[2024] UGHC 412

# THE REPUBLIC OF UGANDA IN THE HIGH OF UGANDA AT JINJA **CIVIL SUIT NO.18 OF 2021**

## ZENITH AGRO SERVICES LIMITED::::::::::::::::::::::::::::::::::::

#### **VERSUS**

# 1. DEPARTED ASIANS PROPERTY CUSTODIAN BOARD

# 2. THE COMMISSIONER LAND REGISTRATION:::::::::::::::DEFENDANTS

### **BEFORE: HON LADY JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI**

#### **JUDGMENT**

#### **Introduction**

The Plaintiff brought this suit against the $1^{st}$ and $2^{nd}$ Defendants seeking a declaration that the Plaintiff is the lawful owner of the property comprised in Butembe FRV 60 Folio (Plot 2 Bell Avenue, Jinja measuring approximately 0.3857 Hectares (herein after referred to as the suit land); a declaration that the acts of the $2^nd$ Defendant attempting to create another certificate of title in the name of Plot 1 Grant Road out of the Plaintiff's land (suit land) without the Plaintiff's consent are illegal and fraudulent; A declaration that the acts of the 1^st Defendant granting permission to the 3^rd and 4^th Defendants to occupy land allegedly comprised in Plot 1 Grant Road being created out of the Plaintiff's land is illegal land fraudulent; a permanent injunction restraining the 1^st and 2^nd Defendants, their servants/agents and/or person(s) acting under their authority from creating Plot 1 Grant Road and processing a certificate of title for the same out of the Plaintiff's land as comprised in the suit land; A permanent injunction restraining the Defendants jointly and severally from dealing in the Plaintiff's land comprised in the suit land or creating any third-party interests therein; Exemplary, punitive and general damages; interest; and costs of the suit.

In her Written Statement of Defence, the 1^st Defendant denied all the allegations set out in the Plaint and stated that Plot 2 exists, was expropriated but the proprietors did not apply to repossess the same and as a result, the same was advertised for sale under Statutory Instrument 17 of 1995.

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#### Representation

The Plaintiff was represented by M/S Arcadia Advocates while the 1^st Defendant was represented by the M/S Victoria Advocates and Legal Consultants. The 2^nd Defendant was not represented at the trial.

#### **Background**

The Plaintiff brought this suit claiming that she is the registered proprietor of land comprised in FRV 60 Folio 9 Plot 2 Bell Avenue Jinja which land is approximately 0.3857 Hectares (0.950 acres). The Plaintiff further claims that sometime in 2020, it was realised that the 2^nd Defendant at the instance of the 1^st Defendant was in the process of splitting the suit land into halves by curving out another portion known as Plot 1 Grant Road without informing the Plaintiff or her officers. The Plaintiff brought this suit to stop the defendants from creating Plot 1 Grant Road.

It should be noted that whereas the 1^st Defendant filed a Written Statement of Defence, neither the 1^st Defendant nor her Counsel showed up for subsequent court proceedings despite being served with hearing notices. The 2^nd Defendant on the other hand neither filed a Written Statement of Defence nor made an effort to appear in court. Consequently, this Court upon being moved by the Plaintiff granted an order that this matter proceeds exparte.

#### **Plaintiff's Evidence**

The Plaintiff led the evidence of Mr. Jay Patel PWI and Ms. Alaisa Mohammed Baiga PW2.

#### Jay Patel (PW1)

PW1, Jay Patel testified that he is the Director of the Plaintiff company, a resident of Factory Village, Walukuba Masese, Jinja District. He stated that the Plaintiff is the registered proprietor of FRV 60 Folio 9 Plot 2 Bell Avenue, Jinja District and its occupant as evidenced in the Certificate of Title marked PEX1 and copies of the pictures of the suit land marked as PEX2.

He further stated that sometime in 2022, through a boundary opening process, he got to know that there was another unascertained plot created on the Plaintiff's land described as Plot 1 Grant Road. On consulting the 2^nd Defendant about the creation of Plot 1 Grant Road, agents

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of the 2^nd Defendant informed him that Plot 1 Grant Road was being created on the advice of the 1st Defendant. The Plaintiff further wrote to the Senior Staff Surveyor Jinja MZO informing her of the fraud but no response was made (A copy of the letter was attached and marked as PEX4).

