Bachubhai Karsandas Thobani v Mugume and 2 Others (Civil Suit 615 of 2017) [2025] UGHCLD 41 (28 February 2025)

### 5 **THE REPUBLIC OF UGANDA**

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

### **(LAND DIVISION)**

### **CIVIL SUIT NO. 615 of 2017**

# **BACHUBHAI KARSANDAS THOBANI ::::::::::::::::::::::::::::: PLAINTIFF**

### **VERSUS**

### **1. MUGUME GASTON**

**2. KAMPALA DISTRICT LAND BOARD**

### **3. THE COMMISSIONER OF LAND REGISTRATION :::: DEFENDANTS**

### *Before: Hon. Lady Justice Immaculate Busingye Byaruhanga*

### *JUDGMENT*

The plaintiff brought this suit against the defendants jointly and severally with a 20 claim of fraud and sought for the recovery of land comprised in Leasehold Register Volume 323 Folio 9 measuring approximately 0.48 hectares (hereinafter referred to as the suit land), an order of cancellation of the 1st defendant's certificate, a declaration that the grant of lease by the 2nd defendant to the 1st defendant was illegal, fraudulent and null and void, a permanent injunction to issue restraining all the 25 defendants and or agents from trespassing, constructing thereon, alienating or interfering in any manner whatsoever with the suit land. And in the alternative the plaintiff be compensated the value of the subject matter, general damages, interest at 25% per annum from the date of judgment till full payment and costs of the suit.

On the other hand, the defendants denied the plaintiff's claim and the 1st defendant 30 counterclaimed as follows;

a) That the 1st defendant legally acquired a freehold interest in the land comprised in FRV folio 23 known as Plot 6 Tagore Crescent under Kampala Land Board Minute No. KDL B6/7/38 /2012 was registered as a freehold

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28th February 2025

- 5 owner on 16/3/2015 after the plaintiff's lease interest which was registered as LRV 323 folio 9 had expired in 2000 and his application for its renewal rejected. - b) That the plaintiff/ counter-defendant was notified of the 1st defendant's freehold interest and requested to vacate but sought for time to verify the 10 authenticity of the title and time for an organized exit. - c) That the counter-defendant was constantly contacted with requests to leave, however, he later requested for time to consult the family and his brother M. K Thobani in respect of his interest since the land was owned by both as "tenants in common" in equal shares. - d) That on 10 15 th August 2017, 11 days before instituting this suit against the defendants, the counter defendant applied for an extension of his expired lease well aware that the counterclaimant had long obtained a freehold interest. - e) The counterclaimant sought inter alia, the following orders: - 20 (i) Dismissal of the suit and Judgment in favour of the counterclaimant. - (ii) An eviction order against the counter-defendant. - (iii) Mesne profits from 16/3/2015 till date of eviction. - (iv) General damages for trespass. - (v) Costs of the counterclaim. - The 1st 25 defendant contended that the plaintiff's suit does not disclose a cause of action against the 1st defendant and denied all allegations of fraud and stated that the plaintiff's lease expired in 2,000 and the application for renewal was rejected by the 2nd defendant. The 1st defendant counter claimed that the plaintiff was notified of the 1st defendant's freehold interest which was acquired on 16th March 2015 and was equally advised to leave the suit property for the 1st 30 defendant but he

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### 28th February 2025

refused to do so and filed the current suit which is not tenable against the 3rd 5 defendant.

The 2nd defendant in its written statement of defence denied the plaint in toto and all the allegations contained therein. The 2nd defendant denied responsibility for 10 any loss suffered by the plaintiff and contended that it acted lawfully at all material times but submitted to the jurisdiction of this court. The 3rd defendant contended that it legally entertained transactions on the suit land in exercise of its statutory mandate on the basis of documents that were presented which it presumed genuine and issued a leasehold title since the plaintiff's lease dated 29th September 1951

had long expired and its application for renewal by the 2nd 15 defendant had been rejected hence it acted within its mandate to issue a freehold title over the suit land.

