[1999] UGHC 61

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CIVIL SUIT NO.432 OF 1989

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MARIA NALIKKA MPINGA & OTHERS::::::::::::::::::::PLAINTIFFS

## VERSUS

ERNEST SEMAKADDE SENSALIRE & OTHERS::::::::::::::DEFENDANTS

BEFORE: THE HON. MR. JUSTICE G. TINYINONDI

## $JUDGEMENT$

The four Plaintiffs herein sued in their joint capacity of legal representations of the late Joseph Mpinga. They held letters of administration granted on $30/9/1983$ . They sued the 1st, 2nd, and 3rd Defendants as joint legal representatives of Gabriel Galabuzi (deceased). The aforesaid Defendants also held letters of administration granted in Cause No.17 of 1983. The 4th Defendant was stated to be the Customary heir as well one of the administrators of the said late Gabriel Galabuzi. The 5th Defendant was stated to be sued as the registered transferee of the disputed land.

The said disputed land was stated to be KIBUGA BLOCK 7 PLOT 89 measuring 0.22 of an acre at Mengo (Ndeeba Mutawe Zone). It was alleged in the plaint that by a lease agreement dated 14/3/1957 the late Joseph Mpinga agreed to take a lease of the late Gabriel Galabuzi's aforementioned land. The terms of the lease were said to be contained in exhibit "P5 $(1)$ " and its English translation "P5 (2)".

The Plaintiff's claim against the 1st, 2nd, 3rd and 4th Defendants was for an order directing all of them to jointly specifically perform the aforementioned lease agreement.

It was further alleged that the claim against the 5th Defendant was for a declaration that he acquired the disputed property subject to the lease interest of the Plaintiffs.

It was also alleged that immediately after the execution of the lease the lessee went into occupation, constructed and continues to maintain a modern commercial building. Furthermore. that during his life-time the lessee promptly paid to the lessor the annual rent reserved. And that on 22/10/1986 the Plaintiffs paid to the 1st-4th Defendants, through the latter's lawyers, shs.50,000/=(fifty thousand shillings only), to cover both the unexpired term of seventeen years and prepaid ground rent in case they exercised the option of renewing the lease. The Plaintiffs further alleged that during 1988 the 1st-3rd Defendants threatened to alienate the property alleging that the Plaintiffs had no interest in it. That upon that threat the Plaintiffs lodged a caveat on $16/1/1989$ and at the same time, through their advocates, requested the Defendants, inter alia, to execute a registrable lease in proper form in specific performance of the 1957 agreement. On or about 16/6/ 1989 the Plaintiffs filed this suit. But before it was heard on 24/11/94 the 1st=3rd Defendants with intent to defraud transferred the reversion to the 4th Defendant and on 19/4/1995 the 4th Defendant wrongfully and traudulently purported to transfer the said property together with the commercial buildings thereon to the 5th Defendant.

The 1st 4th Defendants filed a joint amended written statement of defence. They contended that the alleged lease was in respect of Kibuga Block 7 Plot 67 but not Plot 89. It was based on an agreement dated 22/1/1958 effective from 14/3/1957. The 1st = 4th Defendants further alleged that the purported payment of shs.50,000/= was made only to justify the suit. They denied any traud. The 1st -4th Defendants counter-claimed for orders that the Plaintiffs have no registrable interest and prayed for orders and damages on that account.

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The 5th Defendant also filed a written statement of defence. He alleged, inter-alia, that he was a bona fide purchaser for value without notice.

At the hearing before Berko, J, as he then was, the fol fowing issues were framed.

- $[1]$ . Whether Plaintiffs have a valid lease on the suit property capable of being enforced by specific performance. - If there was any such lease, whether it [ii]. can be enforced against 5th Defendant who is a Registered Proprietor. - Whether 5th Defendant is bona fide $[iii]$ . purchaser for value without notice of the alleged existence of the Plaintiffs on registered Lease. - Whether the Commercial Building on Plot $[iv]$ . 89 is the property of Joseph Lutti Musisi or the Plaintiffs.

## $[v]$ . What remedies are available to the parties.

I propose to abide by these issues. Let me try to summarise the evidence as recorded by my brother Judge.

PW1 Andrew Babumba-Kyeyune testified as follows. He was a valuation surveyor. On 7/2/1996 the Plaintiff's advocate asked him to value a property on Plot 89 Kibuga Block 7, Ndeba. He produced a report on $21/2/96$ . It was received by court as Exh. "P1". The witness took thirteen pictures of the property. They were received as exh. "P2". The property is about 4 kms, from Kampala City Centre. The building was an old building consisting of a shop a restaurant and tenements behind.

He estimated the value of the property at shs.50,000/= (fifty thousand shillings only); that of the land alone at Shs.15,000,000/=(Fifteen million shillings only). He valued the $\sqrt{h}$ land for stamp duty and for determining premium and ground rent. $O \leftarrow$ LAG. When shown a document (later exh. "P3") PW1 testified that it was an application for a transfer of Plot 89 Block 7 Kibuga where the seller was the 4th Defendant and the purchaser was the 5th Defendant. The consideration was shs.3,000,000/=( three million shillings only), but the Chief Government Valuer's valuation was shs.4,000,000/= (four million shillings only). The application for consent was granted on $27/4/1995$ . Another document $(Exh."P4")$ was shown to the witness. He stated it was a transfer dated $19/4/1995$ of Plot 89 Kibuqa Block 7 where the buyer was the 5th Defendant and the seller was the 4th Defendant.

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During cross-examination by Counsel for the 1st-4th Defendants, PW1 testified that when he visited the disputed property he took measurements of the building only but not the land. He did not find out who were the adjourning neighbours.

When cross-examined by Counsel for the 5th Defendant, PW1 stated that when they instructed him the Plaintiff did not tell him their interest in the land. Nor did they tell him the owner of the building on the plot. He found out from the Land Office that the registered owner was the 5th Defendant. That it is possible for one to own developments on land which land does not belong to one. Referring to exh. "P4", PW1 stated that on the face of it, it was properly registered. The Commissioner of Lands would normally give his consent if satisfied that everything was in order. In this case he did consent.

