[2024] UGHCLD 191

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) CIVIL SUIT No. 751 OF 2014 SENTONGO JAFFER ::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF VERSUS**

# **1. KATENDE NELSON 2. KIZZA JAMIL ::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANTS**

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

# *Introduction;*

1. The plaintiff brought this suit seeking declarations and orders inter alia; a declaration that land comprised in Mawokota Block 98 Plot 43 at Lwanga is not part of the estate of the late Sosene Buyana Muinda, A declaration that the inclusion of land comprised in Mawokota Block 98 Plot 43 at Lwanga into the estate of the late Sosene Buyana Muinda was unlawful, A declaration that the creation of a Mailo title for land comprised in Mawokota Block 98 Plot 43 at Lwanga by Nelson Katende (the 1st defendant) was unlawful and fraudulent, a declaration that the transfer of the land comprised in Mawokota Block 98 Plot 43 at Lwanga into the

names of Kizza Jamil (2nd defendant) was unlawful and fraudulent, an order directing the commissioner land registration to cancel the entries and rectify the register, a declaration that the suit land comprised in Mawokota Block 98 plot 43 at Lwanga belongs to the plaintiff, a permanent injunction restraining the defendants and their agents from interfering with the suit property, general damages & costs of the suit.

# *Background;*

- 2. In October 2003, the plaintiff bought land comprised in Mawokota Block 98 Plot 43 at Lwanga measuring 36 acres from Ssebombo William Musoke, son, heir and administrator of the late Blasio Musoke who purchased the same from Sosene Buyana Muinda, the former registered proprietor. - 3. That the late Blasio Musoke took possession but did not get his certificate of title due to the death of the late Sosene Buyana Muinda. The plaintiff purchased the land, took possession and compensated various bibanja holders to enable him develop the entire suit land with a school. - 4. Upon the demise of Ssebbombo William Musoke, the 1st defendant obtained letters of Administration to the estate of the late Sosene

Buyana Muinda & purported to sell the suit land to the 2nd defendant. That the 1st defendant's claim over the suit property as part of the estate of the late Sosene Buyana Muinda was unlawful and an afterthought as he never included the same in his petition for letters of administration.

- 5. That the creation of the land title in the names of the 1st defendant as an administrator of the estate of late Sosene Buyana Muinda was fraudulent. - 6. The plaintiff pleaded the following particulars of fraud against the defendants;

# **Particulars of fraud against the 1st defendant**

- i) Claiming that the suit property belonged to the late Muinda yet the late had long disposed the suit land to the late Blasio Musoke. - ii) Purporting to claim the suit land knowing that the land is occupied and utilized by the plaintiff. - iii)The transfer of the suit land into the names of the 2nd defendant was fraudulent.

# **Particulars of fraud against the 2nd defendant**

- i) The 2nd defendant dealing in the suit land with actual notice of ownership, occupation and developments of the plaintiff. - ii) Failure by the 2nd defendant to carry out proper due diligence iii) Falsifying his identity at the land registry. - 7. At the time of delivering this judgement, this Court was informed by the parties that the 1st Defendant had since passed on and he never filed a written statement of defense, therefore the case proceeded exparte against him.

#### **2 nd Defendant's case**

- 8. The plaintiff's claim is misconceived, vexatious, frivolous thus the plaintiff is not legally entitled to any reliefs sought. The plaintiff has never bought land comprised in Block 98 Plot 43 land at Lwanga measuring approximately 36 acres instead the plaintiff purchased land comprised in Mailo Register Volume 1733, FC No. 16068, Head title Vol. 887 Plot 160 measuring approximately 10.00 acres which belonged to the late Bulasio Musoke. - 9. That the late Bulasio Musoke has never held any interest whether legal, equitable or been in possession/occupation of land comprised in Block 98 Plot 43 land at Lwanga. That the late Blasio Musoke procured and obtained a certificate of title for only 10

acres which he got from the late Sosene Buyana Muinda, the original legal owner of F. C 16065 Vol. 184 formerly measuring approximately 53 acres out of which the 10 acres were mutated and a certificate of title issued thereof.

