Banoba v senkoole and Another (HCCS No. 817 of 2006) [2016] UGHCLD 281 (31 May 2016)

Full Case Text

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

## (LAND DIVISION)

# HCCS NO. 817 OF 2006

#### PLAINTIFF ISRAEL D. K. BANOBA ::::::::::::::::::::

C T- ■' • ' COf-'V OF i i

### VERSUS

### 1. MICHAELSENKOOLE

DEFENDANTS 2. TEOPISTA SENKOOLE

BEFORE: HON. MR. JUSTICE J. W. KWESIGA

### JUDGMENT:

The Plaintiff sued the two Defendants alTegihg tfet'SeNtwo Defendants connived to prepare false statutory Declaration-that the Plaintiff was dead, that the original Owners Certificate of Title for the suitland, Busiro Block 347 Plot 68 got lost, used forged Mutation Forms to sub-divide the suitland into plots 374, 375 and 376. Presented fictions Agreements of purchase of KIBANJA.

The Plaintiff pleaded that the Defendants illegally occupied the suitland and sought the following reliefs;-

- (a) A declaration that the defendant's subdivision of the suitland and occupation thereof was fraudulent and illegal. - **-1^** (b) An Order of ejectment of the Defendants from the suitland. - (c) A permanent injunction restraining the Defendants from occupying and developing the suitland. ' - **(d)** Order directing reversal of Plots 374, 375 and- 376 back to Plot 68 Block 347 Busiro. *1* - **(e)** *Order* that no special Certificates of Title be created/issued. —

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The Defendants denied the particular allegations in the plaint and stated;-

$(a)$ That they purchased the suitland in 1994 from Herbert E. Kabogoza and occupied the land in 1994 and acquired the status of BONAFIDE OCCUPANTS. That they are Bonafide ~ 5 Purchasers for value without notice of the Plaintiff' interests. That from 1994 they enjoyed quiet occupation up to 2006, for a period of 12 years without any third party claim over the land.

At the scheduling conference the Plaintiff and the Defendants did not agree on any material facts except that the Plaintiff is the registered $-\ell_{\mathcal{O}}$ Proprietor of the suitland. Several issues were listed for determination in this trial namely;-

- 1. Whether the Defendants have a lawful interest in the Plaintiff's land /suitland. - .2. Whether the Defendants caused the subdivision of the Plaintiff's-IG land and created Plot 374, 375 and 376. - 3. Whether the defendant's conduct amounted to fraud. - 4. Remedies available to the parties.

Throughout the trial of this case the Plaintiff was represented by M/s Nyanzi, Kiboneka & Mbabazi Advocates, while the Defendants were $-\mathcal{I}$ represented by M/s. Lubega, Babu & Co. Advocates.

When I took over the proceedings from the previous presiding Judges, what was pending was cross-examination of the last two Defence witnesses.

I did not have opportunity of hearing or seeing the Plaintiff and the Defendants while they testified and I will depend on record which the two parties' Advocates have gone through and confirmed to me as a true record of the proceedings.

Because of the above background, I will first summarise the evidence in order to bring out the facts of this case: $96.1\%$ $-50$ $352$

e Plaintiff (PW2) testified that he purchased Busiro Block 347 Plots 67 and 68 in 1960s from Yafesi Walusimbi and it is admitted by the Defence that he is the registered proprietor for Plot 68 now the subject of this suit. That the land remained un-occupied and un-developed. He developed interests to sell both plots 67 and 68 to (UIA) Uganda -6 Investment Authority as reflected by correspondences- admitted as Plaintiff's Exhibits Pl & P2.

*IV* In 2006 he found people delivering building materials on the land and he protested and complained to LC.l Chairman. He discovered,that Plot 68 had been sub-divided into Plots 374, 375 and 376.

He reported to Police, he filed a Caveat on Plot 68 to stop completion of sub-division. The Police traced and arrested the 1st Defendant; Senkoole who agreed that the houses under construction belonged to him. That he had purchased the land. The Plaintiff demanded that he vacates the land but the Defendant refused claiming ownership of part ofland. •<-

Under.cross-examination he gave details of how\_he acquired the land and registration as the owner and that he became ~ aware of the Defendants presence on the land in 20^6.

