[2015] UGHC 12

### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA

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#### AT MASAKA

#### CIVIL SUIT NO. 37 OF 2012.

1. SENYONGA HARUNA — 2. NYOMBI HUSSEIN (The Administrator of the estate of the late SULAIMAN MBAZIRA) 3. NAMBAZIIRA JANE (Administrator of the estate of the <table>

late MaryNasaka..................................

#### VERSUS —

- 1. PAULO SABIITI - 2. KWESIGA WILLIAM - 3. SAMUEL BIHAGALA - 4. BENON KALIGA - 5. THE COMMISSIONER LAND REGISTRATION....................................

# BEFORE: HON. LADY JUSTICE MARGARET C. OGULI-OUMO.

#### JUDGEMENT

The plaintiffs, suing in their various capacities as indicated in the plaint brought this suit against the defendants jointly and severally 20 seeking for Orders of;

- a) A declaration that the plaintiffs are the lawful owners of the $\alpha$ suit land. - b) A declaration that the $2^{nd}$ , $3^{rd}$ and $4^{th}$ defendants title is null

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- and void for fraud. $\longrightarrow$ - c) General damages


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- d) Mesne profits of Ug. Shs. 40,000,000/- per year since 2000 till payment in full - e) Interest on (c) & (d) above at 25% per annum from the date of judgment till payment in full - f) An Order that the Registrar of titles cancels the $2^{nd}$ , $3^{rd}$ and $4^{th}$ $\sqrt{ }$ defendants title and confirms the plaintiffs title as the rightful and Lawful title for the suit land

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- g) An eviction order against the $2^{nd}$ , $3^{rd}$ and $4^{th}$ defendants from the suit land. - h) A permanent injunction restraining the defendant from TO interfering with the plaintiffs' ownership of the property.

The brief facts of the case are that, the $5^th$ defendant issued a title to the $1^{\rm st}$ defendant who later transferred it to the $2^{\rm nd}$ , $3^{\rm rd}$ and $4^{\rm th}$ defendants which transfers were sanctioned by the 5^th defendant in his or her capacity as the Registrar of titles.

The first plaintiff together with Hajji Sulaimani Mbaziira and Mary Nasaka (both deceased) were the registered proprietors of the suit land which was a rench measuring approximately 11 squeetares under LRV No. 1343 Folio 19.

That during the Ranch restructuring scheme, the plaintiff retained -20 one square mile (259) hectares and the rest was retained by the government.

The plaintiffs went ahead and processed their grant and obtained a title to the said 259 hectares on the 3^rd of February, 2009.

Upon checking the land, the plaintiffs discovered that the $1^{st}$ – 25 defendant had on 22^nd August, 2000 processed a parallel title and subsequently transferred the same to the 2^nd, 3^rd and 4^th defendants on 12/07/2008.

That after the issuance of the utile to the defendants which was obviously wrong as it was only the previous owners of the ranches


who got part "A" as the Lawful occupants got part "B" and that the defendants being strangers could not have got "A"

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That the first defendant unlawfully entered upon the land in 2006 in connivance with one Noor Njuki Mbabali who claimed to be having authority of the beneficiaries of the estate of the late $\_\_$ Sulaimani Mbazira and the late Mary Nasaka.

Upon making this discovery, the plaintiffs wrote to the Commissioner Lands Registration Department who confirmed that the title in the defendants' names did not only contain irregularities but acts that amount to calculated fraud which resulted in issuance of the first certificate of title LRV 3586 Folio 2 being held by the 2^nd, 3^rd & 4^th defendants since both titles LRV 3586 Folio 2 & LRV3942 Folio 15 bear the same land office title No. SBR/40.

$-15$ That the $2^{nd}$ , $3^{rd}$ and $4^{th}$ defendants cannot claim a good title from their predecessor when the same was procured through fraud and tainted with irregularities and connivance hence the suit to nullify the defendants' title.

The 1^st defendant denied fraud and prayed for dismissal of the entire suit and averred that they occupied the land in 1996.

That a search on the suit land found that it was available for leasing by Sembabule district land board and

That he transferred the suit land to the $2^{nd}$ , $3^{rd}$ and $4^{th}$ defendants lawfully as the said land was not encumbered.

The following issues were raised during scheduling;

- 1. Whether the plaintiffs have a cause of action against the defendants? - 2. Whether the $1^{st}$ , $2^{nd}$ , $3^{rd}$ and $4^{th}$ detendants obtained Registration through fraud?


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- $-228-$ - 3. Whether the Registration of the $2^{nd}$ , $3^{rd}$ & 4^th defendants is tainted with irregularities and illegalities ? - 4. What are the available remedies of the parties?

## Issue NO. 1: Whether the plaintiffs have a cause of action against the defendants? $\longrightarrow$

Counsel for the plaintiffs submitted that save for the first plaintiff, the rest of the plaintiffs are suing in capacities of Administrators.

That the first plaintiff together with the late Sulaiman Mbaziira and Mary Nasaka were the Lawful owners of Masaka ranch NO. 40 Land at Mawogola originally measuring 1228.8 hectares and they -- 1N had a lease of five $(5)$ years running from 1982.

The said certificate of title for the plaintiffs was tendered and marked as Annexure "C" to the plaintiffs' plaint and that therefore the plaintiffs have a cause of action against the defendants.

Counsel then went on to define what constitutes a cause of action $\sim$ 1. as;

- 1. That the plaintiff enjoyed a right - 2. That the right has been violated - 3. That the defendant is liable. ( as defined in the case of TORORO CEMENT COMPANY LIMITED VS FRONKINA INTERNATIONAL LIMITED CACA NO. 21/2000(UR).

Counsel then went on to define each principle that that to be proved in favor of the plaintiff as were laid in the case of **Auto Garage Vs** Motokov [1971] E. A 314 case (supra)

# 1. Whether the plaintiffs enjoyed a right?

Counsel submitted that from the evidence adduced in court, save $-2.5$ for the first plaintiff, the second and third plaintiffs are suing as Administrators of the estate of the late Sulaiman Mbaziira and Mary


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Nasaka (as evidenced by Annexure A & B Letters of Administration which were not challenged)

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That from the facts, the $1^{st}$ plaintiff together with the late Sulaimani Mbaziira and Mary Nasaka were joint owners of Masaka Ranch No. 40 that originally was comprised in LRV1342 Folio 19 $-1$ measuring approximately 1228.8 hectares.

That the initial lease was for a total area of five $(5)$ square miles and during the government Ranch Restructuring exercise, they lost 4 square miles and retained one (1) square mile (259 hectares) which is the subject matter of the suit.

That PW1 testified that by the time they applied for the suit land in 1982, there were no 3^rd party interests on the suit land and that was way back in 1982 and it is not proper for the defendants to allege that they have been in occupation of the suit land since 1982 $-15$ and in the premises the plaintiff enjoyed a right in the suit property.

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#### ii) Whether the right was violated? $\Box$

counsel on this principle submitted that violation can be referred to as a disrespectful act or treating someone irreverently and this was proved by the fact that the plaintiffs were the original ranch owners of Masaka Ranch No. 40 land at Mawogola the residue of 259 — $\infty$ hectares which is the subject to this court. As a government policy they were entitled to residue of the ranch and the government had restructured the same.

He cited the case of **SHEEMA COOPORATIVE RANCHING** SOCIETY & 31 OTHERS VS THE ATTORNEY GENERAL HCCS $-2$ NO. 103/2010 as well as the case of KYEPAKA FRANCIS AND ANOTHER VS GEORGE RWAKARONGO & 2 OTHERS HCCS NO. 289 OF 2007 to support his contention.

> HIGH COURT OF UGANDA **Certified True Copy**

> > C 2 NOV 2016

DEPUTY REGISTRAR P. O. Box 205, Masaka

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That the subsequent entry on the said 259 hectares by the defendants as well as fraudulently registering their names as owners was disrespectful of the defendants and as such it was a violation of the plaintiffs' rights by the defendants.

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# iii) The defendants are liable $\longrightarrow$

As regards the 3^rd principle, counsel submitted that the 1^st defendant claimed that he bought the suit land from Hajji Noor Njuki, however Njuki was not the owner of the suit land but an imposter and the 1^st defendant did not do due diligence before the purported sale.

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That even the $1^{st}$ defendant admitted that the suit land was a residue of a ranch but when buying he over looked such facts because they would hinder his interests.

That Paulo Sabiti the 1^st defendant went ahead and sold the suit land to the 2^nd, 3^rd and 4^th defendants well knowing that he did not $-15$ have a good title as he had registered himself on it fraudulently.

That in conclusion, the defendants are liable to the plaintiffs as a result of the irregularities, illegalities culminated by them in the process to register themselves as proprietors on the suit land.

Counsel submitted that having fulfilled all the conditions to prove $\longrightarrow$ whether one has a substantial claim over the other, a cause of action has been sufficiently proved by the plaintiffs against the defendants.

In reply, counsel for the defendants contended that the plaintiffs have no right as they have no interest in the suit land because; $\angle$

1^st as evidenced from PW1,PW2 and the plaintiffs' Annexure 1 & 3 to exhibit 1, the first plaintiff together with the late Sulaimani Mbaziira and Mary Nasaka were the registered owners of the land comprised in LRV 1343 Folio 19 land at Mawogola Ranch 40 in

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HIGH COURT OF UGANDA **Certified True Copy**

C 2 NOV 2016

DEPUTY REGISTRAR P. O. Box 205, Masaka

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Masaka district measuring approximately 122.8 hectares for 5 years starting in 1982.

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When the government restructuring program started in 1990, the said lease had expired way back in 1987. Thus it is not true that the former owners; the plaintiffs retained 259 hectares, the suit land.

