[2024] UGHCLD 112

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION)**

# **CIVIL SUIT NO. 981 OF 2021**

## **NANTEGE SCOVIA ::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF VERSUS**

### **1. EDWARD MWAVU NECTOR ::::::::::::::::::::::::::::: DEFENDANTS 2. MUTALYA FRED**

# **BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA JUDGEMENT**

#### *Introduction;*

1. The plaintiff is the registered proprietor of land comprised in Kyadondo Block 195 Plot 2971 at Kyanja. The Plaintiff's afore mentioned land is boarded by land comprised in Kyadondo Block 195 Plots 5221 and 5222. The Plaintiff brings this suit seeking orders inter alia; Cancellation of the certificate of title of land situated on Kyadondo Block 195 Plot 5221 at Kyanja in the names of the 1st Defendant, an order of specific performance against the 1st Defendant to execute the mutation and transfer forms of the said piece of land situated on Kyadondo Block 195 Plot 5221 at Kyanja in favour of the Plaintiff, an order against the 1st defendant to return the said piece of land that belongs to the plaintiff, an

order against the 2nd Defendant to return the money he was paid by the Plaintiff to process the title, general damages, Interest and costs of the suit.

#### *Background;*

- 2. The Plaintiff on the 3rd day of March 2021 purchased the suit land (measuring 45ft by 50ft) now comprised on Kyadondo Block 195 Plot 5221 Land at Kyanja from Kigonya Samuel Mukasa at a consideration of Ug shs 4,500,000 (Uganda Shillings Four Million Five Hundred Thousand). - 3. The plaintiff engaged the 2nd defendant to open boundaries and process a certificate of title with the view of amalgamating her whole land onto one certificate of title which he did not do despite having been paid a sum of Ug shs 600,000/=. On the 27th day of November 2020, the plaintiff engaged another surveyor who established that the land had been fraudulently mutated and included in the 1st defendant's certificate of title (Kyadondo Block 195 Plot 5221 at Kyanja) who transferred all the land into his names. - 4. On 3rd December 2020, the plaintiff notified Kigonya Mukasa Samuel and Sarah Basirika of the fraud and the chairperson of

the area Ms. Kamoga Grace who called for a meeting on the 8th day of January 2021 to have the matter settled amicably.

- 5. The 1st defendant admitted that the plaintiff's land had been included on his certificate of title and he was asked to sign the requisite instruments for her to obtain a certificate of title to her land which the 1st defendant refused prompting the plaintiff to lodge a caveat onto the suit land. - 6. The 1st defendant rather averred that he owns all the land comprised in Kyadondo Block 195 Plot 5221 to which he has been in quite possession and uses the same without complaints from any person. He further stated that his developments are on land comprised in Kyadondo Block 195 Plot 5221. - 7. The 2nd defendant averred that he did what he was instructed to do and gave the plaintiff a report to that effect. - 8. The parties filed a joint scheduling memorandum and agreed on the following issues; - 1) Whether the plaintiff has a cause of action against the defendants?

- 2) Whether the plaintiff's land forms part of the 1st Defendant's land situated at Block 195 Plot 5221 land at Kyanja Kyadondo County? - 3) Whether the 2nd Defendant breached the contract for service with the plaintiff when he failed to open boundaries and process a certificate of title in the names of the plaintiff as agreed? - 4) Whether the plaintiff has suffered general damages as a result of the defendant's actions or omissions? - 5) Whether the plaintiff is entitled to the reliefs sought?

#### *Locus visit;*

- 9. The trial Court conducted a locus visit on the 21st day of February 2024 at Kyanja where the suit land is situate. Court established that Mr. Mwavu the 1st defendant purchased 50ft by 50ft south of the plaintiff's plot which was 45ft by 50ft (now the land in dispute). - 10. Mr. Mwavu, the 1st defendant admitted that the plaintiff's land was mistakenly made part of his land. He further stated that he signed mutation forms in favor of Mr. Mukasa Sawiri Kigonya from whom he purchased.

11. The LC1 members stated that they had a meeting where the plaintiff was not a party in which Mr. Mwavu surrendered mutation forms but refused to deliver his passport photos. However, Mr. Mwavu denied having ever attended any meeting.

#### *Representation;*

- 12. At the hearing, the plaintiff was represented by Counsel Babirye Miriam Kaggwa of M/S Onyango & Co. Advocates while the defendants were represented by Kusimakwe Ronald of M/s Alliance Advocates. - 13. At the hearing, parties led evidence through witness statements and filed written submissions which I have considered in the determination of this suit.

#### *Analysis and determination of the issues;*

**1) Whether the plaintiff has a cause of action against the defendants?**

14. Counsel for the plaintiff in his submission cited the authority of **Kapeeka Coffee Works Ltd v NPART CACA No. 3 of 2000**, stating that in determining whether the plaint discloses a cause of action, the Court must look only at the plaint and its annexures if any and nowhere else.