- 10. That the late Bulasio Musoke took possession of only 10 acres which the late Ssebbombo William Musoke inherited/acquired upon the demise of the late Blasio Musoke and later sold to the plaintiff. - 11. That the 1st defendant obtained letters of administration of the estate of the late Sosene Buyana Muinda on 30th March 2010 and the 2nd defendant contends that he lawfully and legally acquired the land comprised in Mawokota Block 98 Plot 43 measuring 36 acres from the 1st defendant who was the administrator of the estate of the late Sosene Buyana Muinda.

## **Plaintiffs' evidence**

- 12. Whereas the plaintiff himself gave oral evidence, the rest of his witnesses led evidence by witness statement and they were cross examined. - 13. The plaintiffs' case was opened on 9/8/2016 with the **plaintiff's testimony (PW1)**

- i) He informed Court that he purchased the suit land on 5/10/2003 from William Ssebbombo at a consideration of Ug shs 45,000,000 and paid off 13 bibanja holders on the land. That he paid an initial deposit of Ug shs 35,000,000 and the balance was to be paid upon bringing the certificate of title. - ii) That since 2003, when he purchased the land, he had been grazing animals and doing agriculture thereon. In 2012, when he started construction, a one Stanely Sibambi came with a certificate of title in the names of Kizza Jamal claiming to have bought 26 acres and tried to stop the plaintiff's developments. - iii)That the plaintiff made a search which revealed that the land was registered in the names of Sosene Buyana Muinda in 1740's. That it should be declared that Muinda never owned the land at the time the title was issued as the same belonged to Blasio Musoke whose son sold to me. - iv) That the late Sosene Buyana Muinda died before effecting a transfer into the names of Musoke thus I pray for an order vesting the land into my names.

### **PW2, Henry Lubega briefly;**

- i) I saw a certificate of title of 52 acres but I can't remember the Plot & Block no. The agreement between Muinda & Bulasio Musoke was of 1946. - ii) I don't remember the year in which Muinda and Musoke died. The transaction between Ssentongo & Ssebbombo happened in 2003, I did not pay attention to whether there was an agreement and I was paid Ug shs 400,000 as a broker in the transaction but I did not see the purchase agreement.

# **PW3, Robina Namazzi briefly**

- i) I am a farmer and a resident of Kalagala Mpigi. My late mother used to pay Busuulu to Blasio Musoke who was the owner of the land. - **ii)** Our kibanja was 4 acres but I did not know how big our landlord's kibanja was. I heard that Susene Muinda had sold the land to Blasio Musoke. - **iii)** She adduced Busuulu receipts which show that payments were made to Susene Muinda and later we started paying to Blasio Musoke.

**iv)**That I heard that the heir to Blasio Musoke sold the land to Mr. Ssentongo Jaffer in 2003.

14. The defendant's case was opened on 13/2/2024 with the 2nd defendant's evidence.

# **DW1, Kizza Jamal, briefly;**

- i) I purchased land from Katende Nelson at Ug shs 20,000,000 in November 2012. I inspected the land and before I purchased, I established that out of 36 acres, 26 acres had people on it. - ii) I did not interact with the squatters since I did not find it necessary. I inspected the land with Sebbombo who told me that he had sold 10 acres which were for Sebbombo family to Blasio Musoke. - iii)Sebbombo died around 2013 -2014 and Katende Nelson died in 2013 and buried along Garuga Road Mawugulu.

## **DW2, Jane Ssemakula**

i) A resident of Kalagala Mpigi town Council in Mpigi district and I was the LC Chairperson for Kalagala village for over 10 years. ii) I know the plaintiff and the 1st defendant who has since passed on. I knew the plaintiff when he came with the late Sebbombo William to my office to settle bibanja owners occupying the land Sebbombo sold to him.

iii) The plaintiff bought 10 acres from Sebbombo. The land the late Sebbombo sold to the plaintiff is distinct from that formerly owned by Nelson Katende the Administrator to the estate of the late Susene Buyana Muinda which he passed over to the plaintiff.

iv) That the plaintiff has never bought land comprised in Block 98 Plot 43 land at Lwanga measuring approximately 36 acres instead he purchased land comprised in Mailo Register Volume 1733 FC No. 16068 head title Vol. 887 plot 160 measuring 10 acres which was initially owned by the late Blasio Musoke.