That upon the expiration of the plaintiffs' lease, the whole 122.8 hectares reverted to Uganda Land Commission, the then controlling Authority and with the commencement of the 1995 land Act Section 60(1)(c), District land boards (Sembabule district land board) TO inclusive became the Constitutional controlling Authority and the 1^st defendant applied and was granted a lease which he subsequently obtained a certificate of title in respect of to the land comprised in LRV 3586 Folio 21 Ranch 40(A) Mawogola Ranching scheme measuring approximately 259 hectares from the right Authority.

Counsel contended further that as the owner in accordance with Section 1(1) and 92(1) of the Registration of Titles Act, transferred to the $2^{nd}$ 3^rd and 4^th defendants who also subsequently got their names registered as the owners on $12/06/2008$ .

secondly that the plaintiffs are not Bonafide occupants under section 29(2) (a) of the Land Act, A Bonafide occupant is a person who before the commencement of the Constitution of Uganda of 1995, occupied and utilized the land and developed any land unchallenged by the registered owner or agent of the registered $\rightarrow$ $-25$ owner for 12 years or more.

That it is the testimony of PW1 that they have never been in occupation of the suit land and even if Kakiriho testified that he found one Rwabushobe on the suit land, DW3 testified that the said Rwabushobe stayed on 57 Ranch B and Kwesiga William also 30 testified that Rwabushobe stayed about 3 miles from the suit land.

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Counsel contended that since section 59 of the RTA production of a certificate of title is conclusive evidence that a person registered as proprietor is the owner and owing to the Rule of Law that where there are two competing Legal interests, the pre existing rights gain priority over subsequent acquired rights so that priority is determined in order to their creation.

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The defendants have a legal interest in the suit land created in 2008. This prevail over that of the plaintiffs created on 3/8/2009 and thus have no right to this property.

#### As to whether the plaintiffs' right had been violated and the $\preceq$ defendants have violated it.

Counsel submitted that since the plaintiffs' rights are subjected to those of the defendants as discussed in 1 above, that the defendants are enjoying their rights in the suit land not violating the plaintiffs' right in any in the suit. $\sim$

In rejoinder, counsel for the plaintiffs submitted that the plaintiffs are entitled to the residue of the 259 hastares after the government Restructuring process as by Law it was provided for as shown in the cases cited such as SHEEMA COOPERATIVE RANCHING SOCIETY AND 3 OTHERS VS ATTORNEY GENERAL HCCS NO. 103 OF ~ *2010.* ¹

That the defendants' submissions that the plaintiffs' lease expired way back in 1987 is misconceived as regards the issue and facts at hand.

That if their arguments were following that the plaintiffs' lease $$ expired in 1987, then all land reverted to Sembabule district land Board with the coming in force of the Land Act, 1998 as amended.

That this was not the case as didenced by Annexure "D" to the plaint, the final valuation report dated 25^th August, 2005, of the


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Masaka Ankole Ranching scheme. Where the proprietors were the

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That it is clearly stated in that report that the plaintiffs retained the residue of 259 hectares of the $122.8$ hectares of the original land they had been granted. —

That it would not even make sense to argue that the lease had expired so all the land reverted to the district land Board because it would point out many questions such as,

1. Why didn't the 1^st defendant apply for the entire 1328 hectares that originally belonged to the plaintiffs since they claim that $-rD$ their lease had expired?

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- 2. Why did Sembabule District Land Board only lease out the 259 hectares and not the entire 1258 hectares? - 3. Why did Sembabule district Land Board create the residue of the 259 hectares under part A?

That if all those questions are given the attention they deserve, the answers to them would be in favor of the plaintiffs and thin would be because until when 259 hectares (the suit land) was erroneously leased to the 1^st defendant, it belonged to the plaintiffs and the 1^st defendant merely trespassed and fraudulently registered themselves on the same as they were aware of the history surrounding the suit land and the 1^st defendant clearly admitted knowing that the suit land was a subject of a ranch in cross examination.

That it is a contradiction on behalf of the defendants to $\longrightarrow$ 25 acknowledge that the plaintiffs originally owned Masaka Ranch No. 40 but again go ahead to state that they do not have rights over the suit 259 hectares that originally were in the Masaka Ranch No. 40 and worthy-to note is the fact that the plaintiffs were utilizing the land for grazing their cattle.

> HIGH COURT OF UGANDA **Certified True Copy**

> > C 2 NOV 2016

DEPUTY REGISTRAR P. O. Box 205, Masaka

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That the plaintiffs are entitled to the suit land as they were the original owners of Masaka Ranch 40 which was divided during the government ranch restructuring exercise whereby the original owners were entitled to the residue of their land that was restructured as was the position of the case of **KYEPAKA FRANCIS** $\sim$ AND ANOTHER VS GEORGE RWAKARONGO & 2 OTHERS HCCS NO. 289 OF 2007 AS WELL AS THE CASE OF SHEEMA COOPERATIVE cited above.

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## As regards whether the plaintiffs have a cause of action against the defendants? $\longrightarrow$

It is the evidence of the plaintiffs that the $1^{st}$ plaintiff together with the late Sulaimani Mbaziira and Mary Nasaka were owners of Masaka Ranch 40 originally comprised in LRV 1342 Folio 91 measuring about 1228.8 hectares (5 sq miles).

During the government restructuring exercise, four (4) sq miles was $-15$ retained by the government and the remaining one $(1)$ sq mile (259hectares) the subject matter of the suit remained.

PW2 Karibwende Edward a former Chief Registrar who was one of those handling matters involving land under the government Ranch restructuring scheme, narrated the procedure followed when giving out land under the scheme and he restated the procedure as follows:

"Under the Ranch Restructuring scheme, the government would zone off and offer a big chunk of land off the ranchers title and the ranchers would retain a smaller portion on top of being given a $\rightarrow$ 2 monetary compensation for the lost land.

That procedure was restated by court in the case of **SHEEMA** COOPORATIVE RANCHING SOCIETY & 31 OTHERS VS THE ATTORNEY GENERAL HCCS NO. 103/2010 as well as the case of KYEPAKA FRANCIS AND ANOTHER VS GEORGE RWAKARONGO & 2 OTHERS HCCS NO. 289 OF 2007


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The procedure was corroborated in a report of Masaka Ankole Restructuring scheme a copy of which is on copy record.

The procedure as narrated by PW2 Edward Karibwende was not challenged in cross examination.

The plaintiffs had obtained a title for the land but by the time of the $\rightarrow$ restructuring, the plaintiffs were the Legal owners of the suit land though their original title had expired in 1987 (as reflected in the report of the restructuring committee attached to the plaint. (Annexure D to the plaint).

TO

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The plaintiff obtained a title to the above land never the less; the $\sim$ allocation of 1sq mile was made to them in 2009.

That information is corroborated by the evidence of PW2 which is not challenged in cross examination.

However upon checking in the Land Registry, the plaintiffs discovered that the $1^{st}$ defendant had on $22^{nd}$ August, 2006 processed a parallel title and subsequently transferred the same land to the $2^{nd}$ , $3^{id}$ and $4^{th}$ defendants on the $12^{un}$ July, 2008.

Upon this discovery, the plaintiffs wrote to the Commissioner Land Registration Department who confirmed that the Title in the $\infty$ defendant's names contained irregularities, illegalities and was obtained through acts that amounted to fraud which resulted into the issuance of LRV 3586 Folio 2 being held by the 2^nd, 3^rd and 4^th defendants since both titles LRV 3586 Folio 2 and LRV 3942 Folio 15 bear the same land office title No. SBR/40.

Counsel for the plaintiffs argued that the $2^{nd}$ , $3^{rd}$ and $4^{th}$ defendants $-2$ cannot claim a good title from the $1^{st}$ defendant since it was procured through fraud of their predecessor and tainted with irregularities and illegality.

**Certified True Copy**

2 MOV 2016

DEPUTY REGISTRAR P. O. Box 205, Masaka

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Counsel for the defendants contended that they had a good title by virtue of section 59 of the Registration of Titles Act and HIGH COURT OF UGANDA

That since their title was issued in 2008, and the plaintiffs in 2009, the defendants earlier issued title takes precedence

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According to section 59 of the RTA, a certificate of Title is considered to be conclusive Tile and the conclusive evidence that a person named in the certificate is the proprietor of or having any – $-5$ interest in or power to appoint or dispose the land described in the certificate is seized or possessed of that estate or interest or interest or has that power.

It is true that the defendant has a title and he admitted that it is in the ranching scheme. $\smile$

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However, there was a procedure reflected in the restructuring report and stated by PW2 who was one of the officers involved in the process and corroborated by the courts holdings in the cases of SHEEMA COOPORATIVE RANCHING SOCIETY & 31 OTHERS VS THE ATTORNEY GENERAL HCCS NO. 103/2010 as well as the case of KYEPAKA FRANCIS AND ANOTHER VS GEORGE RWAKARONGO & 2 OTHERS HCCS NO. 289 OF 2007 which the defendant did not follow.

Moreover he did not show court evidence from which Ranch 40A was granted to him granted to him whereas the plaintiffs title in the Ranching Restructuring Scheme can be clearly traced from the original 5 square miles to the curving of 1 square mile (259 hectares) and compensation due to him which was the proper procedure (as per the Ranch Restructuring Report on the court record).

However the report indicated that the plaintiffs' title had expired and yet they went on to grant the 1 square mile to them and there is no Law to state that land could not be allocated if the title had expired.

The evidence of PW2 brought this out and his evidence was notchallenged in cross examination. HIGH COURT OF UGANDA

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Certified True Copy

C 2 NOV 2016

DEPUTY REGISTRAR P. O. Box 205, Masaka

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Instead the witness was firm, consistent and not shaken in cross examination and from his demeanor he appeared truthful.

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Besides that, the 1^st defendant appeared shaken when asked by court to produce the original title from which he derived PART 40A and he failed to produce it.

