[2025] UGHC 305

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT LUWERO HCT-17-LD-0051-2025 FORMERLY LAND DIVISION HCT-00-LD-CS-0325-2016**

**YEREMIYA KAYISE……………………COUNTER CLAIMANTS**

#### **V 1. WASULA SAMUEL**

**2. BUGANDA LAND BOARD……………. COUNTER DEFENDANTS**

## **BEFORE LADY JUSTICE HENRIETTA WOLAYO**

### **JUDGMENT**

#### Introduction

- 1. By a counter claim filed on 31.7.2019, Yeremiya Kayise sued Wasula Samuel and Buganda Land Board, Kayise for fraudulent acquisition of a certificate of title to defeat his rights as a party in possession. The brief facts of the claim are that in January 2008, Wasula approached his father Kayise to swap their respective interests in land. Kayise was to surrender his ten acres of land he had inherited from his late father Yeremiya Muduki which was part of Block 641 Plot 12. This land measures 12.10 hectares. In turn, Wasula was to surrender the suit land (now Bulemezi Block 652 Plot 959) to his father Kayise. - 2. Upon agreeing to swap, Wasula asked Kayise to surrender the title to the suit land which is apparently Block 641 Plot 12 measuring 12.10 hectares so that he can curve out his ten acres which Kayise did. - 3. It was Kayise's claim that by a deed dated 2.5.2009, 2019(CExh.3) Kayise gave the house he had got from the swap to his daughter Lydia Kayise. - 4. It was further Kayise's claim that he never saw the residue of 20 acres from Block 641 Plot 12 after Wasula curved out his ten acres yet the residue was to be shared among beneficiaries of late Muduki who include the widow Lebeka Muduki who

was entitled to ten acres and the balance of ten acres was for the estates of Kayise's two deceased sisters.

5. The first counter defendant Wasula did not file a reply to the counterclaim but the second counter defendant Buganda Land Board filed a defense to the counterclaim since it was not originally a party to the suit. In their defense, Buganda Land Board denied fraud and averred that it was not aware of the swap arrangements between Kayise and his son Wasula and that it processed a lease for a kibanja. Furthermore, that Kayise is a stranger to the lease agreement between Buganda Land Board and Wasula.

#### Background facts

- 6. On 2.6.2016, Wasula filed **formerly Land Division Civil Suit No. 325 of 2016 against Lydia Kayesi, Sunday Mugwanya and Yeremiya Kayise** for recovery of a piece of land measuring 50 feet by 130 feet located in Kiwogozi-Kasana Luwero. The basis of Wasula's claim was that he had bought the land while he was out of the country and sent money to construct the house. He had allowed Lydia Kayise and Sunday Mugwanya (first and second defendant in the suit) to temporarily occupy the house but they continued occupying the same. - 7. On 19.4.2022, the plaintiff's suit was dismissed by my brother Kawesa J under order 17 Rule 4 of the Civil Procedure Rules for want of prosecution and the counterclaim set down for hearing on 1.7.2022. The counterclaim is against Wasula Samuel and Buganda Land Board only. - 8. On 1.7.2022, the counter claim was heard by my brother Kawesa J and parties were given a schedule file written submission in the presence of the first counter defendant Wasula; counsel Mukwaya for the second counter defendant; and counsel Kenneth Situma for the counter claimant. Subsequently, the file was transferred to the newly created circuit of Luwero. I have carefully considered submissions of both counsel.

#### Resolution of the case

- 9. Two issues were framed for trial. - a. Whether the first counter defendant obtained title fraudulently. - b. Remedies.

#### Burden of proof

10. In civil cases, the plaintiff has a legal the 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'.*

11. The standard of proof required in civil cases is premised in case law. In **Bater v Bater [1951] 35 at 36-37**, Denning LJ had this to say on varying degrees of standards in civil cases.

