just one piece of evidence that has to be evaluated along with other evidence adduced by both parties. The sale agreement alone is not conclusive proof that Semuyire and Serunjogi jointly sold the suit land to Kibirige on 20.7.1984 especially because the witnesses to this transaction did not testify and no evidence was adduced to explain their whereabouts. Given that Semuyire is deceased and Serunjogi did not testify and is loudly missing from the testimonies of witnesses, the sale agreement cannot be accepted at face value especially as the defendants adduced credible evidence that Semuyire died on 15.11.1983 before the sale agreement was executed. - 20. Furthermore, it is not the sale agreement that was the basis for transfer of the registered interest to Kibirige, but an instrument of transfer, Dexh. 15, discussed below.

# Transfer of land form Dexh. 15(also found at page 4 of the plaintiffs' trial bundle.

21. This form is a photocopy without a date of execution but with apparent signatures of purchaser Kibirige and vendors Semuyire and Serunjogi, witnessed by somebody whose name is difficult to decipher simply because the surname appears as a signature although the initials are

clearly written as M. L. S while the occupation of this witness is given as a civil servant. Regardless of these shortcomings, the transfer is certified as a true copy of the original and it was the basis for the registration of Kibirige as the registered proprietor on 6.11.1985.

- 22. Unfortunately, this instrument of transfer (DEXH.15) that was questioned by the Commissioner Land Registration (now referred to as Registrar of Titles as enacted in **Section 16 of the Law Revision Act (Miscellaneous Provisions Act 2023)** and on the basis of which she cancelled Kibirige's registration, was not directly subjected to forensic analysis. The only reference to this transfer form by the handwriting expert was that it was used as a sample to compare Semuyire's signature on it with that of the questioned signature on the sale agreement. - 23. PW3 Chelangat observed that this transfer form was illegible and undated but did not anlayze it in-depth because it was not the focus of her enquiry.

#### Certificate of title Pexh.1

24. The plaintiffs relied upon a certificate of title which shows that Semuyire Leonadis and Serunjogi Paul were the first registered proprietors for leasehold register Volume 1300 Folio 1, land at Kyawole and Kiswaga Plots 3 and 4, Block 921 Plot 3 and 4 at Luwero measuring 1055 hectares. Their registration dated 18.4.1984, was cancelled as Sezi Kibirige became the registered proprietor on 6.11.1985 by instrument No. 224236.

25. This certificate and the lease agreement are still under scrutiny and therefore, they simply form part of the evidence and are not in themselves conclusive evidence Kibirige was the rightful owner of the suit land.

#### Police investigative report into the cancellation of Kibirige's title Pexh.4

- 26. PW4 Waigo Williams, aged 47, detective assistant superintendent, attached to Buziga, Katuusa Zone, Makindye Division tendered an investigative report dated 13.4.2017 (Pexh. 4 by Charles Anywar(deceased) into fraudulent procurement of a title deed for LRV 1300 Folio 13, Plots 3 and 4 at Kyawole and Kiswaga, Luwero district, following a complaint by Kibirige. - 27. In brief, the report captures two central issues in this dispute. Firstly, that a transfer form( Dexh.15 and also found at page 4 of plaintiffs trial bundle) was the basis of the decision by the Commissioner Land Registration to cancel the registration of Kibirige as proprietor of 9/10 of the suit land yet the transfer form had not been subjected to forensic examination. The second point is the issue of a special certificate of title to the two defendants. - 28. It is a fact that Silvia Chelangat PW3 only examined one questioned document and that is the sale agreement while using the transfer form as a sample. She found similarities in Semuyire's signature in the two documents but had reservations. Nevertheless, even if it is the same person who signed both documents, it is not conclusive evidence that it is Semuyire who signed the documents in light of the defence case, as I will explain later in the judgment.

## Other evidence of Kibirige's alleged ownership of the suit land

- 29. The other evidence relied upon by the plaintiffs to prove Kibirige's alleged proprietorship of the suit land was the oral testimony of several witnesses key among them is PW1 Festo Kagwitsagye, aged 80, resident of Kyamaweno Kinyogoga, Nakaseke district. He came into the picture in 1990 when he purchased two square miles from Kibirige. He tendered a sale agreement dated 26.3.1990 (Pexh.2) for sale of 525.5 hectares at 18,000,000/ in the presence of lawyers Kasirye and Co. Advocates. It was his testimony that he took possession of the two square miles and was never disturbed in this possession even when Semuyire Dan, the first defendant, Katera Godfey Kihutu the second defendant, Sam Byakatonda and Shoshori Christine settled on the remaining two square miles in 2002. - 30. Kagwitsagye was supported by Rukubita William PW2, aged 65, resident of Kyamaweno, Kinyogoga Parish who moved to the area in 1992, long after Kibirige had made the alleged purchase from Semuyire in 1984. Pertinent about Rukubita's testimony is the statement that the defendants and Sosori Christine DW3 had come to the suit land in 2002 and that Kibirige was aware of their presence and had in fact offered to sell them part of the suit land after they expressed interest.