The above evidence points to an irresistible conclusion that the $1^{st}$ defendant was granted the title in Plot A, in contravention of the procedure and Law regarding allocation of land in the Ranching Scheme and their allocation of Land in PART 40A of land at Mawogola, Masaka was irregular and illegal and violated the plaintiffs' rights.

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**Certified True Copy**

C 2 NOV 2016

PUTY REGISTRAR O. Box 205, Masaka

Counsel for the defendants also had issues with the fact that their title was issued before that of the plaintiffs and so takes precedence over it.

However there are allegations of fraud in the grant of that title. $\longrightarrow$ 15. Although a certificate of Title is conclusive evidence of a title in section 59 of the RTA,

According to Section 176 of the Registration of Titles Act; a registered proprietor is protected against ejectment except in certain cases which are the following;

- a) In case of a mortgagee as against a mortgagor in default. - b) The case of a lessor against a lessee in default - c) The case of a person deprived of any land by fraud against the person registered as proprietor.

In this case, there is an allegation of fraud by the defendants in $-25$ getting title on the suit land by the plaintiffs.

In that respect therefore, even if the defendants title was registered earlier, the fact that there was an allegation of fraud in getting it means that the plaintiffs title even if obtained later takes precedence against the defendants. HIGH COURT OF UGANDA


In view of the above, I find that the plaintiffs have a cause of action against the defendants as they had a right to the suit land which was violated by the defendants' acquisition of a parallel title on the same land which was acquired outside the procedure for acquiring land in Ranches and the Law governing Land in the Ranches, which the defendant by his own admission stated that his land was subject to the ranching scheme.

## 2. Whether or not the $1^{st}$ , $2^{nd}$ , $3^{rd}$ and $4^{th}$ defendants got registered through fraud?

Counsel for the plaintiff first recited the definition of **fraud** according to Osborn Concise Law Dictionary 8^th Edition p.152 where fraud is defined as;

" The obtaining of a material advantage by unfair and unlawful means."

That it involves the making of a false representation knowingly and $\sim$ $\sim$ without belief in its truth or recklessly.

Counsel then cited the case of JOHN KATARIKAWE VS **KATWIREMU & ANOTHER HCB** Which states that fraud though not defined in the registration of Titles Act covers dishonest dealings in land.

Counsel submitted that the 1^st defendant is the author of the fraud and he was the first to process the title of the suit land in his own names.

On the particulars of fraud on the $1^{st}$ , $2^{nd}$ , $3^{rd}$ and $4^{th}$ defendants. -

Counsel submitted that the 1^st defendant claims that he bought $-2$ the suit land from one Hajji Noor Njuki but subsequent to the sale he had grazed his cattle on that land way back in 1982 unchallenged by anyone.


TO

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That DW1 Paulo Sabiti never conducted a search before he allegedly bought land from the said Hajji Njuki Noor.

That the suit land was never at any material time, available for leasing by Sembabule District Land Board since the same had already been dealt with by the Ranch Restructuring Committee and the residue plotted as Ranch 40A belonging to the plaintiffs as former lesees.

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That the $1^{st}$ defendant purported to have bought land from a person without Letters of Administration, even when he had been told that the original owners had passed away.

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L 2 NOV 2016

DEPUTY REGISTRAR P. O. Box 205, Masaka

That the 1^st defendant purportedly bought the suit land well aware of the interests of the plaintiffs on the suit land as the letter of Administration of the estate of the late Sulaimani Mbazira and Mary Nasaka were obtained in 2012 (as per the copies of the grants on the court record.)

That the fact that the $1^{st}$ defendant bought land from someone without authority to sell is a clear indication of fraud on his part,

Secondly transferring the suit land to the 2^nd, 3^rd and 4^th defendants well knowing that the certificate of title was acquired fraudulently.

Counsel noted that PART A of the certificate of Title was restricted to only former Ranch owners and therefore the 1^st defendant's title as evidenced by Annexture 'F' to the plaint could not obtain PART A of the certificate of Title but would rather qualify for PART B.

That the above shows a clear connivance with Sembabule district $-25$ land Board to issue the same to him when he was not an original owner of the Ranch.

That DW1 also states that he does not know whether Njuki had authority to sell or not, a fact he should have known but he took it HIGH COURT OF UGANDA lightly. Certified True Copy

$-24c$ Counsel then cited the case of SIR JOHN BAGIRE VERSUS AUSI MAIDIVU CACA NO. 7 of 1996, Where it was held that;

" Land is not vegetables which are bought from unknown sellers, lands are valuable properties and buyers are expected to make thorough investigations not only of the Land but of the seller before – $\frac{1}{2}$ purchase."

That as per the $1^{st}$ defendant, he bought from someone who had no authority to sell and his negligence to conduct due diligence about the issues surrounding the suit land amounted to fraud on his part and there was therefore no purchase in the 1^st place between the 1^st — $1\mathcal{D}$ defendant and one Hajji Noor Njuki.

That secondly, he applied for a title in Sembabule district Land Board well knowing that the plaintiffs were the registered owners ( The Land was under the Land Acquisitions Act Cap 226 Laws of Uganda.)

That during cross examination, the 1^st defendant stated clearly that he know the suit land was a residue of Masaka Ranch 40 at Mawogola.

That he settled on the land because there was no one on the land which was not true as he also states that he knew Ranch $4\overset{1}{0}$ was – $-20$ subdivided but does not know whether the original owners were allocated separate from the squatters. That he kept a blind eye to that as it does not favor his ill motives and all the said elements of dishonesty and fraud.

Counsel submitted that PW2 Edward Karibwende who was a Registrar of Titles of Masaka from 1980 to 2011 stated that according to Ministry of Lands and Urban Development, the Ranchers as previous owners would get title as PART A whereas squatters would get PART B.


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That in this case, the defendant's title is part A yet they were not original Ranch owners.

Counsel argued that in this case, getting the title in PART A yet they were not original Ranch owners as seen an evidenced by Annexture F and as such it was done erroneously and illegally as $\sim$ was stated in the case of **SHEEMA COOPERATIVE RANCHING** SOCIETY AND 3 OTHERS VS ATTORNEY GENERAL HCCS NO. 103 OF 2010.to support his contention.

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Counsel submitted further that the Commissioner Land Registration under a letter dated 7/6/2012 wrote to the plaintiffs'— $\tau$ Lawyers stating that;

" Upon perusal of the file pertaining to the suit land and in conjunction with the plaintiffs' complaint, it is clear that the facts reveal not only mere irregularities and illegalities but a calculated fraud resulting in the issuance of title LRV 3586 Folio 21 registered $\rightarrow$ $\sqrt{5}$ in the names of Kwesiga William, Samuel Bahagara and Benon Kaliaa (predecessors in Title of Paulo Sabiiti) and he further went on to state that, "It is clear from the facts that both Titles LRV 3586 Folio 21 and LRV 3942 Folio 15 bear the same Land office number. That they also faulted Sembabule district land Board for issuing $2 \longrightarrow$ certificates of Title for the same piece of land and ended by requesting the plaintiffs to seek redress from court as their matter *includes issues of calculated fraud".*

Counsel submitted further that the position of the Law in respect of cases involving fraud is that the High Court has the jurisdiction $\mathcal{L}$ to give an Order to the Registrar to cancel an entry on the Title.

He cited the case of EDWARD GATSINZI & MUKASANGA RITAH V LWANGA STEVEN HCC NO. 690 OF 2004, where the court quoted the case of A. K DETERGENTS LTD VG. M COMBINE (I) LTD (1999) KALR 536, held that,

HIGH COURT OF UGANDA Certified True Copy

C 2 NOV 2016

DEPUTY REGISTRAR P. O. Box 205, Masaka

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"Allegations of fraud are quiet serious in nature and require to be specifically pleaded and proved before a court of Law beyond a mere balance of probability but not necessarily beyond reasonable doubt.." Fraud is not an "error" or "mistake" because it goes to the root of the title and requires proof beyond mere balance of probability ." to – support his contention.

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Counsel argued that in the case of Detergents (supra) it was stated that the level of adjudication that could be adjudicated could be by the Chief Registrar of Titles, Recourse had to be to the High Court in all cases where fraud is alleged.

That therefore in reference to our facts, after the Commissioner Land Registration pointing out that there were irregularities and fraud committed during the process of obtaining the certificate of title by the defendants, it was incumbent and proper upon the plaintiffs to file a suit in court in order to obtain a remedy and also $\frac{1}{\sqrt{5}}$ . cancellation of the certificate of the defendants' title as supported by the authorities cited above.

TD

Counsel for the plaintiff also cited section 176 (c) of the Registration of Titles Act Cap230, where it is provided that;

"Where a person who fraudulently deprives a registered proprietor of $-2$ land, by registering himself, court can order cancellation of their title."

He also cited the case of Makula international Vs His Eminence Cardinal Nsubuga & Another (1982) HCB 11, where it was held that,

"An illegality once brought to the attention of court cannot be condoned."

That with such illegalities being brought to the attention of court, the defendants title should be canceled as it was procured by fraud. **Certified True Copy**

$2$ NOV 2

**DEPUTY REGISTRAR** P. O. Box 205, Masaka

$-243-$ That even the $2^{nd}$ , $3^{rd}$ and $4^{th}$ defendants themselves stated that they knew that the land they purported to buy from the $1^{\rm st}$ defendant was subject to Ranch restructuring but they never conducted a search to ascertain who was the Registered Proprietor of the same.

regionary areas

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Counsel then went on to point out the irregularities and illegalities in respect of LRV 3586 Folio 21.

Counsel argued that LRV 3586 Folio 21 registered in the names of the $2^{nd}$ , $3^{rd}$ and $4^{th}$ defendants does not have a root title since it is grounded in Land office FILE NO. SBR/40 which is the same as file—(O LRV3942 Folio 15 for the plaintiffs (as evidenced by Annexure "E" & "F" respectively.