Around the same period, various people including Ms. Nyago Diana and the 1^st Defendant's officials attempted to take over the Plaintiff's land but were resisted and stopped by the Police. The 1^st Plaintiff learnt that on the 15^th November 2019, the 1^st Defendant granted an entity known as D&J Enterprises permission to continue occupying the property comprised in Plot No.1 Grant Road, Jinja. A copy of the letter was attached and marked as PEX5. He however stated that the contents of the said letter were false as no entity referred to as D & J has been occupying the suit land. On 21^st April 2021, the 1^st Defendant wrote to the Chairperson Jinja District Land Board asking him to deter any action relating to plot 1 Grant Road. The 1st Defendant claimed that Plot 1 Grant Road existed. The Jinja District Land Board wrote to the 1^st Defendant informing them that Plot 1 Grant Road did not exist (A copy of the said letter was attached and marked PEX8). He also stated that he came across a correspondence from the Ministry of Lands Housing and Urban Development clearly indicating that Plot 2 Bell Avenue measuring approximately 0.386 Hectares existed. (A copy of the Correspondence was attached and marked PEX9).

## Alaisa Mohammed Baiga (PW2)

PW2 identified herself as Alaisa Mohammed Baiga a Surveyor whose Survey Registration number 214. She testified that she made a boundary report in this matter that is marked PEX3. She stated that she got instructions from the Representatives of the Registered Proprietor, Mr. Jay Patel, to come and open the boundaries of the suit land in 2020 for the purpose of erecting a perimeter fence around their property.

She stated that the documents which were availed to her read Plot 2, Bell Avenue Jinja Municipality registered in the certificate of title FRV 60 Folio 9. That in the process of verification, she realized that Plot 2 had been tampered with. The title that had been given to her by the Plaintiff read Plot No.2 Bell Avenue visa vis acreage which Was 0.386 Hectares (0.95 acres) yet the documents from the mapping registry (cadastral) had been tampered with and they were creating Plot No.1 along Grant Road. That although, Plot 2 was maintained, its acreage was affected. Page 3 of 11

#### Determination of the suit

In determining this suit, the Court shall adopt the issues raised by the Plaintiff;

- 1. Whether the actions of the Defendants jointly and severally attempting to subdivide and create Plot 1 Grant Road out of the Plaintiff's land comprised in Plot 2 Bell Avenue are lawful. - 2. Whether the acts of the $2^{nd}$ Defendant granting permission to individuals to occupy the Plaintiff's land claiming to be comprised in Plot 1 Grant Road are lawful. - 3. What remedies are available to the parties?

Issue 1: Whether the actions of the Defendants jointly and severally attempting to subdivide and create Plot 1 Grant Road out of the Plaintiff's Plot 2 Bell Avenue are lawful

While citing Section 59 of the Registration of Titles Act and the case of Katarikawe V Katwiremu & Another (1997) HCB 187, counsel for the Plaintiff made an argument that from the evidence on record, the Plaintiff possesses a certificate of title for the land comprised in FRV 60 Folio 9 Plot 2 Bell Avenue Jinja measuring 0.3857 Hectares which is conclusive evidence of ownership of the suit land. He further submitted that the 1^st Defendant in their Written Statement of Defence did not seek to impeach the said title on grounds of fraud against the Plaintiff.

Consequently, in the absence of any fraud allegation or even proof of fraud against the Plaintiff by the Defendants, counsel invited the court to find that the Plaintiff's certificate of title for the suit land is proof of ownership and that the Plaintiff is the lawful owner of the suit land comprised in FRV 60 Folio 2 on Bell Avenue in Jinja.

He further submitted that the evidence led by PW2 in her report disclosed a noticeable discrepancy on the cadastral map with another plot known as Plot 1 Grant Road being created from nowhere. He further submitted that the pursuit to grab the Plaintiff's land went futile when the Jinja District Land Board in its letter dated 19^th May 2021 wrote to the 1^st Defendant informing it that Plot 1 Grant Road does not exist.


