[2024] UGHCLD 212

## **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT KAMPALA**

#### **(LAND DIVISION)**

### **CIVIL SUIT NO.1134 OF 2023**

**MARGARET JUDITH NANGENDO SSENGENDO :::::::: PLAINTIFF (Suing through her lawful Attorney Mugisha Laban) VERSUS**

## **1. NANTEGE MAUREEN SSENGENDO 2. NANTEZA SOLOME IRENE 3. THE COMMISSIONER LAND REGISTRATION :::: DEFENDANTS**

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

### *Introduction;*

- 1. The plaintiff (suing through her lawful attorney Mugisha Laban) brings this suit seeking declarations and orders inter alia; - a) A declaration that the suit land comprised in Kyadondo Block 116, Plots 868,870,871,872 and 873 formerly Plot 83 land at Masooli Gayaza don't form part of the estate of the late Christopher Kityo Ssengendo. - b) An order directing the 3rd defendant to cancel the 1st and 2nd defendant's certificate of title.

- c) An order that the 3rd defendant registers the plaintiff on the certificates of title for the suit land as the rightful proprietor. - d) An order for permanent injunction restraining the 1st and 2nd defendants their agents and or attorney from intermeddling and or in any way dealing or occupying or selling and further transfer ownership of the suit property. - e) General damages - f) Punitive damages - g) Mesne profits - h) Interest on general and punitive damages at 21% pa from the date of judgement till payment in full - i) Costs of the suit.

#### *Background;*

- 2. The plaintiff together with the 1st and 2nd defendant's father (the late Christopher Kityo Ssengendo) were siblings and their father the late clement Ignatius ssengendo bequeathed the suit land formely comprised in Block 116 Plot 83 land at Masooli Gayaza to the late Christopher Kityo Ssengendo. - 3. In 2009, the late Christopher Kityo Ssengendo who was living in Lesotho at that time gave the plaintiff authority to renovate and

take care of the house on the suit land and at that time the certificate to the suit land was registered in the names of the late Ivan Wasswa Sengendo(the then administrator of the late clement Ignatius ssengendo), The plaintiff ably renovated the main house on the said land and later purchased the same from the late Christopher Kityo Ssengendo at a consideration of UGX 120,000,000 which amount was paid in full in 2018 and subsequently the plaintiff appointed a care taker who stays in the house on the suit land up to date, further the late Christopher Kityo Ssengendo died before transferring the suit lant into the plaintiff's names.

- 4. On the 28th day of July 2023, the 1st and 2nd defendants transferred the suit land into their names without necessarily obtaining the letters of administration and without the plaintiff's knowledge and consent and there after commenced to subdivide the same into six plots that is Plot 868,869,870,871,872 and 873. - 5. It is pertinent to note that the 1st and 2nd defendants transferred the suit land into their names by forging the signature of the late Ivan Wasswa Ssengendo (the then administrator of the late clement Ignatius ssegendo) who died on the 22nd day of November

2018 and signed transfer forms in their favor on the 27th of July 2023.

6. All efforts to involve the defendants in these proceedings proved futile, the plaintiff applied to serve the defendants by way of substituted service which order Court granted on 21st/02/2024 to publish the summons in Monitor/New Vision newspapers, the said order was complied with as per the new vision newspaper of 5th March, 2024. Still, the defendants did not file a defence thus the plaintiff prayed for an interlocutory judgement to be entered against the defendants and the matter proceeded exparte as against the defendants.

## *Plaintiffs' evidence;*

- 7. The plaintiff who resides in Belgium led evidence through her lawful attorney by way of witness statement where he stated that - **i.** He is the lawful attorney on behalf of the plaintiff as per the powers of attorney adduced in court. - **ii.** That the plaintiff together with the 1st and 2nd defendant's father the late Christopher Kityo Ssengendo were siblings and their late father was the late Clement Ignatius Ssengendo who dies on the 27th of April 1986.

- **iii.** That the late Clement Ignatius Ssengendo had by will bequeathed the suit land formerly comprised in Block 116 Plot 83 land at Masooli, Gayaza to the late Christopher Kityo Ssengendo (the 1st and 2nd defendant's father). - **iv.** That on the 8th day of July 2009, the late Christopher Kityo Ssengendo (the 1st and 2nd defendant's father) who was at the time living in Lesotho gave the plaintiff the authority to renovate and take care of the house and the suit land. - **v.** That after the said authority, the plaintiff renovated the main house and boys' quarters on the suit land. - **vi.** That the time the plaintiff was given authority to renovate and take care of the suit land, it was registered in the names of the late Ivan Wasswa Ssengendo as an administrator of the late clement Ignatius ssengendo. - **vii.** That the late Ivan Wasswa Ssengendo (the then administrator of the estate of Clement Ignatius Ssengendo) died on the 20th day of November 2018 while the suit land was still registered in his names. - **viii.** That on the 20th day of December 2018, the late Christopher Kityo Ssengendo, the 1st and 2nd defendants father sold the

suit land to the plaintiff at a consideration of 37,500 Euros which was equivalent to approximately UGX 120,000,000(one hundred and twenty million Ugandan shillings) by then.

