[2022] UGHCLD 139

#### THE REPUBLIC OF UGANDA

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

#### (LAND DIVISION)

### CIVIL SUIT NO. 457 OF 2014

\$

# BENON TURYAMUREEBA :::::::::::::::::::::::::::::::::::

#### **VERSUS**

- 1. EMMANUEL NGOBI - 2. CHARLESTONE GENERAL AUCTIONEEERS & COURT BAILIFFS - 3. COMMISSIONER LAND REGISTRATION :::::::::::::::::::::::::::::::::::: - Before: Lady Justice Alexandra Nkonge Rugadya 10

# **JUDGMENT (EXPARTE)**

#### Introduction:

The plaintiff filed this suit, seeking:

- 15 - a) A declaration that the cancellation of the plaintiff's names from the title in respect of the land comprised in Block 8 plot 787, Rubaga (suit property) was unlawful; - b) An order that the 1^st defendant's names be cancelled and the plaintiff names reinstated on the title of the suit property.

#### 20

c) General damages, interest; and costs of th suit.

#### Background to the suit:

The background to this case is that in 2001, the plaintiff borrowed some money from one Anil Daman and pledged the suit title to him comprised in Lubaga Block 8, Plot 787. In 2001 he

filed a suit Civil Suit No. 147 of 2001 against Anil Daman. 25

The two reached a consent which among others provided that judgment in Civil Suit No. 147 of 2001 be entered against the plaintiff in the sum of Ugx 7,000,000/=, payable within 45 days from the date of the consent.

Julary

whcn thc plaintiff failcd to comply with thc ordcr of 3"r May, 2001, Anil l)aman procccded to exccutc. I lis bailiffs attachcd thc plaintiffs vchiclc. Whcn thc mattcr camc up for notice to show causc, it was agrccd that thc plaintiff bc givcn 30 days to pay.

5 The judgmcnt crcditor Anil l)aman was to immcdiatcly rclcasc thc plaintiffs vchiclc under attachment upon cffccting such paymcnt. n n ordcr was madc but ncithcr party complicd with that order.

ln 2OO2, th(: plaintiff filtxi Ciuil Sult IVo. 39a oJ 2OO2, whcrc hc was intcr-alia, challenging I)aman's vr,ithholding of th(: plaintiffs vr:hiclr:. Ilc furthcr filcd Mlscellaneous o,PPllcatiorr No. a95 of 2OO4 arising from Ciuil Suit .lVo. 398 oJ 2OO2).

tn Mlscellaneous Appllcqtion No. 895 oJ 2OO4 thc plaintiff horcin was sccking that cxccution procccdings in Ciull Suit.lvo. 147 oJ 2OO 1bc stayod u ntil thc ht:aring and disposal ofCluil sult No. 398 oJ 2OO2. 10

Thc court furthcr scl conclitions for thc plaintiff to dcposit in court sccurity for costs of Ugx 3,5OO,OOO/ (1'hrcc million fivc hundrt:d thousand shillings), which hc did, as clcarly indicatcd in his unchallcngcd witncss statcmcnt.

^Ilowcvcr, cvcn bcf<rrc procccding with Cluil Suit JVo. 39A of 2OO2, thc plaintiff latcr discovcrcd that thc 2n,r dcfcndant, acting on bchalf of Anil I)aman, was procccding with cxccution in Ciull Suit IVo. 147 of 2OO1-v(:t all th(: mon<:1- ha<l t)(xrn dcpositcd.

ln 20'13, upon making scarch a1 thc land Ilcgistry, thc plaintiff discovcred that thc suit propcrty was transfcrrcd to thc namcs of thc 1\$ dcfcndant on 30rl' January, 2O07 under court exccution in Cluil Sult No. 747 oJ 2OO7. 2A

The suit challcngcs thc lcgality and propricty of th(: salc of thc plaintiffs propcrty undcr exccution which had bccn stoppcd I)y court.