PW2, John Sseruma testified, inter alia, as follows. His father, the late Joseph Mpinga, died intestate on 1/12/1982 and PW2 was appointed the customary heir. He and the other three Plaintiffs applied for letters of administration. His father put up buildings on plot 89 Block 7, Ndeba in the early 1950's.

with the last that's<br> $\frac{1}{2}$ in the last that's

From 1978 PW2 was caretaker of his father's property including these buildings. His late father kept one file for all his properties. As far as plot 89 was concerned there was an agreement in respect of this plot on the said file between his late father as tenant and the late Galabuzi as landlord. The agreement was received by court as exh. "P5(1)" and the English translation as exh. " $P5(2)$ ". The tenancy was for 49 years commencing $14/3/1957$ . At that time the land had not been surveyed. Later it was, resulting in plots 67 and 89. The lease for plot 67 was registered. It was for 49 years and the ground rent $500/$ = (five hundred shillings only) per annum.

PW2's father told PW2 that he had been paying rent. PW2 claimed he used to see the widow of late Galabuzi collecting the ground rent from PW2's father. PW2's father occupied plot 89 as a customary tenant. PW2's father did not develop plot 67 because Tereza Namatovu encroached on it. PW2 further testified that he knew the acreage of that the late Galabuzi's parent title - Milo Register vol.112 Folio 10 - consisted of 21.88 acres at Mengo. L. K. K. Plots 67 and 89 were part of that land.

PW2 testified that by their letter dated $13/10/1986$ the Defendants questioned the right of the Plaintiffs on plot 89 contending the Plaintiff's lease was on plot 67 only. Thereupon PW2 went to the land Office where he discovered that plot 89 was not registered. However, after the Defendants served the Plaintiffs with a written statement of defence the witness again went to the Land Office. He found out that his father, who was the original proprietor, was no longer the registered proprietor. He asked to look at the transfer documents but was begrudged them. He was told the file with the original title deed was lost.

The witness further stated that his late father was paying ground rent in respect of plot 89. He tendered a receipt dated 5/3/1975( exh. "P7"). The witness had received letters from the Defendant's lawyers intimating that Nanteza was entitled by the

late Galabuzi's will to receive rent for plot 89 (exh. "P8".) The Plaintiffs duly paid on 22/10/86 (exh. "P10"). The amount paid was shs.50,000/= (fifty thousand shillings only), on account of ground rent, Kibuga Block 7 Plot 789 Ndeba. Shs.9,500/=(Nine thousand five hundred shillings only) covered the rent for the unexpired term of seventeen years on the original lease while the balance was deposit in anticipation of renewal.

The witness testified that he knew Joseph Luti Musisi who was once a tenant of plot 89 Ndeba and a son of Ssalongo Kasozi who was also a tenant of the witness late father. The buildings on the plot did not belonged to Joseph Musisi Lutti.

The witness further testified that the Plaintiffs lodged a caveat on Kibuga Block 7 Plot 89 on 9/1/1989 [exh."P14"]. The Defendants did not summon the Plaintiffs to appear before the High Court to show cause why the caveat should not be removed. The Plaintiff's advocates then wrote the Defendants (exh. "P15"), to execute a formal registrable lease in favour of the Plaintiffs. Alternatively the Defendants were ready to commence a new lease effective from $13/03/1989$ for a period of 30 years at a rental of shs. 10,000/= (Ten thousand shillings only). A further alternative was that the Defendants were willing to purchase the reversion at a period to be agreed on. Subsequently the 2nd and 4th Defendants discussed the purchase price with the witness. The 2nd and 4th Defendants asked for goodwill of shs.200,000/= (Two hundred thousand shillings only). Two days later the 2nd Defendant collected the money. The witness was not given a receipt. They never communicated any further with the witness.

During cross- examination by Counsel for the 1st - 4th Defendants. PW2 testified as hereunder. The lease agreement was made before the survey. The boundaries of the land in question were mentioned in paragraph 2 of the agreement. The south was bounded by Kampala/Masaka road. The length the southern boundary

was not mentioned. From the south to the northern boundary it was 172 feet and the land boarders Tereza Namatovu's property. The width of the northern boundary was not given. On the West was Ziwa's plot and on the East, Semuwemba. The aforementioned boundaries were for plot 67. The witness went on to state that Plot 89 measured 92 x 55. He did not know if Semuwemba's plot was still in existence. The lessee was supposed to pay shs.580/= (five hundred eighty shillings only), per year per plot. The witness admitted that this piece of evidence was not borne out by the agreement.

When cross-examined by Counsel for the 5th Defendant PW2 had the following to say. He remembered lodging the caveat on $16/1/1989$ in respect of plot 89. The document was received as exh. "D1". There had been another caveat lodged by the 2nd Defendant on $11/3/57$ , just before the lease agreement, It was Instrument No. KLA 8000. PW2 stated that he knew the dimensions of plot 89 from the Land Office. These were: 26.8 metres from the road reserve; 320" on the West; 29 metres on the Northern; and 32 metres on the Northern; and 32 metres on the Eastern. The dimensions of plot 67 were: Southern 22 metres (72 ft); Western 21.9 metres + 305 metres or (102 ft); Northern 55 + 11.3 metres (55 ft); Eastern $42.7 + 9.8$ metres (172 ft). Plot 67 had natural boarders while plot 89 did not. There were no neighbours to plot 89 in 1957. Today, however, there are Kibazo on the West, B. Kiwanuka on the East and Semambo on the North. There is a road to the south.

Referring to exh. "P5" PW2 testified that it talked of final certificate No. 14146 Folio 10 Volume 112. The lease which was registered was intended for the whole land. Therefore if it covered only plot 67 there was an omission. On $22/10/86$ the witness paid to M/S Kulubya & Co. Advocates, who were acting for $\frac{4}{3}$ . Nanteza, shs.50,000/=(fifty thousand shillings only), to safequard the property because there was an option for renewal. At that time the witness did not know the registered proprietor of the milo. The shs.9.950/= (Nine thousand, nine hundred fifty

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shillings only) was for the unexpired term of seventeen years. The Plaintiffs lease was for twenty years (i.e. 1986 - 2006). The administrators of the late Galabuzi told the witness that the rent from the land ha been bequeathed to Nanteza. PW2's late father never benefited from plot 67 and never transferred it. Apart from exh. "P5" the witness never came across any other lease agreement between his late father and the late Galabuzi.