The 3rd defendant denied having been negligent and averred that the issuance of the freehold title was on the basis of the documents from the 2nd defendant who was

- the controlling authority of the suit land. The 3rd 20 defendant indicated that the plaintiff had no cause of action against the Commissioner Land Registration( CLR) and stated that the freehold title was valid and was rightly issued and as such the plaintiff's anguish, disappointment, embarrassment if any are not attributed to the 3 rd defendant. - 25

### **Counsel legal representation**

The plaintiff was represented by **Jesse Mugenyi** while the 1 st defendant was represented by **Tumwesigye Louis,** 2 nd defendant was represented by a team of lawyers including **Nakalinaka Joan, Mwasame Nicholas** and **Kaboyo Alex** and the 3rd 30 defendant was represented by **Arinaitwe Sharon.**

In the Joint Scheduling Memorandum filed in 4 5 th November 2020, the parties and their respective counsel agreed upon facts and formulated issues for determination as follows:

## **Agreed upon facts included the following:**

- 1. That the plaintiff acquired a crown lease 39618 for 49 years from 1951 and - 10 the same was registered as LRV 323 folio 3, plot 6 Tagore crescent. - 2. That the plaintiff applied for extension of the lease but his application was rejected and was registered as FRV 1571 folio 23 on 16/3/2015. - 3. The 1st defendant applied for leasehold and was granted the same in 2015.

## **Issues for determination**

- 1. Whether the 1st 15 defendant lawfully acquired FRV 1571 folio 23 - 2. What remedies are available to the parties.

## **Witness evidence**

The parties also agreed to adduce evidence from witnesses. The plaintiff adduced evidence from himself as **(PW1)**, while the defendants adduced evidence from the 1 st defendant as **(Dw1)** and Ssekito Moses for the 3rd 20 defendant **(Dw2).**

## **Documentary evidence**

The parties also relied on documentary evidence which was marked and exhibited. The plaintiff relied on the following documents;

- *1. Certificate of title marked PExh.1* - 25 *2. Certificate of repossession dated 2/3/1992 PExh.2(a) and (b)* - *3. KCCA ground rent statement marked PExh.3* - *4. Letter from BK and MK Thobani to Secretary of the 2nd defendant dated 10/8/2017 marked PExh.4* - *5. Search statement dated 16/8/2017 marked PExh.5* - 30 *6. Valuation report of the suit land by PBR Real Estate Ltd marked PExh.6*


### 5 On the other hand, the defendants relied on the following documents:

- *1. Letter from 2nd defendant to 1st defendant dated 24/4/2012 marked DExh.1* - *2. Letter from 2nd defendant to 1st defendant dated 14/5/2013 marked DExh.2* - *3. Internal memo dated 20/5/2013 marked DExh.3* - *4. Certificate of title of FRV 1571 folio 23 plot 4 Tagore Crescent marked* - 10 *DExh.4* - *5. Expired certificate of title for LRV 1571 folio 23 plot 1262 marked DExh.5*

## **Burden and Standard of proof**

## **Section 101(1) and (2) of the Evidence Act Cap.8 (Revised) Laws of Uganda**,

"*Whoever desires any court to give judgment as to any legal right or* 15 *liability dependent on the existence of facts, which he or she asserts must prove that those facts exist".*

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. **Section 102 of the Evidence Act** goes on to provide that;

20 *"The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side and Section 103 provides that "the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by any law that proof of that fact shall lie on any particular* 25 *person".*

These principles have been reiterated in so many judicial precedents where it has been decided that in civil matters just like the instant case, the burden of proof rests on whoever asserts a fact and the standard of proof is on a balance of probabilities.

(See **Jovelyn Barugahare versus Attorney General SCCA No. 28 of 1993)**

### 30 **Background of Suit**

The plaintiff was previously the registered proprietor of land comprised in in Leasehold Register Volume (LRV) Volume 323 folio 3 plot 6 Tagore Crescent **(PExh.1).** The plaintiff had acquired a crown lease 39618 for 49 years effective


from 1 st 5 January 1951 under the Crown Lands Ordinance. In early 1970's the plaintiff left the country before the expiry of the said lease. The plaintiff is of Asian background. On 2nd March 1992, the suit land was repossessed by the plaintiff and a one Mohanlal Karasandas Thobhani from the Departed Asians Property Custodian Board **(PExh.2 (a) and (b)** and the plaintiff commenced to pay ground rent for the 10 suit land to Kampala Capital City Authority **(PExh.3).**

The suit land was converted from customary tenure to freehold tenure (**DExh.1, 2 and 3)** and on 16th March 2015 a certificate of title for land comprised in Freehold Register Volume (FRV) 1571 Folio 23 was issued in favour of the 1st defendant by the 3rd defendant vide instrument number 488981 at 10:56 am **(DExh.4)** under recommendation of the 2nd 15 defendant as the controlling authority.