- **ix.** That after the said transaction, the plaintiff immediately took possession of the suit land by way of appointing a care taker who is in the house to date. - **x.** That the late Christopher Kityo Ssengendo(the 1st and 2nd defendant's father) died on the 5th day of February 2020 before he could transfer the suit land into the plaintiff's names. - **xi.** That on the 28th day of July 20203, the 1st and 2nd defendants transferred the suit land under instrument number WKY-00342165 into their names without letters of administration and the knowledge and consent of the plaintiff. - **xii.** That the plaintiff through her care taker learnt that the certificate of title had been transferred into the names of the 1st and 2nd defendants and that people were using the photocopies of the same while inspecting the land and she proceeded to lodge a caveat on the said certificate of title on

the 15th of August 20203 under instrument number WKY-00343706.

- **xiii.** That after lodging the caveat, the plaintiff engaged the 1st and 2nd defendants to try and amicably resolve the matter in vain and at that time the 1st defendant was staying in one of the boy's quarters next to the main house. - **xiv.** That to the plaintiffs' dismay, the 1st defendant became illusive and vacated the boy's quarters to an unknown place. - **xv.** In the meantime, the 1st and 2nd defendants in total disregard of the caveat lodged on the 15th day of august, which was irregularly lifted started subdividing the suit land and Plots 868,869,870,871 and 872 and 873 were created. - **xvi.** That the lifting of the caveat by the defendants was done without any notice and or consent and knowledge of the plaintiff despite the fact that she is the owner of the suit land and in active possession of the same. - **xvii.** That on the 20th day of September, the 1st and 2nd defendants illegally made subdivisions of the suit land under instrument number WKY-00346852 and 6 titles were got out of Plot 83 to include Plots 868-873. **xviii.** That the plaintiff lodged another caveat on the 6 titles on the 5th day of October 2023 under instrument number WKY-00348074 affecting all the plots created from Block 116 Plot 83.

#### **Locus Proceedings**

- 8. On 7th/6/2024, Court visited Locus at Masooli where court established that the suit property is approximately 2 acres and the same is enclosed, it includes the main house, boy's quarter (where the 1st defendant used to reside). - 9. The plaintiff's care taker and the relatives reside in the house, one of the plaintiff's nephews stays on part of the suit land while the other part has banana plantations. - *10.* The suit land initially was 2 acres before the subdivision and the Plots created upon subdivision were 868,869,870,871,872 and 873.

## *Representation;*

*11.* At the hearing, the plaintiff was represented by Counsel Kiribwa Simon Peter of M/S Factum Associated Advocates while the defendants were unrepresented as they did not participate in the

proceedings of this suit. The plaintiff proceeded by way of written submissions.

### *Issues for determination;*

- *i) Whether the 1st and 2nd defendants fraudulently acquired the plaintiff's land?* - *ii) Whether the 1st and 2nd defendants trespassed on the plaintiff's land?* - *iii) What remedies are available to the parties?*

## *Resolution and determination of the issues;*

# **Issue 1; Whether the 1st and 2nd defendants fraudulently acquired the plaintiff's land?**

12. It is the submission of counsel for the plaintiff that the 1st and 2nd defendant perverted the truth intentionally when they indulged into forging the late Ivan Wasswa Sengendo's signature the then registered proprietor on the transfer form who was dead at the material time in a bid to have the suit land transferred into their names even when they were aware that the same belonged to the plaintiff and facilitated the subdivision of the same to create Plots 868,869,879,871,872 and 873 which the plaintiff now seeks to cancel and reinstate Plot 83.

- 13. Further counsel submits that it is the evidence of PW1 under paragraph 12 of his witness statement that the 1st and 2nd defendant used the certificate of title obtained through forgeries and blatant lies to attract buyers to come and inspect the suit land and thereafter attracting them to buy the same and in the result plotting to have the plaintiff depart with her land a valuable thing which she purchased at a fee of UGX 120,000,000. Counsel relied on the case *David Sejaaka Vs Rebecca Musoke CA No.12 Of 1985* where court laid an indispensable principle being that fraud must be attributed to the transferee either directly or by necessary implication and that it is the evidence on court record that the suit land was registered in the names of the late Ivan Wasswa Sengendo which the 1st and 2nd defendant transferred the same under instrument number WKY-00342165 into their names. - 14. Counsel for the plaintiff submits that the 1st and 2nd defendants transferred the suit land from the names of the late Ivan Sengendo Wasswa's names without obtaining letters of administration it being a necessity since the registered proprietor then had died way back on the 22nd of November 2018 and the transaction by the 1st and 2nd defendants was conducted in 2023 since the transfer

forms were allegedly signed on the 27th of July 2023 by the late who died in 2018.