From the contents of exh. "P5" the witness late father and the Defendants late father knew the area they were negotiating and the measurements mentioned therein were actual.

The caveat the witness lodged on plot 89 was cancelled on $24/11/1994$ and on the $24/4/95$ the 4th Defendant was registered proprietor.

During re-examination the witness stated that in his caveat the 2nd Defendant stated he was the lessee in an area measuring 90 x 250 feet of the land by virtue of an agreement dated $8/3/1957$ . Plot 89 was not mentioned in that caveat. The witness mentioned other people who lodged caveats on the same land as: S. Sebawaqira and Mukiibi Magero who claimed 110 x 60 ft as lessees under an agreement dated 31/8/1957 and George William Kasule who claimed he was a lessee of 110 x 100 ft by an agreement of 8/8/57. In none of these Caveats was plot 89 mentioned. The witness testified finally that the shs.200,000/ $=$ (Two hundred thousand shillings only) was never refunded by the 2nd and 4th Defendants nor was the land sold to the Plaintiffs. The Plaintiff's case rested.

DW1, Maritan Binayombwa Semakula testified as follows. He knew both the late Galabuzi and Mpinga. DW1 was in charge of surveying Galabuzi's lands and handling the late Galabuzi's affairs since 1995 (exh. "D4") Galabuzi died in 1981, leavinga a Plot 67 was demised to the 4th Defendant. The deceased will. left a lot of plots in Ndeeba including Plot 89 on which the deceased allowed Joseph Mpinga to build. Mpinga was not paying

any rent or "busulu for this plot. And there was no lease agreement between the two for this plot. The boundary owners of plot 86 (89?) were - the late Seeta in the north; Kibazo on the west, B. Kiwanuka on the east, and Masaka Road to the south.

Joseph Mpinga had a lease agreement in respect of plot 67. [Reading from exh. "P5"] the witness stated that the boundary owners of this plot were - Semuwemba on the east; Tereza Namatovu to the north; Fredrick Ziwa on the west; and Masaka Road in the south. Plot 67 was bigger than plot 89. During his lifetime Mpinga never laid claim on plot 89. Galabuzi bequeathed Plot 89 his daughter, Nanteza. The witness informed to the administrators of Mpinga of the said Nanteza's interest through the Defendant's lawyers, M/S Kulubya & Co. Advocates in 1985. The said administrators were hence-forth to pay ground rent to Nanteza. But the said administrators did not oblige. The witness was aware that in 1989 Mpinga's family lodged a caveat on plot 89, to protect their father's buildings on the plot. The late Mpinga had a lease on plot 67 (exh. "D3"). When Nantenza died in 1990 plot 89 went to the 4th Defendant according to Galabuzi's will (exh. "D5").

Dufing cross-examination DW1 testified as follows.

Pine, Mpinga erected the buildings on plot 89 in 1950. The late $\mathcal{L}_{\mathcal{L}}$ Galabuzi leased land measuring 90 x 50 feet to the witness on $LII$ $8/5/1957$ . On $11/3/1957$ the witness lodged a caveat on Galabuzi's $\frac{1}{2}$ title on plot 67 claiming 90 x 250 feet of plot 89 as a lessee (exh. "P16"). The witness however, got a leasehold title on plot 63 but not 67. $\overline{1}$

The Land Office advised all lessees as a matter of practice $\Re$ $\gtrsim$ to lodge caveats. Exh."P5" was signed when the $% \Re$ witness was $\mathcal{H}^{\mathcal{A}}$ present. Galabizi's signature was witnessed by his agent called Peter Lwandaagga. The land Galabuzi leased to Mpinga stretched from the Masaka Road reserve upwards to Tereza Mamatovu measuring 172 ft in length. The width lay between Fredrick Ziwa on the west and Ssemuwemba on the east. That land measured 92 x 55.

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$\overline{9}$ When shown Exh. "P17", the witness stated that these were prints for plots 67 and 89. When shown exh. "P7" and 89.

When shown exh. "P7" the witness stated that it was a receipt. showing that Mpinga paid rent. However, the receipt did not indicate either plot 67 or 89. When referred to exh. "D5" the witness said that this was Galabuzi's will where in paragraph 5(iii) he bequathered rent from Mpinga's and Nabadda's shops to Nanteza. Nanteza was forty years old when Galabuzi died. She had children and grandchildren. She was introduced to Mpinga's family as the beneficiary of the aforementioned rent. She did not deal with her directly with Mpinga's family.

But she was given a copy of exh. "P8" by which the Defendants former advocates Kulubya & Co. Advocates instructed Mpinga's family to deal with directly. Subsequently Nanteza approached the witness complaining that Mpinga's family were not paying her the rent. The Defendants did not approach Mpinga's family on the issue. The witness however, informed the said advocates who consequently wrote (exh. $"P9"$ ) to the Plaintiff for a meeting. When eventually, 1986, he went to the said advocates he found the Plaintiffs had already paid shs. 500, $000/$ = (five hundred thousand shillings only) as per receipt (exh. "P.10"). The witness was not aware if Nanteza had collected the said rent from the advocates. On the face of the receipt (exh. "P.10") it was for ground rent for plot 89. This was an error because the advocates were not acting for Nanteza, DW1, did not, however, know nanteza's lawyers. It was fraud for Plaintiffs to pay grandparent to m/S Kulubya & co. Advocates for purposes of getting a lease.

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The witness further testified that he had seen exh. P15" at $M/s$ Kulubya's chambers. It was a letter by the Plaintiffs demanding the execution of a formal lease in the Plaintiff's favour and alternative suggestions for a new lease for forty nine years, commencing on 12/3/1989 or a sale to them of the reversion. The Defendancs as administrators replied that they had no authority, to do either of these because the land had its beneficiary, the 4th Defendant as per Clause 4(b) of the will which will was proved on 21/6/1984 (Exh "D2"). Plot 89 is along

Kampala/Masaka Road. Lubiri is on Kampala/Masaka Road on the upper side. Galabuzi's land was near the Lubiri. In 19190 plot 86 was in existence. It was not bequeathed to anyone. The ' Defendants had not filed an inventory within the statutory period of six months. They applied to be registered as administrators of Galabuzi's estate on 13/3/1987 (exh. "P18") attached Exh. "D2" to their application. The certificates affected were thirty two. The witness did not remember how many properties were transferred to the beneficiaries. Some of them have yet to be transferred. It is not easy to transfer the properties because the administrators have to sit to discuss the matter and some of the beneficiaries are still infants.