PW3 - **Ahmed Ddamulira;** A Registrar of Titles told court that he handled the file for Busiro Block 347 Plot 68 and that in 2006 he handled application for special certificate of title.

The application was lodged by David Kya'muhangire Mulangira who claimed to be a son of Israel Dick Kyamuhangire who he declared dead and that the owners's copy of the Certificate was lost.

The application for the Special Certificate of Title for Plot 68 constituted -25 documents marked Plaintiff's Exhibits P4, P5, P6 and P8 the Uganda Gazette of 17th February 2006. The statutory declation stated that the Registered Proprietor died in 1992 and that the Applicant was appointed the heir.

2006. el Dick Banoba Kyamuhangire filed a caveat (See PE3) on 4th April, -go sr The affidavit in support of the caveat, Israel Dick Banoba •ro Hpnied knowledge of Dan Mulangira Kyamuhangire and Kyamuhangire uen ------- *^^ 7*

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no doubt proved that he is not dead as alleged in the application for Special Certificate of Title.

PW3 Ahmed Ddamulira, received a complaint by the registered Proprietor who produced the owner's duplicate certificate of title and the application for a Special Certificate of Title was rejected. -

MICHAEL SENKOOLE aged 74 years testified in defence that he claims kibanja interests on Busiro Block 347 Plot 68. That he bought kibanja in 1994 from **ELIAZA HERBERT KABOGOZA NDUNGU** measuring approximately 3 Acres. He tendered the Agreement as $D\cancel{E}.2$ .

This Agreement describes the boundaries and approximate size of the $-1/$ land as (3) three Acres, sold at 3,000,000/= to Mr. Michael Senkoole and Mrs. Theopista Senkoole. The Defendant produced a judgment of HCT-00-CR-CN-0092-2008, Uqanda Versus Michael Senkoole. The summary of the case is that Michael Senkoole had been charged on complaint of the Plaintiff in this suit alleging obtaining registration by $\sim$ 15 false pretence.

The facts presented in the Magistrate Court (in criminal trial) is basically what I have summarized above. The trial Magistrate acquitted Michael Senkoole. The Director of Public Prosecution appealed to the High Court and Hon. Mr. Justice Rugadya Atwoki dismissed the Appeal and -20 acquitted Michael Senkoole.

The Learned Judge, in the Criminal trial state;- "It is worth nothing that the prosecution evidence was not at variance with defence evidence in all material particulars. There was no dispute that the Respondent (Senkoole) purchased land from Kabogoza, and that the said land was -25 within the suitland, i.e Block 347 Plot 68 Busiro. There was no dispute that the Respondent sought assistance of a technocrat in those matters one BEMBA PW2. The evidence of fraud according to the Prosecution was first that the Respondent dealt with Lands Office. I found that there was no evidence that the Respondent was fraudulent in dealing $-20$ with the suitland. There was an elusive character called Mulangira who was obviously a fraudster. ---- The Police failed to find him, even after the assistance of the Respondent. There was no evidence of any false

*pretence on the part of the Respondent. The issue whether the ^^BQndent\_pwas\_lawfully on the land or acquired the same lawfully ^Hl^~be\_\_appropriately answered in a Civil Suit and not* • *Criminal £fQceedingsd.* (The underlining has been supplied). The above underline issue appears to me to be the fundamental question to be resolved by this trial.

**DW2 Kabogoza,** 80 years old testified that he sold 3 Acres to Senkoole at 3,000,000/=. This was sale of kibanja. See Agreement D2. That he handed to Senkoole the following documents;-

- (D • Landlord's Letter allowing the sale, - Letter from Landlord's heir confirming kibanja ownership, - Busulu tickets from the Landlord dated 8th October 1991, - A letter from Yafesi Mpanga of 19th February 1981. -(These were admitted as DE6, DE7 and DE8):

Under cross examination Kabogoza told court that he lived on this—{5 kibanja for 30 .years and all the 3 Acres are on the Plaintiff's Land. Walusimbi had been his Landlord and that he did not know the Plaintiff until he appeared in 2006 when Walusimbi, the previous Landlord had died. Kabogoza stated he had inherited the kibanja from his father in 1953. —**XO**

**DW3 Kanyike Michael,** LC.l General Secretary confirmed Senkoole bought the kibanja from Kabogoza about 1995 and he wrote the Agreement DE2.