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Counsel further submitted that the attempt to covertly subdivide the Plaintiff's land and create Plot 1 Grant Road for the benefit of the 1^st Defendant, without involving the Plaintiff is a perversion of the truth and fraud and as such, it is only intended to deprive the Plaintiff of half of its land. The attempt to create plot 1 Grant Road out of the Plaintiff's land by the 2^nd Defendant did not comply with the provisions of section 96 of the Registration of Titles Act. Accordingly, in the absence of any instrument of transfer signed by Plaintiff in favour of the 1^st Defendant, or memorandum endorsed as required by the law, the purported creation of Plot 1 Grant out of Plot 2 Bell Avenue is illegal and fraudulent.

Finally, counsel argued that the failure by the Registrar of Titles to consult or even inform the Plaintiff before interfering with the information in the cadaster map to slice the Plaintiff's land into two halves was a violation of the right to a fair hearing in administrative decisions enshrined under Article 42 of the Constitution of Uganda. He cited the cases of Twinomugisha Moses V Rift Valley Railways (U) Limited HCCS NO.212/2009 and Gold Leaves Hotels and Resorts Limited V Uganda Revenue Authority Civil Appeal No. 64 of *2008* I support of this argument.

He concluded by praying that the court finds that the decision of the 2^nd Defendant to subdivide the Plaintiff's land as comprised in Plot 2 Bell Avenue to create Plot 1 Grant Road in favour of the first Defendant in the absence of according the Plaintiff an opportunity to be heard was illegal, null and void.

In resolving this issue, the court is going to raise two questions; firstly, who is the proprietor of the suit land? Secondly, whether the creation of Plot 2 was lawful.

On the first question, it is trite law that a proprietor of land shall be determined by checking the registry of titles to ascertain who the registered owner of the land is. Section 46(4) of the Registration of Titles Act states any person whose name shall appear on a certificate of title shall be the proprietor of the land in respect to that title. Section 46(4) of the RTA states;

"The person named in any certificate of title or instrument so registered as the grantee or as the proprietor of or having any estate or interest in or power to appoint or dispose of the land described in the certificate or instrument shall be deemed and taken to be the duly registered proprietor of the land."

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So, to determine who the lawfully registered proprietor is, it is prudent for the court to examine the Certificate of Title with respect to the suit land. In any case, the Certificate of Title shall be the proof of conclusive ownership of the suit land as envisaged under Section 59 of the Registration of Titles Act which states;

".......every certificate of title issued under this Act shall be received in all courts as evidence of the particulars set forth in the certificate and of the entry of the certificate in the Register Book, and shall be conclusive evidence that the person named in the certificate as the proprietor of or having any estate or interest in or power to appoint or dispose of the land described in the certificate is seized or possessed of that estate or interest or has that power."

In interpreting this provision, courts have held that provisions of section 59 of the RTA are clear that once a person is registered as a proprietor of land, his title is indefeasible except for fraud. See Kampala Bottlers Ltd v Damanico (U) Ltd [1993] UGSC 1 (11 January 1993); Katarikawe V Katwiremu & Another [1977] HCB 187.

From the evidence on record, there is a Certificate of Title in respect of FRV Volume 60 Folio 9 known as Block (Road) at Bell Avenue on Plot 2, Butembe County, Jinja District measuring 0.3857 hectares marked PEX1. The proprietor indicated on the Certificate of Title is Zenith Agro Services Limited of P. O Box 541, Jinja who was entered on the certificate of title on the 16^th of October 2018. This therefore proves that the Plaintiff in this case is the proprietor of the suit land.

Before I take leave of this question, one of the contestations in this suit concerns the size of the suit land. PW2 testified that the suit land measures approximately 0.3857 hectares (0.950 acres). On page 2 of the Survey Report dated 15^th August 2020 by Dynamic Land Projects Ltd marked PEX3, it is stated that the area for Plot 2 as demarcated on the ground computed to 0.386Ha (approximately 0.950 ac). Furthermore, during the locus visit on the suit land carried out on 13/12/2022, PW2 showed the court the mapping of the suit land and the numbers marked on the perimeter wall. Finally, from the evidence on record and the locus visit, I am convinced that the suit land that was visited measures 0.3857 hectares. Therefore, the suit land measuring 0.3857 hectares is owned by the Plaintiff.

Page 6 of 11 Moving on to the second question which seeks to investigate the lawfulness of the attempted subdivision of the suit land by the 2^nd Defendant at the instance of the 1^st Defendant, the court shall start by determining whether the Defendants had the right to tamper with the suit land.