That this is a clear sign of fraud on the part of the defendants and makes all think that during the time the plaintiff applied for extending this lease, and they were being delayed by one Ssekyewa— $\mathbb{L}$ , the senior lands officer, he could have culminated the fraud as there was duplication of the Highest Order on the side of Sembabule District Land Board and the defendants.

Counsel submitted further that Sembabule district land Board approving two grants to a lease on the same property at two different sittings is an irregularity and illegality that they ought to have foreseen on knowing that it is not right.

That they being a body that is in charge of Land in Sembabule puts them in a better position to advise the two parties at the time of Application for the lease and they ought to have advised the $2$ defendants when they lodged their Application but instead the defendants obtained a lease over the suit land as evidenced by Annexture "F" on the $22^{nd}$ /8/2006 for the 1^st defendant who consequently transferred to the $2^{nd}$ , $3^{rd}$ and $4^{th}$ defendants on the $12/6/2008$ .

HIGH COURT OF UGANDA **Certified True Copy**

C 2 NOV 2016

DEPUTY REGISTRAR P. O. Box 205, Masaka

$\bigstar$

Counsel argued that on the other hand after subsequent correspondences between the members of the district Land Board, the plaintiffs were placed on the suit land on the 3/2/2009 almost 3 years after the Registration of the Defendants yet the plaintiffs duly qualified to have the residue of the 259 hectares as their own $\rightarrow$ land having been previous land owners.

-244-

That the lease of LRV 3586 Folio 21 being undated and the names of the chairman and the secretary of the land Board are undisclosed. that it is a policy that the chairman and secretary of the land Board of a district when awarding a lease append their signatures as well as names to the lease Agreement of the plaintiff attached to the plaint collectively as annexure "E".

That in the lease Agreement of the $1^{st}$ defendant, there is only one signature and no name of both the chairman and secretary of the District Land Board which is a clear irregularity and a clear sign of $-13$ fraud as the identity is hidden for personal gains.

That in LRV 3586 Folio 21, it is not dated and is clearly an irregularity and such a document cannot be relied on by court with all the facts surrounding the case pinning the defendants as fraudsters and it also adds salt to injury and it tears questions in $\rightarrow$ our minds like a) how a District Land Board can give an Agreement which is not dated? b) how can the chairman and secretary District Land Board append signatures without full names on a lease Agreement?

That such acts are erroneous, suspicious and can be used to prove-25 dishonest dealings in land.

That the signatures on the lease Agreement are not known to any official of Sembabule district Land Board and no name is appended thereto:


$\tau$ That it leaves them with no option but to think that it was just scribbled by the 1^st defendant to meet his selfish gains to the detriment of the plaintiff.

Counsel contended that the 1^st defendant fraudulently obtained registration on the suit land title and so the title of the $2^{nd}$ , $3^{rd}$ and -^4th defendants are affected as they got no better title than the $1^{st}$ defendant. As they were aware of the irregularities of the .1^st defendant's actions and did nothing to stop the same.

$-245.$

That in addition to this, the $2^{nd}$ , $3^{rd}$ and $4^{th}$ defendants purported to have bought the said land from the $1^{st}$ defendant but no such $\sim$ Agreements of purchase were ever tendered in court to prove their assertion of their acquisition of the said land which remains a mystery to themselves and

That in addition to that, no transfer to themselves from the 1^st Defendant was ever shown to this court.

Counsel submitted further that the 5^th defendant opted not to prove his evidence as put in his defense. That the titles by the 1st, 2nd 3rd and 4^th defendants are genuine and no evidence was led to back up their defense so it remains mere assertions that the honorable court ought to ignore.

$15$

$\mathfrak{D}$

In reply, Counsel for the defendant also filed written submissions on this issue.

He first reinstated the definition of fraud in the Blacks' Law Dictionary $6^{th}$ Edition P.660, where fraud is defined to mean,

An Intentional pervasion of the truth for the purpose of inducing $\longrightarrow$ 2.5 another in reliance upon it to part with something belonging to him."

He contended that to prove this issue, the plaintiffs have to prove that the process by the first defendant to get registered as owner of LRV 3580 Folio 21 Ranch 40A were fraudulent.

$21$

$\mathcal{A}(\mathbf{r}_i) = \mathcal{A}$

HIGH COURT OF UGANDA Certified True Copy

C 2 NOV 2016

DEPUTY REGISTRAR P. O. Box 205, Masaka

$\star$

Thut this connoted that the process of obtaining the lease from Sembabule district Land Board were relied on by the 5^th defendant to register the 1^st defendant as owner of the suit land was fraudulent.

$-246-$

Counsel contended that the fact that the $1^{st}$ defendant attempted to buy the suit land from Hajji Noor Njuki, a person without Letters of. Administration are irrelevant because the plaintiffs' interest in the land had expired in 1987 and the land reverted to the Uganda Land Commission the lessor and subsequently to Sembabule district land Board as the new controlling Authority and since at the time of the government restructuring exercise the plaintiff's land interest in the suit land ceased. The plaintiffs were not former owners to warrant their registration in the alleged PART A of the certificate of title as alleged by the plaintiffs.

That the $1^st$ defendant Lawfully and transparently applied to Sembabule district Land Board the new controlling Authority of lease which was granted and subsequently obtained a certificate of Title to it.

That the allegation that the 1^st defendant forged the signature of the Chairman and Secretary of Sembabule district land board are $\mathcal{I}$ unfounded and inaccurate since the same were never proved. It is the duty of the plaintiff to prove that the signatures were a forgery and the same would have been proved by the evidence of the then Chairman and secretary of the Board in accordance with section 43 of the Evidence Act, expert witness to prove that the signatures on $-2.5$ the lease agreement do not match with signature of the then Chairman and Secretary of the board in accordance with section 45 of the Evidence Act, evidence of a person acquitted with the then Chairman and the Secretary's signatures.

In cross examination, PW1, testified that he has no proof that the 30 said signatures were forged.

$\overline{22}$


$\sqrt{5}$

TD

## $-247-$

Counsel contended further that in the letter of $7/6/2012$ , annexed to the plaintiffs' plaint, it is alleged that, the letter alleged that the Commissioner Land Registration stated that the facts leading to the 1^st defendant's issuance of a certificate of title was a calculated fraud, ought not to be relied on because in **TWINE AMOS Vs** TAMUSUZA JAMES Civil Revision No. 11/2009, Lady Justice Mulyagonja cited with approval the East African Court decision of DER RAJ SHARMA Vs R (1953) 20 EACA.310, where it was held that.

"The term exhibit should be confined to articles which have been $-rD$ formally proved and admitted in evidence".

Counsel argued that the said letter was never exhibited as plaintiff evidence and this cannot be relied on to prove fraud on the 1^st defendant to support his contention.

Counsel contented that the plaintiffs have failed to prove fraud. $\sim$ 15

Counsel for the plaintiff in rejoinder on this second issue. pubmitted that their position is that the plaintiff qualifies as the Lawful owners under the Land Act 227 of Uganda 1998 as Amended.

That this can be showed as follows; \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Section 29(1) of the Land Act Cap 227, defines a Lawful occupant as a person who entered the land with the consent of the registered owner and includes a purchaser.

That it is worth noting that the fact the plaintiffs are the original owners of Masaka Ranch 40 and as such obtained the lease from $-25$ Uganda Land commission who were the registered owners of the land and by virtue of that qualifies as Lawful owners since a lease is paid for in terms of stamp duty and the grant of the same connotes to consent by the registered owners who were the Uganda Land 30 Commission.

$23$


$\varsigma$

Counsel then cited the case of **VENASICS BABWEYAKA AND** OTHERS Vs KAMPALA DISTRICT LAND BOARD C. A NO.20 OF 2002. Where it was held that;

" For one to be declared a Lawful occupant, evidence must be shown that the plaintiff was occupying the land pursuant to the repealed Law or that he entered the said land with the consent of the Registered owner." to support his contention.

$\overline{5}$

$15$

$25$

Counsel submitted that the defendants have not opposed their original lease of 5 years and this confirms the fact that the plaintiffs are indeed Lawful owners of the suit land.

Counsel submitted that in light of the above court declares the plaintiffs rightful owners of the suit land.

On the defendants' reliance on section 59 of the Registration of Titles Act, on the certificate of title being conclusive evidence of ownership, court contended that the condition is subject to factors such as fraud and in case fraud is proved in procuring the said certificate of title, then clearly that section of the RTA ceases to protect their interests.

Counsel contended that that as evidenced by Annexure "H" to the plaint, the Commissioner Land Registration in a letter dated 7^th— June, 2012, in reply to the plaintiffs' complaint clearly stated the facts giving rise to the first defendants' certificate of title reveal not only mere irregularities but a calculated fraud resulting into the issuance of his title and it would be unfair to rely on such a title to deprive the plaintiffs of their interest in the suit land.

That though the defendant stated in his submissions that the alleged annexure "H" was not exhibited by in court and was not exhibited in court and thus cannot be relied on to prove fraud on the ist defendant.


$\overline{24}$

That the said letter from the Commissioner Land Registration is uttached to the $1^{st}$ plaintiff entries statement on both as Annexure "8" and thus it is not true that the same is not exhibited in court $\frac{1}{2}$ since the witness statement on oath was admitted as evidence on oath in court together with all its Annexure and therefore the said $\sim$ letter from the Commissioner Land registration was duly exhibited and given in evidence of the 1^st plaintiff.

$-249$

That in the case of **MAKULA INTERNATIONAL LTD Vs HIS** EMMINENCE CARDINAL NSUBUGA & ANOTHER [1982] HCB 11, it was held that; $\_$

$\pi$

$15$

$\sqrt{6}$

$\mathcal{A}$

" An illegality once brought to the attention of Court overrides all facts and pleadings and that Court should not condone the same."

That with such illegalities brought to the attention of Court, the defendants' title should be canceled as it was procured through fraud that the defendants participated in.

