[2025] UGHC 300

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT LUWERO HCT-17-LD-CS-0043-2022 FORMERLY LAND DIVISION CIVIL SUIT NO. 357 OF 2017 SSEBOWA MAURICE……………….. PLAINTIFF V**

## **1. MARIAM KULABAKO MULIISA 2. BIRUNGI MADINAH………………………. DEFENDANTS BEFORE LADY JUSTICE HENRIETTA WOLAYO JUDGMENT**

#### Introduction

- 1. By an amended plaint filed on 29.10.2020, the plaintiff Ssebowa sued the two defendants Mariam Kulabako Muliisa and Birungi Madinah for recovery of a kibanja with a two roomed commercial building located in Busika Town, Luwero district. The brief particulars of the claim are that on 11.7.1994, he purchased a kibanja with a two roomed commercial building from Bashir Lubega at a sum of 2,450,000/ and immediately took effective control through one Amir Wavamuno and the second defendant Madinah Birungi (both siblings of the first defendant Mariam Kulabako) whom he permitted to stay in the house as they had nowhere to go. - 2. It was further Ssebowa's claim that in 1997 as he was traveling to Japan he left the sale agreement with Amir Wavamuno but on his return Wavamuno declined to surrender it. In the meantime, Kulabako forcefully took over control of the building in 2017 and made changes to the building by merging two rooms to make one big room. - 3. It was Ssebowa's case that the defendants have been collecting rent from the building since 2018 which totaled 16,500,000/ by the time of filing the amended plaint.

- 4. He also claimed that the defendants forged his signature on their sale agreement and Kulabako fraudulently obtained legal title to the land. - 5. The defendants filed a written statement of defense on 10.11.2020 in which she confirmed that she was in a relationship with Ssebowa which resulted in one child who is now of age. She denies his claims that he purchased the suit kibanja. The defendants avers that the plaintiff has never been in possession of the said land and that his claims are intended to take advantage of his past relationship with Kulabako the first defendant. The defendants in summary denied all the plaintiff's claims and affirms she is the legal owner of the property having lawfully purchased it. - 6. In their joint scheduling memorandum filed in December 2020, three issues were agreed for trial: - a) Between the plaintiff and the first defendant, who owned the kibanja interest and developments on it? - b) Whether the first defendant fraudulently acquired and registered the suit land in her names. - c) Remedies.

### Background facts

7. The case was first filed in Land Division and my sister Kazaarwe J recorded the testimony of PW1 Ssebowa Maurice the plaintiff and PW2 Musiime Farouk. The case was then transferred to the newly created circuit of Luwero and I took over the case from where my sister Judge had stopped.

### Burden of proof

8. In civil cases, the plaintiff has a legal burden to prove its case. **Section 101 of the Evidence Act Cap.8** stipulates that

*'Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts, must prove that those facts exist'.*

9. **Section 103 thereof** provides that

*'The burden of proof for proving any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by law that the proof of that fact shall lie on a particular person'*

10. In **Miller v Minister of Pensions[1947]2ALL ER** 372 at 373-374, Denning J when speaking on the degree of cogency of evidence required to discharge the burden of proof in civil cases had this to say: ¹

> *That degree is well settled. It must carry a reasonable degree of probability, but not as high as is required in a criminal case. If the evidence is such that the tribunal can say: 'we think it more probable than not, the burden is discharged but if the probabilities are equal, it is not'*

11. In **Bater v Bater [1951] 35 at 36-37**, Denning LJ had this to say on varying degrees of standards in civil cases.

> *A civil court, when considering a charge of fraud, will naturally require for itself a higher degree of probability than that which it would require when asking if negligence is established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature, but still it does require a degree of probability which is commensurate with the occasion'.*

12. In summary, the burden of proof is on the plaintiff to prove his case while any party who alleges the existence of a fact has a burden to prove it. In all situations, the

¹ Cross & Tapper on Evidence, eighth edition, Butterworths, London, Dublin, Edinburgh, (1995)

standard of proof is on a balance of probabilities except that where fraud is alleged, the standard of proof is higher than in ordinary cases.

#### Preliminary issue

13. I note that both counsel did not apply to expunge witness statements that were not admitted on record since the said witnesses did not show up. These are: Amir Wavamuno and Kisembo Deogratious. I shall therefore exercise my discretionary powers to expunge them under **Order 18 Rule 5A (5) of the Civil Procedure (Amendment) Rules 2019.**

Issue No.1: Between the plaintiff Ssebowa and the first defendant Kulabako, who owns the suit land.