DW1 testified that he did not know how much the 5th Defendant paid for the plot and whether or not he bought the land with the buildings thereon. He was present when the 4th Defendant was negotiating with the 3rd Plaintiff over plot 89. He did not (see) any shs. $20\%;000/=$ (Two hundred thousand shillings only) exchanging hands. paid $A$ bisq He was not shs. 200, 000/= (two hundred thousand shillings only) by the $\angle$ AL. T. Plaintiffs. Plot 89 was transferred to the 4th Defendant on $22/11/1994$ . The witness was aware of the pending suit when he said transfer was made because it was no bar to the transfer. He was not even aware of the Plaintiff' caveat, when it was lodged or removed.

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DW1 also testified that there are buildings on plot 89 but he said not know they belonged to Joseph Lutti Musisi. He knew them to belong to Mpinga. He did not know that the 5th Defendant paid shs. 30 or 40 million for the purchase of the buildings.

In re-examination the witness testified that he did not know M/S Kulubya & Co. Advocated were Mpinga's or the Plaintiff's lawyers. He did not instruct these lawyers to receive rents on behalf of Nanteza. None of Galabuzi's family members complained about the transfer of plot 89 to the 4th Defendant

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Sebwaba's plot 43, mentioned in exh. "D4" was on Masaka/Kampala Road.

DW2, Charles Segujja (4th Defendant), testified as follows. He knew his late father's lands at Ndeeba Kasuko, Sanda Mpuudde, Buyinga, Wamala, Bokasa Mbira because his late father used to send him to collect money for his agents. He knew Joseph Mpinga to whom the witness' father granted a lease on plot 67 Ndeeba, near the palace in the 1950's. His father showed the witness' the people who were on the plot. He was not aware if Mpinga had any other lease on the witness fathers' land. The witness sold a plot (on plot 67?) to the 5th Defendant in 1992. The witness knew the 3rd, 4th, and 4th Plaintiffs. The 3rd and 4th Plaintiffs approached him to purchase plot 89 for which he was The 3rd Plaintiff lead the registered owner in 1994. negotiations. The witness was willing to sell at shs. 5,000,000/= $\frac{1}{2}$ (five million shillings only). The Plaintiffs agreed to this. The witness went several times to the 3rd and 4th Plaintiffs but they were not able to pay. The 3rd Plaintiff wrote letters apologising he was unable to buy the land (exh."D12"). The witness was paid shs. 200,000/- (Two hundred thousand shillings only) as good will. The witness subsequently sold to the 5th Defendant for shs. $3,000,000/$ = (Three million shillings only). The witness did not sell the old buildings on the land. There was no caveat on this land. He became aware of this suit when he came to court. The Plaintiffs had no lease on the land. Nor did their late father.

During cross-examination, the witness testified as follows. During the twelve years DW1 was an administrator of DW2's father's estate he did not sell any land of the estate without DW2's consent. Nor did DW1 receive any rents without accounting. The deceased left seven children. Daniel Ntambi was the only brother still under 21 years of age. The witness did not attend the 1995 family meeting where DW1 briefed the administrators about the suit. Nor was he briefed about what transpired at the meeting. He was not told about the contents of exhibit "P15".

At the time he sold the land to the 5th Defendant there were some abandoned houses on the land. The witness merely sold the interest in the land but not the said houses. He admitted signing exhibit "P3" to transfer his interest in the land to the $COST84$ 5th Defendant. The forms were in English, a language which he did not know. They were given to him by DW1 in the village. $\mathcal{R}$ . He did not know Joseph Lutti Musisi. He did not know if Musisi Transles ran the Ndeeba Central Restaurant on plot 89. He knew that Babu did that although he did not know whether or not Babu was a tenant. He was aware that Mpinga never paid ground rent to his late father. He was aware the 3rd Defendant used to collect money from somewhere but not the exact source. According to exh. "P5" rent from Mpinga was bequeathed to Nanteza. Mpinga never erected buildings on plot 67 but built two on plot 89. Exhibit "P7" was for ground rent paid by Mpinga dated $15/3/75$ . It was rent for plot 67. The witness' father signed it. Plot 67 was not written thereon Semambo was known to the witness. He bought land adjacent to plot 89 and obtained a certificate. The witness denied selling Semambo's land to the 5th Defendant. The witness took over Nanteza's land. Nanteza never got rent

DW3, Lodovico Mwanje, the 5th Defendant, testified that he had lived in Ndeeba since 1969. He had never seen the late Galabuzi but had heard of him. He heard of Mpinga only when he came to court. He knew DW2 when DW2 sold land to him in 1992. That land was plot 860 Block 7 and is not adjacent to plot 89. He later purchased plot 89 for shs.3,000,000/= (Three million shillings only). Before buying, however, he searched in the Lands Office and found out there was no problem on it and that Segujja was the registered proprietor. A sale agreement was made on $1/4/95$ (exh. P7"). He did not buy the collapsing buildings on the land. Exh. "P7" stipulated that the witness should approach the owners of the buildings and compensate them. The witness got a certificate of title (exh. "D1"). Thereafter he looked for the owners of the buildings. He employed a firm of lawyers, M/S Kityo & Co. Advocates who wrote to both the Mpinga family and

from the land before she died.

Lutti Musisi Joseph (Exh. " $D8$ "). The Mpnga family did not but negotiate with Lutti Musisi Joseph for the purchase of the $\mathsf{sad}$ L. M. Joseph did reply. buildings. This resulted in an agreement dated $30/6/95$ (Exh. "D11") drawn by $M/S$ Kityo & Co Advocates. The purchase price was shs. 7.5 million shillings. The witness had so far paid $\frac{1}{2}$ shs. 2 million. He had not paid the balance because of the $\frac{1}{2}$ pending case. The witness further testified that he did not $k\mathbf{p}$ w $\ensuremath{\mathrm{M}}/\ensuremath{\mathrm{S}}$ Kityo & Co. Advocates acted for the Mpinga family in 1974. Nor did Mr. Kityo tell him that the buildings belonged to the $% \mathcal{L}_{\mathcal{A}}$ Mpinga family. Moreover $\text{M/s } \text{Kityo } \& \text{ Co. Advocates acted for the}$ witness to draw up the written statement of defence in this case. $% \left\vert \mathcal{L}\right\vert$ $\,$ M/s $\,$ Kityo & co. Advocates withdrew their service upon a disagreement on fees with the witness.

