Abdallah Semakula and Others v Eliphaz Katamba and Others (HCT-17-LD-CS-0054-2023) [2024] UGHC 1271 (8 April 2024)

## **THE REPUBLIC OF UGANDA**

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

## **HCT-17-LD-CS-0054-2023**

#### **1.**

- **a) ABDALLAH SEMAKULA** - **b) LUYOMBYA FRED** - **c) ROY KAMYA ALL SUING AS ADMINISTRATORS OF THE ESTATE OF THE LATE NUWA MPEMBE…………………………………………………FIRST PLAINTIFF**

#### **2.**

- **a) ABDALLAH SEMAKULA** - **b) ROY NABATANZI** - **c) LUGENDA JOHN** - **d) DEZI KYABE ALL SUING AS ADMINISTRATORS OF THE ESTATE OF THE LATE KATAMBA SOFATIYA…………………………SECOND PLAINTIFF**

## **VERSUS**

- **1. ELIPHAZ KATAMBA** - **2. MUWONGE SIRASI (ADMINISTRATOR OF THE ESTATE OF THE LATE YOWAKIM MATOVU)** - **3. IBU SSEKAYI** - **4. REGISTRAR OF TITLES……………………DEFENDANTS BEFORE LADY JUSTICE HENRIETTA WOLAYO JUDGMENT**

Introduction

1. By a plaint dated 14.10.2019, the Plaintiffs brought this suit against the Defendants for a declaration that the first defendant, Eliphaz Katamba fraudulently obtained letters of administration to the estate of the late Katamba Sofatiya who had benefited from the estate of the late Nuwa Mpembe by way of a distribution of the estate by the Administrator General.

- 2. The plaintiffs claimed that Eliphaz used the same letters to register himself as the administrator of the late Katamba Sofatiya's land and consequently subdivided the same into Buruli Block 136 Plot 25 and 26 and registered himself and the second defendant, Muwonge Sirasi as proprietors of plots 25 and 26 respectively. - 3. The Plaintiffs sought a declaration that the transfer of land comprised in Block 136 plot 26 from Muwonge to the third defendant, Ibu Ssekayi is null and void and should therefore be cancelled, an order that the suit lands revert back to the estate of the late Nuwa Mpembe and be dealt with thereunder, a permanent injunction restraining the defendants and their agents or servants from dealing with the estates of the deceased, general damages, costs of the suit. - 4. The first and second defendants did not file any written statements of defense despite the fact that they were served through substituted service in the Daily Monitor newspaper dated 22.6.2020. This followed a court order dated 1.3.2020. Likewise, the fourth defendant also did not file a written statement of defense despite the fact that they were served physically and return of service was done on 12.12.2019. - 5. Following the above substituted service, the third defendant filed his written statement of defense on 2.11.2020 in which he denied the Plaintiffs' allegations. This means hearing proceeded against the first defendant Eliphaz Katamba, second defendant Muwonge Sirasi and the fourth defendant the Registrar of Titles in their absence.

6. I have carefully considered submissions of counsel for the plaintiffs.

### The pleadings

- 7. It was not disputed that Abdallah Semakula, Luyombya Fred and Roy Kamya (the first plaintiff) were granted letters of administration to the estate of the late Nuwa Mpembe on 20.2.2014 by the High Court of Uganda at Kampala vide Administration Cause 331 of 2013. It was further not disputed that Abdallah Semakula, Roy Nabatanzi, Lugenda John and Dezi Kyabe, (the second plaintiff) were granted letters of administration to the estate of the late Katamba Sofatiya on 12.3.2018 by the High Court of Uganda at Mukono vide Administration Cause No.104 of 2017. - 8. It is also not disputed that Mpembe left behind a number of properties including land previously known as FC 30680 Vol.619 Fol 16 measuring approximately 660.46 hectares at Kikonda and Bagambira, Buruli currently Nakasongola district which later came to be known as Buruli Block 136 plot 3, part of which forms the suit land. - 9. It is the plaintiffs' claim that during his lifetime, Mpembe gifted his son, the late Katamba Sofatiya a portion of the said land amounting to 440 hectares out of the 660.46 hectares and upon Mpembe's death, the Administrator General distributed the land to the beneficiaries under which distribution scheme, Sofatiya got 440 hectares of the 660.46 hectares of the said land. The Plaintiffs also claimed that they discovered that the original Block 136 plot 3 had been sub-divided by

Eliphaz Katamba, the first defendant into plots 25 and 26 and plot 25 and was registered in his name while plot 26 was registered in the name of Muwonge Sirasi, the second defendant, before it was transferred to Ibu Ssekayi, the third defendant.