Whereas Kabogoza acquired the kibanja land in 1953 from Walusimbi, the Plaintiff, in 1960s purchased Mailo register Busiro Block 347 Plot 67 *-2\$ and* 68 from the said Walusimbi on which the kibanja that belonged to Kabogoza is situate.

have examined defence exhibit DE8 dated 19th February 1981'. This Written consent by Yafesi Walusimbi to Yuda Ddunga family of Kabogoza to sell off the kibanja on Block 347 Plot 68.... -3®

The above exhibit L and D6(iii) which' confirm ' that' Yuda Ddungu, -> iPtter by Yafesi Walusimbi is corroborated by Busulu Tickets, D6(i) D6(H)

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Kabogoza's father and predecessor in kibanja title paid Busulu to Yafesi Walusimbi in 1965, 1967 and 1968 which proves existence of a kibanja.

I have considered the evidence of both the Plaintiff and the Defendants together and I find that it is not contested that the Plaintiff, Israel D. K. Banoba is the registered Proprietor of that whole land comprised in $-5$ Busiro Block 347 Plot 68 at Nalumunye. It is also not in dispute that the Defendants occupy the suitland measuring approximately 3 Acres which is on the titled land Block 347 Plot 68 at Nalumunye.

The question to be answered is whether the Defendant's have a lawful interest in the land. Article 237 (8) of the Constitution of the Republic of $-10$ Uganda 1995 provided "(8) upon the coming into force of this constitution and until Parliament enacts an appropriate Law under clause (9) of this Article, the lawful or bonafide occupants of Mailo, freehold or Leasehold land shall enjoy security of occupancy on the land".

Pursuant to Article 237(9) the Parliament of Uganda passed the Land Act $-1$ Cap. 227 for purposes, inter-alia, of regulating the relationship between the lawful or bonafide occupants of Land and the registered owners who include the Mailo land owners, Leasehold and Freehold owners. The relevant definition of "a bonafide occupant" as made under Section 20 29 of the Land Act, 1998.

"Section 29(2) "Bonafide occupant" means a person who before the coming into force of the Constitution;

(a), Had occupied and utilised or developed any land unchallenged by the registered owner or Agent of the registered owner for twelve years or more". The law further provides that a person on the land by virtue -25 of having purchased or otherwise acquired interest of the person qualified to be a bonafide occupant shall qualify to be a bonafide occupant under the law.

In this case the Defendant, Senkoole purchased the suit kibanja in 1994 from Kabogoza Ddungu (DW2) at 3,000,000 under a written agreement -30 admitted as defence Exhibit 'D2'. Both the Seller and the Purchaser under the Agreement have honoured and proved this to be their genuine agreement and in my view it has not been impeached by any evidence to prove it a fraudulent sale agreement as pleaded by the Plaintiff.

DW2 Kabogoza told court that he had a letter from the previous. registered owner allowing him to sell and confirming that he was the-5 owner of the kibanja (See Exhibits DE6), DE7 and DE8 together. Kabogoza had lived on the suit land for 30 years. His occupancy was not challenged for 30 years. This has been corroborated by the evidence of DW3, Kanyike Michael LC.1 General Secretary. The Plaintiff challenged the Defendant's occupancy in 2006. From 1994 to 2006 is a $\div$ (O period of 12 years. I must add that the kibanja interests runs as far back as 1965 when the Defendant's predecessor in kibanja interest acquired the interest which is over 40 years.