- 14. While the plaintiff asserted a claim over the suit property, the first defendant also asserted a claim over it which means both parties had a duty to prove the facts they asserted. I have evaluated the evidence and the following facts merge. It is an agreed fact that Ssebowa and Kulabako lived as husband and wife from 1992 when the later conceived, dropped out of school and started cohabiting with him. - 15. According to Ssebowa Maurice, 57 years, resident of Lyantonde Town Council, Lyantonde district who testified as PW1, he purchased the kibanja together with a two roomed commercial building on or about 11.7.1994 from Bashir Lubega at a price of 2,450,000/. To prove this purchase he made reference to a cash book where he recorded a withdrawal of 750,000/ on 11.7.1994 along with a cheque book (PE 3 and PE4. He also relied upon a payment of 1,800,000/ from Farouk Musiime a prospective tenant who was prevented from entering possession of one of the rooms. He tendered Annexture H (part of PE1) dated 1.7.2016 in support. Other tenants who were actually paying rent to Madinah Birungi aged 54 resident of Busika Town Council, DW2, were Munonga Rogers, Edward Mukukule and others. While Ssebowa claimed they were his tenants, Madinah testified that she was collecting rent from them on behalf of her sister Kulabako who lived in the U. K.

- 16. The only prospective tenant who testified is Farouk Musiime, who had sued Ssebowa and Madinah **in Wobulenzi Magistrates Court Civil Suit No.136 of 2016** for an order that '*the house be opened for him to gain entry*'. DE 2 which is the plaint in the said suit refers. Worthy of note is that he later withdrew the suit against Ssebowa and that suit was never concluded. - 17. The other evidence relied upon by Ssebowa was the missing sale agreement between him and Lubega. It was Ssebowa's evidence is that he gave it to his brother in law Amir Wavamuno brother of Kulabako in 1998 when he was about to travel to Japan so that Amir could sort out a boundary dispute but that Amir has never returned the agreement. - 18. To support, his claim of an agreement, Ssebowa called PW4 Aisha Nakanwagi, aged 43, resident of Bujuuko Cell, Kireka, Wakiso district, daughter of Bashir Lubega who testified that she was witness to the sale agreement at Wilson Road Kampala and that she actually signed it. Worthy of note that is that she was born in 1977 and witnessed the sale in 1994 when she was seventeen years old. At the time, the age of majority was twenty one years and evidently did not have legal capacity to witness a sale agreement. Therefore, it is most probable that she is not being truthful. - 19. From the foregoing analysis, it is evident that the plaintiff relies upon oral evidence to prove an alleged written contract which evidence is inadmissible under **Section 58 of the Evidence Act Cap.8,** to wit,

*'All facts except the contents of a written document may be proved by oral evidence'.*

20. While **Section 10(2) of the Contract Acts Cap. 284** permits oral contracts, Ssebowa's case is that he had a written contract which places his testimony within the parameters of Section 58 of the Evidence Act that renders oral evidence inadmissible to prove a written contract.

- 21. The rest of the evidence is about records of withdrawal of 750,000/ on 11.7.1994 when he claimed to have paid Lubega and the tenants whom Madinah testified were previously paying her rent and who never testified. The withdrawal of 750,000/ is meaningless without other supporting written evidence that the money was intended to be paid to Lubega. - 22. As for tenants who allegedly paid Ssebowa rent in 2016 moreover after the conflict with Kulabako and Madinah had arisen, this too was not proved to the required standard as the receipts showing payment of rent without confirmation from the said tenants is not cogent evidence to prove ownership of property which is contested. More importantly, the alleged payments were made in 2016 after the dispute had arisen in 2015 when Ssebowa lodged a complaint against Madinah to the then LC 1 Chairman of Busika, Sematimba Kizito, aged 50 years, resident of Busika Town , Luwero District who testified as PW5. - 23. In particular the fact that Musiime Farouk resident of Busika Town, Kalagala subcounty PW2 had to sue to get entry to the room he had rented is weak evidence that confirms that the plaintiff had never been in control of the suit premises. In other words, the plaintiff's evidence works against him rather than for him in his bid to prove ownership. His own admission that Madinah and Wavamuno stayed in the rooms shows at worst that they were in adverse possession of the premises on behalf of their sister Kulabako. In short, their adverse possession proves that Ssebowa has never had control of the premises nor physical possession. - 24. Lastly, Ssebowa relied upon a police report that Amir Wavamuno had obtained 60,000,000/ in 2015 from him by false pretenses but I failed to see the relevance of this evidence to the issues at hand.