- 10. In his written statement of defense, Ssekayi, the third defendant averred that he purchased the suit land from Muwonge after carrying out due diligence from the land registry, the local authorities, the tenants on the land as well as in the High Court of Uganda-Family Division, after which he came to a conclusion that the land at that time belonged to a one Muwonge Sirasi, administrator of the estate of the late Yowakin Matovu, and as such, he dismissed the allegations of fraudulent transfer of title as mere hearsay. - 11. He further averred that on 1.3.2013 and 11.4.2014 respectively, he executed a purchase of land agreement with Muwonge wherein the latter sold to him land comprised in Buruli Block 136, plot 26, land at Kironda & Bagambira, measuring Approx. 185.510 & 30.7 hectares respectively for a consideration of UGX 150,000,000 (Uganda shillings one hundred and fifty million only) and UGX 30,000,000/= (Uganda shillings thirty million only) respectively. - 12. Further, it was Ssekayi's defense that he is a bonafide purchaser for value without prior notice/knowledge of the purported fraud, if any. - 13. The plaintiffs filed a reply to the third defendant's written statement of defence where they denied all the allegations of the third defendant. They claimed that the third defendant has always used big offices to

subdue the customary/bonafide tenants who have at all material times occupied the land and have been loyal to the plaintiffs. The plaintiffs further claimed that the third defendant and his representatives have been verbally beseeching Abdallah Semakula and proposed to give him money worth 100 acres so that he convinces the tenants to recognize Ssekayi which is proof that SSekayi knows the title to be false.

#### Background facts

- 14. On 24.5.2021, when the case came up for hearing, counsel for the third defendant informed court that Muwonge Sirasi, the second defendant was deceased. No order was given for substitution of Muwonge with a legal representative *pendite lite* presumably because he had never filed a written statement of defense anyway. - 15. Hearing commenced before my sister Kazarwe Mukwaya J in the Land Division on 24.5.2021 when PW1 Semakula Abdallah's witness statement was admitted and he was cross-examined by counsel for the third defendant Ssekayi. - 16. Subsequently, the file was transferred to the newly created Luwero High Court Circuit and on 22.6.2022, I recorded the testimonies of PW2 Wandera Newton; PW3 Luyiga Richard, PW4 Sejjulu Edward, PW5 Roy Nabalanzi on the same day. - 17. On 13.11.2023, counsel Tibamanya for the plaintiff and counsel Magala for the third defendant were in attendance when counsel Magala informed me that the parties had reached a consent agreement

which he then wanted the court to endorse but I declined to endorse it because a hearing was underway involving other parties even if they had not filed their written statements of defense (Katamba Eliphaz, Muwonge Sirasi and the registrar of titles).

- 18. Ibu Ssekayi the third defendant then took the stand and he admitted on oath the claims against him. - 19. A schedule to file written submissions was given but only the plaintiff complied. - 20. The consent judgement presented to court on 13.11.2023 was in the following terms(abridged): - I. Administration Cause No. 553 of 2012 for the estate of Sefatiya Katamba where letters of administration were granted to Matovu Yawakim were annulled as they were procured by fraud. - II. The third defendant ought to have known of the fraud and therefore he did not get a good title. - III. The suit land Buruli Block 136 Plot 26 formerly part of FC 30680 Vol.619 FO 16 belongs to the estate of the late Sofatiya Katamba. - IV. The registrar of title is ordered to cancel the certificate of title in Buruli Block 136 Plot 26 to revert to the estate of Katamba Sofatiya.