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15. For there to exist a cause of action, one must have enjoyed a right which right was infringed upon by the defendant. (*See; Auto*

#### *Garage and ors vs Motokov 1971 EA)*

- 16. The plaintiff purchased part of land comprised in Kyadondo Block 195 Plot 5221 measuring 45ft by 50ft from Kigonya Mukasa Samuel and Sarah Basirika. She engaged the 2nd defendant to open boundaries and process a certificate of title to the land purchased but neglected or refused to do as instructed despite being paid. - 17. The plaintiff engaged another surveyor who informed her that the 1st defendant had processed a certificate of title for land comprised in Kyadondo Block 195 plot 5221 at Kyanja in which he fraudulently included the plaintiff's land. The plaintiff made a search which revealed the 1st defendant as the registered proprietor. - 18. **Article 26 of the Constitution of the Republic of Uganda** guarantees a person's right to own property. The plaintiff has a right to own property however the same was violated by the fraudulent acts of the defendants.

- 19. Fraud is defined to mean an intentional perversion of truth for purposes of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. **(Zabwe Fredrick versus Orient Bank & Others SCCA No. 4 of 2006)** - 20. The 1st defendant's act of processing a certificate of title including land in which he had no interest whatsoever was an act of fraud. Furthermore, the 2nd defendant's act of receiving money from the plaintiff and neglecting to do as instructed, his intention was to cheat the plaintiff of her money and causing her financial loss which is also an attribute of fraud. Clearly, the plaintiff had a right which was infringed upon by the defendants. - 21. This Honorable Court is inclined to believe that the plaintiff has a cause of action against the defendants and that is fraud. - **2) Whether the plaintiff's land forms part of the 1st Defendant's land situated at Block 195 Plot 5221 land at Kyanja Kyadondo County?** - 22. It is not in dispute that the plaintiff as per the sale agreement dated 3/3/2012 (exhibited and marked PEX3) purchased the suit land and the time of purchase, the whole land was under the

process of subdivisions being processed by the 2nd defendant and the subdivisions birthed Plots 5221 and 5222(residue).

- 23. The plaintiff instructed the 2nd defendant to open boundaries for the land she had purchased, mutate and create a certificate of title for her with the view of amalgamating it to her land comprised in Kyadondo Block 195 Plot 2971 at Kyanja. - 24. Mukasa Sawiri Kigonya, PW2 in his evidence informed Court that he was the vendor (sold land) to both the plaintiff and the 1st defendant and knew the boundaries of the respective plots as sold to the parties. He informed Court that he sold 45ft by 50ft to the plaintiff and accordingly signed mutation forms in her favor. He then connected the plaintiff to the 2nd defendant to help her with the subdivision process so that she can obtain a certificate of title for her land. - 25. The 2nd defendant confirmed to have received instructions from the plaintiff to process her certificate of title but he did not execute the same. - 26. Ssembajjwe Henry, PW3 a surveyor, stated that upon receiving instructions from the plaintiff, they conducted a survey and made a report to that effect which was adduced in court exhibited and

marked PEX5. In the report, the surveyors made a finding that the plaintiff's land was part of Plot 5221 and not 5222 as she expected. The plaintiff went ahead and made a search, the search report was exhibited and marked PEX7 where she realized that the land was registered in the names of the 1st defendant, Edward Mwavu Nector.

- 27. While at Locus, the 1st defendant admitted that the plaintiff's land was mistakenly included on his certificate of title and signed mutation forms in favor of Mukasa Sawiri Kigonya claiming he purchased the land from him and that the right step was for him to return the same back to him. - 28. **Section 59 of the Registration of Titles Act cap 230** connotes to the fact that a certificate is conclusive evidence of title. However, in instances of fraud and other underlying factors, the same position cannot stand. - 29. With the glaring evidence as adduced above, it brings this Honorable Court to an undisputable conclusion that the plaintiff's land is actually on the titled land comprised in Kyadondo Block 195 Plot 5221 which is registered in the names of the 1st defendant.

30. On the issue of whether the same was fraudulently added; Fraud denotes any act of dishonesty **(John Katende v Uganda**

## **Land Commission HCCS No. 573 of 2015)**

- 31. The 1st defendant during cross examination admitted to having given the 2nd defendant instructions to process the certificate of title to his land and he confirmed to have processed the 1st defendant's certificate of title. - 32. The 2nd defendant during cross examination, informed Court that he started processing the 1st defendant's certificate of title in 2011 and completed the same in 2019. He further confirmed to Court to have received instructions from the plaintiff to process her certificate of title on 16th March 2012. - 33. Both the plaintiff and the 1st defendant engaged the same surveyor, the 2nd defendant, to create their respective certificates of title from the same piece of land. The 2nd defendant informed Court that he was a surveyor for over 20years, by virtue of his expertise he ought to have known which land belonged to who and the measurements each was entitled to and diligently execute instructions from both parties.