- 25. Turning to the defendants' case, the gist of their case is that PW1 Mariam Kulabako Muliisa, aged 49 years, resident of 5 Olury close, Orpington, London, U. K who testified by zoom since she is based in the United Kingdom, purchased the suit land with a two roomed building on it . To prove this purchase, she adduced a sale agreement which shows her as the purchaser and Lubega Bashir as the seller at a price of 2,250,000/. Although in her witness statement, Kulabako testified that she bought the kibanja on 9.7.1994, the agreement is silent on this date and the date that is visible is 9.7.1994 on the stamp of the Resistance Council 1 Chairperson of Busika. The agreement clearly identifies the land bought by acreage as 12 feet width by 126 feet length situated on the road to Nakifuma. It is witnessed by Ssebowa Maurice the plaintiff; Dirisa Mwase Kalyawo Information secretary; and Walakira Nurudeen General Secretary, as witnesses among others. - 26. Dirisa Kalyawo, aged 50 years, resident of Busika Town Council , Kalagala and chairperson LC1, who testified as DW4, confirmed that he witnessed the sale agreement between Lubega and Kulabako on 9.7.1994 and that is it him who affixed the RC stamp for Busika Town mayor Kalagala while the General Secretary Walakira Nurudeen affixed the stamp for RC1 Busika. Regarding the stamp for Busika Town Mayor, Kalyowa explained that he was the chairman of the committee set up to establish the town council which was fully established at the time he testified on 4.3.2024. Kalyowa explained that in 1994, reference to LC and RC simultaneously was quite normal. - 27. Further evidence of Kulabako's ownership of the suit land was given by DW2 Madinah Birungi her sister who confirmed that Kulabako bought the kibanja when she was working dealing in shoes after she got capital from their father who was a coffee dealer. According to Madinah, Kulabako started the business in 1992. Counsel took issue with this evidence because Kulaboko testified in cross examination that she was not employed at the time. I find this a non-issue because the source of funds to prove a fact is immaterial unless the adverse party has evidence that the money was got from a criminal enterprise or is stolen from a third party. What is material is that valuable consideration is paid.

- 28. It was Madinah's evidence that her sister introduced her to local authorities as caretaker and in 1999, she left for London. Since then, Madinah has collected rent from the suit property and in 2015, Ssebowa reported her to authorities. Furthermore, that she enjoyed quiet possession from 1999 without any disturbance from the plaintiff Ssebowa and in 2001 she even processed and connected electricity to the suit property. DE No. 10, two receipts issued by Uganda Electricity Board were tendered . It was Madina's evidence that she was shocked when the plaintiff acting through Musiime PW2 sued her in 2016 in Wobulenzi. - 29. Furthermore, that soon after the purchase in 1994, her brother Amir Wavamuno moved in and later she joined him where she operated a saloon while her brother dealt in coffee. This fact was confirmed by Ssebowa except that he claimed it was him who authorized his in-laws to live on the suit land which claim I have discounted. - 30. That Kulabako was in physical possession through her agents Amir and Madinah was confirmed by Kalyowa a local council official who also operates from one of the rooms on the premises in his capacity as LC1 chairman of Busika. - 31. From the foregoing analysis, it is evident that the defendants adduced credible evidence of both purchase of the suit kibanja and also of taking effective occupation from the time of purchase in 1994 and have remained in control since then. Given the failure by the plaintiff Ssebowa to prove purchase of the suit land, it is more probable than not that the first defendant Kulabako is the rightful owner of the suit kibanja. - 32. Issue No.2: Whether the first defendant fraudulently acquired and registered the suit land in her names.