- V. The second plaintiff (administrators of Sofatitya Katamba) will mutate off 120 acres for the benefit of the third defendant to be registered in the names of a third party Godfrey Ssemanda. - 21. I examined the consent judgment and while I was at first inclined to enter it, I noticed that Luyombya Fred and Lugenda John, did not endorse it. Furthermore, it did not sit well with me for parties to agree to cancel a title when the Registrar of Titles is not party to the agreement. Lastly, it is contrary to public policy for the court to endorse a consent that rewards the wrong doer (third defendant). For these reasons, I shall determine the dispute on the merits. - 22. Counsel for the plaintiffs was directed to file submissions in respect of the other three defendants by 26.11.2023 and he filed the same on 11.12.2023. They have duly been considered.

### **Issues for trial**

23. At the scheduling, five issues had been proposed, but in light of the admission by the third defendant of the plaintiffs' claims, the issue of whether he was a bonafide purchaser for value without notice of any fraud as already been determined. I however do not agree with counsel for the plaintiffs that Ssekayi's admission also disposed of the case against the first and second defendants Eliphaz Katamba and Muwonge. I note that parties framed an issue around Block 136 Plot 25 yet the dispute was about Plot 26. I will therefore reframe the issue as follows: - a) Whether the first defendant fraudulently obtained letters of administration to the estate of the late Katamba Sofatiya, consequently obtaining title to suit land comprised in Block 136 Plot 26. - b) Remedies

## **Determination**

- 24. In all Civil matters, the burden is on the Plaintiff to prove his/her case and this principle applies even where the matter is not defended. **Section 101 of the Evidence Act Cap. 6** 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'.* - 25. The standard of proof required in civil cases was elaborated by **Lord Denning** in **Bater v Bater [1951] 35 at 36-37**, in these terms:

*'…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'.*

26. These will be the guiding principles in the determination of this suit.

**Issue : Whether the first defendant fraudulently obtained letters of administration to the estate of the late Katamba Sofatiya, consequently obtaining title to suit land comprised in Block 136 Plot 26.**

- 27. According to Semakula PW1, aged 46 years, a resident of Kisaale village, Kabubi, Buikwe district, he is the son of Sande Katende who was a son to Sofatiya Katamba who in turn was a son to Nuwa Mpembe. According to him, Luyombya Fred, the second plaintiff is the son of Nelson Lutwama, who was a son to Nuwa Mpembe while Roy Kamya and Lugende John are a daughter and son respectively to Sofatiya Katamba, and Dezi Kyabe is a widow to Sofatiya Katamba. - 28. PExh 1 in the Plaintiffs' trial bundle are letters of administration for the estate of the late Nuwa Mpembe and the administrators are Luyombya Fred, Roy Kamya and Ssemakula Abdallah whereas PExh 2 are letters of administration for the estate of the late Katamba Sofatiya and the administrators are Roy Nabatanzi, Lugenda John, Abdallah Semakula and Dezi Kyabe. - 29. It was Semakula's evidence that his grandfather Katamba died in 1975 in Buikwe district and his family was one of the many families that

were descendants of Nuwa Mpembe, who was known to him as a big land owner in different parts of Buganda.

- 30. It was further Semakula's evidence that when his relative Lugenda John, a son to Katamba claimed the whole land at Kisala in 2006, it became necessary for the family to assert their rights over their respective shares to their grandfather's land. A meeting of close relatives was convened by the LCI chairperson Kisala who sent the family to Buikwe Chief Administrative Officer, who in turn advised them to go to the Administrator General. - 31. It was Semakula's evidence that upon being shown the succession register concerning Nuwa Mpembe at the Administrator General's office, it was discovered that Nuwa's properties had been distributed but the beneficiaries had not collected their share certificates in order to make certificates of title in their respective names. The family was then advised to apply for letters of administration for Nuwa to put the distribution scheme into effect, which they did. - 32. Semakula's evidence was that it was also discovered that Katamba Sofatiya, his grandfather had benefited from the estate of Nuwa but had died before separating his share from the estate. To Semakula, Katamba Sofatiya had inherited a portion of land from his father, the late Nuwa at Buruli measuring 440 hectares. - 33. Semakula relies on the WILL of Katamba Sofatiya as one of the documents from which the plaintiffs claim ownership. According to him, this WILL was produced by the head of Olunyilili of Lugave clan where

and according to it, Katamba had bequeathed his properties that included part of the land known as Vol 30680 Folio 619-16 land at Kikonda Bululi, which land now forms basis of the suit to different beneficiaries.