The witness testified further as follows. He received $\frac{1}{2}$ exhibit "D10" from Joseph Lutti Musisi. It was building plans in respect of Kigagga Central Restaurant approved on $30/4/70$ . The plans did not contain Joseph Lutti Musisi's names but contained "F. M. S Ndeeba Central Restaurant". Because the witness $% \mathcal{L}_{\mathcal{A}}$ used to see Alex babu running this business in 1970's, he did not $\,$ $\alpha s\,k$ Charles Segujja who the owner of the building was. Joseph $_{\mbox{\footnotesize Lutti}}$ Musisi was the son and heir of Alex babu. $\,$ DW3 denied he had conspired with $\text{DW1}$ and $\text{DW2}$ to defraud the Mpinga family by buying the buildings from a stranger. $\operatorname{Exh.}$ "D11" was not fake. . It was not pleaded in the written statement of defence because at the time the $\text{W. S. D.}$ it was drawn the exhibit had not yet been signed.

$\bullet\,$ DW3 testified that he was the one who presented $\,$ exh. "P3" $\,$ to the Land Office for registration. His names and those of $% \mathcal{L}_{\mathcal{A}}$ Charles Segujja appear on this exhibit. The land was inspected by the Chief Government Valuer for stamp duty purposes. On the $\mathop{\hbox{consent}}\nolimits$ form DW3 stated that the land was undeveloped because the buildings thereon were collapsing. The Chief Government Valuer's signature on the form was enough support of $\text{DW3}'\,\text{s}$ statement. The $\textsc{stamp}$ duty and registration fee were based on the assessed value . $\overline{z}$ and $\overline{z}$ and $\overline{z}$

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of shs. 4 million. In 1995 Uganda Land Commission granted its consent to transfer on the basis of the information on the form.

The witness further testified that he did not know the late Semambo but knew that the late Semambo owned plot 520 near but not between DW3's plot 860 and 89. That it was not true Charles Sequija sold plot 860 which was part of Semambo's land and in any case no one had raised any complaint.

During re-examination DW3, changed his statement that he had stated on the consent 'form that the value of the land was shs.4 i million. He now wished to state that he stated it was shs.3 million. This evidence closed the cases for the 4th and 5th Defendants.

I propose to set about the first issue. The material evidence on this was by PW2. He testified to a lease agreement between his late father and the late Galabuzi dated $14/3/1957$ [Exhibit "P5(1)" & "(2)"]. He testified to the terms as inter alia, shs.500/= rent per year for a period of 49 years. w.e.f. $14/3/1957$ . That the agreement was made before survey of the land. That after survey two plots, 67 and 89, were created and their respective certificates prepared and registered by the Land Office. That his late father told PW2 that he had registered the two plots. That PW2 used to see the widow of late Galabuzi collecting rent from PW2's father. This is all hearsay, of course. That PW2 personally verified that the case for plot 67 was registered. That subsequent to a letter by the Defendants to evict the Plaintiffs he went to the Land Office where he found that plot 89 was not registered. He asked for the transfer documents for plot $89$ and was told they were lost. This evidence was not supported. Two other aspects that need mention are that PW2 testified that his father developed plot 89) by building thereon and not 67 because Namatovu Tereza encroached on the latter and that a receipt exhibit "P7" was tendered as evidence that PW2's father paid rent for plot 89.

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has a water took

$\tilde{z} \in \mathcal{A}$

Counsel for the Plaintiffs' submissions on the first issue are based on the above summarised evidence. He contended that the first four Defendants admit, both in the pleadings and evidence of DW1 and DW2, that the buildings belong to late Mpinga. That these defence witnesses did not prove that the remain paid under exhibit "P7" was for plot 67. That the late Galabuzi's will, exhibit "D5" paragraph 5(iii), whereby Nanteza was bequeathed the rent from Mpinga for the shop in Ndeeba supported the Plaintiff's claim that they were lessees of that That pursuant to Galabuzi's will Nanteza's lawyers plot. demanded that rent on $14/1/85$ (Exhibits "P8" & "P9") and, in compliance, the Plaintiffs paid shs.50,000/ $=$ , (exhibit "P10"). Counsel for the Plaintiffs contended that the 1st - 3rd Defendants held the suit land subject to Joseph Mpinga's equitable interest as an unregistered lessee. That as such they had absolute power to enter into a formal lease with the Plaintiffs correcting the error made by Galabuzi's lawyer when he prepared the lease for plot 67 and omitted to include plot 89.

Counsel for the Defendants made submissions in reply to Counsel for the Plaintiffs submissions. They stated, inter alia, that PW2 admitted that when he searched in the Land Office he found out that his father was registered for plot 67. That plot 89 was not registered. That exhibit "P7", the receipt for rent, was irrelevant since it not mention that it was in respect of plot 89. That the title for plot 67 (exhibit "P16") lends credence to DW1 and DW2's evidence that Galabuzi granted a lease to Mpinga in respect of plot 67 only; because on the incumbrance page of exhibit "P16" Mpinga's lease is stated to take effect from $14/3/1957$ , the date exhibit "P5" was executed. That the leasehold title in respect of plot 67 tendered in evidence as exhibit "D3" shows clearly that it was created out of Milo Register Vol.112 Folio 10 which is the description of the Milo in 'exhibit "P5" with terms similar to those in exhibit "P5". Furthermore the size of the land detailed out in exhibit "P5" tallies with the size of the print for plot 67 which plot PW2

admitted was registered in the Land Office. The size of plot 89 is different from the above. In addition, the neighbours mentioned in paragraph 2 of exhibit "P5" were confirmed in the evidence of DW1.

I attach importance to the following excerpts of PW2's evidence.