#### Represe'rtation:

I

- Thc plaintiff was rcprcscntcd bt M/s lllutesigge ltugisha. & Co. Aduoc.rtes. Thc 2nd dcfcndant filcd his dcfi:ncc on 'lsrScptcmt)cr, 2015.'l'hc court rccord indicatcs that on 13'h April, ²⁰¹⁷ court prcsidcd ovcr by J. Naiga (RII') had made a dccision 10 procccd exparTe agair,st the 1sr and 3,d defendants upon bcing satisficd that thc two had bccn duly scrved and had failcd to llle thcir rcspcctivc dcfcnccs. ?5 - On 2.5rr, Ma), 2017 and as pcr affidavit filcd 9rh Scptcmlx:r, 2017 thc dcfcndants werc howcvcr summoncd again for thc hcaring of this casc. Ills Ssengooba & Co. Aduocdtes, which firm had 30

ue"s

filed the WSD for the 2^nd defendant were served by way of substituted service after the plaintiff had failed to locate their address for service.

On 5^th October, 2020, *M/s Mwesigye Mugisha & Co. Advocates* wrote to the 2^nd defendant's counsel which acknowledged receipt of the letter (but with a backdated stamp of 8th October, 2017), notifying the firm of the date of the next hearing of 19^th October, 2020. As also directed by this court, the 2^nd defendant was to file the trial bundle and witness statements before the date appointed for the hearing, which was not done.

At the next hearing, on 19th October, 2020, the defendants were all absent. It was evident that none of them had been served upon which another date of 10th November, 2020 was fixed for hearing of this matter.

Court on that day was informed that the firm declined to acknowledge service claiming that they no longer had instructions to represent the 2^nd defendant. As per affidavit of service, the firm which never filed any notice of withdrawal, however committed themselves to inform the 2^nd defendant about the directives of court. In addition, the defendants received service through the

Daily Monitor of 9^th November, 2020. 15

> The 3^rd defendant acknowledged service on 9^th November, 2020 however did not file any defence. None of the defendants showed interest thereafter to make any follow up despite having been effectively served at all material times. The matter therefore proceeded exparte.

#### Issues for resolution:

- In the plaintiff's scheduling memorandum the issues were: 20 - 1. Whether the sale and transfer of property comprised in Block 8 plot 787, by the 2^nd defendant to the 1^st defendant, under execution in Civil Suit No. 147 of 2001 was valid; - 2. Whether the $2^{nd}$ defendant acted illegally and fraudulently in the sale and transfer of the suit property comprised in Rubaga Block 8, Plot 787; - 3. Whether the 1^st defendant was privy/party to the illegalities and fraud in the process of the transfer of the suit property to him; - 4. Whether the 3^rd defendant acted negligently in the process of cancellation of the plaintiff's 30 name and registration of the 1st defendant's name on the title, comprised in Rubaga, Block 8, Plot 787; - 5. Remedies available to the parties.

Aylar

$\mathsf{S}$

# Consideration of Issues 1, 2 and 3.

Issues 1,2 and 3 are related since they refer to the validity/legality of the sale and transfer of the suit property and will therefore be considered jointly.

Section 101 of the Evidence Act provides 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 $\mathsf{S}$ those facts exist and the burden of proof lies on that person.

Section 103 of the same Act further stipulates that:

"The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence."

#### Analysis of the law: 10

Section 59 of the Registration of Titles Act provides that a certificate of title is conclusive evidence of ownership, save in cases where fraud is proved.

As per the recent decision passed in Senkungu Vs Yakobo, (SCCA No. 35 of 2006), fraud was defined as including all acts, omissions and concealments which include a breach of legal or equitable duty, trust or confidence. In all cases it implies a willful act by one person, intended to deprive another person of what he/she is entitled to.

Furthermore in Fredrick J. K Zabwe Vs Orient Bank & 5 Ors (SCCA No. 4 of 2006 court citing Black's Law dictionary, defined fraud as acting with intent to deceive or cheat; ordinarily for the purpose of either causing financial loss to another or bringing about financial gain to oneself.