According to Rukubita PW2, he was elected LC1 chairman in 2000 and he came to know Semuyire's family members in 2002 when he was informed by Kagwitsagye of their presence. Rukutiba admits in his witness statement that he never toured the suit land because it was wild but that Kibirige clearly explained the boundaries to him.

- 31. PW6 Lubulwa Fred, aged 63, resident of Kawempe Division and one of the administrators of the estate of late Kibirige, in cross-examination confirmed that Kibirige never lived on the suit land . In his witness statement, his evidence was that the defendants, after causing cancellation of Kibirige's title to the land, threatened to evict the estate of Kibirige and Festo Kagwitsagye from the suit land. Lubulwa vaguely refers to the estate of Kibirige without providing names of family members in physical possession. - 32. Regarding the oral testimony on Kibirige's possession of the suit land, Rukubita moved into the area in 1992, eight years after Kibirige had allegedly purchased land from Semuyire so Rukubita does not add much value to the plaintiffs' case apart from the testimony that the defendants moved into the suit land in 2002. Even then, this testimony is not credible because he claimed he did not tour the suit land (almost four square miles) and moreover, Lubulwa testified that Kibirige never had physical possession of the suit land. This raises the possibility that it was Semuyire's family in possession before Rukubita came to the area in 1992.

- 33. At the locus in quo, the only people in occupation of part of the suit land were Kagwitsagye and his two sons, Kasomo Enock and Mushabe William. None of Kibirige's family members were resident on the land, a fact Lubulwa admits. - 34. To summarize the emerging facts from the plaintiffs' case, neither Kibirige nor his successors in title (apart from Kagwitsagye who is not a relative), has ever been in physical possession of the suit land; the sale agreement is not conclusive evidence that it was executed by Semuyire in favor of Kibirige given that the witnesses to the sale were not called to testify and both parties to the agreement are deceased. The transfer form Dexh.15 was not dated so its legality is in issue.

## The defendants' case on the alleged fraudulent transfer of land by Kibirige

35. In their written statement of defence, the defendants' case was that the late Paul Serunjogi transferred the entire land to late Kibirige without the consent, knowledge, approval or permission of the family of late Semuyire and the Administrator General who was administering the same estate vide Administration Cause No. 022 of 1987. Furthermore, that Kibirige never acquired any interest in the suit land because Semuyire did not sell his interest to him and that Serunjogi was aware that Semuyire's estate was under administration of the Administrator General. It was further the defendants' case that the undated transfer form, lease agreement and agreement of sale show the signatures differ with the result that the transfer to Kibirige was fraudulently procured and the interest of the late Semuyire was erroneously transferred.

- 36. According to Katera DW2, aged 44, resident of Kyamaweno, Kinyogoga sub-county, Nakaseke district, the Administrator General who was administering Semuyire's estate when the suit land was transferred to Kibirige on 6.11.85, did not consent to the transfer. - 37. Victor Manzi PW7, testified in his capacity as Assistant Administrator General conceded during cross- examination that the AG moved the registrar of titles to cancel Kibirige's registration as proprietor. It is not in dispute that by an amendment to the register order issued on 31.3.2015, the Commissioner Land Registration ordered the rectification of the register to cancel the registration of Kibirige as sole proprietor and instead reversed this to read that 9/10 of the suit land reverted to Semuyire while Kibirige remained with 1/10 of the suit land. - 38. About the Administrator General having been the administrator of Semuyire's estate in 1985, DExh. 2, the AG wrote to Paul Serunjogi on 13.2.87, requiring him to report to the office of the AG in connection with the suit land. A similar letter followed on 26.2.87 this time addressed to Serunjogi, Kibirige and one Nassoli. The letters make reference to **Administrator General's Cause No. 22 of 1987** which means, the Administrator General was exercising its residual powers under the **Administrator General Act Cap. 162** to preserve property of a deceased person.