- In his evidence -in- Chief: $a$ "Exh. P5" was a tenancy agreement for 49 years, starting from $14/3/1957$ . At the time of the agreement the land had not been surveyed. Later it was surveyed. One piece becomes plot 89. The other piece became plot 67. My father had occupied plot 89 as a customary tenant." - [b] During cross-examination by Counsel for the 1st - 4th Defendants -

" I attached the agreement exhibit "P5", to plot 89 because that agreement covered my father's land in Ndeeba. The agreement made before survey. The lease agreement was gave the boundaries of the land in question. The boundaries are mentioned in para 2 of exhibit "P5". The boundaries I have given were for plot 67. Plot 89 measured 92 x 55".

[c] Still Under cross-examination by Counsel for 1st - 4th Defendants -

> " In 1957 Plot 89 was not surveyed. To the best of my knowledge the land which was the subject matter of the agreement was not surveyed in 1957.

[d] While under cross-examination by Counsel for the 6th Defendants PW2 testified -

> "A part from exhibit "P5" I never came across any other lease agreement between my father and Galabuzi. From exhibit "P5" it is clear my father and Galabuzi knew the actual area they were negotiating. The actual measurements of the land were mentioned in exhibit "P5".

[Emphasis for $(a)(b)$ and $(d)$ supplied by myself].

I found out the following. PW2 confirmed the existence of plot 67 registered in his late father's names in the Land Office. In his testimony PW2 confirmed there was no other agreement, apart from exhibit "P5", between his father and the late Galabuzi. PW2's and DW1's evidence regarding the measurements of plot 67 and the neighbours to plot 67 tally with the contents clause 2 of Exhibit "P5" and the print. On the other hand PW2 testified that the plot number was not mentioned in the agreement of $14/3/1957$ because the land was then not surveyed. But that when a survey was eventually done part of the land became plot 67 and the other plot 89. That plot 89 was omitted by Galabuzi's lawyers who prepared the documents for registration. This turn about is difficult to believe. First, in view of PW2's evidence three excerpts of which I have given above. Secondly in view of the his evidence that he ascertained from the Land Office that both plots were registered. Third a look at exhibit "D1" shows that (plot 89 was registered on 26/5/1921) $\frac{1}{2}$ PW2's story that plot 89 was not registered in his father's name is an afterthought. All $\mathcal{L}$ his evidence confirms the fact that a lease agreement executed on $14/3/1957$ existed between Galabuzi and Mpinga. The said lease $\hat{x}$ was registered in the land office on 27/6/1958. It was in respect of plot 67 and mention was made that it was effective from $14/3/57$ .

Let me address the question of payment of rent. PW2 engaged $\mathcal{D}$ in hearsay that his father told him he paid rent for plot 89 during his lifetime and that PW2 saw the widow of the late Galabuzi collecting rent from Mpinga. Exhibit "P7" purporting to be a receipt for such rent was tendered. The desperation by which it was tendered is shown by Counsel for the Plaintiffs' submission that DW1 and DW2 must prove from this exhibit that the rent paid was for plot 67 and not plot 89. It is trite that he who asserts must affirm. If the Plaintiff asserted that the rent was in respect of plot 89 the burden was theirs to prove so. In my humble view they failed miserably. \*

$\cdot \cdot u_{\bullet}$

$\mathfrak{B} = \mathbb{I}^{1} \oplus \mathbb{I}^{1} \qquad \mathbb{I}^{1} \qquad \mathbb{I}^{2}$

$\mathcal{A} = \mathcal{A}$ • I now turn to the will of Galabuzi where in paragraph 5(iii) (exhibit "D5") Galabuzi, bequeathed the rent from Mpinga's shop at Ndeeba to Nanteza.

Counsel for the Plaintiffs submitted -

"This is concrete proof from the testator's own will that Gabriel Galabuzi was collecting ground rent from. Joseph Mpinga in respect of property on plot 89 Ndeeba contrary to DW1 and DW2's testimonies and their pleadings......."

As I have laboured to show all the evidence adduced, especially by the Plaintiffs, support the existence of a lease between Galabuzi and Mpinga for plot 67. No type of evidence was called to prove the existence of a lease for plot 89 between these parties. No oral or written agreement was tendered and no evidence of payment of rent for this plot was tendered. it is very important to recollect that PW2 stated that his father occupied plot 89 as a <u>customary tenant</u>. Customary tenants can pay rent ("obusulu" in exh. "D5"). This property (obusulu) is capable of being bequeathed. What Galabuzi bequeathed to Nanteza, was in my view, rent due from a customary tenant and not a lessee for plot 89. The Plaintiffs therefore cannot be heard to base their claim of the existence of an enforceable lease on the provisions in Galabuzi's will. In any case I do not read in this clause, as Counsel for the Plaintiffs does, that Galabuzi " was collecting" ground rent from Mpinga in respect of property on plot 89 Ndeeba." The testator may have merely wished that Hanteza was entitled to rent from this property if and when it would be forthcoming after his death. This is my view on account of the Plaintiffs' total failure to prove any payment of rent for plot 89.

Plaintiffs' Counsel's submitted that on $14/1/1985$ pursuant to Galabuzi's will M/S Kulubya & Co. Advocates who were Nanteza's lawyers wrote and got a reply with regard to Nanteza's ground rent. That the Plaintiffs paid shs.50,000/= including arrears to Nanteza (Exhibits "P8", "p9" and "P10") and the unexpired term

of 17 years. The fact of payment, the method, and the purposes were very ingenious indeed. So were all the alternatives offers to buy the land. These desperate steps, in my view, confirm the absence of a lease for plot 89. I have already held that the Plaintiffs' vital evidence supports the existence of a lease for plot 67. This is where one finds the lease terms of, inter alia, $\langle C \rangle$ rental of shs.500/= per annum and 49 years duration. These terms (Lass cannot be imported onto plot 89 when Galabuzi did not negotiate them with Mpinga. On the first issue I conclude thus, The Plaintiffs have no valid lease on plot 89 capable of being enforced by specific performance against the 5th Defendant.

