[2009] UGHCLD 2

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA **LAND DIVISION CIVIL SUIT NO. 179 OF 2005**

1. THE REGISTERED TRUSTEES OF KAMPALA ARCHDIOCESE

2. GRACE KAGAIGA

**PLAINTIFFS**

#### **VERSUS**

)

J

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GRACE ASABA DEFENDANT

**BEFORE: HON. JUSTICE RUBBY AWERI OPIO**

### **JUDGMENT**

The Plaintiffs sued the Defendant for orders that the sale of land comprised in Leasehold Registrar Volume 2588 Folio 12 Plot 1802 in execution of the Decree in HCCS No. 223 of 1997 be set aside; that the Defendant's name be cancelled from the above certificate of Title; that the said title and property reverts to the 2^nd Plaintiff, vacant possession, mesne profits since May 2000; general damages for trespass, and costs of the suit.

The brief background facts to the Plaintiffs' case is that the 1^st Plaintiff leased land comprised in LRV 2588 Folio 12 Plot No. 1802 Block 15 at Nsambya to the $2^{nd}$ Plaintiff for a term of 49 years subsequently the $2^{nd}$ Plaintiff was sued by Emmanuel Kaweesa in HCCS No. 223 of 1997 Emmanuel Kaweesa v Grace Kagaiga whereby an exparte judgment was entered against her after which the suit land was attached and sold in execution of the said decree. The Defendant purchased the property from the bailiff and subsequently had the property registered in her names.

$247$

$15$

$\mathbf{1}$

parties filed a memorandum of scheduling notes by which they agreed on acts and issues for determination.

### Agreed-Facts:

**I I**

The agreed facts were set out as follows

- (1) comprised in LRV ²⁵⁸⁸ Folio That the first Plaintiff is the lesser ofland 12 Plot 1802 Block 15 land atNsambya. - **(2)** The 2nd Plaintiff was the first lesser having leased the same in May 1997 from the 1st Plaintiff. - **(3)** The Defendant is the current registered proprietor of the said leasehold having registered on the 1st day ofJune 2000 as a sole owner. - (4) The Defendant obtained transfer into her names from Joyce Lamwaka, Harried Asea and Grace Asaba who were registered on the title by order of court pursuant to execution in May 2000. - (5) That the Defendant had purchased the suit from court bailiffs under execution of the Decree of court in HCCS No.233 of 1999 on the 26th February 2000. The 2nd Plaintiff was a Defendant in HCCS No. 223 of 1999 which was decided against her. - **(6)** That at the time ofsale by the court bailiffs on 26/2/2000, the 2nd Plaintiff had not surrendered her duplicate certificate of title to the court and a special certificate oftitle was only issued on 5th May 2000

**2**

**15**

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- *(T)* That the transfer into the Defendant's names was done without first obtaining the consent ofthe 1st Plaintiff. - (8) That the purchase price paid by Grace Asaba to the court bailiffs was made in two installments, Ug. Shillings 15 million (fifteen million) on 26/2/2000 and the balance of Shillings 8 million (eight million) after receiving special title issued on 5/5/2000. - **(9)** The agreement of sale/purchase by Public auction, the warrant of Attachment and the order of transfer dated 5/5/2000 refers to Kibuga Block 15 lot 1802 land atNsambya.

#### Agreed Issues:

- (1) Whether the Defendant obtained the transfer of LRV 2588 Folio 12 Plot 1802 Block 15 land at Nsambya with the consent ofthe ¹st Plaintiff. - (2) Whether or not the sale ofland comprised in LRV 2588 Folio 12 Plot 1802 Block 15 land at Nsambya by court bailiffs was lawful. - (3) Whether or not the Defendant is a bona fide transferee for value without notice. - Whether the Plaintiffs are entitled to the reliefs sought. (4)

^m ^a bid to prove their case on the balance of probabilities as required by law the Plaintiffs relied on the evidence of two witnesses: Grace Kagaiga Pw(l)' and Gerald Kayisa Mayanja Pw(2). The Defendant relied on the evidence of Harriet Asaba Dwl.

### **^solution ofissueS:**

**iTihe No. ]. Whether the Defendant obtained the transfer of LRV ²⁵⁸⁸ Folio 12 Plot 1802 Block 15 land at Nsambya with the consent of the 1st Plaintiff.**

In the instant case, according to the agreed facts and evidence on record, the Defendant bought the suit property under or upon sale by court in HCCS No.223 of 1999; Emmanuel Kaweesa v Grace Kagaiga in which court ordered the sale ofthe property. Upon purchase the title was processed in the names of three persons Joyce Lamwaka, Harriet Asaba and Grace Asaba. Subsequently, the three ladies decided to transfer the property into the name of Grace Asaba the Defendant in this suit. The certificate of title and lease agreement therein under Clause 2 (c) ofthe lease agreement it was provided as follows:-

#### *"The lessee hereby covenants with the lesser asfollows:*

*"not to assign, sublet or part with the possession ofthe whole or any part ofthe premises without the written consent ofthe lesser and such consent shall not unreasonably be withheld."*

It is very clear from the above provision of the lease agreement that it refers to the lessee under the lease agreement. Therefore when the suit property was dered by the High Court to be attached and sold, the above clause could not ]< away the jurisdiction ofthe High Court to order attachment and sale ofthe erty to a third party. That duly lay upon the 2nd Plaintiff who was the lessee and not upon the Defendant. The court which ordered attachment and sale ot obliged to seek consent from ¹st or 2nd Plaintiff for permission to attach and sell the suit property.