39. In a letter dated 7.3.89 to the district administrator Luwero, the Administrator General indicated that he or she was administering the estate of Semuyire and that they had held several meetings with Serunjogi who had agreed to transfer Semuyire's share to the beneficiaries. The Administrator General requested the district administrator to assist in getting Serunjogi to return Semuyire's share of the suit land to his beneficiaries. It is therefore evident that the AG was first seized of Semuyire's estate in 1987 after 1985 when the transfer to Kibirige was effected although the said Administrator General did not have letters of administration.

Acquittal of the defendants' for causing cancellation of Kibirige's title wrongfully

40. In his witness statement, Katera DW2 relies on High Court Criminal Appeal No. 40 of 2020 arising from **Buganda Road Criminal Case No. 355 of 2017 Uganda v Semuyire and Katera**, in which the High Court presided over by my brother Asiimwe J confirmed the acquittal of the two respondents of charges of uttering false declarations and fraudulent procurement of title. These charges are to do with their application for a special certificate of title for the suit land. In other words, the two defendants were exonerated of any wrong doing.

Death of Semuyire on 15.11.1983 before the alleged sale agreement of 20.7.1984 between Semuyire and Serunjogi, and Kibirige

41. This brings me to the plaintiffs' case that Semuyire died in December 1986 and not on 15.12.1983 as claimed by the defendants. According to PW5 Haji Namukoka Musa, aged 81 years, Semuyire died of gunshot wounds after the 1986 war and he was buried in Waza yet Dexh.3, a short death certificate for Semuyire shows he died on 15.12.1983.

- 42. According to DW4 Mbabazi Violent, aged 71, resident of Kyamaweno, Kinyogoga, Nakaseke district, she is the surviving widow of Semuyire who was shot by soldiers on 15.12.1983 at Waza and was buried there the same day. In cross –examination, Mbabazi's testimony is that Semuyire had fled to Waza to escape the war. It was further her written testimony that soldiers came to the village that day and she ran to hide in the bush with her children. It was at about 2 pm that she heard gunshots and on her return home in the evening, she found when her husband and son Katera James had been killed. - 43. Namukoka PW5 claimed that Semuyire died in 1986 of gunshoot wounds after the war had ended yet it was in 1986 when he started buying cows from Semuyire. While it is evident from Namukoka's testimony that he knew Serunjogi very well, describing him as a veterinary officer, his knowledge of Semuyire is scanty as he did not even know Semuyire's family members. I find Namukoka's testimony unreliable in light of the short death certificate that gives date of Semuyire's death as 15.11.1983 and in light of the credible testimony of his widow Mbabazi. - 44. The short death certificate was issued on 15.2.2015 before the Registration **of Persons Act, 2015** came into force on 26.3.2015.

Section 87 of the Act rendered certificates issued under the repealed **Births and Deaths Registration Act Cap 309**, valid as if they had been issued under the new Act.

- 45. It is therefore more probable than not that Semuyire died on 15.11.1983 during the war and not December 1986 when the war had ended and the Uganda army soldiers had long retreated from Luwero after being defeated by the National Resistance Army. - 46. Mbabazi named Semuyire's twelve children many of whom are deceased and further confirmed that he owned 1055 hectares together with Paul Serunjogi in the ration of 9/10 and 1/10, land comprised in Bulemezi LRV 1300 Folio 13, Block 921 Plot 3 and 4, the suit land. - 47. Like Katera DW2 and Semuyire Dan DW1, Mbabazi's testimony is that the defendants and their kith live on the suit land. To be specific, the testimony of DW1 Semuyire Dan Rubyogo, aged 45 years, is that their family lived on the suit land from the 1960s and not from 2002 as claimed by Kagwtisagye PW1. Mbabazi clarified in cross examination that the family returned to the suit land in 1987 after the war. - 48. Furthermore, the defendants concede that Kagwitsagye controls two square miles of the suit land while the defendants and their siblings control the other half, a fact I confirmed at the locus in quo visit except they disagree on who was the first to settle on the suit land. Worthy of note is that apart from Kagwitsagye who derives title from Kibirige as a purchaser, none of Kibirige's relatives lives on the land as is evident

from their testimonies. For instance, Lubulwa Fred PW6 in cross examination testified that he does not live on the suit land and that Kibirige never lived on the suit land