On 3rd May 1999, the co-owner of LRV 323 Folio 9 plot 6 Tagore Crescent (B. K Thobani) wrote a letter to the 2nd defendant asking for the extension of the lease which was due to expire on 31st December 1999 ( per PExh.3 (d)) and never received a response form the 2nd defendant as the controlling authority since the second

- 20 defendant had been created by the 1995 Constitution of the Republic of Uganda as the controlling authority over Public Land. On 10th August 2017, plaintiff 's coowner of the suit land wrote to the 2nd defendant reminding the latter about the application for extension of the plaintiff's lease which was made in 1999 (**PExh.4).** By that time, he 2nd defendant had already recommended to the 3rd defendant the issuance of the freehold title to the 1st 25 defendant. - **RESOLUTION OF ISSUES**

### **Issue no.1: Whether the 1st defendant lawfully acquired FRV 1571 folio 23**

Counsel for the plaintiff submitted that it was incumbent on the 1st defendant to have established whether there was available land for the 2 nd defendant to allocate to the

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1 st 5 defendant in conformity with **Section 59 of the Land Act**, a contention that counsel submitted to in the negative. It is counsel for the plaintiff's submission that the 1st defendant did not demonstrate his compliance with the stipulated procedures relating to conversion of land from customary land tenure to freehold contrary to **Regulation 23 of the Land Regulations** or even show how he acquired the freehold 10 title to begin with.

Counsel for the plaintiff argued that the plaintiff did not furnish the court with a certificate of customary ownership, an application for conversion from customary tenure to freehold as specified in **Form 4, First Schedule** as required in **Section 4** of the Land Regulations made under the Land Act. Counsel further argued that the 1 st defendant failed to avail the 2nd 15 defendant's decision as specified in **Form 4 (supra),** a notice of hearing by the committee or the Board as set out in **Form 9 and 10** as required by **Regulation 26 of the Land Regulations,** summons purportedly issued to the plaintiff as an interested party under **Section 5, 11 and 33 of the Land**

20 defendant did not adduce **Form 23 and Form 24** in relation to an inspection prior to the grant of the suit land to the former.

**Act** as specified in **Form 13 the First Schedule of the Land Act** and that the 1st

Counsel for the plaintiff further argued that the failure to avail the 2nd defendant's minute KDLB 7.38/2012 negates the authenticity of the 1st defendant's title following Dw3's evidence that a customary tenure cannot exist where a leasehold 25 tenure was once reigning and more so in an urban area. Counsel concluded that the 1 st defendant's application was inherently defective and fraudulent. Counsel cited the Supreme Authority of **Kampala District Land Board & Anor versus National Housing & Construction Corporation SCCA No. 4 of 2004.**

On the other hand, it is counsel for the 1st defendant's submission that at the time of the 1st 30 defendant's application for the freehold tenure, the plaintiff's lease had long


- expired and the same was never renewed. Counsel for the 1st 5 defendant submitted that no evidence has been adduced on a balance of probabilities to prove that the 1st and 2nd defendant flouted procedure when issuing a freehold title to the 1st defendant. It is counsel for the 1st defendant's argument that the plaintiff bears no legal claim of right to the suit land since the former's lease long expired in 2000 and the same - was never renewed prior to the 1st 10 defendant's application of the same.

Firstly, it is worthwhile to determine whether the suit land was available to warrant allocation by the 2nd defendant to the 1st defendant. It is trite law that a lease over land is premised on the law of contract.