Any person who purchases registered interest in a parcel of Land, whether mailo, leasehold or freehold takes these registered interests $\sim$ / $\leq$ subject to the existing interests of a kibanja holder or the bonafide or lawful occupant of that land. This was settled by the Supreme Court in the following two cases;-

Kampala District Land Board and Another Versus National $(i)$ Housing and Construction Corporation, Civil Appeal No. 2 of -20 $2004.$

Venansio Babweyaka, Civil Appeal No. 2 of 2007. $(ii)$

In an earlier case of Erisa Lukwago Versus Bawa Singh and another (1959) EA 282 Bennet J. (as he then was) held that "It is of essence of the relationship between a mailo owner and the holder of a kibanja that $-25$ the Latter's rights of occupation inures for an indeterminate period and is heritable by his Heir and Successor". This settled position supports the fact that Kabogoza who inherited the suit kibanja was perfectly entitled to do so and to transfer those interest for a valuable $-30$ $357$ consideration as he did. Tut Inc. i.

$7 + 7 = 3$

Kabogoza's un-challenged evidence is that he inherited the kibanja from his late father YUDA DUNGU whose Landlord was WALUSIMBI YAFESI MPANGA from who the Plaintiff acquired the reversionary interest (Mailo). Kabogoza succeeded Yuda Dungu legally according to Section 8(1) of the Busulu & Envujjo Law which permits succession to a kibanja-G in the following specific provision;-

"Nothing in this Law shall give any person the right to reside on the land of a mailo owner except a wife or a child of the holder of a kibanja, or a person who succeeds to a kibanja in accordance with native custom upon the death of the holder thereof". $-10$

I have evaluated the contents of Exhibit DE8 Walusimbi (The Mailo Owner), on 19th February 1981 gave to Kabogoza or Yudda Ddungu family written consent to sell off their kibanja on Block 347 Busiro Plot 68.

The Mailo Owner Yafesi Walusimbi confirmed the following;-

- The kibanja belonged to Late Yuda Ddungu the father of $(a)$ Kabogoza Ddungu, - Kabogoza was the sole occupant, < $(b)$ - Granted consent to sell, $(c)$ - Kabogoza would handover all the documents pertaining to this $-20$ $(d)$ kibanja to the Purchaser. `

-15

In view of the above evidence I am satisfied that when Kabogoza Ddungu sold the suit kibanja to Michael Senkoole and Teopista Senkoole he had authority to do so and did so legally. He transferred the Proprietory interests in the kibanja at the time of execution of the sale $-2.5$ agreement and acknowledging the valuable consideration of the sale. The answer to the first issue is that the Defendants have lawful interests in the Plaintiff's land as kibanja owners and as bonafide occupants of the land and their interests are guaranteed by the Constitution of Uganda, The Land Act and Law as settled by Courts of Law. $-50$

Issue No. 2: Whether the Defendants caused the sub-division of the Plaintiff's land and created his own plots. 358

The Plaintiff's evidence is that in April 2006 he discovered that his plot 68 had been subdivided into plot 374, 375 and 376. This was reflected by Exhibit P.13. He visited Wakiso Land Office and found his land had been subdivided. However, the plot number i.e plot 68 was later restored. PW4 told court that at the time of subdivision the land was in $-\kappa$ the name of Y. Walusimbi. The name of Michael Senkoole and Teopista Senkoole did not appear in the records. That the person who caused sub-division cannot be identified from the documents.

PW4 - Ojera Venansio, from Wakiso Land Office told court that the · request for subdivision was delivered by one Ssegujja for Israel Dick $-(0)$ Kyamuhangire (See PE.3). He told court that ordinarily subdivision of a plot is done under the instructions of the registered owner who signs a mutation form and that the records show that the subdivisions were done for the benefit of Israel Dick Banoba Kyamuhangire. That there $-15$ was no evidence that Senkooles were involved.

The defence evidence is that in 2016 he was arrested and charged for allegedly attempting to fraudulently register himself on the suit land. His explanation is that he wanted to register his 3 Acres kibanja. He was not involved in the sub-division.