- Fraud is such grotesque monster that courts should hound it wherever it rears its head and 20 wherever it seeks to take cover behind any legislation. It unravels everything and vitiates all transactions. (Fam International Ltd and Ahmad Farah vs Mohamed El Fith [1994]KARL 307). - Fraud by a transferor which is not known to the transferee cannot vitiate the title. It is trite law however that fraud that vitiates a land title of a registered proprietor must be attributable to the 25 transferee. (See: Wambuzi C. J, Kampala Bottlers vs Damanico (U) LTD, SCCA No. 27 of 2012). It is for those reasons that fraud must not only be specifically pleaded, it must be proved, to a level higher than that which is required for any other ordinary suit.

# Analysis of the evidence:

The particulars of fraud as pleaded against the 1^st defendant were: 30

Queed

- a) buying the suit land without bothering tpo confirm from court records whether the *execution process was proper;* - b) purchasing the suit land (if at all he did) without conducting a physical search from the occupants and the local authorities on the status of the land; - c) purchasing the suit land without confirming from the plaintiff as to whether the execution was proper or whether the plaintiff still claimed interest on the land; - *d) ignoring (sic!) fresh enquiries on the occupancy of the land.*

The particulars acts of fraud and illegality pleaded against the 2^nd defendant were as follows:

a). the 2^nd defendant sold the land in total disobedience of court orders staying execution; and in contempt of court;

b). the 2^nd defendant did not seek fresh authorization from court, before proceeding with execution;

c). no search was conducted by the $2^{nd}$ defendant as regards the status of court orders/records;

d). the $2^{nd}$ defendant did not follow the law in execution process;

It was also the plaintiff's contention that the 3^rd defendant had cancelled his name from the title without following the proper procedure; and failed to notify him of the intended cancellation of 20 his names from the title.

As pointed out earlier, neither the 1^st defendant nor the 3^rd defendant had filed a defence to deny any of the allegations raised against them by the plaintiff.

A defendant who fails to file a defence closes himself or herself out of the jurisdiction of court;

and cannot be heard. (Ref:Mufumba Fredrick vs Waako Laston Revision Cause No.006 of 25 2011; Kanji Devji Damor Jinabhai and Co. (19340) 1 EACA 87)

In his WSD, the 2^nd defendant denied liability and claimed that he carried out execution as ordered by court under Civil Suit No. 147 of 2001; and had duly followed the procedures regarding attachment and sale of immovable property.

These procedures included obtaining a warrant of attachment; advertising in the newspaper; 30 taxation of the bailiff's bill of costs inter partes; valuation report; and effective transfer for the title.


$\overline{5}$

The 2^nd defendant also claimed he had paid the judgment creditor; sold the property to the 1^st defendant and issued a notice to the plaintiff to vacate the premises. Furthermore that he had carried out execution and paid the monies realized from the sale to the proper persons and that the sums due to the plaintiff were deposited in court, awaiting collection. (Annextures K and L).

$\mathsf{S}$

He claimed further that no stay of execution was ever served to him by the plaintiff. Although he filed his defence, he did not turn up in court to substantiate the above claims.

It was an undisputed fact that in 2001 the plaintiff had borrowed money from one Anil Damani, pledging his title as security for the loan. In 2001, Damani had filed Civil Suit No. 147 of 2001 against the plaintiff claiming for the balance.

A consent was entered between the counsel for either side on 3^rd May, 2001. The judgment was 10 entered against the plaintiff and endorsed by court on 6th June, 2001 in the sum of *Ugx* 7,000,000/=, to be paid to the defendant within 45 days. (PExh 2 and PExh 3).

Subsequently, another suit was filed by the plaintiff vide: HCCS 398 of 2002 which challenged Damani's withholding of the plaintiff's vehicle contrary to the order of 9^th April, 2002 by the Deputy Registrar made vide: Civil Suit No. 147 of 2001.