**Section 3 (5) of the Land Act** describes the Leasehold tenure as follows

| 15 | (5) Leasehold tenure is a form of tenure; | |----|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------| | | a.<br>created either by contract or by operation of law;<br>b.<br>the terms and conditions of which may be regulated by law to the<br>exclusion of any contractual agreement reached between the<br>parties; | | 20 | c.<br>under which one person, namely the landlord or lessor, grants<br>or is deemed to have granted another person, namely the tenant<br>or lessee, exclusive possession of land usually but not necessarily<br>for a period defined, directly or indirectly, by reference to a<br>specific of commencement and a specific date of ending; | | 25 | d.<br>usually but not<br>necessarily in return for a rent which may be a<br>capital sum known as a premium or for both a rent and a<br>premium but may be in return for goods or services or both or<br>may be free of any required return;<br>e.<br>under which both the Landlord and the tenant may, subject to the | | 30 | terms and conditions of the lease and having due regard for the<br>interest of the other party, exercise such of the powers of a<br>freehold owner as are appropriate and possible given the<br>specific nature of a leasehold. |

This provision indicates that leasehold tenure is governed by the law of contract. The

*Black's Law Dictionary (8th* 35 *Edition. 2004) at page 2602,* defines a lease as a contract


5 by which a rightful possessor of real property conveys the right to use and occupy the property on another in exchange for consideration usually known as rent. The lease term is usually a fixed period which can be terminated upon breach.

In the spirit of *Section 10 (1) of the Contacts Act 2010,* a contract is defined as, *'an agreement made with a fee consent of parties with the capacity to contact for a lawful*

10 *consideration and with a lawful object with the intention to be legally bound.'* It is now settled in law that once a contract is valid, it automatically creates reciprocal rights and obligations between the parties and when a document containing contractual terms is signed, then in the absence of fraud, mistakes or misrepresentation, the parties who sign this agreement are bound by its' terms. (*See*

15 *William Kasozi versus DFCU Bank Limited H. C. C. S No. 1326 of 2000).*

It is not in contention that the 2nd defendant is vested with the power to hold and allocate land in the district which is not owned by any person **(**see **Section 60 (1) (a) of the Land Act** and in the instant case, the 2nd defendant was the lessor of the plaintiff. According to **PExh.1,** the plaintiff and his late brother held a 49 years lease over the suit land commencing from 1st 20 January 1951, which means that the said

lease was ordinarily meant to expire on the 1st of January 2000. I have observed that the plaintiff and his brother M. K Thobhani made an application for renewal of the said lease on 3rd May 1999 to the 2nd defendant and the same was

sent by post, however, no evidenced has been adduced to prove that the 2nd defendant

25 considered the said application or even renewed the said lease. In addition, it should also be noted that the plaintiff is a member of the Asian community who was a victim of President Idi Amin's Asian expulsion order in 1972. However, according to **PExh.2 (a) and (b),** the plaintiff repossessed the suit land in 1992 from the Departed Asians Property Custodian Board.

28th February 2025


5 It is an admitted fact that the plaintiff is still in possession of the suit land, therefore, the question for resolution at hand, is whether the suit land was available for allocation to the 1st defendant in 2012. I am persuaded by the findings of the Honorable Justice Stephen Mubiru in the **Vivo Energy Uganda Limited versus Shire Petroleum Company Limited & ors HCCS No. 0008 of 2016***,* where he 10 discussed the parameters used to determine whether land is available for allocation by a district land board. In this case, the Hon Judge stated that;

*"The Boards are expected in the first place to ascertain that the land is available for leasing. Land is available for leasing by a District Land Board to an applicant when it is either; (i) vacant and there are no* 15 *conflicting claims to it, (ii) or is occupied by the applicant and there are no adverse claims to that occupation, (iii) or where the applicant is not in occupation but has a superior equitable claim to that of the occupant, (iv) or where the applicant is not in occupation but the occupant has no objection to the application. It is thus incumbent on* 20 *a District Land Board when issuing a new lease, extending an existing one or renewing a lease to ascertain the availability of the*

In the case of **Olango Joseph versus Too-Rom Richard High Court Civil Appeal No. 0039 of 2019***,* when faced with facts relating to an already expired lease, Justice 25 Stephen Mubiru held that:

"… I*n the absence of a specific time designation in the lease, an option to extend remains effective only during the term of the lease however, when a lease stipulates that an option to extend must be exercised 'at the end of' or 'at the termination of the lease, the lessee must exercise the option on or before the day the original lease* 30 *expires".*


*land for that purpose."* 5 His Lordship went ahead to hold that once a lease expires, the relationship of a landlord and tenant ceases and in that case, the lease cannot be extended but can only be renewed. (emphasis on the underlined)