*'…in civil cases, the case must be proved on a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject matter. 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. This means the standard of proof in cases where fraud is pleaded is slightly higher than the standard in ordinary civil cases but it is not as high as beyond reasonable doubt. - 13. The claimant Kayise pleads the following particulars of fraud against Wasula the counter defendant:

- a. Stealthily processing the certificate of title without involving the counter claimant. - b. Withholding information from Buganda Land Board about the swoop hence obtaining a lease fraudulently. - c. Giving false information about ownership of the suit land while applying for the lease certificate. - 14. Particulars of fraud against Buganda Land Board: - a. Agreeing to process the lease certificate of title without properly confirming the true identity of the owner in possession. - b. Failure to do due diligence as to status of the suit land thus giving a wrong party the suit land in violation of the counter claimant's interest.

#### The counterclaimant's case against Wasula the first counter defendant

- 15. According to his written evidence, Kayise received ten acres as his share in the estate of his late father Yeremiya Muduki through a Will. These ten acres are part of land comprised in Bulemezi Block 641 Plot 12 situate at Seta, Luwero, which in total measures 12.10 hectares or approximately 30 acres. According to Kayise, the remaining acres after removing the ten acres he swapped with Wasula, is twenty acres. It was Kayise's testimony that these twenty acres are shared between the widow of the deceased Muduki who happens to be Kayise's mother and his sisters. - 16. It was further Kayise's case that in 2006, Wasula who was working in Sudan sent him money to construct a house for him on the suit land which Kayise did and the house is still under construction. - 17. According to Kayise, on return from Sudan, Wasula approached Kayesi to swap his (Kayesi's) ten acres for Wasula's house and plot which proposal Kayesi accepted. It emerged during the trial that this is the suit land and it is described as leasehold Volume 4637 Folio 7 on Bulemezi Block 652 Plot 959 at Kiwogizi –

Butuntumula measuring 0.058 hectares. This is the same property Kayesi donated to his daughter Lydia Kayesi on 2.5.2009.

- 18. According Kayesi, to confirm the arrangement, he gave Wasula a certificate of title (Block 641 Plot 12) to mutate the ten acres while Wasula handed to Kayesi a partly developed land. It was Kayesi's case that he took possession and completed the construction of the house along with a perimeter wall and gate. - 19. The purpose of handing over the certificate of title was to enable Wasula mutate the ten acres and return the title with the reversionary interest less the ten acres. - 20. Kayesi is silent on when he handed over his certificate of title to Wasula but, in 2015, Wasula went to the suit land and destroyed the perimeter wall. A criminal case was reported under reference No. L/CRB/159/2016. It was Kayesi's testimony that he learnt from police inquiries that Wasula had transferred the entire 30 acres into his names and then secured a lease on the suit land. - 21. What is certain is that certificate of title for Block 641 Plot 12 measuring 12 hectares was first registered to one Yeremiya Mubukaki on 20.12.1955. On 20.2.2007, it was transferred to Kayise Yeremiya and on 28.3.2008, it was transferred to Samuel Walusa. The land is described as private mailo. - 22. The leasehold certificate of title marked CCD9 is for Bulemezi Block 652 Plot 959 for land measuring 0. 0.058 hectares was registered in the names of Wasula Samuel on 20.9.2018. This land is located at Kiwogizi-Butuntumula and it is the land in dispute. - 23. Furthermore, according to the deed of donation dated 29.1.2008 marked CC Exh. No.4, Wasula gave his father a house on the plot he purchased from Wasswa son of Kasule. The deed is signed by Wasula and witnessed by Kayise Mirembe Esther.

24. I reproduce the content:

*Date: 29.1.2008*

*'I Wasula Samuel , I have given my father Yeremiya Kayise who stays in Nsaasi Luwero , my house situated in Kiwogozi, Kasana Luwero District. I have given him the house while I am still alive and of sound mind. The house is on the plot that I purchased from Wasswa the son of Kasule'*

*Signed: Wasula Samule Witness: Kayise Mirembe Esther*

- 25. There is no mention of a swap between Kayise and Wasula but the deed clearly identifies the gift as a house located in Kiwogozi Kasana Luwero. This is the land that was registered in 2018 as a lease on Block 652 Plot 959 measuring 0.058 hectares, in favour of Wasula. - 26. Although CC Exh. No. 4 is silent on the ten acres for which Wasula was exchanging his house and plot, the fact that Kayise transferred to his son Block 641 Plot 12 on 28.3.2008 just two months after Wasula had donated him the suit land on 28.1.2008 is a relevant fact except that it does not prove conclusively the swap. - 27. Kayise complains in the counterclaim that Wasula stealthily processed a certificate of title without involving him but Kayise confirms that the kibanja in dispute belongs to Wasula and it is located on Buganda Land Board land. - 28. From the testimony of CW No. 2 Mirembe Esther Kayise, she was a witness to the deed wherein Walusa donated his father a house on a plot he bought from