## Sofatiya Katamba's WILL dated 12.6.1975 PExh 10

- 34. PExh 10 is an English translation of the late Katamba's WILL and it shows a distribution of property among 11 (eleven) beneficiaries. Of significance is that as part of their shares, each received a portion of land from land comprised in Volume 30680 Folio 619-16 at Kikonda, Bululi. - 35. Although the testator did not demonstrate how he acquired the above property, the description matches the one of Wandira PW2, a bonafide occupant of the suit land and a member of the committee that went to Entebbe lands office in 2014 and obtained a mircro film of the area, PExh 8.

## Micro film of land described as FC 30680 at Kikonda and Bagambira PExh 8.

- 36. The micro film indicates that the late Nuwa Mpembe, the father to Katamba Sofatiya was the owner of land comprised in FC 30680 at Kikonda and Bagambira. - 37. This would mean that Sofatiya Katamba indeed got a share of his land with the description of volume 30680 Folio 619-16 at Kikonda, Bululi from his late father Nuwa, who had divided his land among his sons

Sofatiya Katamba and Nuwa Mpembe as testified by Wandira relying on information from Luyomba, a descendant.

- 38. Related to the above is an area schedule attached to Ssekayi's trial bundle as annexture D. Although not admitted as Ssekayi admitted on oath the plaintiffs' claims against him, it has vital information that I want to address. Much as it is not clear how the title for plot 3 was made from the micro film FC 30680 belonging to Nuwa, Semakula claims that it was plot 3 that was subdivided to make Block 136 plots 25 and 26, it is true that the area schedule indicates Sofatiya Katamba as the proprietor of the land initially comprised in Block 136 measuring 660.4 hectares, which size tallies with what Semakula earlier mentioned as the initial size of the late Nuwa's land. - 39. In addition, the plaintiffs produced evidence to show that their grandfather, Sofatiya Katamba was in physical possession of the suit land. According to Semakula, upon discovering that his grandfather, Sofatiya Katamba benefited from Nuwa's estate, the Administrator General advised the family to apply for letters of Administration for the late Katamba Sofatiya which they did. - 40. It was further Semakula's testimony that in 2018, the family was approached by a group of people from Bugambira and Kikonda in Bululi who were looking for the descendants of the late Katamba Sofatiya, who they said was the owner of the land they were occupying. Among other things, they showed him a microfilm which they got from

Entebbe which showed that the suit land at one time belonged to his great grandfather Nuwa Mpembe.

- 41. Wandira PW2 confirmed that together with some members of the committee that had been formed to help in the search of the true owners of the land on which they were living and owing to the fact that they knew Sofatiya Katamba as the owner of the land, they went to Buikwe with the knowledge of the authorities such as RDC and DISO where they traced Semakula, Kamya and other family members. - 42. This followed a visit in 2018 by someone he later came to know as Luyombya Fred, one of the plaintiffs who came to the land searching for his land as a beneficiary under Nuwa Mpembe. Luyombya informed them that his grandfather had subdivided his land among his sons, Sofatiya Katamba and Nuwa Mpembe and he also told them where to find the family of the late Nuwa Mpembe in Buikwe district. The family then came in 2018 to the suit land for a meeting with the bibanja holders and assured them that they would recover their land using courts of law. - 43. According to Wandira, the search of the true owners was prompted by an attempt by the third defendant Ssekayi to approach the occupants of the land with claims that the land belonged to him. Wandera, Luyiga PW3 and Sejjuli PW4, all occupants of the suit land testified that they reside on the suit land. Luyiga was born in that village in 1975 and he has since lived there with his family while Sejjulu started residing on the suit land in 1989 and has since lived there with his family.