The offending Mutation Form was admitted and marked D1. The $-2$ ° partitioning of Busiro Block 347 Plot 68 was for Israel Dick Kyamuhangire presented on $17^{th}$ August 2007 and approved on $29^{th}$ August 2007. There is no entry in the Mutation Form to suggest that the Defendant was party to the process.

The evidence as a whole shows that Daniel Mulangira Kyamuhangire $-25$ who claimed to be a Successor of Israel Dick Kyamuhangire was responsible for the attempted procurement of a Special Certificate of title and sub-division of the suitland.

At this stage in this Civil Suit, I agree with the statement of the Learned Justice Rugadya Atwoki in Uganda Versus Michael Senkoole - - 30 High Court Criminal Case HCT-CR-CN-0092-2008 where he settled it in these words;in Y UP THE CRITIC

$91.33$

*there was no evidence that the Respondent (now Defendant) wap fraudulent in his dealings with the suitland. There was an elusive character caller Mulangira who was obviously a fraudster and this would have been a prime person to give answers to many of the unanswered questions in this case. The police failed to find him, even after the^n> assistance of the Respondent. The process of securing the Special Certificate of Title was halted at the instance of the Respondent. That was not evidence ofguilt or fraud. There was no evidence ofany false pretence on the part ofthe Respondent".*

There was no need for maintaining this suit - HCCS No. 817 of 2006 after the above judgment dated 19th December, 2010 which absolved the Defendants. I am aware that in the Criminal Case the standard of proof was proof beyond reasonable doubt, however, even on balance of probabilities, there is no **- i** as the Plaintiff seeks.

In view of the above the Plaintiff's suit is hereby wholly dismissed with costs awarded to the Defendants.

To remove any doubt whatsoever it is hereby declared that the Defendants are entitled to the right of occupancy of the three (3) Acres of the kibanja and the Plaintiff shall not eject them from any part of this-pLO kibanja until or unless there has been adequate compensation agreed upon by both parties or determined by a court of competent jurisdiction.

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Signed: J. W. Kwesiga

Judge

31/5/2016

#### resence of;- Irrthe

Rashid for the Defendants / Mr. Babu

**I**

1st Defendant present

Mr. Hamuza Kyamaywa for the Plaintiff

The Plaintiff is in court

✓ Miria Nalwede – Court Clerk

$\mathcal{L}$

Signed: J. W. Kwesiga

Judge

31/5/2016

$\frac{8}{8}4\%$

# ITHE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION)

## CIVIL SUIT NO. 817 OF 2006

ISREAL D. K. BANOBA----------------------------------

#### **VERSUS**

## 1. MICHEAL SENKOOLE

2. TEOPISTA SENKOOL-----------------------------------

### DECREE

This suit coming up for final disposal this 31st day of May, 2016 before HIS LORDSHIP THE HON. MR. JUSTICE J. W. KWESIGA in the presence of Babu Rashid Esq. learned Counsel for the Defendants and Mr. Hamza Kyamanywa holding brief for Ms. Namutebi Alzik Counsel for the plaintiff and in the presence of the 1st defendant and the plaintiff;

IT IS HEREBY DECREED as follows:-

- a) The plaintiff's suit is wholly dismissed with costs to the defendants. - b) To remove any doubt whatsoever, it is hereby declared that the defendants are entitled to the right of occupancy of the three (3) acres of the kibanja. - c) The plaintiff shall not eject them from any part of this kibanja until or unless there has been adequate compensation agreed upon by both parties or determined by a court of competent jurisdiction. **JUN 2016**

BABABAZI ... M/s Nonzinzind MBABALI Counsel for the Abanone ATES P. O. BOX 7699, KAMPALA (U)

M/s Lubega, Babu, G. Go. Advocates Counsel for the Defendants

GIVEN my hand and seal of Court this ....................................

DEPUTY REGISTRAR HIGH COURT -LAND DIVISION

Extracted by: M/S Lubega, Babu &co. Advocates, Plot 76A Bombo Road, Suit 6 2nd Floor Shoal House, P. O. Box 37262, Kampala **UGANDA** Email: lubegababu@gmail.com Tel: 0392886130/0782160028/0702224294

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