Areeba v Nassango (Civil Appeal No. 13 of 2018) [2021] UGHCCD 233 (10 May 2021)

# THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT MASAKA

# CIVIL APPEAL NO. 13 OF 2018

## (ARISING OUT OF CIVIL SUIT NO. 013 OF 2008)

AREEBA MILTON ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT

## VERSUS

NASSANGO PAULINE :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

## *Before; Hon Justice Victoria Nakintu Nkwanga Katamba*

# **JUDGMENT**

The Respondent/Plaintiff instituted Civil Suit No. 013 of 2008 against the Appellant/ Defendant seeking a declaration that the plot of land situate at Kooki Ward, Lyantonde Town Council belongs to the estate of the late Annet Nagawa, Nantongo, vacant possession, a permanent injunction, general damages and costs of the suit. The Plaintiff/Respondent's claim was she is the Administrator of the estate of the late Annet Nagawa, that during the year 1981, the late Annet Nagawa Nantongo purchased land comprised in Kooki Ward, Lyantonde Town Council from a one Jalia Namayanja who is the landlady of a piece of land comprised in Buddu Block 78 Plot 253 land at Lyantonde which sale was confirmed vide agreement dated 04/05/03. The late Annet Nagawa developed the land with a commercial building before she passed on in 1993. After the late Nagawa's death, the Respondent permitted her brother to use the commercial building temporarily to save it from vandalism. The late Kayiga fraudulently obtained a fake certificate of title to the property (Block 78 Plot 263) and purported to transfer the same to the Appellant/defendant without the knowledge and consent of the Respondent/Plaintiff. The defendant/Appellant forced the tenants out claiming that he purchased the property from the late Kayinga Joseph. The Appellant also cut down the trees in the courtyard and locked the house with the intention of grabbing the same. The Appellant connived with the late Joseph Kayinga, he holds a certificate of title well knowing that it was fraudulently obtained, and he also made a false sale agreement well knowing that there was no sale at all.

In his Written Statement of Defence, the Defendant/Appellant denied the claim and stated that he is the rightful owner of the suit plot which he acquired by purchase vide a sale agreement dated 8th March, 2001, from the late Kayinga Joseph on who was the registered proprietor of the said land comprised in Buddu Block 78 Plot 263. The Appellant/Defendant transferred the suit land to himself and the registration onto the certificate of tile was effected on the 15.8.2001. That there was no fraud as Kayinga's relatives also confirmed that the land belonged to him. The Plaintiff/Respondent knew about the sale but turned around to defraud the Appellant after the death of Kayinga.

The Plaintiff's case opened with the evidence of PW1, the Plaintiff, who stated that she is the Administrator for the estate of the late of the late Annet Nagawa Nantongo who left a plot in Lyantode Town Council Kooki which house is being occupied by her children. The defendant threatened to burn the late Nagawa's children and kill them, he also painted the house and cut down trees, and also came to evict the children forcefully and unlawfully.

The late Nantongo purchased the land from a one Jalia Namayanja who confirmed that she has never sold the land to anyone else. The late Kayinga never had letters of administration for the estate of the late Nagawa. Jalia's Certificate of title to the land has never been subdivided. The land is 100 by 150 feet and the late Kayinga was simply renting it. The agreement between Jalia and Nagawa was washed in 1985 and she died before another agreement was written.

PW2 stated that Jalia Namayanja sold land to the late Nagawa and PW2 was present at the sale. He wrote the agreement for the sale. It was undeveloped at the time but was later developed by Nagawa and she constructed boy's quarters. Kayinga has never owned the land and Jalia has never sold the same to anyone else. He identified the certificate of title for Block 78 Plot 253 and the document confirming that Jalia has never sold to anyone else dated 04/05/2003.

PW3 stated that the late Annet bought land in Lyantonde and the said plot was on Jalia's land. An agreement was executed to that effect, and after that the late Nagawa constructed a four roomed house thereon. He left the late Nagawa living in the said house in 1992. The land was 50 by 100ft neighbouring a butcher on one side and the Uganda Muslim Supreme Council, a one Kayondo's house and a one Kiwanuka's house. The agreement was written by Abdul Kisasa (PW2).

That was the close of the Plaintiff/Respondent's case.