By that order, Damani who was the defendant and judgment creditor in that suit agreed to release the vehicle belonging to the plaintiff/ judgment debtor. That in the event of default, the defendant/judgment creditor would apply for attachment of judgment debtor's house.

The plaintiff later also filed MA No. 895 of 2004 under which he obtained a stay of execution of the orders arising from Civil Suit No. 147 of 2001, pending the conclusion of HCCS 398 of 20 2002.

Under the stay order issued by this court (presided over by J. S Arach Amoko (as she then was), the plaintiff was to deposit $Ugx$ 3,500,000/= as security within a period of 30 days of the order, pending the determination of the main suit: HCCS 398 of 2002..

Court further ordered that should the plaintiff/applicant default on the payment then execution 25 was to be conducted in the normal manner. (ref: Annexture I2). The order was made on 17^th March, 2006 and extracted on 19th April, 2006. A warrant of attachment of the suit property was subsequently issued on 8th May, 2006.

It was the plaintiff's claim however that in compliance with the said order a sum of $Ugx$

3,500,000/= had been paid on 13^th April, 2006; Ugx 1,700,000/= on 21^st April, 2006; 30 Ugx. 1,100,000/= on 2^nd May, 2006; Ugx 200,000/= and final payment on 14^th April, 2006. (PExh 4).

Anborg

The plaintiff who testified as *Pw1*, also referred to the correspondences made between his counsel M/s Mwesigye Mugisha & Co. Advocates and the Ag. Assistant Registrar (Pw5). That on 15^th May, 2006 the plaintiff had received notice of vacation of the suit premises and notified of the pending sale of the suit property due to be made on 12^th June, 2006.

The said firm of M/s Mwesigye Mugisha & Co. Advocates had immediately written to the $\mathsf{S}$ Registrar on 7^th June, 2006 informing court that security for costs had already been deposited as per court order, and acknowledged by the cashier of the court.

That they were surprised therefore to receive the eviction notice from the 2^nd defendant against the plaintiff and therefore asked court at that point to recall the warrant which had been issued on 8th May, 2006.

In response, the Registrar on 16^th June, 2006 had this to say:

$\overline{\mathcal{L}}$

$\mathcal{L}$

The contents of your letter are not correct because your client failed to deposit in the court three million five hundred thousand shillings, as ordered by the judge.

The judgment creditor was therefore right to execute the decree against your client. 15

> However since your client has now deposited the entire sum for security for costs, it is not necessary for execution proceedings to continue save of course for the recovery of the outstanding costs. (emphasis added).

Your client can stop the process by paying to the bailiff the costs of execution. (PExh 5).

- It is not known if the bailiff's costs were eventually paid but what is clear is that a copy of that 20 letter was made to the 2^nd defendant (court bailiffs) who two days earlier, on 14^th June, 2006 had filed a return to court: Return in Civil Suit No. 147 of 2001: stating that following a warrant of attachment of immovable property of the plaintiff's land and its developments, an advert was made in the New Vision newspaper of 12th May, 2006. The property had been sold - on 13th June, 2006 to the 1st defendant on forced sale at Ugx 16,000,000/=. 25

The above implies that the 2^nd defendant was duly notified by court of the status of payment of the plaintiff's obligations, but still went ahead to sign the instrument of transfer and apply to the 3^rd defendant for a special certificate of title, without taking any trouble to challenge the court's decision.

Aubauf

It was the 2^nd defendant's claim that out of that amount, *Ugx 7,000,000/=* was remitted to Anil Damani through his lawyers M/s Verma Jivram & Associates Advocates and Solicitors. As per the return of warrant (Annexture K') addressed to the Deputy Chief Registrar, High Court, a balance of *Ugx 9,000,000/*= was due to be released after taxation of the bill of costs.

Against that backdrop, there were several other sub-issues which this court needed to address, $\mathsf{S}$ highlighted below under three subtitles:

# a. Whether the suit property was duly advertised for sale:

By virtue of order 22 rule 64 of the CPR, no sale of the property in execution of a decree shall take place until after the expiration of at least 30 days, calculated from date on which the public notice of sale has been advertised. That provision is couched in mandatory terms.