- 34. He instead processed one certificate of title for land comprised in Kyadondo Block 195 Plot 5221 in which he included the plaintiff's land after he adamantly refused to execute the plaintiff's instruction. All the defendants' actions don't fall short to attributes of fraud. - 35. Further, when the 1st defendant was informed that his title reflects land in which he has no interest, had it been a mistake like he claimed, he would have willfully executed the requisite instruments to transfer the land to the owner but he didn't. - 36. This Court is inclined to believe that the defendants' actions were fraudulent and coached at depriving the plaintiff of her interest in land. Therefore, this issue is answered in affirmative - **3) Whether the 2nd Defendant breached the contract for service with the plaintiff when he failed to open boundaries and process a certificate of title in the names of the plaintiff as agreed?** - 37. The 2nd defendant received instructions from the plaintiff on the 16th day of March 2012 to open boundaries, survey and process a certificate of title for her. The plaintiff went ahead and made payments to the 2nd defendant totaling up to a tune of Ug shs

600,000/= according the receipts dated 16th March 2012, 17th April 2012 and 04th May 2012 all collectively exhibited and marked PEX4.

- 38. The 2nd defendant during cross examination admitted to have received the said monies and did not execute the instructions given to him by the plaintiff. In his defense he stated that he failed to execute instructions because he did not have the requisite instruments. - 39. The plaintiff in her evidence stated that she tried to reach out to the 2nd defendant multiple time on phone but he refused to pick her calls and even when he went to his offices, he refused to meet her. - 40. Am aware that the contract between the plaintiff and the 1st defendant was executed on 16th March 2012, under the circumstances, the plaintiff's claim for breach of contract would be barred by limitation as per Section 3 of the limitation Act Cap 80. - 41. However, the same act provides an exception of acknowledgement under Section 23. The 2nd defendant in his witness statement under paragraphs 7,8 and 10 states that he has

always been willing to execute his instructions but he was impeded because he lacked the necessary documents.

- 42. Acknowledgement serves as a crucial exception to the statute of limitation to ensure that a person is not unfairly barred from seeking redress for valid claims due to passage of time. - 43. The fact that the 2nd defendant acknowledges that he has always been and he is still willing to execute his instructions, this resets the time of the contract and hence the limitation period of six years cannot apply in the circumstances. - 44. The plaintiff has since engaged another surveyor hence she no longer needs the services of the 2nd defendant and its only just that the 2nd defendant refunds the consideration so far advanced since he refused to perform. - **4) Whether the plaintiff has suffered general damages as a result of the defendant's actions or omissions? and**

## **5) Whether the Plaintiff is entitled to the reliefs sought?**

45. The law on general damages is that the damages are awarded at the discretion of the Court and the purpose is to restore the aggrieved person to the position they would have been in had the

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breach or wrong not occurred. **(Hadley v Baxendale (1894) 9 Exch 341).**

- 46. Having found that the defendants fraudulently included the plaintiff's land onto his certificate of title and the 2nd defendant having been found liable for breach of contract, it is self-evident that the plaintiff has been affected by the above acts done against her by the defendants. - 47. The plaintiff wanted to amalgamate her land comprised in Kyadondo Block 195 Plot 2971 at Kyanja with the one she purchased from Mukasa Sawiri Kigonya however she was impeded because the 1st defendant included her land on his certificate of title. (Kyadondo Block 195 Plot 2971 at Kyanja). - 48. Further, the plaintiff had paid Ug shs 600,000/= to the 1st defendant to process a certificate of title for her land which he neglected and refused to which prompted the plaintiff to engage the services of another surveyor to do the work. - 49. The plaintiff has clearly suffered at the hands of the defendants which entitles her to general damages.

- 50. Therefore, I proceed to pronounce judgement and decree for the plaintiff against the defendants' jointly and severally upon the following terms; - I. The 1st defendant signs and hands over to the plaintiff well executed mutation and transfer Instruments, the duplicate certificate of title for land comprised in Kyadondo Block 195 Plot 5221 at Kyanja, A pair of colored passport photos, two copies of his endorsed National ID and his TIN and also appear before the Relevant Ministry Zonal Office (MZO) where necessary to enable the plaintiff mutate off her piece of land and transfer the same into her names at her cost within fifteen (15) days from the date of this judgement. - II. In alternative without prejudice to the foregoing, The Commissioner for Land Registration is hereby directed to mutate off or cause mutation of the suit land measuring 45ft by 50ft out of land comprised in Kyadondo Block 195 Plot 5221 at Kyanja, transfer the same into the names of the Plaintiff and be amalgamated with the Plaintiff's certificate of title comprised in Kyadondo Block 195 Plot 2971 at Kyanja at the Plaintiff's cost.

- III. The 2nd defendant is hereby directed to refund the sum of Ug shs 600,000/= received from the plaintiff with an interest calculated at 6% per annum from the date of receipt until payment in full. - IV. The defendants shall pay Ug shs 10,000,000 to the plaintiff as general damages. The 1st defendant shall pay 80% and the 2nd defendant shall pay 20% of the said sums at an interest rate of 6% from the date of judgement until payment in full. - V. The defendants shall be jointly and severally liable to pay costs of this suit.

## **I SO ORDER**.

## **NALUZZE AISHA BATALA**

**JUDGE**

**30/04/2024**