- 33. The plaintiff named no less than nine particulars of fraud around two main themes: - *a) Fraud in connection with the suit kibanja* - *b) Fraud in connection with the legal interest*

## Fraud in connection with the suit kibanja

- 34. The plaintiff pleaded that : - *a. The first defendant forged an agreement for purchase of a kibanja;* - *b. The purported agreement bears a local council stamp that was not in use at the time;* - *c. She forged signature of a witness Monic Sentongo when she did not sign the agreement and moreover she was not a member of the council at the time.* - 35. Regarding the issue of an R. C stamp in 1994, Kalyowa DW3 who acknowledged stamping the document explained that at the time, LC and RC were used interchangeable for local authorities. Resistance Councils were regulated by **the Local Government (Resistance Councils) Statute 15 of 1993** so reference to RC was consistent with the said statute that came into force in 1993. Consequently, the plaintiff's claim that the Resistance Councils did not exist at the time has no merit. Moreover, the same Statute is cross referenced by the Local Government Act of 1997 now Cap 138 which Act first established interim lower local councils. - 36. Regarding the alleged forgery of Monic Sentongo's signature, the plaintiff relied upon Okwir Samuel PW3 a police officer attached to Kawempe Police Station who investigated a case of forgery of a sale agreement under police reference SD/65/03/01/2017. Okwir interviewed Monic Sentongo who denied witnessing the sale agreement. He went further and obtained her sample signature as well as that of the first defendant Kulabako which he sent to the Directorate of Forensics Services, Uganda Police for examination. Okwir, citing the Forensic Report, testified that the report found that the handwriting of the first defendant and the

signature in the agreement differed. Furthermore, that the sample signature of Monic and the signature in the agreement differ. The report was admitted as PE No.6.

- 37. I have examined the report and find that only one sample signature of Monic Sentongo was obtained, moreover, from her police statement attached to Okwir's witness statement. - 38. I examined the sale agreement and I note that while the name Monic Sentongo appears as a witness, there is no signature. More importantly, in the sale agreement the name bears the prefix *'Mrs'* which is missing from the sample signature. - 39. Okwir admitted he too had observed that the name and signature were in the same style. Given that the alleged signature on the sale agreement has the prefix of *Mrs* and given that only one sample was used which does not have the *Mrs* before it, I am unable to conclude whether her name was simply inserted on the agreement when she was absent or it is indeed her signature. - 40. The presence of one name on the agreement whose authenticity cannot be conclusively determined but which agreement has names of other witnesses who have been identified as resistance council members by Kalyowa who was Information Secretary is sufficient proof that the sale agreement was witnessed. - 41. Regarding the alleged forged signature of Kulabako, as submitted by counsel for the defendants, a one No. 35949 Det. Corp. Okello extracted the *'sample signatures'* of Kulabako in Exhibit B (pages 65 to 67) of the plaintiff's trial bundle. Clearly, these samples were not from another document signed by Kulabako but were simply extracted from an enlarged form of the sale agreement DE NO. 4 (Exhibit A) to the forensic report at page 64). In fact the detective protects herself or himself by disclosing that he or she was '*dictated to*' or to put it bluntly, the

detective was ordered by the Investigating Officer to extract the samples. To say the least, this amounts to concocting evidence by a public officer to support one side against another. Furthermore, the finding in the Forensics report that Kulabako did not sign the sale agreement is doubtful in light of the testimony of Dirisa Kalyowa who was present.

- 42. The plaintiff Ssebowa's name appeared on the sale agreement as a witness but he denies this. The expert , however, failed to arrive at a conclusion whether it was his signature ostensibly because he had only one sample to compare with, namely, a sale agreement between Sebowa and one Lubega Daaki dated 11.10.1991. As observed by the expert, sample signatures of Monic Sentongo, Mariam Kulabako and Maurice Sebowa were picked from photocopies of documents. While it is understandable that Kulabako's original signature could not be readily obtained since she resides in the U. K, Ssebowa is resident in the jurisdiction so why his sample signature was not obtained when he was the complainant is not clear to me. - 43. Having found that the investigating officer did not get an independent sample signature for Kulabako, the forensic report's finding that her signature on the sale agreement was forged is baseless. Given the bias exhibited by the investigating officer Okwir PW3 in ordering Det. Okello to extract sample signatures for Kulabako from the sale agreement which was the questioned document, the findings in the forensics report are questionable and will be discounted. - 44. Accordingly, my finding that there was a valid contract for sale of a kibanja between Kulabako and Lubega in 1994 which contract was further reinforced with physical possession by her agents Amir Wavamuno and Madinah Birungi, still stands. - 45. In conclusion, I find that the plaintiff failed to discharge the high burden of proof required in fraud cases and therefore failed to prove that the sale agreement dated

9.7.1994 between Lubega and Kulabako was forged. Instead, I find that the sale agreement was signed by the seller and the buyer and at least three witnesses whose signatures and attendance was not challenged, namely, Walakira Nurudeen; Sendite Henry and Dirisa Kalyowa DW3 who testified in court.