The attachment for sale in this instant case was made on 8^th May, 2006 for **plot 7879**. The advert for the sale of the same property placed in the advert, in the New Vision of 12th May, 2006. The property sold off on 13^th June, 2006 was however **plot 787**. It was the plaintiff's contention therefore that what was put up for sale was property described as "Plot No. 7879,

**Block 8** which did not belong to him. 15

Furthermore, a notice to vacate (Annexture "H" to the WSD) was purportedly issued to the plaintiff on 15^th May, 2006 by the 2^nd defendant but which, deduced from paragraph 2(g) of the rejoinder to 2^nd defendant's WSD the plaintiff had denied having received.

Paragraphs 1 and 2 thereof reads:

Please refer to an advert in the New Vision of 12/05/2006 (Page 86) attached hereto whereby your 20 house at Lubaga known as Kibuga Block 8, Plot 7879 is due to be sold on 12/06/06". (emphasis added).

You are now required to vacate the house ... to give potential buyers a chance to inspect the house....

The 2^nd defendant in a return of the warrant of execution made the following statement:

Following a warrant of attachment of immovable property of the plaintiff's land its development at 25 Lubaga Block 8 Plot 787 Busiro I advertised the suit property in the New Vision Newspaper of the 12^th day of May 2006 and sold on 13^th day of June 2006 to Emmanuel Ngobi" (Emphasis mine).

I cannot agree more with the submission by counsel for the plaintiff therefore that the notice to vacate, the advert for the sale and warrant of attachment indicated plot No. 7879, which was different from **plot No. 787** (suit property) referred to in the return of warrant.

Autable Counsel cited the case of Haji Amin Serumunye (objector) versus Greenland Bank and Another HC-Comm-MA. No. 469 of 2012, where the applicant applied for release of his property (Block 18, Plot 882) from execution.

While dismissing the application, the learned trial judge in that case noted that although this was a similar block, the properties were different since the plots were different. The said finding is equally applicable in this instance.

It goes without saying therefore that the plaintiff was not the owner of plot Number 7879 which had been put up for sale. As such, what had been advertised for sale was different from the suit property which was eventually sold to the 1st defendant. In short therefore, neither was the suit property ever advertised as required by the rules nor was it in any case available at the time for

In the event that it had been available for sale, it is a mandatory requirement for a warrant to be issued for every property to be sold in execution of an order of court which was never done for the property comprised in **Block 8, Plot 787.** As per **Annexture A, a warrant of attachment in**

this instance was for the property comprised in **Block 8**, plot 7879. 15

$\mathsf{S}$

sale.

The 2^nd defendant's argument that it had been issued prior to the sale of the suit property was therefore untenable.

# b. Whether the $2^{nd}$ defendant validly obtained the special certificate of title:

The law sets out an elaborate procedure for the sale of immovable property in the Civil Procedure Act, Cap. 71 (CPA) and the rules made thereunder (CPR), which I will not reproduce here.

Also as stipulated in section 48 of the CPA, a certificate of title must be lodged with court before the sale of the property under execution. Specifically under subsection (1) thereof, court may order but is not required to proceed further with the sale of any immovable property under a decree of execution until there has been lodged with court the title to the property. The court ordering such sale has power to order the judgment debtor to deliver up the certificate and show

25 cause why the certificate should not be delivered up.

Where satisfied that a judgment debtor has wilfully refused or neglected to deliver up such certificate when ordered, the court may commit him to prison for a period not exceeding 30 days. (section 48 (3) of the CPA.)

If satisfied that the certificate has been lost or destroyed or that the judgment debtor is wilfully 30 withholding such certificate it is court which has powers to call upon the registrar of titles to

a whould

issue a special certificate of title, as prescribed by the Registration of Titles Act. In this case however, what actually transpired is not known.