**T)**

## 5Sm2. **Whether the sale of land comprised in LRV 2588 Folio 12 Plot 02 Block 15 land at Nsambya by court bailiffs was lawful.**

*a:* It has not been disputed that the Defendant purchased the suit property from the court bailiffs arising out of execution of a lawful decree in HCCS No. 123/1999, Emmanuel Kaweesa v Grace Kagaiga. The process of attachment and execution was therefore sanctioned by court. The property that was attached and sold belonged to the 2nd Plaintiff who was a party to the suit mentioned above. The Defendant who purchased the suit property had no relation whatsoever with the above civil suit nor property prior to the purchase through the court process. The warrant of attachment indicated that the property to attach was a house and land at Nsambya Block 15 Plot 1802 property of the Judgment debtor Grace Asaba, the 2nd Plaintiff. There was no mention that the said property was land under Mailo register. The description ofthe property as required under Order 22 Rule 10 (a) ofthe Civil Procedure Rules was sufficient to identify it the property of the judgment debtor for the purpose of execution. What is more important **s** that the attachment and sale in HCCS No. 223 of 1999 have never been set aside by the 2nd Plaintiff. If at all the 2nd Plaintiff had felt ggrieved by the attachment and sale she ought to have applied to have it set aside In that application she would here brought out the issue of illegal attachment and sale of the property and other related issues. However in Miscellaneous Application No. 73 of 2000 the 2nd Plaintiff applied for stay of xecution which application was dismissed. From the above scenario it is very ¹ ar that the 2nd Plaintiff was aware of the execution process and even tried to bl ck it but in vain. The 2nd Plaintiff should have continued that action instead ' stituting this by involving the 1st Plaintiff in an attempt to recover the suit perty that had been lawfully sold in execution.

**I'D**

**2-5**

All the particulars offraud against the Defendant were not proved and could not be attributable to her because she was not the bailiff the allegation like under pricing, sale without certificate of title sale before time indicated in the advert etc. were all attributable to the court bailiffs who are not parties to this suit the Defendant merely responded to the advert Sec. **I.**

In a case those were the facts which were supposed to be proved in either on application for stay of execution or setting aside execution.

For the above reasons I find that the sale ofland to the Defendant was lawful.

**Issue No. 3: Whether the Defendant is a bona fide transferee for value without notice.**

In **Andrea Lwanga v Registrar ofTitles [1980] HCB 24 Odoki Ag. Judge** (as he then was) held inter alia that a title of a bona fide purchaser for value cannot be impeached. That a person registered through fraud can pass good title to a bona fide purchaser, unless the purchaser was not bona fide.

In **Hannington Njuki v William Nyanzi HCCS No.434 of 1996** it was held that for a purchaser to rely on doctrine of bona fide purchaser for value, he must prove that he:

certificate oftile. (1) Holds a

- (2) purchased the property in good faith. - (3) He had no knowledge ofthe fraud.

**I'D**

**W**

*6*

( ) Purchased for valuable consideration.

(5) The vendor had apparent valid title.

(6) Purchased without notice of any fraud.

(7) Was not party to the fraud.

A bona fide purchaser of a legal estate for value without notice has an absolute, unqualified and unanswerable defence against the claims of any prior equitable owner. It is also trite law that the mere fact that he might have found out fraud if he had been vigilant and had made inquiries which he omitted to make does not in itself prove fraud on his part. However, if it be shown that his suspicious were aroused and that he abstained from making inquiries for fear of learning the truth, the case is different, and fraud may be property ascribed on him.

In the instant case, the Defendant purchased the property from a court bailiff after court ordering for attachment and sale ofthe 2nd Plaintiffs property. The 2nd Plaintiff was a judgment debtor. Sale was conducted through an advert. There was a sale agreement. The Defendant bought the property in good faith in our legal process. She paid valuable consideration which was demanded. The property was said to be in a shell form yet to be competed. She invested a ¹ t of money on it. The court bailiffs had apparent authority to sell. She hased without notice of fraud as there was none. Clearly in all the instances the Defendant was a bona fide purchaser for value without notice\*

, **4- Remedies available to the parties. IssueJNo/L.**

P-53 ⁷

In light of the foregoing reasons it is my conclusion that the Plaintiffs are not entitled to the remedies sought in the plaint. The Defendant lawfully pure ase the suit property in a lawful sale conducted by court bailiff. The Defendant a bona fide purchaser for value without notice. The Plaintiffs' suit against the Defendant is therefore misconceived and incompetent. It is dismissed with costs.

# **HON. JUSTICE RUBBY AWERI OPIO JUDGE 23/11/2009**

## **30/11/09 2:35 p.m.**

Wetaka . A. on brieffor Gilbert Nuwagaba, for the Plaintiffs present.

Defendant and Counsel absent.

Clerk: Mayobo.

Wetaka: This case is forjudgment.

**Court:** Judgment read and delivered in the presence ofthe above.

### **A. G. OPIFENI**

#### **ASST. REGISTRAR/LAND DIVISION**

**30/11/09**

2:45 p.m.

⁹ *Qd=>5*

**I**