I have reviewed the evidence of both the plaintiff and defendant in respect of this issue.

The plaintiffs were the registered owners of the land under LRV 1343 Folio 19 measuring approximately 1228.8 hectares (5 square miles) which was granted in 1982.

The land was later subject to the Ranch Restructuring scheme under the Land Acquisition Act Cap 226 whereby 259 hectares was curved out and allocated to the plaintiffs as PART 4OA, according to the report, annexed on court record it was noted that the lease had expired.

According to the evidence of Kalinkiza Patrick, a former Secretary of Sembabule district Land Board, he stated in his witness statement that, he knew the plaintiffs as the lawful owners of Ranch40. Masaka Ranching Scheme which was approximately 259 HIGH COURT OF UGANDA hectares.

$25$

Certified True Copy

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DEPUTY REGISTRAR O. Box 205, Masaka

☆

That in 26^th July, 2007, under minute No. SLB/06/07/07, Sembabule district Land Board, accepted to extend the plaintiffs' lease to a full term of 49 years and the said extension of the lease $\frac{1}{2}$ on LRV 1343 Folio 10. That this was duly communicated to the Commission Land Registration (As evidenced by the letter of 26-7- $\sim$ 2007 under minute No. SDLB/1200/1, attached to the witness statement as annexure "A".

$-250$

He stated further that on $6^{\mbox{\tiny th}}$ /Sept/ $2007$ , he requested the Land Office Masaka to process the lease in respect of Ranch 40A in the names of Hajji Sulaimani Mbaziira and Mary Nasaka under Ref to No. SUB/04/09/07 (c) as evidence by annexure "B" to this written statement on oath.

That on $7^th / 12/2007$ , he received a letter from the chief Administrative Officer Masaka district Local Government on a complaint from the 1^st plaintiff on behalf of Sulaiman Mbazira and $-$ L sons complaining against the district land officer, one Ssekyewa on why he has stubonly refused to process the letter as evidenced by the letters attached and marked as Annexures "C' and "D" attached to the witness evidence.

$20$ That on $17/6/2008$ , he again wrote to the Lands officer Masaka reaffirming that Sulaiman Mbazira and sons are the real owners of the said land and showed that the certificate of title issued to Paul Sabiti was fraudlent and requested that Sulaimani Mbaziira and sons be accorded the right to acquire ownership of the said land (as evidenced by a copy of the letter annexed dated 17^th June, 2008^- こく marked as Annexture "F" to the witness statement.)

That on 28/7/2008, the senior lands officer of Masaka District Local Government wrote to the Commissioner Department of land and surveys Entebbe, requesting for three (3) certified copies of Deed plans for Ranch 40A Masaka Ranching Scheme (as evidenced -30 by Annexture "F" to the witness statement.)


That on $4^{\rm th}$ /Aug/2008 , Nelson Sekyewa , the then $\,$ senior lands officer Masaka District Local government wrote to the commissioner land registration requesting that the lease documents for Ranch 40A, in the names of Senyonga Haruna Njuki, Hajji Sulaiman Mbazira and Mary Nasaka under Ref. SBR 40 dated - $\varsigma$ $7/7/2008$ be prepared (see a copy of the said letter dated 4^th August, 2008 attached as Annexure "G" to the witness statement on oath."

$-251-$

That evidence was not challenged in cross examination.

The witness was firm, composed and appeared truthful.

His evidence was corroborated by that of PW2, Mr. Edward Karibwende, a former Chief Registrar of titles in the Ministry of Lands, Housing and Urban development now in legal practice. When in his written witness statement stated that, he was conversant with matters pertaining to the above suit land as he $\perp$ $\perp$ had handled matters regarding to it as Chief Registrar of titles in the Ministry of Lands, Housing and Urban development.

That in his capacity as Registrar of titles, he handled many matters including land under the government restructuring scheme, and more particularly, the suit land.

He authored a letter dated $1/11/2008$ . As evidenced by annexture A to his written statement

That under the Ranch restructuring scheme, the government would zone off and offer a bigger chunk of land to ranches and the ranchers would retain a smaller part on top of having given a monetary compensation for the lost land.

That in this particular case, the 1^st plaintiff herein was the registered proprietors together with Hajji Sulaiman Mbaziira and Mary Nasaka (both deceased) for a ranch measuring approximately


TO

ZS

$\overline{27}$

1228.8 hectares under LRV. 1343 folio 19 (a copy of the title is intuched here to and marked annexure B").

$-2.52$

$\overline{ }$

$\pi$

$15$

$2S$

That this land was subjected to the ranch restructuring wherein the government took away a bigger chunk of the land leaving only 259 hectares.

That the plaintiffs through the Ministry of Lands Housing and Urban Development, went ahead in accordance to the law to apply and processed this grant on 3 -2-2009 obtaining a certificate of title to the 259 hectares.

That according to the Ministry of Lands, Housing and Urban development, the ranchers as present owners would get a title as part A whereas those whom the government would offer the other land would get as part B and as such the present defendants who are holding such as part A when they are not former ranchers are holding it illegally.

PW2 stated further that on 29/5/20012, the plaintiffs gave him instructions as a legal associate with $M/s$ Pwengye and Ndyomgabe Advocates to have the parallel title registered under LRV 3586 folio 21 registration in the names of Kwesiga William, Samuel Bihagala, Benon Kaliga to be cancelled since it was procured irregularly and $-2$ illegally. And he went ahead to write an application as evidenced by the copy annexure (1) on the court record.

That he followed up the matter with the Commission Land Registration and on 7/6/2012 he responded to his letter and he indicated that, the Sembabule District Land board cited in an improper manner to prove two grants of a lease for the same property at two different sittings for two different groups of people.

He concluded that the plaintiffs are the ones lawfully entitled to the 259 nectares since it is residue from their original LRV 1343 folio 19 that was 1189 hectares.

$28$

HIGH COURT OF UGANDA Certified True Copy

C 2 NOV 2016

DEPUTY REGISTRAR P. O. Box 205, Masaka

文

$-253-$ Thut he even pursued cancellation of LRI 3586. Folio 21, held by the defendant and in that quest he interacted with Mr. A. J. Bwengura who was the district officer ranchers who confirmed to him that indeed the plaintiffs retained 259 hectares known as ranch 40A and requested Sembabule district Land Board to grant them a free terms of 49 years since they had lost 930 hectares from $\overline{ }$ their original title LRV1343 folio 19 (as evidenced by annexure E') to the witness statement, that is communication to Sembabule District Land Board. That evidence was not challenged in cross examination. It is not in dispute from the evidence that the $-$ 10 plaintiffs were the owners of the original title LRV 1343 Folio 19 of 1189 hectares.

The ranch was restructured as per the restructuring report on court record and the plaintiffs remained with 259 hectares.

By that time their original title had expired in 1987, and it was — $15$ noted by the committee in their report.

Nevertheless they requested Sembabule District land board to grant the plaintiffs a full term lease as per the evidence of who was the secretary of the committee.

The land officer and Sekweyana however ignored that request and $-2$ delayed to issue the title to the plaintiffs and did not take action until the plaintiffs complained, meanwhile they processed a title for the 1^st defendant who used to graze his cattle in the disputed area and was therefore a sander and should have therefore been granted land in PART B of the ranch as was the procedure. $\mathcal{D}^{\star}$

By the time the plaintiffs got registered on the piece of land, the defendants had already got registered on PART A of the Title which having been former Ranch owners in Ranch A as per the Land Acquisition Act Cap 226 section 3(1) of the Act he claims that he bought the land from one Njuki, No Letters of Administration were $-30$ shown to court that Njuki had Letters of Administration for the late HIGH COURT OF UGANDA

Certified True Copy

L 2 NOV 2016

DEPUTY REGISTRAR P. O. Box 205, Masaka

⋩

Sulaimani Mbaziira in any case, he had no authority from the Administrator General to deal with the estate of Hajji Mbaziira which is a criminal offence of intermeddling section 1 & 2 of the Administrator General's Act.

$-25'$

In addition to that, he did not produce any Agreement of sale between him and Hajji Noor Njuki nor did the $2^{\rm nd}$ , $3^{\rm rd}$ and $4^{\rm th}$ defendants produce any Agreement of purchase.

Besides that, there was evidence which was not rebutted that Sembabule district Land Board was requested to grant the plaintiffs a full lease which they didn't do but instead issued to the $\omega$ $1^st$ defendant who never owned a ranch or was allocated Ranch 40A, but the plaintiffs was which all go to show that the $1^{st}$ defendant acquired a lease over plot 40A fraudulently.

## This brings me to the $3^rd$ issue, whether the Registration of the $2^{nd}$ , $3^{rd}$ and $4^{th}$ defendants on the suit land is tainted with *irregularities and illegalities.*

Counsel for the plaintiff first cited the definition of fraud according to Osborn's Concise Law Dictionary 8^th Edition page 152, where fraud is defined as the obtaining of material advantage by unfair and unlawful means. It involves the making of a false representation knowingly or without belief in its truth or recklessly.

Counsel then cited the case of **JOHN KATARIKAWE VS** KATWIREMU AND ANOTHER HCB, Which states that,

"Fraud though not defined in the Registration of Titles Act, covers dishonest dealings in land."

Counsel argued that the $1^{st}$ defendant is the author of the fraud as he is the $1^{st}$ to process the title of the suit land in his own names.

On particulars of fraud on the $1^{\rm st},\,2^{\rm nd}$ ,<br>3rd and $4^{\rm th}$ defendants,


S

$25$ Counsel submitted that the $1^{st}$ defendant claims that he bought the muit land from one Hajji Noor Njuki and that the Suitland was never at any material time available for leasing by Sembabule district land Board since the same had already been dealt with by the Ranch restructuring Committee and the residue plotted as Ranch 40A, belonging to the plaintiffs as former lessees.