Justice Mubiru further noted that,

*"Renewal denotes the re-creation of a legal relationship or the* 10 *replacement of an old contract with a new contract, as opposed to the mere extension of a previous relationship or contract (see Black's Law Dictionary 1410, 9th ed. 2009). Renewal of a lease creates a new lease agreement. With renewal of a lease, there is a legal instant in time between the expiry of the original term and the commencement of the* 15 *renewal term. Due to this brief cessation of a leasing relationship between the parties, a lease renewal legally creates a new lease agreement between the parties".*

As previously resolved, no evidence was adduced to prove that the plaintiff's lease was ever renewed by the 2nd defendant. However, I have observed that the plaintiff 20 repossessed the suit land in 1992 under **Section 4 of the Expropriated Properties Act** as evidenced by **PExh.2 (a) and (b)** and as such this property is equally governed by the said Act.

In paragraph 3 of his witness statement, the plaintiff testified that he has been in occupation of the suit land since 1964 when he purchased the same till 1972 when

25 the Asians were expelled from Uganda in 1972. By virtue of **Section 56 of the Evidence Act,** this court takes judicial notice of the expulsion of the Asians from Uganda by President Idi Amin in 1972 including the plaintiff. Following the said expulsion, the plaintiff's lease had run for a period of 21 (twenty-one) years leaving a balance of 28 (twenty-eight) years on the same. **Regulation 13 of the**


5 **Expropriated Properties (Repossession and Disposal) (No.1) Regulations** relates to extension of the lease to recover the lost years during the period of expropriation and it stipulates that;

*"For purposes of Section 2(2) (b) of the Act, every expired lease, agreement for a lease or other tenancy shall be deemed to continue* 10 *after the property has been dealt with in accordance with the Act, for a period of two years or a period equivalent to the unexpired period of the lease, agreement for a lease or tenancy at the time of expropriation of the property whichever is the greater period".*

In light of the above, it would mean that the plaintiff's lease term which was to expire on 1st 15 January 2000, by virtue of **Regulation 13 (supra)** was to be extended by 20 years being the period within between 1972 when the Asians were expelled from Uganda and 1992 when the plaintiff repossessed the suit land. In accordance with afore cited regulation, the plaintiff's lease ought to have expired in 2020. Therefore, in 2012 when the 1st defendant acquired the suit land, the plaintiff's lease was still 20 running for a period of 8 (eight) years following the extension of the lease period after the extension of the lost period during the period of expropriation.

When dealing with expropriated properties, the intention of the draftsmen of the Expropriated Properties Act should always remain alive. Just like ordinary Uganda citizens, Asians whose property was expropriated have a right to hold and own 25 property as embodied under **Article 26 of the 1995 Constitution of the Republic of Uganda,** hence any law or decision of an administrative authority intending interfere with the said right is unconstitutional (see **Ismailia Building Company Ltd & ors versus Attorney General Constitutional Court Petition No. 37 of** 2019). In the case of **Registered Trustees of Kampala Institute versus Departed**


5 **Asians Property Custodian Board Supreme Court Civil Appeal No. 21 of 1993,** Platt JSC held as follows;

"*The Expropriated Properties Act, 1982 was a remedial Statute aimed at putting right what the Legislature in 1982 thought had been unfortunately decreed or done a decade earlier. It was aiming at* 10 *returning property to the former owners. Such an act should be given a liberal interpretation. This attitude also fits in this case with the mischief rule which may also be called the "Rule in Heydons Case".*

The Honourable Justice further cited the case of *Gartside versus IRC (1968) AC 433, at page 612,* wherein Lord Reid stated as follows;

15 *"It is always proper to construe an ambiguous word or phrase in light of the mischief which the provision is obviously designed to prevent and in light of the reasonableness of the consequence which follow from giving it a particular construction. Applying these principles to the present case, the mischief was the expropriation of property and the* 20 *remedy was that it should be returned to previous owners. These expropriations might be sanctioned by decree, or carried out infringing a decree. Having in mind that this act was to redress the expropriations, it would be strange to remedy what would be done under a decree and provide no remedy for an expropriation which infringed a decree".*

25 In the instant case, it is not in contention that at all material times, the plaintiff has been in occupation of the suit land since 1964 when he purchased the suit land and has even gone ahead to prove that he has at all material times continued to pay ground rent for the suit premises to Kampala Capital City Authority as evidenced in **PExh. 3(a), (b),** and **(c) and (e).** This fact was confirmed by the plaintiff during

5 cross examination, wherein he told court that he developed the suit land as his family's residential holding wherein he lived with his entire family. This piece of evidence was not traversed by the defendants.