Issue number three concerns the bona fides of the 5th Defendant before he got registered as the proprietor of plot 89. I have already summarised the evidence of the Plaintiffs and that of the Defendants. However, I will repeat some of DW3's evidence for emphasis. He testified that when he embarked on the negotiations to purchase plot 89, DW2 showed him the certificate of title which was in the names of Charles Galabuzi. The witness proceeded to inspect the site with DW2. Thereat he found uninhabited delapidated buildings which were collapsing. He did not ask DW2 who the owner of these buildings was. Thereafter DW3 repaired to the Land Office to inspect the register. He confirmed that Charles Segujja Galabuzi was the registered proprietor. He also found no encumbrances on the title. After all this he concluded a sale agreement (Exh. "D7"). A clause in the agreement required DW3 to approach the customary owners of the buildings and pay them compensation. In his submissions Counsel for the Plaintiffs stated -<br>"SUBMISSION."<br>"SUBMISSION."<br>"SUBMISSION."<br>"SUBMISSION."<br>"SUBMISSION."<br>"SUBMISSION."

*stailing*

The transaction between the 2nd Defendant (DW1) 4th Defendant (DW2) and 5th Defendant (DW3) was tainted with fraud. The fact that the 5th Defendant pleaded in paragraph 9 of written statement of defence that the buildings belonged to Joseph Lutti Musisi supports my contention.... The 5th Defendant is not protected against ejection under Ss 145, 184 and 189 of the RTA on the ground that he was not a bona fide purchaser for value of the suit property. If the 5th Defendant

$\frac{1}{4}$

had inquired from the vendor 5th & 4th Defendant., his agents (2nd Defendant and Nsimba) or from the resident neighbours he ought to have found that the buildings belonged to Joseph Mpinga..... Also that there was a suit pending in this Honourable Court. Fraud therefore ought to be properly ascribed to him...."

This type of approach to win a case is very unfortunate. It insults the handmaidens of the courts of law. The bedrock of the Plaintiffs' claim is to be found in paragraph 3 of the amended plaint. It reads:-

> "The Plaintiffs' claim against the 5th Defendant, inter alia, is for a declaration that the 5th Defendant acquired described in paragraph 4(b) herein SUBJECT to the said Lessees' Lease interest..."

[Emphasis is mine]

Paragraph 4(b) reads: -

"......by an agreement for a lease dated 4th March 1957 between the Lessor...... and the Lessee... the Lessor leased part of his land comprised in former Milo Register Vol.112 Folio 10 (now known as Kibuga Block 7 Plot 89... at Mengo)... to hold the same unto the lessee..."

The issue of fraud is introduced in paragraphs $9(a)(i)$ and (ii). I will quote these -

"9(a) The Plaintiffs jointly further state that:-

Before the said Suit was heard and disposed $(i)$ of the 1st; 2nd and 3rd Defendants knowingly with intent to defraud transferred the Reversion to the 4th Defendant (the Lessor's Customary Heir) after the Chief Registrar of Titles had wrongfully and/or unlawfully Removed the Plaintiffs' said Caveat from the Registrar Book although the Transfer in Law was supposed to be effected SUBJECT to the Lessee's Leasehold interest upon the said land; whose Transfer Instrument dated 22nd November 1994 was registered on 24th


(ii) By an Instrument of Transfer dated 19th April 1995 the 4th Defendant wronqfully and/or fraudulently purported to Transfer the said land together with the Lessee's Commercial Buildings and other developments thereon to the 5th Defendant at a Sale Price which was undisclosed in the Transfer but which, according the CONSENT granted by the Uganda land Commission, was stated to be only Sh. 3, 000, $000/=(shillings Three Million)$ for the land; the Commercial Buildings and other developments there on, (although the 4th and 5th Defendants stated in the said Consent that the land was UNDEVELOPED): which property is located just about three (3) Kilometres from the City Centre of Kampala along the Main Kampala-Masaka Road at Mengo/Ndeeba Trading Centre. (Photocopies of the Transfer and the Consent are annexed hereto and marked Annexure "I" and "J" respectively).

The issue of the 5th Defendant's bona fides is again referred to in paragraph 11(i) which reads:-

"11( $i$ )

Declaration that the 5th Defendant is not a BONA FIDE Purchaser of the land comprised in Former Mailo Register Kibuga Block 7 Plot 89 as to 0.22 of an Acre at Mengo/ndeeba Estate for Valuable consideration without Notice of the lessee's leasehold interest upon the land. Hence, the 5th Defendant's purported Title to the Lessee's Commercial Buildings and other Developments thereon cannot enjoy the protection afforded to Bona fide Purchasers for value of land without Notice under THE REGISTRATION OF TITLES ACT and CASE LAW.

For a party to rely on fraud it is mandatory on that party to plead and prove. [See: KAMPALA BOTTLERS LTD. vs DAMANICO 9U) LTD: C. A. NO.22/92; STEPHEN LUBEGA vs BARCLAYS BANK LTD: C. A.856/90; and $06, r2$ of the Civil Procedure Rules]. The above case law sets out the necessity to specifically plead and strictly prove fraud and the nature of the burden of proof. Counsel's submissions cannot be a substitute for the law.

In the present case the Plaintiffs did not supply the particulars of fraud as required by the Civil Procedure rule (ante), ineither of the Plaintiffs' only two witnesses alluded to fraud; either directly or indirectly, attributable to the 4th and 5th Defendants. Therefore I regard Counsel's submission abovequoted as not only diversionary but misconceived. They are diversionary because they are directed to the buildings but not to the alleged existence of a lease on plot 89. They are misconceived on account of lacking particulars of the alleged fraud and are not based on evidence. Counsel went to the length of submitting that the burden of proving the bona fides is on the purchaser. That is true only if fraud has been pleaded and proved. The purchaser's burden of proving the bona fides is secondary to the Plaintiff's primary burden. [See D. S NALIMA vs R. MUSOKE: C. A.12/85.

The above notwithstanding, I will address the common law doctrine of a bona fide purchaser for valuable consideration without notice (of other interests on the land). We have incorporated this in our law - the RTA inclusive. Section 189 of the RTA provides -

> "189. Nothing in this Act contained shall be so interpreted as to leave subject to an action of ejectment or to an action for recovery of damages as a foresaid or for deprivation of the estate or interest in respect to which he is registered as proprietor any purchaser bona fide for valuable consideration of land under the operation of this Act, on the ground that the proprietor through or under whom he claims was registered as proprietor through fraud or error or has derived from or through a person registered as proprietor through fraud or error; and this whether such fraud or error consists in wrong description of the boundaries or of the parcels of any land or otherwise howsoever.