The Defendant/Appellant's case opened with evidence of DW1, the Defendant who stated that the suit land is in Lyantonde Town Council, Kooki Ward 'C'. He bought the land from the late Kayinga on the 08/03/2001. The plot has a house with four (04) rooms and it is about 62 by 112 feet and 11o feet and 43 feet. He bought the land at 2,800,000/=, in the presence of Nezra Nakasinga a mother to the late Kayinga, Chairperson LC1 of the area Hajji Misi Kyeyune and Peace Kemigisha a witness to the agreement dated 8/3/2001. He was given transfer forms by Kayinga and he proceeded to effect registration. He did not know Nantongo Annet. Jalia Namayanja was the owner of the plot but she was not present when he was buying from Kayinga. Kayinga never gave him an agreement of how he purchased the land but a title in his names.

DW2 the LC1 Chairperson and resident of Kooki Ward `C`, Lyantonde Town Council stated that the land in dispute is in his area zone. Kayinga John once came to him and told him that he was selling his plot on Kyamera road. The title to that land is Block 78 Plot 263. On 8/03/2001, he met Kayinga with his mother, confirmed that the plot was his and an agreement of sale to the Plaintiff/Appellant was made. He had never known of any disputes between the litigants until of recent. He identified the agreement and confirmed his signature. There are houses on the plot and those houses belonged to, and were constructed by the late Kayinga. He does not know when the houses were constructed nor if Nantongo Annet was ever on that land. The Defendant/Appellant showed him an agreement that he had used to purchase the property, and the Defendant/Appellant`s mother confirmed that the property belonged to the late Kayinga.

That was the Defendant/Appellant`s case.

In her judgment, the trial Magistrate framed three issues for the determination of court;

- 1. Whether the suit plot belongs to the estate of the late Annet Nagawa Nantongo - 2. Whether the defendant is a trespasser on the suit property - 3. What remedies are available to the parties

The trial Magistrate observed that the Defendant relies on a title that was cancelled by the Land Office and held that the Plaintiff proved her case to the required standard that the disputed plot belongs to the estate of the late Annet Nantongo. She also held that the Defendant is a trespasser on the suit plot and has no rights over it since his title was cancelled, and awarded damages of 500,000/= to the Plaintiff and a permanent injunction against the defendant from further trespassing on the suit land.

Being dissatisfied with the judgment of the trial Magistrate, the Defendant/Appellant filed this appeal on the following grounds;

- 1. The learned trail magistrate erred in law and fact when she held that the suit land belonged to the estate of the late Annet Nantongo Nagawa yet there was no evidence to support that finding. - 2. The magistrate grade G.1 erred in law and fact when she failed to evaluate the evidence on record and thereby made an erroneous Judgment.

Both Parties filed written submissions and they are on court record.

Counsel for the Appellant submitted that PW1 did not produce any documentary evidence or sale agreement as to the ownership of the suit property by the late Annet Nagawa and averred that it is clear from the evidence on record that the suit property was registered land in the names of the Appellant going by the exhibits on court record, which are the sale agreement and certificate of title. Counsel cited the case of *Fr. Narsension Begumisa & others v Eric Tibebaga SCCA No. 17 of 2002* that a certificate of title is conclusive evidence of title as per Section 59 of the Registration of Titles Act Cap 230, and can only be impeached by fraud. No evidence of fraud was led against the Appellant. The Plaintiff failed to prove her case on a balance of probabilities. The Appellant made the necessary due diligence before purchasing the Plot and he cannot be faulted at all. Unlike the Appellant's case, the Respondent's claim was not backed by documentary evidence and the trial Magistrate did not make proper evaluation of the evidence on record and thereby made an erroneous decision.

Counsel for the Respondent submitted that the Respondent testified that she allowed Kayinga to use the suit property in 1997 and that Annet Nagawa purchased the suit land from Jalia Namayanja. PW2 corroborated her evidence and testified that Jalia never sold the property comprised in Buddu Block 78 Plot 253, to anyone else except the Respondent. That Jalia confirmed the sale and wrote a document to that effect which was adduced in evidence. This evidence was never challenged during cross examination.