$-255$

**THE BALLING CONTENTS**

That purporting to purchase the suit land from a person without Letters of Administration even when he had been informed that the original owners had passed away, the 1^st defendant purportedly bought the suit land well aware of the interests of the plaintiffs on $\longrightarrow$ $\Box$ the suit land.

That the Letters of Administration for the said estates of Sulaimani Mbaziira and Mary Nasaka were obtained in 2012. As can be seen from the attachment to the plaint marked "A" & "B".

That therefore the fact that the first defendant was aware that he $$ bought land from a person without Authority to sell is clearly indication of fraud on his part.

Thirdly purporting to transfer the suit land to the 2^nd, 3^rd & 4^th defendants well knowing that his certificate of Title was acquired fraudulently. That it should be noted that PART A of the certificate – of title was restricted to only former Ranch owners and therefore the 1^st defendant as evidenced by Annexure F to the plaint could not obtain part A of the certificate of title, but would rather qualify for PART B

That it shows a clear connivance with Sembabule district Land Board to issue the same to him when he wasn't an original Ranch owner.

That DW1 further states that he did not know whether Njuki had authority to sell or not after he ought to have taken highly.


Counsel then cited the case of SIR JOHN BAGIRE VERSUS AUSI MAIDVU CACA NO. 7 of 1996, where it was held that,

$-256$

$``\mbox{Lands}$ are not vegetables which are bought from unknown sellers , lands are very valuable properties and buyers are expected to make a thorough investigation $\alpha$ not only of the land but also of the seller – S

That there was no purchase and that the transfer was fraudulently effected.

That from the facts, the $1^{st}$ defendant purportedly bought from a person without authority to sell and his neglect of conducting due — 10 diligence about issues surrounding the suit land amounted to fraud on his part.

That there was no purchase in the first place between the first defendant and Hajji Noor Njuki

Fourthly, applying for the title in Sembabule district Land Board — 15 well knowing that the plaintiffs were still the registered owners.

counsel argued that during cross examination, the $1^{st}$ defendant stated clearly that he knew the suit land was a residue of Masaka Ranch 40 land at Mawogola and he further stated that he just settled on the land because there was no body on the land is not true because DW1 also stated that he was aware Ranch 40 was subdivided but does not state where the original owners were allocated separately from other squatters, a fact he kept a blind eye on because it favors his ill motives all elements of dishonesty and fraud.

$\infty$

$25$

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2 NOV 2016

DEPUTY REGISTRAR P. O. Box 205, Masaka

☆

Fifthly, forging the signature of the Chairman and Secretary of Ssembabule District Land Board

Counsel asked court to note that the signatures Appended to LRV 3586 Folio 21 of the 1^st defendant are not known to any official of the Land Board and to make matters worse, no names were fixed<br> $\overline{HIGH}$ COURT OF UGANDA<br> 32<br> HIGH COURT OF UGANDA Certified True Copy

thereto the signatures a clear sign of fraud and were just fixed by

$-257$

Counsel then submitted that PW2 Karibwende Edward who was the Registrar of Titles of Masaka from 1980-2011 that according to the Ministry of Lands, Housing and urban development, the Ranchers as previous owners would get a title as "PART A" whereas the squatters would get as "PART B". Counsel urgued that in this case, the defendants obtained a certificate of title to the suitland as PART A, yet they were not the original Ranch owners as could be clearly seen as evidenced by Annexure "F" which is clearly contrary to — $\mathcal{\overline{D}}$ government policy and as such it was done erroneously and illegally. And the position was stated in the case of SHEEMA COOPERATIVE RANCHING SOCIETY AND 3 OTHERS VS ATTORNEY GENERAL HCCS NO. 103 OF 2010.

$15$ Counsel contended that upon the plaintiffs realizing that the defendants obtained a certificate of title for the suit land in PART A, they wrote a letter dated $29/5/2012$ to the Commissioner Land Registration through their Lawyers Bwengye Ndyomugabe and Co. Advocates which is Annexure "G"

That the commissioner land Registration in reference to that letter, $-\infty$ replied them vide a letter dated 7^th June, 2012 stating,

"Upon perusal of the file pertaining the suit land and in conjunction with their complaint wrote, it is clear that the facts reveal not only mere irregularities and illegalities but a $\;$ calculated fraud resulting in issuance of title LRV 3586 Folio 21 registered in the names of 23 Kwesiga William , Samuel Bihagara and Benon Kaliga (Predicessors in Title of Paulo Sabiiti.). He further went on to state that it is clear from the facts that both titles LRV 3586 Folio 21 and LRV 3942 Folio 15 bear the same land office title number. They also faulted Sembabule district Land Board for issuing two certificates of Title for $-$ 30 the same piece of land and ended by requesting the plaintiffs to seek redress from court as their case involves issues of calculated graved." Certified True Copy

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DEPUTY REGISTRAR P. O. Box 205, Masaka

女

Counsel then referred to cases involving fraud and stated that the High Court has Jurisdiction to give an Order to the Registrar to cancel an entry on the title as stated in the case of EDWARD GATSINZI & MUKASANGA RITAH Vs LWANGA STEVEN HCC NO. 690 OF 2004 where they quoted the case of A. K DETERGENTS Vs $\sim$ 5 G. M COMBINE (U) LTD (1999) KALR 536, that allegations of fraud are quiet serious in nature and require to be specifically pleaded and proved before a court of Law beyond a mere balance of probability but not necessarily beyond reasonable doubt. Needless to state that, fraud is not an 'error' or 'mistake'. Because it goes to the root of title $\_\_1$ and requires proof beyond mere balance of probability.

$-258$

That A. K Detergents Vs G. M Combine (Supra), it was stated that the level of adjudication that could be adjudicated that could be by the Chief Registrar of Titles recourse had to be heard to the High Court in all such cases when fraud was alleged and in reference to $-5$ our facts, after the Commissioner of Lands found out that there were irregularities and fraud committed during the process of obtaining the certificate of title, by the defendants, it was incumbent and proper upon the plaintiff to file a suit in court in order to obtain a remedy and also a cancellation of the defendant's $-2$ Certificate of title as supported by the authorities cited above to support his contention that it was right for the plaintiffs to bring.a suit to resolve the issue of the title obtained by fraud by the defendants.

Counsel contended further that section 176 (c) of the RTA cap $-25$ $230$ states that where a person who fraudulently deprived a registered proprietor of land but registering himself, court can order for cancellation of the title and he also cited the case of **Makula** international Ltd Vs. His Eminence Cardinal Nsubuga & Anor [1982] HCB 11, where it was held that an illegality once brought to – $-30$ the attention of court cannot be condoned . That with such $% \left( \mathcal{L}\right)$ illegalities being brought to the attention of court, the defendants HIGH COURT OF UGANDA title be canceled as it was procured through fraud. Certified True Copy

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**EPUTY REGISTRAR** Box 205, Masaka

$\boldsymbol{\mathsf{x}}$

As for the $2^{nd}$ , $3^{rd}$ and $4^{th}$ defendants though Dw2 states that they knew that the land they were purporting to purchase from the 1^st defendant was subject to Ranch restructuring but they never conducted a search to ascertain who the registered proprietor of the

$-259$

$\leq$

On particulars of irregularities and illegalities in respect of LRV 3586 Folio 21, Counsel submitted that LRV 3586 Folio 21 registered in the names of the $2^{nd}$ , $3^{rd}$ and $4^{th}$ defendants not having a root title since the same is grounded in the same land office file No. SBR /40 which is the same file number for LRV 3942 Folio 15 $\rightarrow$ 10 for the plaintiffs as can evidenced by Annexures E & F respectively.

That this is clearly a sign of fraud on the side of the defendants and makes all to think that during the time the plaintiffs applied for extending of their lease, and they were being delayed by Ssekyewa, the senior Lands officer, he could have culminated the fraud as there was a duplication of the highest order on the side of Sembabule district Land Board as well as the defendants and

Secondly, the Sembabule district Land Board approving two grants of a lease on the same property at two different sittings for two different groups of people.

That the action itself by the Board to award two leases in respect of one piece of land is in itself an irregularity and an illegality as they ought to have foreseen or known that it is not right.

That it being the body in charge of Land, in Sembabule puts them $\leq$ in a better position to advise the two parties at the time of $\overline{\phantom{a}}$ Application for the lease and they ought to have advised the defendants when they lodged the Application for the lease that there was no land to be leased as the land had reverted to the former Ranch Owners, the plaintiffs. But unfortunately, the defendant instead obtained a lease over the suit land the suit land as can be $-30$ evidenced by Annexure "F" on the $22^{nd}$ August, 2006 to the 1^st HIGH COURT OF UGANDA

Certified True Copy

C 2 NOV 2016

DEPUTY REGISTRAR P. O. Box 205, Masaka

☆

defendant who subsequently transferred to the $2^{\rm nd}$ ,3 $^{\rm rd}$ and $4^{\rm th}$ defendants on 12 June, 2008.

$\tilde{\mathbb{F}}$

That on the other hand, after susquent correspondences between members of the district Land Board, the plaintiffs were registered on the suit land on $3/2/2009$ a clear irregularity almost three (3) years after the Registration of the defendants yet the plaintiffs in the first case automatically qualified to have the residue 259 hectares as their own Land having been previous Ranch owners.

$-260$

In reply, counsel for the defendants contended that, this requires the evidence that, the allegations and irregularities in obtaining the $\sim$ 10 certificate of Title by the 1^st defendant affected the subsequent registration of the $2^{nd}$ , $3^{rd}$ and $3^{rd}$ and $4^{th}$ defendants title.

He contended that the plaintiffs has to prove that there were illegalities and irregularities in the issuance the title to the 1^st defendant.

That illegality connotes to doing an act in total contravention of the Law yet from the particulars of illegalities and irregularities as pleaded by the plaintiffs in their pleadings, the Law that was contravened while issuing the 1^st defendant with a certificate of Title was never pleaded or proved.