Fraud allegations in connection with the legal interest

- 46. The plaintiff pleaded that: - *a. The first defendant purported to purchase a legal interest in the suit kibanja when she had never acquired an equitable interest in it;* - *b. The first and second defendant colluded to acquire the legal interest;* - *c. The first defendant was not in Uganda at the time of the alleged purchase;* - *d. She forcefully collected rent from the suit premises when it belonged to the plaintiff.* - 47. The first defendant presented a land title for land comprised in Bulemezi Block 21 Plot 1392 measuring 0.047 hectares and registered it in her names on 14.7.2016. She acquired the legal interest from DW4 Wilberforce Kigongo Serwambala aged 79 years, resident of Busika Town council, Kalagala sub-county and formerly the registered proprietor of the suit land. He confirmed that Late Lubega approached him in 1994 for Kigongo to confirm him as a kibanja owner and he did so. Kigongo identified Dexh. No. 9 which is a copy of a note recognizing Lubega as a kibanja owner. The note is dated 9.7.1994. Furthermore, it was Kigondo's testimony that Kigongo introduced Kulabako as the new kibanja owner. As has always been the practice, a kibanja holder must introduce the new holder to the landlord whenever there is change of ownership which was what happened. - 48. Counsel for the plaintiff took issue with the non-disclosure of the price paid for the legal interest but this is not material to the determination of whether she holds the legal interest since it is in black and white that she is the registered proprietor. Under **Section 59 of the Registration of Titles Act Cap. 240** a certificate is

conclusive evidence of title and cannot be impeached on account of any irregularity in the proceedings prior to registration.

- 49. Furthermore, counsel for the plaintiff submitted at length on proceedings in Wobulenzi Magistrate's Court Civil Suit No. 136 of 2016 between Farouk Musiime as plaintiff and Madinah Birungi and Maurice Ssebowa as defendants. This suit has never been determined and therefore technically, apart from the pleadings in that case, the evidence adduced in those proceedings is taken with caution because it is yet to be evaluated by the trial court. The foregoing notwithstanding, whether Madinah the second defendant signed for her sister on the sale agreement for the legal interest does not invalidate the sale. What is material is that Kulabako confirms that the transfer form was sent to her and it was returned with her signature. It is the transfer form that is required for a transfer to be effected and not the sale agreement. (**Section 91(1) of the RTA refers.)** - 50. In these circumstances and having found earlier that Kulabako lawfully acquired the kibanja interest, I find that she lawfully acquired the legal interest from Kigongo. Ssebowa's claim that Kulabako was in U. K when the transfer was effected does not detract from the fact that the transferee affirms that he transferred the legal interest to her. In any case, Kulabako testified that the transfer form was sent to her in U. K, and it was returned by someone to Uganda. In the premises, I find that the first defendant Kulabako lawfully acquired the legal interest in the suit kibanja. - 51. Having found that the plaintiff failed to prove his case on a balance of probabilities, his suit is dismissed and judgment entered for the defendants with costs. - 52. Before I give final orders, I note that counsel for the plaintiff submitted that the first defendant is not a Uganda citizen and therefore cannot own land in Uganda, a standard established by **Article 237(1) of the Constitution of 1995 as amended**. I decline to canvass this issue because it was not an agreed issue for trial and no evidence was led on it.

## Orders

- a. The plaintiff's suit is dismissed and judgment is entered for the defendants. - b. The first defendant Kulabako Mariam Muliisa lawfully acquired the suit kibanja on 9.7.1994 from Lubega Bashir. - c. The first defendant Kulabako Mariam Muliisa is declared the rightful owner of land comprised in Bulemezi Block 21 Plot 1392 measuring 0.040 hectares. - d. A permanent injunction shall issue restraining the plaintiff and his agents from interfering with the quiet possession of the first defendant Kulabako and from making any further claims to the said property. - e. The plaintiff shall pay the two defendants Kulabako Mariam and Birungi Madinah costs of the suit.

**DELIVERED VIA ECCMIS THIS 23RD DAY OF APRIL 2025. \_\_\_\_\_\_\_\_\_\_\_\_\_ LADY JUSTICE HENRIETTA WOLAYO**

Legal representation Maven Advocates for the plaintiff Messrs F. Aogon & Co. Advocates for the defendants