Suffice to note that an execution is irregular when any of the requirements of the rules of court have not been complied with and in those circumstances, a court is enjoined to make an order of restoration. (Ref: James Kabaterine vs Charles Oundo and Another HCCS 177 of 1994

$\mathsf{S}$

$\cdot\cdot$

cited with approval by the Court of Appeal in CACA No. 35 of 2008).

The plaintiff contended that following a search in the Land Registry on 21^st August, 2013 he had discovered that the property was transferred into the names of the 1^st defendant. He claimed further that on 21^st September, 2006 the 2^nd defendant had applied for a special

certificate of title since according to that letter the plaintiff had refused/neglected to surrender 10 the original title. There is no communication from court to lead to the conclusion that the court had directed the 3^rd defendant to issue a special certificate of title.

Evidence on record indicates that on 30th September, 2006 the Commissioner, Land Registration was notified of the sale of the property by public auction for the **plot No. 787**

through the firm of *M/s Ssengooba* & Co. Advocates, upon which he had requested for the 15 transfer to be made into the 1^st defendant's names. Yet as pointed out, **plot 787** was never advertised in the first place.

On 6^th November, 2006 relying on misleading information by the said firm, the 3^rd defendant had written to the Managing Director of Uganda Printing and Publishing Corporation. The objective of that correspondence was to give notice that after expiration of one month from publication in

20 the gazette, a special certificate of title would be issued, since the one originally issued in the names of the plaintiff was lost.

In paragraph 7 of the statutory declaration the 2^nd defendant claimed that the plaintiff had failed to surrender the same. In the very next paragraph 8 he claimed that the title had been

25 lost/destroyed.

> It was the 3^rd defendant's burden to verify the validity of the defendant's claims regarding the whereabouts of the duplicate certificate of title before placing the notice for a special title in the gazette.

Neither the 1^st defendant nor the 3^rd defendant were in court to explain the grave inconsistency. In the plaint itself it comes out clearly in paragraphs 6 and 7 thereof that the plaintiff had pledged 30 the duplicate certificate of title as security for the loan; and that there was wrongful attachment of his vehicle, yet the creditor Damani already had the certificate of title in his possession. The defendants did not bother to challenge that material aspect of the pleadings.

Arbough

Thc duplicate copy of thc ccrtificd copy of thc titlc prcscntcd by thc plaintiff as a matter of fact shows that Anil l)amanr was rcgistcrod on thc titlc as a lcgal mortgagcc as carly as 2007, on the samc date and ycar whcn thc 1"r dcfcndant acquircd his titlc. Thcrefore bcforc applying for ^a spccial ccrtificatc of tjtlc thc dcfcndants ought to havc known that the duplicatc certificate of titlc had rcmaincd in thc hands of Anil l)aman.

Indccd if thc plaintiff had failcd to pay thc full amount as claimcd thcn it would not havc made any sensc for thc judgmcnt crcdilor to rcturn thc duplicatc title 1() thc dcfaultcr. The statutory declaration in support of thc 2nd dcfcndant's bid for a spccial ccrtificate of titlc thcrcfore also containcd falsc and mislcading informatt)n

- Thc entry on thc titlc on 8rh Novcmbcr, 20 l3 indicatcs that thc plaintiff had attcmptcd to lodge ^acaveat on thc land on thc suit land on which thc 'ls defcndant was thc current owner having been cntcrcd on thc titlc on 3Orh. January, 2007. 'lhis was confirmed by PExh 8, a search statcmcnt, and yct proof was lcd that thc cntirc dcbr had by thcn alrcady becn scttled, as indccd acknowlcdgcd by court on l6rh Junc, 2006. 10 - ,l.he rcgistration of thc 1\$ dcfcndant on thc titlc was thcrcforc bascd <ln communication by the dcfendants, counscl. thc contcnts of which wcrc ncvcr vcrificd. Thcrc was no spccific order to authorize any such transfcr or to dircct thc 3"1 dcfcndant to issuc thc spccial titlc. 15