That the irregularities pleaded in the plaint including presence of one Land office file No. SBR /40 on both the 1^st defendant's title and that of the plaintiffs and approving two grants on the same property to two different persons.

That the irregularities were done after he had been issued with his $-25$ certificate in respect of a lease granted on the suit Land Board and that the plaintiffs have thus failed to prove the illegalities and irregularities in the process of issuing the 1^st defendant's certificate of title.


$15$

$\mathfrak{X}$

## $-261-$

S

TD

Counsel in rejoinder retaliated his earlier submissions filed in the written submissions and added,

Ţ

That the alleged $1^{st}$ defendants buying the suit land from a person without authority to sell the same is an important aspect of fraud in

That this is because the $1^{st}$ defendant in the $1^{st}$ instance knew or was aware that the suit land is residue of government restructuring and he was also aware and knew the plaintiffs. Therefore the purported sell by Hajji Noor Njuki was a hoax and was aimed at defeating the interests of the plaintiffs as the $\longrightarrow$ defendant intended and actually used that sale to hand wink the Sembabule District Land Board in believing that he Lawfully obtained the suit land whereas not.

Moreover that the interests of the plaintiffs in the suit land was still subsisting by virtue of the fact that their being original owners of $\sim$ 15 the Masaka Ranch 40, they clearly still had their interests on the suit land.

That another clear sign of fraud on behalf of the defendants is the fact that their purported lease starts with 49 years and not 5 years prescribed by Law for fresh leases and can be seen from Annexure $\longrightarrow$ $\supset$ "F" to the plaint.

Counsel contended that the issue of the signatures of the Chairman and secretary was clearly proved as both certificates of Title and lease Agreements of the plaintiffs and the defendants are on court تحل – record and the Chairman and secretary of Sembabule District Land Board were the same during the time both the defendants and the plaintiffs obtained their registration on the suit land.

But that a closer look at the defendants lease Agreements, the signature of the secretary and that of the Chairman are just scribbled there and the names of the people who signed are not $\sim$ 30 HIGH COURT OF UGANDA

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DEPUTY REGISTRAR P. O. Box 205, Masaka

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indicated and this is contrary to the practice where names of signatories are indicated.

That the above is a clear indication of fraud $\alpha$ as the persons that signed the defendants' lease Agreements were just imposters and mere busy bodies. -

Counsel for the plaintiffs went on to submit on issues No.4 and 5 which were not part of the issues framed at the commencement of I have therefore not made any findings on them as even the trial. the defendants did not make any submissions.

In the instant case, the evidence on record shows that the plaintiffs $\sim$ $\bigcirc$ Ranch was compulsorily acquired by the Government following the Government policy to restructure Ranches in Government Ranches in Ankole Masaka (Mawogola), Singo, Buruli and Masindi for purposes of resettling Landless people indicated in General Notice in Uganda Gazzette of 12/Oct/1990. $15$

According to the Notice establishing Ranches Restructuring Notice 1999, section 4(1) thereof the functions of the Board were to $\frac{1}{2}$ implement the resolutions of the National Resistance Council of 24/08/1990 in relation to government allocation of Ranches in Ankole, Masaka, Buruli and Masindi with the view of facilitating $-2$ the following;

- 1. The revocation by the Government of leases or those Ranches which may not have been developed by the leases with the prescribed terms and conditions of allocations - 2. The restructuring and sub division of existing ranches into $-23$ appropriate units and - 3. The orderly and harmonious resettlement of squatters within the areas covered by the Ranches.

The Government passed a Law, the Land Acquisitions Act to make provisions for the compulsory acquisition of Land for public $30$


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## $-263$

purposes and other matters incidental thereto and connected to

pW2 Edward Karibwende the Chief Registrar of Titles in the Ministry of Land, Housing and Urban development at the time, stated in his written statement that he was conversant with the $\overline{\phantom{a}}$ matters pertaining to the above suit and as the Registrar of Titles, $\sqrt{5}$ he handled many matters including the Land Restructuring scheme , including this particular one.

He went on to narrate the procedure for allocation of Land in restructuring area as follows:

"That the government would zone off and offer a bigger chunk of Land of the Ranchers title and the Ranchers retain a smaller portion on top of being given a monetary compensation for the lost land.

That in this particular case, the plaintiff was the registered proprietor together with Hajji Sulaimani Mbaziira and Mary Nasaka for a Ranch measuring 1228.8 hectares (5 sq miles)under LRV 1343 Folio 19 (as evidenced by the Certificate of Title marked Annexure " $R$ " to the witness statement.

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i 2 NOV 2016

DEPUTY REGISTRAR P. O. Box 205, Masaka

That after the restructuring exercise, to which the plaintiffs' land was subjected to, the government took a bigger chunk leaving the $\sim$ 2 plaintiffs only 25 hectares (as evidenced by the Restructuring report *on the court record).*

That the restructuring exercise to which the land was subjected to government took a bigger chunk of Land (4 sq miles) leaving 259 $(1 \text{ square miles})$ .

This is corroborated further by the evidence of PW1 Karinkiza Patrick who was a former secretary of Sembabule District Land Board in his written witness statement who confirmed that the plaintiffs were allocated Ranch 40A Masaka which was approximately 259 hectares (1 sq mile) as owners comprised in $-30$ HIGH COURT OF UGANDA Certified True Copy

## $-264$ LRV-1343 Folio 10 under minute No. SLB /06/07/07. The Sembabule district Land Board accepted to extend the plaintiffs lease to a full term of 49 years and the said extension was on LRV 1343 Folio 10 and this decision was duly communicated to the Commissioner Land Registration by the witness in a letter dated $-$

$26/7/2007$ under Ref No. SDLB/1200/1 (As evidenced by Annexure 'A' to his testimony.) He went on to state that on $6$ /Sept/ 2007, he requested the lands

office Masaka to process a lease offer in respect of Ranch 40A for 259 hectares in the names of Hajji Sulaimani Mbaziira (the original — $\circ$ Ranch owner) under minute No. SuB/04/09/07(c) (as evidenced by the said letter marked as Annexure 'B')

He stated that sometime in December, 2007, he received a letter from the Chief Administrative officer (CAO) Masaka Local government acting on a complaint from the 1^st plaintiff on behalf of $-15$ Sulaimani Mbaziira that the District Land Officer one Sekyewa was stubbornly refused to process their title (as evidenced by Annexure "C" & " D" to his witness statement.

That evidence of both witnesses was not challenged in cross examination and from their demeanor were consistent and appeared truthful and I have no reason to doubt his testimony.

While the plaintiffs as the original ranchers were trying to have their title processed through the right procedure after Sembabule Land Board was instructed to extend their lease to a full term of 49 years in 2005 on the other hand, the Land officer was deliberately delaying to prepare his documents to grant him a lease while they were processing a grant to the $1^{st}$ defendant who was not even a former Ranch owner and had allegedly bought from Hajji Noor Njuki, who had no Letters of Administration for the estate of the late Mbazira and was therefore intermeddling within the meaning of section 11 of the Administrator General's Act and was


$2D$

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a criminal act. And this transaction if it is to be believed was not even done with a purchase Agreement as none was produced.

As the $1^{st}$ defendant was not a Ranch owner, he could not get a title on PART A of Ranch 40 legally. The fact that he did means that he $\frac{1}{2}$ did it contrary to the Land Acquisitions Act and the procedure for restructuring as stated by PW2 Edward Karibwende who participated in the whole exercise.

Moreover, his acquisition contradicted the known procedure (I am fortified in this by the case of SHEEMA COOPERATIVE RANCHING SOCIETY AND 3 OTHERS VS ATTORNEY GENERAL HCCS NO. -103 OF 2010, which corroborated the procedure stated by PW2 and PW1.

Since the $1^{st}$ defendant wrongly obtained the title to Ranch 40A, this affected the subsequent registration of the $2^{nd}$ , $3^{rd}$ and $4^{th}$ defendants who were aware that the land was a residue from the $-1$ Ranch 40.

In those circumstances, I find that the Registration of the $2^{\rm nd}$ , $3^{\rm rd}$ and 4^th defendants on the suit land was fraudulent as they did not get any better title than the 1^st defendant who was registered on the land illegally and in an irregular manner.

Counsel for the plaintiff submitted on the issue as to whether the plaintiffs certificate of title was valid and Counsel for the defendant did not submit on this issue.

I did review the proceedings on court record and found that at the commencement of the trial parties did frame issues for $\sim$ consideration of court and found that issue 2 as indicated in the plaintiffs' submissions was not one of the issues that had been framed.


S

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## $-266-$

Besides that, the question of the validity of the plaintiffs title was $\frac{1}{2}$ adequately covered in the 3 first issues so there was no need to raise it as a specific issue.

In that respect therefore, court disregarded this submission and went on to the last issue which was, $\overline{\phantom{a}}$

## Issue No. $4$ : What are the remedies available to the parties?

Counsel for the plaintiffs submitted that the plaintiffs had proved their case on a balance of probability as required in Civil cases and that court should be pleased to honor their prayers and make Orders for:

- a) A declaration that the plaintiffs are the Lawful owners to the suit land - b) A declaration that the $2^{nd}$ , $3^{rd}$ and $4^{th}$ defendant's title is null and void for fraud - c) General damages for inconveniences caused to the plaintiffs as $-\mathcal{L}$ the case is time consuming and involves a lot of moving of witnesses, transport etc - d) Mesne profits of Ug. 40,000,000/- (forty million) per year, since 2006 till payment in full. - e) Interests on general damages and the mesne profits at 25% from $-2$ the date of judgment till payment in full - f) An Order that the Registrar of Titles cancel the $2^{nd}$ , $3^{rd}$ and 4t defendants title and confirms the plaintiffs title as the right and Lawful title for the suit land. - g) An eviction order against the $2^{nd}$ , $3^{rd}$ and $4^{th}$ defendants from the $-25$ suit land. - h) Costs of the suit.