## **Locus proceedings**

15. On 14th March, 2024, Court visited Locus at Lwanga, Kalagala in Mpigi district in the presence of Counsel for both parties, the plaintiff, the 2nd defendant and other residents on the suit property. Court established that the plaintiff is in possession of the suit land with a school known as white angels. The plaintiff also informed Court that he had settled off 13 people who owned bibanja on the suit land and managed to list some of them. He further informed Court that at the time of purchasing the suit land he did not conduct a boundary opening since the land had not been surveyed as indicated in his purchase agreement.

- 16. The suit land also constituted a school known as Heritage school which the plaintiff informed Court that it occupies one acre which was grabbed forcefully and the owner, Masembe Mahad erected buildings thereon. - 17. It was also established that the other squatters on the land were there legally. There were no mark stones to show the boundaries but the plaintiff informed Court that he knew the boundaries that the former owner had shown him.

#### *Representation;*

18. At the hearing, the plaintiff was represented by Counsel Namiwulya Rachel of M/S Mugabi Shyaka Advocates while the 2nd defendant was represented by Counsel Jamal Ahmed of M/s Lugoloobi Associated Advocates. Both parties proceeded by way of written submissions which I have considered in the determination of this case.

## *Issues for determination*

- 19. The parties filed a scheduling memorandum on 07th September 2016, in which they agreed on the following issues; - i) Whether the plaintiff is the rightful owner of land comprised in Block 98 Plot 43 land at Lwanga. - ii) Whether the plaintiff is in physical possession of land comprised in Block 98 Plot 43 land at Lwanga. - iii) Whether the second defendant fraudulently procured a special certificate of title on Block 98 Plot 43. - iv) Whether the plaintiff is entitled to the remedies prayed for.

# *Analysis and determination of the issues;*

### *ISSUE ONE.*

- **I. Whether the plaintiff is the rightful owner of land comprised in Block 98 Plot 43 land at Lwanga.** - 20. The plaintiff led evidence of a sale agreement dated 5th October 2003 between him and Ssebbombo William Musoke, the administrator of the late Blasio Musoke also marked and exhibited by Court as ExP3. In the said agreement it is clearly stated that the late Blasio Musoke had purchased the suit land measuring 36 acres from Sosene Buyana Muinda but it had not been surveyed.

- 21. Counsel for the 2nd defendant submitted that if the plaintiff had carried out the necessary due diligence, then he would not have entered into the sales agreement of the 36 acres of the land. Counsel further submits that the plaintiff alleges that he conducted the search of the land before he purchased the same however he never adduced evidence to prove the said search but rather the plaintiff adduced an area schedule dated 2014 yet during his cross examination he testified that he acquired the area schedule before he had purchased the land in 2003. - 22. At locus, court established that the plaintiff was in possession of the 10 acres of land where he has white angels high school and the other 26 acres of land were occupied by different parties to include the 2nd defendant's agent called Nsibambi. - 23. The gist of this issue rotates around the aspect of due diligence in the process of purchasing land by the parties before claiming ownership of the said suit land. - 24. The plaintiff adduced the sales agreement for the unsurveyed 36 acres of land executed between him and one Sebombo William on the 5th of October 2003 to prove that he's entitled to the entire suit land.

- 25. It is the evidence of the plaintiff that the land in dispute is registered land and that he conducted a search at the land registry to ascertain in whose names the land was registered but he never adduced evidence of the said search in court and during the testimony of the LC1 chairperson (DW2) of the area she testified that she only knew of the sale of the 10 acres of land between the plaintiff and a one Sebombo. She further testified that the plaintiff is not and has never been in possession of the entire suit land and that the plaintiff is only in possession of the 10 acres of the land. - 26. During the locus visit, this court was informed by the plaintiff that the 10 acres of the land is where he has White Angels high school and the other part was occupied by different parties including a one Nsibambi who is the 2nd defendant's agent. In addition, the plaintiff at locus further testified that he doesn't know in whose names the 36 acres of land were registered. - 27. The plaintiff as a buyer did not adduce evidence of the search report he claims to have conducted. Again no demarcations were made to ascertain the extent of the purchased land by the plaintiff and if any were made, there is hardly any evidence to show for it.