This implics that thc 2ud dcfcndant who signcd thc transfcr instrumcnt did so invalidly. tsut sccondly, that thc ls dcfcndant had purchascd land bcforc a carcful scarch was made at the land officc to cstablish thc actual owncrship of this land

This ought to havc bccn a rcd flag that would ordinarily havc put thc 1"r dcfcndant as the prospcctivc buycr on sufficicnt noticc of thc naturc of thc transaction in which hc was about to cnter. l.hc application by thc 2,,,r dcfcndant for spc'cial ccrtificatc of titlc which was made on 2l"t scptcmbcr, 2006 with assistancc of thc 3"1 dcfcndant, had not thcrcforc bccn made in good faith.

- ^Acourt of law cannot sanction whart is ilk:gal and an illcgality oncc brought to thc attcntion of court will ovcrridc all qucstions of pk:a<lings, including admissions madc thcrcin (Ref Phllemon wande.o. & 2 others us Yeselo Mugengi & Another SCCA JVo' I 1 oJ 20 1 8)' Thc supcrior court faulted thc court of Appr:al for failing to nullify and/or scl asidc thc illcgal sale for nonc<rmpliancc with order 22 rule 64 of the CPR (forrnerlg order 79 rule 22| 25 - 30

As corrcctly statcd no cxccution could procccd aftcr thc plaintiff had complctcd thc deposit of sccurity for costs, savc for thc bailiffs' bill of (:osts, which howcvcr according to thc plaintiff was

u 11

never served to him. Indeed there is no evidence on record that service of the taxation hearing notice was ever effected.

From the above findings, the plaintiff's action against the 2^nd defendant therefore succeeds.

## c. Liability of the 1^st defendant:

The plaintiff claimed that to date he and his family have enjoyed uninterrupted possession of $\mathsf{S}$ the suit premises which he referred to as his family/matrimonial home. The certificate of title indicates that he got the title in 1989 for the land comprised in "Block 8, Plot 787", measuring 0.10 ha.

Order 22 rule 82 provides that where a sale is conducted, then there must be delivery of property in occupancy of the Judgment debtor. A visit at the locus was held by this court on 9^th 10 December, 2021 which clearly showed that the plaintiff is currently in occupation of the property with his family.

It was also the plaintiff's claim and I agree, that the 1st defendant was duty bound to enquire and establish whether the property he purportedly purchased from the 2^nd defendant was the one appearing in the warrant of attachment and advert for as observed by the Court of Appeal in John Bagaire vs Ausi Matovu CACA 7/1796, lands are not vegetables. Buyers for land are expected to make thorough search prior to sale.

If he had made sufficient inquiries, he would have found discovered that the property appearing on the title was **Block 8 Plot 787**, not **Plot 7879** as advertised for sale. He failed to make the appropriate inquiries from the plaintiff, the neighbours and LCs about the occupation of this 20 property. If he had done so, he would have found that the plaintiff was in occupation of the property.

If the 1^st defendant had gone to court to confirm which of the two properties was under execution and sale he would have established that there was no order directing attachment of the suit property which he intended to buy and would have also been informed by court that the debt 25 had been fully paid and that the plaintiff no longer had any liability in Civil Suit No. 147/2001; and that by 13^th June, 2006 when the sale was purportedly conducted, the house/suit property was no longer available for sale.

All the above proved to court that no due diligence was conducted by him as the prospective buyer and therefore he was not a bona fide purchaser for value without notice of the fraud. 30

Whole $\mathcal{F}$

All in all, and in response to issue No. 1, the transfer of the suit proper was not valid as it had been carried out without adhering to the requisite rules. In respect of issue No. 2 the 2^nd defendant acted illegally and fraudulently in the sale and transfer of the suit property.

It would also be reasonable to conclude that since he is presumed to have been the agent of the 1st defendant, the 1st defendant had constructive knowledge of the illegalities and fraud $\mathsf{S}$ committed in the process of transfer of the suit property to him.