As regards remedies available to the parties, counsel for the defendants contended that while the plaintiffs sought for the various remedies above, the defendants prayed for dismissal of the CO suit and in counter claim that the $2^{nd}$ , $3^{rd}$ and $4^{th}$ defendants


$5$

$-267$

sought for a declaration that the certificate of Title in plot LRV 3942 Folio 15 Ranch 40A is null and void, cancellation of the same

On the plaintiffs prayer for a declaration that the suit property is theirs. The $1^{st}$ , $2^{nd}$ and $3^{rd}$ and $4^{th}$ defendants contended that $\sim$ $\sim$ the facts and evidence on record shows that there were two different certificates of title owned by two different persons, i.e the plaintiffs and the $2^{nd}$ , $3^{rd}$ and $4^{th}$ defendants in respect of the same land.

That the 1^st defendant from whom the $2^{nd}$ , $3^{rd}$ and $4^{th}$ defendants obtained their title was issued by the right authority.

That the two interests are competing legal interests and citing the Rule of Law, that where two competing interests are coexisting, the pre existing interests take priority over subsequently created interests except in the case of fraud.

And that since the plaintiffs failed to prove fraud in the process of $\rightarrow$ issuing the certificate of title to the first defendant which may have tainted the $2^{nd}$ , $3^{rd}$ and $4^{th}$ defendants title, neither were the illegalities and irregularities found to have affected the defendants' title of the 2^nd, 3^rd and 4^th defendants who obtained interest.

In rejoinder, the Counsel for the plaintiff, retaliated their earlier $\sim$ 200 submission on the remedies available for the parties and stated that the registration of the 1^st defendant and later transferring to the to the $2^{nd}$ , $3^{rd}$ and $4^{th}$ defendants was tainted with gross irregularities and fraud and he cited the case of Hannington Njuki Vs William Nyanzi HCCS No. 443 of 1990, where Court stated that 25 a Bonafide Purchaser must provide that;

- 1. He holds a certificate of title - 2. He purchased in good faith - 5. He purchased for valuable consideration HIGH COURT OF UGANDA

6. He purchased without knowledge of fraud

7. He was not a party to the fraud. To support his contention.

Counsel argued that to rely on the defense of Bonafide purchaser for value without Notice he or she had to prove that he the land, he or she has to give evidence of the alleged purchase and this is in $\sim$ $\sqrt{ }$ the form of a validly executed Agreement or a note and or a $\frac{1}{2}$ memorandum between the parties to the effect that he purchased from the other portion of land.

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That in our facts the $2^{nd}$ , $3^{rd}$ and $4^{th}$ defendants who want court to believe that they are Bonifide purchasers without notice did not — 10 exhibit a sale Agreement and or prove their purchase of the suit land from the 1^st defendant and as such their defense of Bonafide purchase is bound to fail as they failed to prove that they purchased the suit land from the $1^{st}$ defendant as is the position of the Law in the case of *Edward Gatsinzi and Mukasa Ritah Vs* $\mathcal{L}$ Lwanga Steven HCCS No. 690 of 2004, where the case of Hussein Juma Vs Raphael Bwami H. C. C. A. N DR. MFP6/90 which stated that,

"Where a sale of land is involved, the purchase cannot be by a *mere presumption. There must be actual purchase with a written* — 20 memorandum or note duly signed by the parties and the failure to prove the same would render the claim baseless and therefore without proof of the sale the defendants failed the test as a bonafide $\frac{1}{2}$ purchaser".

In conclusion, counsel for the plaintiff submitted that the $2^{nd}$ , $3^{rd}$ –2.5 and $4^{th}$ defendants certificates of title ought to be canceled as they failed to prove purchase from the 1^st defendant and as such the defense of them being bonafide purchasers fails as there was no valid purchase as they want court to believe.

In the instant case, the plaintiffs have proved on a balance of $\sim$ 3D probability that they are the rightful owners of the suit land. HIGH COURT OF UGANDA

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DEPUTY REGISTRAR P. O. Box 205, Masaka

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Court also finds that even if the defendants got a title earlier, there $\frac{1}{2}$ and $\frac{1}{2}$ are the title earlier. was evidence that the process of acquiring that title meddled with $\frac{1}{2}$ irregularities and illegalities and fraud. So he cannot be protected by section 59 of the Registration of Titles Act. $\frac{1}{2}$

The $2^{nd}$ , $3^{rd}$ and $4^{th}$ defendants who got title from him did not get $\sim$ any better title as they knew that the land was a residue from Ranch 40 and they did not prove that they are bonafide purchasers for value with ought notice within the terms set in the case of Hussein Juma (supra) having failed to bring any proof in the form of an Agreement or note. The court cannot just presume a - $\overline{10}$ purchase merely because they stated the amount they allegedly paid.

In those circumstances, I find that the plaintiffs have proved their case and court makes the following Orders;

- a) It is hereby declared that the plaintiffs are the Lawful owners $\sim$ $\leq$ of the suit land - b) It is hereby declared that the $2^{nd}$ , $3^{rd}$ and $4^{th}$ defendants' title is null and void for fraud - c) The plaintiffs are hereby granted general damages of 50,000,000/- for the inconveniences caused to them as the $\sim$ 2 case was time consuming in terms of moving witnesses, transport among others. - d) Mesne profits are awarded to the plaintiffs for the loss of use of the land for grazing and the income they would have earned from the sale of milk and beef from their cows at the rate of 40,000,000/-per year since 2000, until payment in full

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DEPUTY PROJETRAR

- e) The plaintiff is awarded interest on general damages and mesne profits on (c) and (d) at $20\%$ from the date of judgment - f) An Order is hereby made that the Registrar of Titles cancels $-30$ the $2^{nd}$ , $3^{rd}$ and $4^{th}$ defendants title and confirms the plaintiffs' title as the right and Lawful title to the suit land. HIGH COURT OF UGANDA Certified True Copy


- Dated this 2015. (Judge) **Present** *pj* Aii eviction Order is hereby issued to the 2nd, 3rd and 4th defendants from the suit land li) ^A permanent injunction is hereby issued against the defendants from interfering with the plaintiffs' ownership. i) Costs of the suit are granted to the plaintiffs. .---- .............................. *M. C. Oguli Oumo* **r**7 day of . CTcko - **1**. Tusingwire Andrew holding brief for Counsel Muhweezi Ronald for the defendants - 2. Sarah court clerk

ih

3. Eva Research Assistant.

HIGH COURT OF UGANDA Certified True Copy f ² NOV *&* DEPUTY REGISTRAR P. O. Box 205, Masaka

#### THE REPUBLIC OF UGANDA

$-271$

#### IN THE HIGH COURT OF UGANDA AT MASAKA

#### CIVIL SUIT NO. 37 OF 2012

**PLAINTIFFS**

HIGH COURT OF UGANDA **Certified True Copy**

C 2 NAV 2016

DEPUTY REGISTRAR

O. Box 205, Masaka

✰

#### 1. SSENGYONGA HARUNA

- 2. NNYOMBI HUSEIN (administrator of the Estate of the late **SULAIMAN NAMBAZIIRA**) - 3. NAMBAZIIRA JANE (administrator of the estate of the late MARY NASSAKA)

**VERSUS**

- 1. PAULO SABIITI - 2. KWESIGA WILLIAM - 3. SAMUEL BIHAGALA - 4. BENON KALIGA - 5. THE COMMISSIONER LAND REGISTRATION ::::: DEFENDANTS

#### **DECREE**

This suit coming up for final disposal before HER LORDSHIP HON. LADY JUSTICE MARGRET . C. OGULI OUMO the learned judge of High Court of Uganda at Masaka in presence of learned counsel Tusingwire Andrew holding brief for learned counsel Muhwezi counsel for the 1^st, 2^nd 3^rd and 4^th Defendants in the absence of counsel for the 5^th Defendant and Counsel for the Plaintiffs and in the absence of both the Plaintiffs and the Defendants;

### IT IS HEREBY ORDERED AND DECREED as follows:

- (a) That the Plaintiffs are the lawful owners of the suit land; - (b) That the 2^nd, 3^rd and 4^th Defendants' title is null and void for fraud; - (c) That the Plaintiffs are hereby granted general damages of Ug. Shs. $50,000,000=$ for the inconveniences caused to them as the case was time consuming in terms of moving witnesses, transport among others; - (d) That mesne profits are awarded to the Plaintiffs for the loss of use of the land for grazing and the income they would have earned from the sale of milk and beef from their cows at the rate of Ug. Shs. 40,000,000= per year since year 2000, until payment in full;

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- (e) That the Plaintiffs are awarded interest on general damages and mesne profits on (C) & (d) at 20% from the date of judgment till payment in full; - (f) That an Order is hereby made that the Registrar of titles cancels the 2^nd, 3^rd and 4^th Defendants' title and confirms the Plaintiffs' title as the right and lawful title to the suit land; - (g) That an eviction order is hereby issued to the $2^{nd}$ , $3^{rd}$ and $4^{th}$ Defendants from the suit land; - (h)That a Permanent Injunction is hereby issued against the Defendants from interfering with the Plaintiff's ownership & - (i) That costs of the suit are awarded to the Plaintiffs

Given under my hand and seal of this court this $\mathbb{R}$ ...day of $Ocl(\rho_0 2015)$

Extracted by:

$M/S$ Jambo & Co. Advocates Kirumira Towers 3^rd Floor Suite No. 4 Plot 14 William Street P. O. Box 2557. Kampala

| HIGH COURT OF UGANDA<br><b>Certified True Copy</b> | | |------------------------------------------------------------|----| | $W$ 2016<br>$\begin{bmatrix} 1 & 1 \\ 1 & 1 \end{bmatrix}$ | Ϋ́ | | DEPUTY REGISTRAR | | | P. O. Box 205, Masaka | |