- 44. It was the testimony of both Luyiga and Sejjulu that Magambo Hannington, who is since deceased was the caretaker of the land and also resided there. He gave them bibanja on the land in exchange for money commonly referred to as kanzu and informed them that the owner of the land was known as Sofatiya Katamba of Kyagwe who died but he would introduce them to his heir if the latter came to the land. All this points to the fact that Safatiya Katamba was indeed known to the occupants as the owner of the land and in effect had physical possession of the suit land. - 45. According to Luyiga and Sejjulu, in 2012, someone by the name Karangwa came to their village and said he had bought the land they settled on but when they asked him to produce the person who had sold the land to him, he went away and never came back. - 46. Just like Wandira, the duo testified that in 2013, another person whom they had never seen attended a village meeting convened by the LCI chairperson and introduced himself as Ibu Ssekayi, the owner of the land at Bagambira. He informed them that he had bought the land from Muwonge Sirasi and when tasked to produce the said Muwonge, he did not and to date has never produced him. - 47. It is at that point that the occupants selected a committee after Ssekayi's departure with a view of establishing the genuine owner of the land. This decision was informed by an earlier experience of a nearby land in Kigazi village, Irima Parish, Kalungi sub-county where someone with forged titles had gone there and transacted with the residents promising to get them mailo land titles to their respective pieces of land but after they had purchased their respective pieces, the proper landlord came and they were forced to pay again.

- 48. According to Wandira PW2, the committee consisting of himself as secretary, Richard Luyiga as chairperson, Sonda Nelson as vice chairperson, Kibaakoba Godfrey as mobiliser and Nakayemba as secretary went to the RDCs and LC 5 offices where the RDC advised them to stay on the land as the purchaser of the land ought to have consulted them prior as bonafide occupants. - 49. According to Semakula, himself and some relatives later went to Bukalasa land office, where they discovered that without their knowledge and consent, the suit land had been plotted as plot 3 and subdivided into plots 25 and 26 with the names of Katamba Erifazi for plot 25 while plot 26 was in the names of Muwonge Sirasi, the administrator of the estate of Yowakim Matovu. - 50. Indeed, Wandira and Luyiga testified that there has never been any boundary opening or survey on the ground for any subdivisions to have taken place, the only attempt was when Ssekayi went to the land with a big team of people commonly known as "kanyamas" and two police pickups with armed policemen, who blocked the roads and started opening boundaries by force but upon contacting the DPC Nakasongola, they were stopped and left without doing so. The occupants then put a caveat on the suit land on 14.4.2015 to protect their interests (see PExh 5).

51. According to Semakula, plot 25 had been transferred into the name of Erifazi Katamba who used letters of administration of one Sefatiya Katamba, PExh 3.

## Letters of administration for the estate of the late Safatiya Katambi PExh 3

- 52. PExh 3 shows letters of administration of the late Safatiya Katambi who died on 15.2.1982 which were granted to Katamba Elifazi as son on 4.2.2011 by the High Court of Uganda at Nakawa vide Administration Cause No.656 of 2010. The petition that forms the basis of application and grant of the above letters indicate Katamba Erifazi, Semakula John and Nabatanzi Maria as children of the deceased whereas according to Semakula, these individuals are not known to the family of the late Katamba Sofatiya. - 53. Land initially comprised in FC 30680 Vol.619 Fol 16 measuring approximately 660.46 hectares at Kikonda and Bagambira, Buruli belonging to Nuwa Mpembe was plotted as plot 3 and subdivided into plots 25 and 26. Plot 25 was registered in the name of Elifazi Katamba except that the title for plot 25 was never produced in court. - 54. The fact that Elifazi Katamba could not be linked to Nuwa Mpembe's lineage, nor could he be linked to Sofatiya Katamba and yet he never appeared to defend the suit is proof on a balance of probabilities that he is a fiction.

55. From the above findings, the plaintiffs have proved on a standard slightly higher than on the balance of probabilities that the first defendant, Elifazi Katamba was a fiction who obtained letters of administration to the estate of the late Katamba Sofatiya.

## Letters of administration for the estate of the late Yowakim Matovu PExh 4

- 56. Regarding the second defendant Muwonge Sirasi, According to Wandira PW2, the committee and the LC5 Chairman of Nakasongola district went to Nakawa High Court to ascertain the claims that Muwonge, the second defendant had obtained letters of administration in respect to the land they occupied. - 57. PExh 4 obtained by the committee indicates that letters of administration for the estate of the late Yowakim Matovu were granted to Muwonge Sirasi on 2.8.2012 vide administration Cause No.533 of 2012. According to the petition, Matovu at the time of his death had a fixed place of abode at Kiwawu Mityana district and this was accompanied with a letter from the area LCI chairperson that introduced Muwonge as his son. - 58. However, according to Wandira, when the committee set out to look for the residence of the late Yowakim Matovu in Mityana, Kiwawu LC, the chairperson of the area Nviri John who informed them that he had

been in the area from the time Local Councils were introduced and that he had never heard of the names Elifaz Katamba, Muwonge Sirasi or Ibu Ssekayi and no one by the name Yowakim Matovu ever owned land in that area.