- 49. At the locus in quo visit, Kagwitsagye confirmed that he lives on the land with his two sons while the rest is used for grazing. This is a relevant fact in as far as it lends credence to the conclusion that Kibirige has never been in physical possession of the suit land, as submitted by counsel for the defendants. - 50. Both parties are also in agreement that Kagwitsagye purchased the land he controls in 1990 from Kibirige although the defendants do not recognize this transaction. Moreover, the sale agreement between Kibirige and Kagwitsagye came three years after the Administrator General had taken over administration of Semuyire's estate in 1987 and when the AG was in discussions with Kibirige to return Semuyire's share of the suit land measuring 9/10 of the whole as tenant in common and for Kibirige to retain only 1/10 which he lawfully purchased from Serunjogi the other tenant in common. Dexhs. 2 refer. - 51. From the foregoing analysis, since it is not disputed that Kagwitsagye came into the picture in 1990 when he entered a purchase agreement with Kibirige for half the suit land, it is more probable than not that Semuyire's family settled there much earlier and not in 2002 as Kagwitsagye claims although they fled the war and returned in 1987, according to Mbabazi.

52. According to Dan Rubyogo DW1, Kibirige never made any attempt to get Semuyire's family off the suit and, a fact confirmed by Kagwitsagye in his written testimony. Furthermore, by a letter to Nakaseke district land board dated 21.11.2013 Dexh. 30, Kibirige attempted to alienate the suit land which was already in contention by requesting the secretary Land Board, to sub-divide the land to beneficiaries of Semuyire's estate and over 1280 acres to Kagwitsagye.

## The Lease agreement

- 53. The lease agreement between Semuyire and Serunjogi on the one hand and the Uganda Land Commission on the other, was signed on 30.3.1984 to run for 44 years. Counsel for the plaintiff submitted that this lease agreement was signed on 30.3.1984 after the reported death of Semuyire on 15.12.1983 yet the defendants heavily rely upon it as evidence of Semuyire's ownership of the land and at the same time, they dispute the sale agreement Pexh. 2 between Semuyire and Kibirige dated 20.7.1984. - 54. Counsel for the plaintiff submitted that the signature on the lease agreement was compared with the signature on the transfer form and found to have been signed by the same person. I have already examined the expert's report and found that she examined the sale agreement which she describes in her testimony as having been written in Luganda and compared it with the transfer form and another document also in Luganda, which she did not attach to her report so I never had an opportunity to look at it. Clearly, the lease agreement was not the questioned document as submitted by counsel for the plaintiff

instead it was an alleged sale agreement dated 20.7.1984 between Semuyire and Serunjogi as seller, and Kibirige as buyer.

- 55. Furthermore, counsel for the plaintiffs' submitted that if Semuyire died in November 1983, then the lease agreement signed on 30.3.1984 is invalid and so is the registration of the lease on 16.4.1984 in reliance on the doctrine of approbate and reprobate. Relying **on Stephen Seruwagi Kavuma v Barclays Bank (U) Ltd v MA No. 634 of 2010, (unreported),** counsel for the plaintiff submitted that the defendants cannot approbate and reprobate at the same time , a concept that summarizes the principle based on the doctrine of election that no party can accept and reject the same instrument. Furthermore, that a person cannot say at one time that an instrument is valid and obtain a benefit thereof and then turn round to denounce it for the purpose of getting another advantage. - 56. Applying the principle to the instant case, counsel submits that the defendants having taken the position that Semuyire died on 15.12.1983 and therefore could not have signed the sale agreement with Kibirige on 20.7. 1984, cannot now claim that the lease agreement signed by Semuyire on 15.3.1984 is valid. On the other hand counsel for the defendants relied on **Konde Mathias Zimula v Byarugaba Moses & Grace Nampijja HCCS No. 66 of 2007** where it was held that Courts of Justice will not allow a person to keep an advantage which he obtained in bad faith. - 57. . While counsel for the plaintiffs makes a valid point, this common law principle that frowns on approbating and then reprobating can be overridden by written law. - 58. **Section 59 of the Registration of Titles Act Cap. 230** renders irrelevant any irregularities or informalities in the processes preceding the bringing of land under the Act and reaffirms the indefeasibility of title regardless. For emphasis, Section 59 protects the titling process that has the effect of bringing land under the operation of the RTA. I reproduce the relevant part of section 59 below:

*59. 'No certificate of title issued upon application to bring land under this Act shall be impeached or defeasible by reason of or an account of any informality or irregularity in the application or in the proceedings previous to the registration of the certificate…'*

- 60. Furthermore, as submitted by counsel for the defendants, the transfer form, lease agreement, sale agreement all have different signatures purportedly by Semuyire. I have looked at these three documents and the signatures differ. - 61. The precedents of **Chengo v R Maulidi Abdullah [1964] 1 EA 122 and Mugisha v Uganda [1976] HCB 246** cited by counsel for the defendant are relevant. These two precedents reiterate the principle in **Section 43 of the Evidence Act Cap.**6 that expert evidence is opinion evidence and the court can consider other evidence in addition to the

expert evidence in arriving at a conclusion on the fact in issue. Although PW4 Chelangat, the handwriting expert, determined that the sale agreement was signed by the same person as the one who signed the transfer form, it is not conclusive evidence that the two documents were signed by Semuyire.