Counsel further submitted that both Parties referred to the same piece of land but claimed to have bought from different registered proprietors. The Respondent claimed that the suit land was comprised in Buddu Block 78 Plot 253 at Lyantonde, while the Appellant claimed that it was comprised in Buddu Block 78 Plot 263 at Kabuka. Court directed for a survey to be conducted, and also requested for certified copies of documents relating to Block 78 Plots 253 and 263 from the Commissioner Land Registration. Certified copies of Block 78 Plot 263 were availed to court indicating that the title to that parcel had been cancelled, this informed the trial Magistrate to hold that the Appellant was no longer registered proprietor to the same and thus a trespasser on the suit land. The Appellant did not plead having been a bona fide purchaser for value yet the defence was available to him, and therefore cannot visit the blame on the trial Magistrate.

## **Determination of the Appeal;**

The duty of this court, as a first appellate court, is to re-evaluate the evidence adduced at the trial and subject it to a fresh and exhaustive scrutiny, weighing the conflicting evidence and drawing its own inferences and conclusion from it. In so doing, however, the court has to bear in mind that it has neither seen nor heard the witnesses and should, therefore, make due allowance in that respect. See: *Fredrick Zaabwe v. Orient Bank &5 O'rs, S. C. C. A. No. 4 of 2006 Kifamunte Henry v. Uganda, S. C. C. A No 10 of 1997; Banco Arabe Espanol v. Bank of Uganda, S. C. C. A No. 08 of 1998.* With this duty in mind, I proceed to consider the grounds of appeal.

I will resolve the grounds of appeal concurrently as they both relate to evaluation of evidence.

The Plaintiff/Respondent`s case is that the suit land situate on Buddu Block 78 Plot 253 forms part of the estate of the late Annet Nagawa as she bought it from the landlady Jalia Namayanja. Jaliya Namayanja confirmed the sale with a document dated the 04/05/03 in which she also stated that she never sold the plot to anyone else.

On the other hand, the Appellant/Defendant`s case is that he purchased a plot of land described as Block 78 Plot 263 from a one Kayinga Joseph vide a sale agreement dated 8th March 2001, and effected transfer of the same to himself. Although the Parties mention different Plots that is Plot 253 and 263, the land described as to be the subject matter of this case is the same.

However, the agreement for the sale to the Appellant clearly states Block 78 Plot 263, and the document confirming the sale to the late Annet Nagawa states Block 78 Plot 253.

## **Ownership of the suit land;**

*Section 59 of the Registration of Titles Act* provides that Certificate of Title is conclusive evidence of Title.

In the instant case, both Parties have adduced evidence of Titles to the suit land. The trial Magistrate took the initiative of requesting for certified copies of the title for Namayanja and also inform whether Plot 263 Kabula is on the same title.

The Commissioner Land Registration submitted a statement of search showing that the Title to land comprised in Block 78 Plot 263 was registered to the late Kayinga Joseph as at the 20th day of November 2017. The office also submitted two different certificates of title for Block 78 Plot 263, showing that indeed Block 78 Plot 263 at Kabula is registered to the late Kayinga and also that title had been transferred to the Appellant Areeba Milton but the same was cancelled when the original was found. The Certificate of tile that was cancelled shows that Block 78 Plot 263 was transferred from the late Jalia Namayanja, to the late Joseph Kiyinga and later to the Appellant in August 2001.

On the other hand, the Title that was submitted as the original/authentic one shows that the land was transferred from the late Jalia Namayanja on the 24.4.96 to the late Joseph Kayinga vide instrument No. 78999.

The information on the Certificate of title to the land comprised in Block 78 Plot 263 certified by the Commissioner for Land Registration`s office corresponds with the information on the Certificate of title adduced by the Appellant to prove his ownership of Block 78 Plot 263 in as far as the instrument Number and date from the transfer from the late Kayinga to the Appellant are concerned. This discrepancy as to existence of three titles is explained by the cancellation of the title on grounds that the original was found. From the evidence provided by the Commissioner Land Registration, it is my observation that when the original title was found, transfer to the Appellant was not re-entered onto the Title. The certified copy for the land comprised in Block 78 Plot 263 shows that the land is still in the late Joseph Kayinga's names and therefore does not prove the Appellant's interest. The Certificate of Title adduced into evidence by the Appellant was cancelled which shows that the Appellant is relying on a cancelled Certificate of Title to prove his interest.

The Respondent`s case is that her sister the late Nagawa Annet purchased a parcel of land from Jalia, the Registered Proprietor of Buddu Block 78 Plot 253. He sister never processed the title and her brother Kayinga fraudulently obtained title to the parcel which is described as Plot 263.