It is trite law that the only person who can transfer interests in land is the proprietor of the said land as envisaged under Section 92 of the Registration of Titles Act which states;

"... The proprietor of land or of a lease or mortgage or of any estate, right or interest therein respectively may transfer the same by a transfer in one of the forms in the Seventh Schedule to this Act..."

This position has been reiterated in Sarah Kiconco and Another V Jami Construction Limited and Another Misc. Application No. 2140 of 2021; Nakiryowa v Masembe & Ors (High Court Civil Suit No.37 of 2006.) [2015] UGHCLD 59 (22 October 2015).

A proprietor of land is defined under section 1 (1) of the Registration of Titles Act as;

"....the owner whether in possession, remainder, reversion or otherwise of land or of a lease or mortgage whose name appears or is entered as the proprietor of that land or lease or mortgage in the Register Book..."

Having resolved that the suit land belongs to the Plaintiff above, it is only logical to conclude that it is only the Plaintiff as the proprietor of the suit land that could transfer the suit land by way of signing a transfer form.

In this case, there was an attempt to subdivide the land owned by the Plaintiff. It is prudent to note that only the registered proprietor of the suit land may transfer part of the suit land to another person. This is envisaged under section 96 of the Registration of Titles Act which states;

"If the transfer purports to transfer part of the land mentioned in any certificate of title, the transferor shall deliver up the duplicate certificate of title; and the registrar shall endorse on the original and duplicate certificate a memorandum of the transfer; and the duplicate certificate of title shall be returned endorsed as aforesaid to the transferor; and the registrar shall make out to the transferee a certificate of title to the land mentioned in the transfer, and whenever required by $\frac{d^2y}{dx^2}$ the proprietor of the untransferred portion shall, upon delivery up for total Page 7 of 11

cancellation of the partially cancelled certificate of title, make out to such proprietor a certificate of title to the untransferred portion; but the registrar may at his or her discretion instead of returning a partially cancelled certificate to the transferor require the transferor to take out a new certificate for the land still comprised in the partially cancelled certificate."

The import of this provision is that in order to transfer part of the land comprised in a certificate of title, the transferor who in this case is the Plaintiff would have to present the certificate of title in respect to the suit land to the Registrar (2nd Defendant) showing the intention to transfer part of the land comprised in the Certificate of Title. The Registrar shall then endorse the memorandum of transfer on the original title and duplicate title. The Registrar would then issue a Certificate of Ritle to the transferee.

In the circumstances of this case, the Plaintiff has adduced evidenced to prove that she has never assented to the transfer of any part of the suit land. The 1^st Defendant did not adduce evidence to show that indeed the said transfer was effected by the Plaintiff.

Rather the 1^st Defendant is claiming to be managing Plot 1 Grant Road. In a letter dated 21^st April 2021 marked PEX7, the 1^st Defendant claims that Plot 1 Grant Road is in existence however there is no further evidence on record proving this assertion. In a letter dated 19^th May 2021 from the Jinja District Land Board to the 1st Defendant marked PEX8, the 1st Defendant was informed that arising from a search that had been conducted by the Jinja District Land Board, Plot 2 Bell Avenue reflected in the system while Plot 1 Grant Road does not exist. In the circumstances, there is no evidence on the court record pointing to the existence of Plot 1 Grant Road.

In the circumstances, the evidence on record points to the fact that Plot 1 Grant Road has not been in existence. Rather, the Defendants are working tooth and nail to fraudulently create it out of the suit land and by such action, the interests of the Plaintiff are prejudiced.

Secondly, I am alive to the submissions by counsel for the Plaintiff that there was no fair hearing granted to the Plaintiff when the attempted subdivision of the land took place. I agree with the Plaintiff that Article 42 of the Constitution states that before making administrative decisions, parties should be granted a fair hearing. This then raises the question as to What administrative decision took place and who made that administrative decision. From the

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Plaintiff's view, the alleged amendment of the Cadastral Mapping to include Plot 1 Grant Road on the suit land was an administrative decision. I agree, with this assertion, however, who made that administrative decision? I am hesitant to find that the $2^{nd}$ Defendant caused the editing of the cadastral mapping. The administrative decisions of the 2^nd Defendant are restricted to the issuance, amendment and cancellation of titles. Editing of Cadastral Maps is in the purview of the Department of Surveys and Mappings (Commissioner Land Surveys and Mapping) and not the $2^{nd}$ Defendant.