62. Furthermore, **Section 43 of the Interpretation Act Cap. 16** prescribes as follows:

> *'An instrument or document that purports to be in such form shall not be void by reason of any deviation which does not affect the substance of the instrument or document or which is not calculated to mislead'.*

63. The key point is that the deviation from form should not be calculated to mislead. The format of a land transfer form is prescribed in the seventh schedule to the Registration of Titles Act. Its main features are: details of the land; the names and particulars of the transferor and transferee; the consideration; date of transfer and signatures of the transferor and transferee. The date is critical **because Section 93 of the RTA** renders a duly executed transfer form a chose in action on the transferor to sue upon a mortgage or other instrument or to recover a debt, sum of money, or damages. In the event the transfer is not registered, the **Limitation Act Cap. 70** begins to run and therefore the date the transfer form is signed is material.

- 64. From the foregoing analysis, the absence of a date on the transfer form with Semuyire's signature rendered it void because it was left out to hide the fact that Semuyire was deceased by the time he purportedly signed it. This means that the registration of Kibirige on 6.11.1985 as registered proprietor can be voided on account of the void instrument of transfer. - 65. I find that as both parties base their claims on the first registration of the suit land , for me to make a finding that the lease agreement was invalid on account of one of the lessees having predeceased its registration , would lead to an absurd result. Therefore, I find that Semuyire and Serunjogi were registered as tenants in common on the 30.3.1984 and any irregularities in the process leading to titling are discounted undersection 59 of the RTA - 66. I have also found that Kibirige was never in possession of the suit land and instead it was Festo who entered possession of two square miles in 1990. I have further found that Kibirige caused Festo to enter possession in 1990 when he Kibirige was fully aware that his claim to the suit land was under contention since he was in touch with the administrator general; coupled with my findings that he attempted to further alienate the land by his application to the district land board in 2013 to sub divide the land well knowing that his claim to the land was in question. - 67. Furthermore, the fact that Serunjogi the co –tenant in common survived Semuyire but declined to cooperate with the Administrator

General as evidenced by a letter to the district Administrator dated 1989 is further proof that he was in cahoots with Kibirige to dispossess Semuyire's estate of their share of the suit land.

- 68. In addition, the police investigative report that raised the red flag about the undated transfer form and the acquittal of the defendants by the chief magistrates court of the offences of fraudulent procurement of a certificate of title c/s 190(1) of the RTA and other related penal offences which acquittal was confirmed by the High Court in High Court Kampala Criminal Appeal No. 40 of 2020. - 69. Before I sum up my evaluation of evidence and the law in Issue No.1, I must observe that in their submissions, counsel for the defendants took the position that the issue was to do with fraudulent acquisition of land by Kibirige whereas the issue was: Whether Kibirege was *lawfully* registered as proprietor of the suit land which is a totally different matter. It is for this reason, I did not make reference to their authorities,

e.g, **Zabwe Orient Bank Ltd SCCA No.4 of 2006.**

70. In a nutshell, the fact that the plaintiffs did not prove on a balance of probabilities that the signature on the sale agreement PEXh.3 is actually that of Semuyire as seller of the suit land together with Serunjogi; the undated and void transfer instrument Dexh. 15; the fact that Kibirige never took physical possession of the suit land as it was in possession of Kagwitsagye and his sons only; the predecease of Semuyire on 15.12.1983 prior to the alleged sale agreement dated 20.7.1984 constitute cogent evidence that Kibirige, the plaintiffs' predecessor in title procured registration as a proprietor of 9/10 of suit land irregularly and unlawfully.

71. Issue NO. 1 is answered in the following terms: the registration of Kibirige as proprietor of 9/10 of Bulemezi Block 921 LRV Plots 3 and 4 measuring 1055 hectares was unlawful and irregular.

Issue No. Two: Whether the first and second defendants fraudulently claimed an interest in the suit land.