Wasswa. Lydia Kayise daughter of Kayise Yeremiya confirms in her witness statement that she witnessed the donation. Although Mirembe Kayise also mentions in her witness statement that the gift was in exchange for her father's ten acres, this information is missing from the exhibit.

- 29. However, the fact that DW3 Chelangat the handwriting expert confirms that Wasula indeed signed the deed is a relevant fact because it speaks to the authenticity of the donation. Mirembe also confirms that she heard Wasula talking with his father about the same but admits no official from Buganda Land Board was present. - 30. The deed together with the taking of actual physical possession by Kayise Lydia who is Kayise's daughter and by extension his agent, supports the claim that the land was gifted. In the absence of evidence to contradict the claim to Block 652 Plot 959, and as the claimant has adduced credible evidence that Wasula donated the land to him and he took possession, I find that the gift took effect and this land belongs to Kayise regardless that Kayise did not prove to the required standard the swap arrangement because there need be no consideration for a gift to take effect. - 31. The donation took place when the land was still a kibanja on Kabaka's land and therefore the deed was governed by customary law at the time. This means, it did not have to be registered with the Uganda Registration Services Bureau (URSB) as taking physical possession after a donation of a kibanja is sufficient to render the gift effective in law. - 32. In **Oyet and Anor V Obwola( Civil Appeal No. 0068of 2016[2018] UGHCCD 65 (25 October 2018) Mubiru J** discussed authorities which hold that a gift inter vivo of land held under customary tenue is effective once the donor must intend to give the gift, and exclusive possession will suffice as evidence of the gift and acceptance by the donee.

- 33. By going ahead to obtain legal title to the kibanja in 2018 after Kayesi had taken possession, Wasula acted fraudulently to defeat the gift, conduct that this court will not condone. A declaration shall issue that Block 652 Plot 959 is the property of Kayesi. - 34. The second defendant's witness Bukirwa Joyce Samantha DW1 confirmed that Wasula applied for a legal interest in the kibanja and the Board was not made aware of a swap between father and son. It is not so much about the swap but about the gift. As the second counter defendant could not have known of the gift of kibanja to Kayesi by Wasula, the second defendant was not party to the fraud. - 35. In the premises, I find on a balance of probabilities that the counter claimant has proved that Wasula stealthily and fraudulently obtained legal title to the kibanja he had gifted his father in 2009 and on this basis, the counter claim succeeds. - 36. Regarding the second counter defendant, it was not privy to the donation of kibanja by Wasula and therefore cannot be faulted for processing the legal title. - 37. In the premises, the counter claim succeeds as against the first counter defendant but fails as against the second counter defendant.

#### Orders

- a) The counter claim against the first counter defendant Wasula Samuel succeeds. - b) The counter claim against the second counter defendant is dismissed. - c) A declaration is issued that Block 652 Plot 959 is the property of Kayesi Yeremiya. - d) The first counter defendant Wasula Samuel shall hand over the duplicate certificate of title for leasehold Volume 4637 Folio 7 on Block 652 Plot 959 to Kayesi Yeremiya within twenty-one days from the date of this order. - e) Upon failure to hand over the certificate of title, the Registrar of Titles is directed to cancel the certificate of title in Walusa's possession and issue another

duplicate certificate to Kayise Yeremiya once twenty-one days have lapsed from the date of this order.

- f) The counter claimant Yeremiya shall pay the second counter defendant Buganda Land Board costs of the counter claim. - g) The first counter defendant Wasula Samuel shall pay the counter claimant Kayise costs of this counterclaim.

## **DATED AT LUWERO THIS 10TH DAY OF MARCH 2025.**


## **LADY JUSTICE HENRIETTA WOLAYO**

Legal representation

Emiru Advocates and solicitors for the counter claimant Buganda Board Legal department for the second counter defendant.