The defence of a bona fide purchaser for value without notice was not therefore available to the 1^st defendant. This also addresses issue No. 3 accordingly.

### Issue No. 4: Whether the 3^rd defendant acted negligently in the process of cancellation of the plaintiff's name and registration of the 1^st defendant's names on the title.: 10

This issue has been partly addressed.

In line with its mandate, the 3^rd defendant (just like the 2^nd defendant in line with his work as a bailiff) owed a duty to those they were mandated to serve.

The 3^rd defendant ought to have demanded for a warrant of attachment of **block 8**, plot 787; advert of sale of the suit property; a court order directing the Commissioner of Lands to cancel 15 the plaintiff's name and register the 1st defendant; transfer instruments/agreement of sale and evaluation form, among other documents.

Had he carefully examined the forms all of them within its custody, would have realized that the property in the warrant and advert was different from the one in the transfer form and evaluation

report. He would at that point have guided the process by requesting for further and better 20 particulars on the property in respect to which the office was to take action and also to rule out any possibility that the discrepancy in plot numbers was nothing other than a genuine error.

It is finding by this court therefore that the 3rd defendant had acted negligently and failed to carry out its duty in respect of the suit property. This issue is therefore answered in the

25 affirmative.

$\overline{ }$

### Issue No. 5 Remedies:

The prayers by the plaintiff were made for the cancellation of plaintiff's names from the title was unlawful; reinstatement of his names onto the title; general damages for the inconvenience caused by the defendants' fraudulent and illegal transactions; interest and costs payable jointly and severely by the defendants.

Umbrong.

In submissions learned counsel prayed that a sum of *Ugx 500,000,000/*- be awarded as general damages calculated as sufficient to atone for the stress and mental anguish endured and inconveniences suffered in his desperate attempts to stop further transactions on the suit land, upon discovery of the transfer in 2013; and interest at 23% from date of judgment, taking into consideration the more than six years spent in court.

### General damages:

$\ddot{\phantom{0}}$

$\mathsf{S}$

In submission a sum of *Ugx 500,000,000/*= was proposed as an award to the plaintiff for general damages. The plaintiff did not endeavor to explain how he had arrived at that estimate, thus leaving the determination of the damages to this court.

It is trite law that damages are the direct probable consequences of the act complained of such 10 loss of use, loss of profit, physical inconveniences, mental distress, pain and suffering. (Kampala District Land Board Vs Venansio Babweyana Civil Appeal No. 2 of 2007).

Taking into account the period 8 or so years spent in court and the distress caused to the plaintiff throughout the period, knowing that any time he would be made homeless, an award of *Ugx*

100,000,000/= to the plaintiff would be considered a fair amount, to atone for the 15 inconvenience, pain and suffering occasioned to him through the fraudulent and illegal acts of the defendants.

Section 177 of the RTA provides that upon recovery of land this court may direct the office of Commissioner, Land to cancel any certificate of title and substitute such certificate/entry as the circumstances may require.

In the premises, the following orders are issued:

1. The registration of Emmanuel Ngobi on the certificate of title for land comprised in Lubaga Block 8, plot No. 787 is cancelled and substitution thereof made by the Commissioner, Land Registration into the names of the plaintiff, Benon Turyamureeba.

- 2. The defendants shall pay a sum of Ugx 100,000,000/= as an award to the plaintiff in general damages, as follows: - a. 50% is to be paid by the $2^{nd}$ defendant; - b. The balance of Ugx 50,000,000/- is to be paid jointly by the $1^{st}$ and the $3^{rd}$ defendants;

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- c. Interest at the rate of 15% p.a is payable from the date of delivering this judgment till payment in made in full. - d. Costs of the suit to be met by the $1^{st}$ and $2^{nd}$ defendants.

Alexandra Nkonge Rugadya

Judge

$\cdot\,$

$\mathsf{S}$

27th July, 2022. 10

Deliver dy email<br>Aubag<br>G. 27/07/2022.