#### **Analysis by court;**

- 15. 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. - 16. In the instant case the particulars of fraud the plaintiff pleads against the 1st and 2nd defendants are that the 1st and 2nd defendants made false declarations during the transfer of the suit land alleging that the late Ivan Wasswa Ssengedo signed the transfer forms in their favor yet the late had died way back before the transaction happened. - 17. It is not disputed that the plaintiff purchased the suit land as per the sales agreement (PEX6) adduced in court from the late Christopher Kityo Ssengendo at a consideration of UGX

120,000,000 and the plaintiff took possession of the house on the suit land where she authorized her care taker to stay in the same house.

- 18. I take note of the fact that at the time the plaintiff purchased the suit land it was registered in the names of the late Ivan Wasswa Ssengendo (the then administrator of the late Clement Ignatius Ssengendo who bequeathed the suit land to the late Christopher Kityo Ssengendo. The late Ivan Wasswa Ssegendo is said to have died in 2018 as per the death certificate adduced in court and marked as annexure PEX5. - 19. The search reports adduced indicate how the subdivided plots are all registered in the names of the 1st and 2nd defendants as joint tenants being registered on the 28th day of July 2023. - 20. It appears that the proprietorship of the suit land changed from the names of the late Ivan Wasswa Ssengendo to the 1st and 2nd defendants when the late had already passed on. It is the evidence of the plaintiff that the transfer forms used in the said transfer were signed by the Late Ivan Wasswa Ssengendo on the 27th of July 2023.

- 21. One would wonder how the said transfer forms would be signed in 2023 by a person who passed on in 2018, these are dishonest acts that would amount to fraud in land transactions. - 22. I find that the acts of the 1st and 2nd defendants to have the certificate of title transferred into their names to be tainted with fraud, therefore issue 1 is answered in the affirmative.

## **Issue 2; Whether the 1st and 2nd defendants trespassed on the plaintiff's land?**

- 23. Counsel for the plaintiff refers to the evidence of PW1 under paragraph 9 where he states that the plaintiff took possession of the suit land and that the 1st and 2nd defendants entered and occupied the plaintiffs house situate on the suit land started planting crops without any authorization from the plaintiff. - 24. Further the 1st and 2nd defendants initiated the process of subdivisions and created titles on the suit land without knowledge or consent of the plaintiff to include Plots 869,870,871,872 and 873. Counsel further submits that the 1st and 2nd defendants have proceeded to advertise the plaintiff's land for sale as well as bringing in people to inspect the same.

- 25. According to the Supreme Court in **Justine E. M. N Lutaaya v Stirling Civil Engineering Co. SCCA No 11 of 2002** trespass to land occurs "when a person makes an authorized entry upon land, and thereby interfering, or portends to interfere with another person's possession of that land. - 26. In order to succeed in an action of trespass, the Court of Appeal in **Sheikh Muhammad Lubowa v Kitara Enterprises Ltd CA No 4 of 1987** observed that one must prove: - *a) That the disputed land belonged to the plaintiff* - *b) That the defendant had entered upon it, and* - *c) That entry was unlawful in that it was made without permission or that the defendant had no claim or right or interest in the disputed land.* - 27. In the instant case, it is not disputed that the plaintiff purchased the suit land at a valuable consideration and it is the plaintiff in possession of the same. It is the submission of counsel for the plaintiff that the 1st and 2nd defendants unlawfully entered onto the suit land and started planting crops there unto. - 28. When court visited locus it was the testimony of the PW1 that the 1st defendant used to reside on the suit land but he disappeared and vacated the suit land after being served with court documents and the 2nd defendant has never stayed on the suit land. Court also observed the land that was subdivided by the 1st and 2nd defendants though it was the plaintiff in possession of the same. - 29. I find the unlawful entry by the 1st and 2nd defendants and acts of conducting the subdivision of the suit land without the permission of the plaintiff who owned the same but it appears that the 1st and 2nd defendants are no longer on the suit land. It is only acts of subdivision of the suit land that amounted to trespass against the 1st and 2nd defendants. Therefore, this issue is answered in the affirmative.