- 59. This accompanied with the fact that Ssekayi was tasked by the occupants of the land to bring Muwonge from whom he had purchased the land from and failed to do so, raises doubt as to the existence of the first and second defendants. Ssekayi who initially averred that he was a bonafide purchaser for value without knowledge of the fraud, if there was, later admitted the plaintiffs' claims. - 60. Also, the fact that Ssekayi gave Wandira a signed transfer in PExh 11 so he could survey and turn his kibanja interest into mailo interest and the fact that he proposed to give Luyiga UGX 3,000,000/= (Three Million Uganda Shillings) to coerce the duo into abandoning the claims of others when he was invited for a meeting to be informed of the above findings raises a red flag as to the integrity of the transaction between himself and Muwonge. - 61. The certificate of title availed to court for land comprised in Buruli Block 136 plot 26 land at Kikonda & Bagambira measuring 185.510 hectares was initially registered under the names of Muwonge Sirasi (the administrator of the estate of the late Y. Matovu on 9.8.2012 before it was transferred to Ibu Ssekayi on 28.3.2013.

- 62. Zaabwe V Orient Bank Ltd and others, the plaintiffs have proved on a high standard of proof that a non-existent Muwonge was registered as proprietor for Block 136 Plot 26 and as such, the registration is a nullity because a non-existent person cannot acquire interest in land. The said registration was fraudulent within the meaning of fraud as defined by the Supreme Court in the often cited case of **Zaabwe V Orient bank Ltd and others.** There was a deliberate perversion of truth with intention to deprive the genuine beneficiaries of the estate of Sofatiya Katamba. - 63. Having found that Muwonge Sirasi is a fiction, Ibu Ssekayi the only real person among the three, orchestrated the fraud and got himself fraudulently registered as proprietor of Block 136 Plot 26. As for Plot 25, no evidence was called to prove the current registered proprietor so no order will be made regarding Plot 25. - 64. Regarding the third defendant Ibu Ssekayi, having admitted the plaintiff's claim in its entirety, I find that he fraudulently got registered on Block 136 Plot 26 from a non-existent Muwonge, administrator of the estate of a non-existent Yowakim Matovu therefore, he has no basis whatsoever to continue to remain as registered proprietor.

## **Remedies**

65. Having found that the current registered proprietor of Plot 26, Ssekayi, fraudulently acquired title, an order for cancellation of his registration shall issue.

- 66. As for Plot 25, no evidence was led to prove the current registered proprietor and therefore no orders will issue regarding Plot 25. Neither did I see any certificate of title to that effect. Counsel for the plaintiff prayed that a permanent injunction should issue restraining Eliphaz Katamba from dealing in Plot 25 but no evidence was led to prove that he is still the registered proprietor. In the premises, I am unable to grant the relief as prayed. - 67. In the premises, I make the following orders: - a) Land comprised in Buruli Block 136 plot 26 land at Kikonda & Bagambira measuring 185.510 belongs to the estate of the late Katamba Sofatiya. - b) The Commissioner land registration shall cancel Ibu Ssekayi from the entries in land described in (a) above and shall register Abdallah Semakula, Roy Nabatanzi, Lugenda John and Dezi Kyabe as Administrators of the estate of the late Katamba Sofatiya. - c) The consent judgment between the parties filed in court but was never endorsed by court, is rendered ineffectual by the foregoing orders. - d) Each party shall bear their own costs. **DATED AT LUWERO THIS 8TH DAY OF APRIL 2024 \_\_\_\_\_\_\_\_\_\_\_\_ LADY JUSTICE HENRIETTA WOLAYO** Legal representation Urban Tibamanya & Co. Advocates for the plaintiffs Rwabogo & Co. Advocates for the third defendant.