The court has not been presented with evidence to prove that the 2^nd Defendant is the party that instructed the tampering with the Cadastral Mapping of the suit land. What is on record is that PW1 was informed by agents of the 2^nd Respondent that there was an ongoing process to create Plot 1 Grant Road. Therefore, whereas I am aware that there was a possible derogation of Article 42 of the Constitution, I am not certain that this was the doing of either of the Defendants.

Nonetheless, I do find that the evidence on record is sufficient enough to prove that Plot 1 Grant Road has not been in existence and the 1st Defendant is wrongfully trying to tamper with the suit land which belongs to the Plaintiff.

## Issue 2: Whether the acts of the 1^st Defendant granting permission to the individuals to occupy the Plaintiff's and claiming to be comprised in Plot 1 Grant Road are lawful

Counsel for the Plaintiff submitted that the contents of the letter marked PEX5 from the 1^st Defendant to D&J Enterprises authorising D & J Enterprises to continue occupying land allegedly comprised in Plot 1 Grant Road are false since this suit land has always been possessed by the Plaintiff. Counsel argued that the action by the 1^st Defendant to allocate land that belongs to the Plaintiff violated the Plaintiff's right to property under Article 46 of the Constitution of Uganda and the right to a fair hearing under Article 42 of the Constitution of Uganda.

Having resolved in issue one that the suit land belongs to the Plaintiff and Plot 1 Grant Road has not been in existence, I do not understand where the 1^st Defendant gets the authority to allocate land to D & J Enterprises because it is mandated to manage property that was expropriated.

森

As earlier stated in issue one, it is the proprietor of the land that has the powers to deal with it. In the circumstances, the 1^st Defendant does not have powers to deal with the suit property which makes the purported allocation of the non-existent Plot 1 Grant Road to D&J Enterprises illegal.

Issue two is resolved in the negative.

## **Issue 3: What remedies are available to the Parties?**

Counsel for the Plaintiff prayed for the following remedies;

A declaration that the Plaintiff is the lawful proprietor of the suit land; a declaration that the creation of Plot 1 Grant Road out of the Plaintiff's land by the 2^nd Defendant and the allocation of the same Plot by the 1^st Defendant are illegal actions and thus a permanent injunction should be issued restraining the Defendants jointly and severally from creating another plot out of the Plaintiff's land without its consent or authorization; General Damages and costs to the suit.

Before I make my ruling on general damages, I shall point out that the 1^st Defendant is an entity of the Government that was instituted to manage and protect the interests of the Departed Asians whose property was expropriated. This mandate is based on the principles of fairness, equity and equality. Its involvement acts depriving people of their land is disturbing and disheartening. For this reason, I will grant exemplary damages against the 1^st Defendant as caution.

Having resolved that the suit land belongs to the Plaintiff and that the 1^st Defendant was wrongfully allocated it to D & J Enterprises, I shall move to make the following orders.

## IT IS HEREBY ORDERED THAT:

- 1. The Plaintiff is the lawful owner of the property comprised in Butembe FRV 60 Folio Plot 2 Bell Avenue, Jinja measuring approximately 0.3857 Hectares. - 2. The acts of the 1^st Defendant granting permission to the D & J Enterprises to occupy land allegedly comprised in Plot 1 Grant Road being created out of the Plaintiff's land is illegal land fraudulent.


- 3. A permanent injunction restraining the $1^{st}$ and $2^{nd}$ Defendants, their servants/agents and/or person(s) acting under their authority from creating Plot 1 Grant Road and processing a certificate of title for the same out of the Plaintiff's land as comprised in the suit land. - 4. A permanent injunction restraining the Defendants jointly and severally from dealing in the Plaintiff's land comprised in the suit land or creating any third-party interests therein. - 5. General damages of UGX 50,000,000 (fifty million shillings) against the 1^st Defendant are granted to the Plaintiff. - 6. Exemplary damages of UGX 50,000,000 (fifty million shillings) against the 1^st Defendant are granted to the Plaintiff. - 7. Costs of the suit are granted to the Plaintiff.

I so order.

FARIDAH SHAMILAH BUKIRWA NTAMBI $JU$ DGE

Delivered by email on 4^th June 2024.