#### **Issue 3; what remedies are available to the parties?**

30. Counsel for the plaintiff prays to have the 1st and 2nd defendants' certificates of title that were created from the subdivisions to be cancelled and registered in the names of the plaintiff.

- *31.* Section 177 of the Registration of Titles Act empowers Court to order the office of the Commissioner for land registration to cancel entries on the certificate of title on grounds of fraud. **(***See; Hilda Wilson Namusoke & 2 others v Owalla's Home Investment Trust (E. A) LTD & anor Civil Application No. 14 of 2019).* - 32. The findings of this court are that the subdivisions were unlawful and tainted with fraud, this court finds it appropriate to order for the cancellation of the certificates of title that were created as a result of the subdivision and have the certificate of title to the suit land comprised in Block 116 Plot 83 registered in the names of the plaintiff as the lawful proprietor. - 33. With regards to general damages as prayed for by the plaintiff, the law on general damages is that the damages are awarded at the discretion of the Court and the purpose is to restore the aggrieved person to the position they would have been in had the breach or wrong not occurred. **(See; Hadley v Baxendale (1894)**

## **9 Exch 341)**

34. The decision in **Kampala District Land Board & George Mitala v Venansio Babweyana Civil Appeal No. 2 of 2007** is well settled law on award of damages by a trial court. It is trite law that

damages are the direct probable consequences of the act complained of.

- 35. The defendants' conduct is thus key to the amount of the general damages awarded. If the trespass was accidental or inadvertent, damages lower. If the trespass was willful, damages are greater. And if the trespass was in between i.e. the result of the defendant's negligence or indifference, then the damages are in-between as well. - 36. I take note of the acts of the 1st and 2nd defendants in the instant suit and this court finds it fit to award the plaintiff Ugshs. 8,000,000(Eight million Uganda shillings) as general damages at an interest rate of 10% per annum till payment in full. - 37. Counsel for the plaintiff further prayed for both punitive damages and mesne profits, the law on punitive damages or exemplary damages is an exception to the rule that damages generally are to compensate the injured person. These are awarded to punish, deter, express outrage of Court at the defendant's egregious, highhanded, malicious, vindictive, oppressive and/or malicious conduct. *(See; Ahmed El Termewy v Hassan Awdi &*

*others HCCS No. 95 of 2012)*

- *38.* In the instant case, I do not find the need to award punitive damages against the 1st and 2nd defendants and the fact that the plaintiff, 1st and 2nd defendant are family members therefore, the said prayer is hereby denied. - *39.* Whereas the position of the law on *mesne* profits is settled. *Section 2(m) of the Civil Procedure Act* defines *mesne* profits as: *"…those profits which the person in wrongful possession of the property actually received or might with ordinary diligence have received from it together with interest on those profits, but shall not include profits due to improvements made by the person in wrongful possession".* - 40. In the case of *Annet Zimbiha v. Attorney General (Civil Suit 109 of 2011),* Bashaija J. stated, and correctly so in my view, as follows: "*It is settled that wrongful possession of the defendant is the very essence of a claim for mesne profits. The usual practice is to claim for mesne profits until possession is delivered up, the court having power to asses them down to the date when possession is actually given.*

*Now damages by way of mesne profits are awarded in cases where the Defendant has wrongfully withheld possession of the land from the Plaintiff."*

- *41.* In the instant case there is no evidence adduced from the plaintiff that the 1st and 2nd defendants withheld possession of the suit land from the plaintiff, it is the plaintiff in possession of the suit land and the 1st defendant who used to reside on the same vacated upon being served with court process, therefore I find that the plaintiff hasn't made a case for the award of mesne profits and the same are not awarded by this court. - *42.* Costs of the suit; Under Section 27 of the Civil Procedure Act, costs follow the event. The plaintiff being the successful party in this case is entitled to costs of the suit. - *43.* In the premises, judgment is entered for the plaintiff with the following orders; - a) An order of a permanent injunction is hereby issued restraining the 1st and 2nd defendants, their agents and servants from further acts of trespass or alienating with the suit land.

- b) An order directing the 3rd defendant (commissioner land registration) to cancel the certificates of title comprised in Kyadondo block 116 plots 868,869,870,871,872 and 873 formerly plot 83. - c) An order directing the 3rd defendant (commissioner land registration) to register the plaintiff's names as the registered proprietor for land comprised in Kyadondo Block 116 Plot 83. - d) An award of general damages of Ugshs 8,000,000 (eight million Ugandan shillings only) at an interest rate of 10% annually from the date of this judgement until payment in full against the 1st and 2nd defendants. - e) Costs of the suit awarded to the plaintiff.

## **I SO ORDER.**

# **NALUZZE AISHA BATALA**

#### **JUDGE**

# **28th/08/2024**