During cross examination, the 1st defendant (Dw1) conceded that he inspected the suit land wherein he discovered that the plaintiff was residing on the same. Dw1 10 further testified that he knocked on the gate however, no one opened. This is proof that the 1 st defendant had actual notice of the fact that the plaintiff was in occupation of the suit land and yet went ahead to purchase a purported customary interest in the suit land which was later converted to freehold tenure (**DExh.2, 3 and 4)** from the 2 nd defendant on account of the fact that the plaintiff's lease had expired.

- 15 In the case of **Venansio Babweyaka & Ors versus Kampala District Land Board & anor HCCS No. 11 of 2011,** Justice R. O Okumu Wengi cited the case of **Marko Matovu and 2 ors versus Mohammed SSeviri and Uganda Land Commission (1979) HCB** wherein it was noted that the said authority underscores the powers to give grants and sets parameters for such grants while emphasizing that in so giving - 20 the grant, the judicial and administrative must observe the principles of natural justice. The Court of Appeal emphasized fair play so that the administrative body does not overstep the principles of natural justice and arrive at an invalid decision. It was further noted that an action to defeat any interested persons just would constitute prima facie evidence of fair play. In addition, in the case of *Vivo Energy* - 25 *(U) Limited versus Shire Petroleum Company Limited & 2 others (Supra*) Justice Stephen Mubiru made reference to the case of *Kampala District Land Board & Chemical Distributors versus National Housing and Construction Corporation SCCA No. 2 of 2004* to the effect that when the respondent in the appeal was in possession of the suit land when it was offered by Kampala District Land Board to


5 the second appellant, the respondent was a bonafide occupant and was entitled to the first option to be leased the land.

In the instant case, it is evident that the 2nd defendant did not recognize or even consider the plaintiff's occupation of the suit land as an interested party before proceeding to offer the suit land to the 1st defendant and proceeding to convert the 10 suit land into freehold tenure hence extinguishing the plaintiff's interest in the suit land without being given the option of renewing the lease. This is proof that the 2nd defendant neither inspected nor verified the state or occupation of the suit land before offering the same to the 1st defendant.

I have also observed that the suit land which has always been held under the leasehold tenure, was offered to the 1st 15 defendant under the customary tenure and subsequently converted to freehold tenure, and issued a freehold title as evidenced by **DExh.4. Regulation 10 and 11 of the Land Regulations lays down the procedure** to be followed for the conversion of the suit land from customary tenure to freehold. **Regulation 21** requires that in considering the application under 20 Regulation 11, the Area Land Committee must comply with the rules of natural justice. **Regulation 21 (1) (i)** requires that any person claiming an interest in the suit land should be afforded a fair hearing and be given an opportunity to present his claim to the suit land.

In the instant case, it is evident that none of these procedures were followed as the 2 nd 25 defendant never adduced evidence relating to the minutes of this hearing. Furthermore, **Regulation 23** stipulates the procedure to be followed in the allocation of land by the District Land Board. During cross-examination by Counsel Mugenyi, the 1st defendant was unable to confirm whether his application for allocation was advertised in accordance with **Regulation 23 (2) (a) of the Land Regulations**. I have also observed that the 2nd 30 defendant has failed to adduce any evidence in

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- 5 relation to Land Board Minute No. KDL B6/7/38 /2012 which purportedly led to the allocation of the suit land to the 1st defendant. All these issues point to procedural irregularities associated with the 2nd defendant's allocation of the suit land to the 1st defendant. - Furthermore, it does not make any logical sense that land previously held through leasehold tenure, would then be allocated to the 1st 10 defendant as customary land, not to talk of land in the urban center like Kampala. Uganda has a Torren system or a land registration system, and as such it is not possible for previously registered land to return to customary tenure, that would be working backwards as was testified by the Acting Principal Registrar of Titles Mr. Ssekito Moses (**Dw2**). There is no way the 3rd 15 defendant being the custodian of the original certificate of title of the suit land (white page) could participate and effect the conversion of the suit land from customary to freehold tenure. The 3rd defendant relied on the instructions of the 2nd - defendant without question and that that how a freehold certificate of title was issued to the 1st defendant erroneously. - 20 In the premises, it is my finding that the aforementioned facts are proof of procedural irregularities on the part of the defendants, failure to verify and inspect the suit land prior to the allocation to the 1st defendant as well as failure to offer the plaintiff a fair hearing to consider his interest in the suit land as the occupant of the same; all of which amounted to a contravention of the principles of natural justice contrary to - 25 **Regulation 21 of the Land regulations**, **2004** and amounted to negligence.