PW2 identified the Certificate of title to the land comprised in Block 78 Plot 253 registered to Jalia Namayanja. From the examination of both Certificates of title adduced into evidence, Plots 253 and 263 are far away from each other. The court did not ascertain on which Plot the boys' quarters are situate.

From the foregoing, it is clear that the dispute between the Parties arose not as to competing titles as alleged by the Respondent, but as ownership of the suit land. The Appellant claims to have bought the suit land from the late Kayinga and has an agreement to that effect. The agreement adduced dated 8th March 2001 describes the land subject to the sale to be comprised in Block 78 Plot 263 but also stated that the same was developed with boys` quarters.

It is the Respondent`s evidence that the said boys` quarters which are on Block 78 Plot 253 were constructed by the late Annet Nagawa and this was corroborated by PW2 and PW3. PW1 testified that the boys` quarters are currently being used by the late Annet`s children. The only evidence adduced by the Appellant in regards to the development on the land was that of DW2 who stated that it was the late Kayinga who construed the houses. He however also stated that he did not know that the houses were constructed 30 years ago and also that he is not well conversant with when they were constructed, also that a child of 11 years can construct. He also stated that he did not know who Kayinga bought the houses from.

DW2`s evidence was full of inconsistencies regarding the developments on the land. It is trite law that inconsistencies unless satisfactorily explained would usually but not necessarily result in the evidence of a witness being rejected. *(See Uganda vs Rutaro {1976} HCB; Uganda vs George W. Yiga {1979} HCB 217).*

I find that the inconsistencies in DW2`s evidence were major and went to the root of the dispute between the Parties in as far as developing the suit land is concerned. This therefore discredits the evidence of the Appellant and as such, I find the Respondent`s evidence of PW1, 2 and 3 that the late Annet constructed the four roomed boys` quarters was particularly compelling as to the developments of the land and since it was also confirmed that the late Annet bought the suit land

comprised in Block 78 Plot 253 and developed the same, the suit land forms part of the estate of the late Annet Nagawa. The trial Magistrate was there right in holding that the suit land belongs to the estate of the late Annet Nagawa.

This court exercised its powers under *Section 80 of the Civil Procedure Act*, and recalled the Parties to give additional evidence and clarify the physical and legal status of Plot 253. It is my clear observation that the suit land as comprised in Plot 253 developed with boys' quarters forms part of the estate of the late Annet Nagawa and the Appellant does not have any interest in the same.

The evidence on the record as per the certificate of title adduced shows that the Appellant was cancelled from the title for land comprised on Plot 263. It was also Jalia's evidence as per the document adduce in evidence that she never sold Plot 253 to anyone else. It is my conclusion that the Appellant does not have an interest in Plot 263 following the official cancellation by the Registrar of Titles and he also does not have an interest in Plot 253 following the evidence on record by the Respondent as to development of the suit land as well as Jalia's confirmation that she never sold the land as comprised in Plot 253 to anyone else.

I find that the evidence on the record is sufficient to prove that the late Annet Nagawa purchased and developed part of the land comprised in Block 78 Plot 253 land at Kabula and it therefore forms part of her estate.

## **Trespass;**

The law on trespass to land was clearly stated in the case of *Justine E. M. N. Lutaaya vs. Stirling Civil Engineering Company Civil Appeal No. 11 of 2002 (SC).* In that case, Mulenga JSC held:

"*Trespass to land occurs when a person makes an unauthorised entry upon land, and thereby interferes, or portends to interfere, with another person's lawful possession of that land. Needless to say, the tort of trespass to land is committed, not against the land, but against the person who is in actual or constructive possession of the land.*

The Respondent stated that the Appellant came onto the land and threatened to kill the late Annet`s children. The Appellant also stated that he entered on the suit land and painted the boys` quarters. This therefore confirms that there was entry onto the suit land by the Appellant. Since I have resolved above that the suit land belongs to the estate of the late Annet Nagawa, the Appellant had no authority to enter upon it and is therefore a trespasser. The trial Magistrate was therefore right in holding that the Appellant is a trespasser on the suit land.

In the result, I find no merit in the appeal and therefore uphold the judgment of the trial Magistrate in Civil Suit No. 13 of 2008 and dismiss the appeal with costs to the Respondent.

I so order.

Dated at Masaka this 10th day of May, 2021

# **Victoria Nakintu Nkwanga Katamba Judge**