- 28. Furthermore, the agreement of sale adduced in evidence by PW1, the plaintiff speaks to the fact that he purchased 10 acres of Land in Mailo Register Volume 1733, FC No. 16068, Head title Vol 887 Plot 160. In evidence, PW2 testified that the certificate of title he saw in the names of Bulasio Semakula was 10 acres. - 29. I have also noted that the plaintiff alleges that upon purchasing the said land, the Late Blasio Musoke took possession of the suit land. However, no evidence was led to establish this fact. I have looked at the Certificate of title marked DEX3 together with the area schedule marked PEX3 and all seem to suggest that the 36 acres were registered in the names of S. B Muhinda since 1961. - 30. The principles of law in regards to purchasing land have been well explored by courts and decided upon, I will draw reference to the celebrated decision of **Hajji Nasser Katende vs Vithalidas & Co ltd CACA No.84 of 2003** where court emphasized the value of land property and the need for thorough investigations before the purchase of land, court further noted that land is not vegetables that are bought from unknown sellers. Land is valuable property and buyers are expected to make thorough investigations not only on the land itself but of the sellers before making any purchase.

In other words, a purchaser ought to know what they are purchasing with a certain degree of certainty.

31. Section 101, 102 and 103 of the Evidence Act makes provision for the cardinal rules of evidence;

# *"Whoever asserts a fact must prove it," "Whoever wants court to believe in the existence of a given set of facts must have the burden to prove their existence."*

- 32. It is trite law that a fact is said to be proved when court is satisfied as to its truth. **(Court of Appeal in John Bwiza v Patrick Yowasi Kadama Civil Appeal No. 35 of 2011)** - 33. **Lord Hoffman In Re B (Children) (Fc) [2008] UKHL 35 cited with approval in John Bwiza case (supra) court observed as follows:**

*"If a legal rule requires a fact to be proved (a fact in issue), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who* *bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened"*

34. Based on the evidence presented, the court is inclined to find that, on the preponderance of evidence, the plaintiff has not sufficiently proven ownership of the land comprised in Mawokota Block 98 Plot 43 at Lwanga. Therefore, the first issue is answered in the negative.

#### **Issue Two**

- **II. Whether the plaintiff is in physical possession of land comprised in Block 98 Plot 43 land at Lwanga** - 35. The resolution and determination of issue 1 indirectly disposes off this issue, as the evidence adduced and the resolution of issue 1, the finding is that the plaintiff is only in physical possession of the 10 acres of land where he has white angels high school, the other part is occupied by different parties who include heritage school and the 2nd defendant's agent a one Nsibambi Stanley. - 36. Therefore, it can be inferred from the locus proceedings and testimony of the witnesses including the LC1 chairperson that the

plaintiff is not and has never been in possession of the entire suit land; hence this issue is answered in the negative.

#### **Issue Three**

# **III. Whether the 2nd defendant fraudulently procured a special certificate of title on the land comprised in Block 98 Plot 43 land at Lwanga.**

37. Fraud has been defined in the case of **Fredrick Zaabwe vs Orient Bank Ltd & others SCCA No.4 of 2006** to mean an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. A false representation of a matter of fact whether by words or conduct by false or misleading allegations or by concealment of that which is intended to deceive another so that he shall act upon it to his legal injury.

38. Section 176 (c) of the Registration of titles Act provides thereof that no action for ejectment or other action for recovery of any land shall lie or be sustained against the person registered as proprietor except in the case of a person deprived of any land by fraud as against the person registered as proprietor of that land through fraud or as against a person deriving otherwise than as a transferee bonafide for value from or through a person so registered through fraud.

- 39. Having found, that the plaintiff is not the rightful owner of the suit land and he is not and has never been in possession of the entire suit land as resolved and determined in issue 1 and 2, it cannot be said that the 2nd defendant procured the certificate of title fraudulently, hence this issue is answered in the negative. - 40. For the foregoing reasons, the instant suit stands dismissed against the Defendants by this honorable court with costs of the suit awarded to the 2nd defendant.

## **I SO ORDER**.

#### **NALUZZE AISHA BATALA**

#### **JUDGE**

**18/07/2024**