In the premises and in light of the aforementioned evidence, facts and authorities, I find that the 1st defendant unlawfully acquired the suit land comprised in FRV 1571 folio 23.

## **Remedies**

- 5 The plaintiff sought general damages. The award of general damages is premised on the doctrine of *'restitutio in integrum'* which means that the aggrieved party has to be restored as nearly as possible to a position he or she would have been in had the injury complained of not occurred. *(See Amazima (U) Ltd versus Mahdi (HCCS NO. 453 of 2016).* - 10 In the case of **Luzinda v. Ssekamatte & 3 Ors (Civil suit -2017/366 [2020] UGHCCD 20 (13 March 2020),** *this court held that as far as damages are concerned, it is trite law that general damages be awarded in the discretion of court. Damages are awarded to compensate the aggrieved, fairly for the inconveniences accrued because of the actions of the defendant. It is the duty of the claimant to plead* - 15 *and prove that there were damages, losses or injuries suffered as a result of the defendant's actions*.

It has already been resolved that the defendants irregularly issued a freehold certificate of title to the suit land in the 1st defendant's names and the said freehold certificate of title should be canceled by the 3rd defendant. The plaintiff is hereby

20 awarded a sum of Ug. Shs. 30,000,000 (Uganda Shillings thirty million) from the 2 nd defendant for the inconvenience cause to him.

## **Interest**

The plaintiff prayed for interest of 25% per annum. It was held in **Begumisa Financial Services Ltd versus General Holdings & Anor [2007]1 EA 28** that;

25 *"An award of interest is discretionary and the basis of an award of interest is that the defendant has kept the plaintiff out of his money and defendant has had the use of it himself, so he ought to compensate the plaintiff accordingly."*


- 5 Since the plaintiff testified that he has been in occupation of the suit land, and he did not prove actual monetary loss, I would find no reason to award him interest. There was proof that he incurred loss arising from a specific commercial venture. He testified that he has been using the suit property for residential purposes and he is still occupying the same for residential 10 purposes. - **Costs**

**Section 27(2) of the Civil Procedure Act Cap 71** provides that costs shall be at the discretion of the court and shall follow the event unless for good reasons court directs otherwise.

15 It is trite that cost "shall follow the event"; which means that the successful party, shall be entitled to costs. Therefore, as the successful party herein, the plaintiff is entitled to the same as against the 1st and 2nd defendants.

In the final result, I enter Judgment in favour of the plaintiff as against the defendants and order as follows;

- 20 *1. The plaintiff is the lawful and rightful owner of land formerly comprised in LRV 323 Folio 9 Plot 6 Tagore Crescent and currently comprised in FRV 1571 Folio 23 Plot 6 Tagore Crescent.* - *2. The 3rd defendant is herein ordered to cancel the 1st defendant's entry on the certificate of title of FRV 1571 Folio 23 Plot 6 Tagore Crescent.* - *3. A permanent injunction doth issue restraining the 1st* 25 *defendant, his agents, servant or successors in title from trespassing, alienating or interfering in any with the plaintiff's occupation of the suit land.* - *4. The 2nd defendant is ordered to receive and attend to the application of renewal of the lease in respect of the suit land by the plaintiff in accordance* 30 *with the Land Act and regulations made thereunder.* - *5. The 1 st defendant should deliver the freehold certificate of title for the suit land in his possession to the 3 rd defendant for cancellation within a period of one month from the date of this judgment.*


- 5 *6. An award of general damages to a tune of Ug. Shs. 30,000,000(Uganda Shillings thirty million) to the plaintiff from the 1 st and 2 nd defendant.* - *7. Costs of suit are awarded to the plaintiff against the 1st and 2nd defendant.*

## **I SO ORDER.**

Judgment delivered via ECCMIS this **28th** 10 day of **February** 2025.

**Immaculate Busingye Byaruhanga**

**Judge**

15