This section protects the second transferee where the first transferee obtained registration as proprietor through fraud. The section was discussed in ROBERT LUSWESWE vs G. W. KASULE H. C. C. S. NO.1010 OF 1983 and approved in DAVID SEJJAKA NALIMA vs R. MUSOKE C. A. NO.12.1985(CA). In LUSWESWE's case Odoki, J., as

## he then was, said-

"The effect of this section is that once a registered proprietor has purchased property in good faith his title cannot be impeached on account of the fraud of the previous registered proprietor. A bona fide purchaser therefore obtains a good title even if he purchases from a purchaser who previously obtained by fraud.

However before a purchaser can claim the protection of S189 of the R. T. A. he must act in good faith. If he is guilty of fraud or sharp practise he will cease to<br>be innocent and therefore lose the protection. an action for ejectment lies against him under S.184(c) of the R. T. A. which provides in relevant parts as follows: -

"184. No action of ejectment or other action for the recovery of any land shall lie or be sustained against the person registered as proprietor under the provisions of this Act except in any of the following cases -

- (a) . . . . . . . . . . . . . . . . . . . (b) $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ldots$ - (c) the case of a person deprived of any land by fraud as against a person deriving otherwise than as a transferee bona fide for value from or through a person registered through fraud. - (d) . . . . . . . . . . . . . . . . . . . (e) . . . . . . . . . . . . . . . . . . .

and in any case other than as aforesaid the production of the registered certificate of title or lease shall be held in every court to be an absolute bar and estoppel to any such action against the person named in such document as the grantee, owner, proprietor or lessee therein described any law or equity to the contrary notwithstanding,"

The learned judge observed that where there are a series of subsequent transfers, for the title of the incumbent to be impeached the fraud of the previous transferee must be brought home to him. In the case at hand the Plaintiffs did not in their pleadings give particulars of fraud surrounding the registration of, at least, the 4th Defendant. Nor did they make any attempt at such in their evidence.

tus in this coax then Franklich 1. Consect due

The NALIMA case also addressed section 145 of the RTA which stipulates -

> " 145. Except in the case of fraud, no person contracting or dealing with or taking or proposing to take a transfer from the proprietor of any registered land, lease or mortgage shall be required or in any manner concerned to inquire or ascertain $the$ circumstances in or the consideration for which such proprietor or any previous proprietor thereof was<br>registered or to see to the application of any<br>purchase or consideration money, or shall be affected by notice actual or constructive of any trust or unregistered interest, any rule of law or equity to the contrary notwithstanding, and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud.

$\mathcal{L} = \mathcal{L}$

The court agreed that the object of this provisions, and the whole Act indeed, was to save people dealing with registered proprietors from the trouble and expense of going behind the register in order to satisfy themselves of its validity and thus simplify and expedite the process of transfer of title. It was however emphatically stated that the section cannot be called in That mere knowledge of unregistered interest to aid fraud. cannot of itself be imputed as fraud unless that knowledge is supported by other circumstances. From the evidence on record and the law applicable to this case the 5th Defendant was a bona fide purchaser of plot 89 for valuable consideration without notice of any other interest, let alone the Plaintiffs alleged lease.

The issue of ownership of the buildings on plot 89 may be approached as follows. The only evidence that they belong to Joseph Lutti Musisi was the building plans, exhibit "D10". In my considered view this evidence alone is totally inadequate to prove ownership. Someone can spring up and draw up plans for Kampala Sheraton Hotel and affix his names on the plans and get the plans approved and stamped by a Planning Authority. It would be absurd if he turned around and claimed ownership of Kampala Sheraton Hotel simply because he was in possession of these approvewd building plans.

$25$

The evidence supporting ownership by the Plaintiffs through $\frac{1}{2}$ "There are buildings on plot 89. These buildings were Joseph Mpinga was that of $PW2$ who stated put up by my late father in the early $50's"$ . There is also the evidence of DW1 where he stated:-"Galabuzi left a lot of plots in Ndeeba. One is plot 89. Galabuzi permitted Joseph Mpinga to build on that Finally there is $\text{DW2's}$ evidence during cross-examination when he I knew he "I did not sell the abandoned houses. owners of the abandoned housed. The owner was Joseph testified -DW1 and DW2's evidence supports paragraph 3(a) of their counter-From the above evidence I find and hold that the $\frac{1}{2}$ commercial buildings belongs to the late Joseph Mpinga. VIII Delaim. The final issue is related to the remedies available to the $% \left\vert \mathcal{L}\right\vert$ parties. I will start with the Plaintiffs. $I$

$\theta$

I refuse to declare that the 5th Defendant is not a $% \mathcal{L}_{\mathcal{A}}$ bona fide purchaser of plot 89 for valuable consideration $\frac{1}{2}$ without the lessees' leasehold interest on the land. $I$ declare instead that he is such a bona fide purchaser and $% \mathcal{L}_{\mathcal{A}}$ $\vert$ that there is no such alleged lessees' leasehold interest

on the said land. I make no declaration with regard to the $third(iii)$

prayer because the Registrar of Titles was not made a party $% \left\vert \mathbf{r}\right\rangle$ to this suit and the removal of the caveat by $\mathop{\text{him}}\limits_{\text{was not}}$ made an issue throughout the proceedings.

The Plaintiffs' are entitled from the 5th Defendant to $\searrow$ . 3. shs.4,000,000/=(four million shillings only) as customary $\leq$ owners of the buildings on plot 89. This being the value $C \curvearrowright \mathbb{C}$ assessed by the Chief Government Valuer.

The Plaintiffs' suit stands dismissed with costs to $4.$ the Defendants.


$15/1/99:-$

Kulumba Kiyingi for Plaintiffs. Okalanga for 4th & 5th Defendants. Mbogo for 1st to 3rd Defendants. Court: -

Judgment read in the presence of the three Counsels.

Sgd.

Namundi DEPUTY REGISTRAR (CIVIL)

27