72. Having found that Kibirige's registration as proprietor based on an undated transfer form with an unverified signature that was ostensibly Semuyire's and based on other findings under Issue No.1, I find that the second and third defendants made a legitimate claim to the suit land. Furthermore, the two were exonerated of any fraudulent claims **Buganda Road Criminal Case No. 355 of 2017 Uganda v Semuyire Dan Rwabogo and Katera Godfrey Kihutu(Dexh.28)**, a decision that was confirmed on appeal in **Kampala High Court Criminal Appeal No. 40 of 2020.**

# Issue No. Three: Whether the third defendant illegally cancelled Kibirige's proprietorship of the suit land

73. It is not disputed that on 31.3.2015, the Commissioner Land Registration cancelled Kibirige's registration on the grounds that the land was transferred to Kibirige by a transfer purportedly signed only by Serunjogi who owned only 1/10 of the suit land while Semuyire owned 9/10.

- 74. Counsel for the plaintiff submitted that the commissioner based on fraud to cancel Kibirige's registration yet only the High Court can inquire into fraud and cancel a certificate on this ground. On the contrary, the Commissioner relied on the absence of Semuyire's signature on the transfer instrument , a finding inconsistent with the report of the handwriting expert whose focus was on Pexh 3, the purported sale agreement ( between Semuyire and Kibirige) while the signature on the transfer form was used as a sample. It was in the course of her analysis that the expert observed that the signature on the transfer form was illegible yet, it was actually there. - 75. A legitimate reason for the cancellation was not so much a dubious signature but absence of a date when the transfer was executed. I have already found that this omission rendered the transfer form void. - 76. For this reason, I am inclined to the position that the registrar of titles erred in relying on the transfer instrument when he or she could have rejected it outright and the Commissioner ought to have relied on the missing date to exercise her powers under Section 91 of the Land Act to cancel the registration. In exercise of my powers under **Section 33 of the Judicature Act Cap. 13** I validate the decision of the commissioner to cancel Kibirige's registration in respect of 9/10 of the suit land. - 77. For the foregoing reasons, I find that the third defendant did not illegally cancel Kibirige's registration in respect of 9/10 of the suit land.

Whether the first and second defendants are trespassing on the suit land.

- 78. Having found that Kibirige's registration was unlawfully obtained, and as the plaintiffs' title is traced to Kibirige's title, it follows that the defendants and other beneficiaries of Semuyire's estate which was wrongfully deprived of its legal title to 9/10 of the suit land, are not trespassers. Their predecessor in title was registered as proprietor in 1984 and after the war, the family settled on the land as testified by Mbabazi Violet DW4, Semuyire's widow. I also found them in possession and control of two square miles when I visited the locus Katgwitsagye and his family controlled the other two square miles. In conclusion, as they were always in possession even when Kibirige unlawfully acquired the legal title to the suit land, and their legal title having been restored by the registrar of title when they were issued a special certificate of title, the defendants cannot be trespassers on their own property. - 79. In conclusion, having found that Kibirige, the plaintiffs' predecessor in title, was unlawfully registered as proprietor to the suit property; that the defendants did not procure their registration as proprietors by fraud; that the defendants are not trespassers on the suit land, I find that the plaintiffs failed to prove their case on a balance of probabilities and it is dismissed.

#### Remedies

- 80. As the plaintiffs' suit has been dismissed, no remedies are available to them. However, counsel for the plaintiffs did submit from the bar that this court should hold the defendants in contempt for going ahead to construct buildings on the land yet a temporary injunction was in place. I do not wish to belabor this prayer because it is now moot since the plaintiffs' suit has been dismissed. Had this issue been raised during the pendency of the suit, I would have attended to it but as things stand, the contempt issue is now moot. - 81. I have carefully examined the written statement of defence for the first and second defendants and I found no counterclaim for eviction nor any other relief. Furthermore, counsel did not make any submissions on this potential remedy. In the premises no orders are available for the first and second defendants apart from an award of costs.

## Orders

- a. The plaintiffs' claim is dismissed. - b. As the first and second defendants did not counterclaim, no remedies are available to them. - c. The plaintiffs shall pay the first and second defendants costs of the suit.

# **DATED AT LUWERO THIS 18TH DAY OF SEPTEMBER 2023. \_\_\_\_\_\_\_\_\_\_\_\_\_**

# **LADY JUSTICE HENRIETTA WOLAYO**

## **Legal representation**

H&G Advocates for the plaintiffs

Barungi, Baingana & Co. Advocates for the first and second defendant.