Bityo v Komweru and Others (CIVIL SUIT NO.227 OF 2022) [2025] UGHC 231 (3 February 2025)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT HOIMA CIVIL SUIT NO.227 OF 2022**

**BENSON BITYO ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF**

#### **VERSUS**

- **1. ROSEMARY KOMWERU alias KAHWERIRE DINA** - **2. NEBBA GRACIOUS IRUMBA** - **3. KAJUMA EDWARD** - **4. JANE IRUMBA** - **5. SIMON BABIIHA KAJONGO** - **6. ISINGOMA EMMANUEL :::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANTS**

*Before: Hon. Justice Byaruhanga Jesse Rugyema*

#### **JUDGMENT**

### **Background**

- [1] The Plaintiff's claim against the Defendants is for recovery of **shs. 396,000,000/=** plus **shs 57,000,000/=** expenses, general damages and interest thereon. - [2] It is the Plaintiff's case that in mid 2012, **Kajuma Edward** (3rd defendant), **Jane Irumba** (4th Defendant) and **Simon Babiiha Kajongo** (5th Defendant) approached the plaintiff as agents of the 1st Defendant whom they identified as **Kahwerire Dina** for sale of land comprised in **Bugahya Block 20, plot 72 land at Kaburamururo, Hoima District** (herein after referred to as the suit land). - [3] After a series of inspection and negotiations between the Plaintiff and the 2 nd and 4th Defendants as the children of the registered proprietor of the land, **Kahwerire Diana,** the Plaintiff purchased the suit land at the agreed

upon purchase price of **shs.396,000,000/=** which he fully paid through instalments. The full payment of the purchase price of the suit land was acknowledged by the 1st, 2nd, and 4th Defendants.

- [4] Upon full payment of the purchase price, the Plaintiff was given the title of the land and transfer forms and he accordingly caused the title to be registered in his names. However, later, when the plaintiff tried to take physical possession of the land, he met strong resistance from a one **Yosamu Kubalikenda** who claimed ownership of the same. Following investigations regarding the ownership of the land, it came out that actually, the vendor, **Kahwerire Dina** did not exist before the title to the land was issued and as such, the sale transaction to the Plaintiff was fraudulent. - [5] The Plaintiff particularised the fraud of the Defendants as follows: - a) The 1st Defendant calling herself and signing the purchase agreement as **Kahwerire Dina** whereas she is known as **Rosemary Komweru.** - b) The 2nd 6 th Defendants witnessing the sale agreement when well aware that **Kahwerire Dina** does not exist and allowing the 1st Defendant to sign as a seller well knowing she was not **Kahwerire Dina.** - c) The Defendants being aware of the customary interests of **Yosamu Kubalikenda** and deliberately refusing to disclose such vital information to the Plaintiff. - d) The 2nd and 4th Defendants applying and causing the land to be registered in the names of **Kahwerire Dina** well aware of the interests of the occupants. - [6] As regards particulars of special damages, the plaintiff particularised them as follows: - a) Purchase price……………………………………….. shs. 396,000,000/= b) Legal fee agreement ……………………………….. shs. 2,000,000/= c) Transfer expenses e.g stamp duty………………. shs. 5,000,000/= d) Foreign exchange transfer of funds from Bujumbura to Kampala…………………….. shs. 40,000,000/= e) Miscellaneous expenses…………………………… shs. 10,000,000/=

**Total……………………………………………………. shs. 453,000,000/=**

- [7] The Plaintiff contended that the sale transaction of the suit land by the Defendants was fraudulent, that it caused him to suffer financial loss and damages for which he holds the Defendants liable. - [8] In the joint Written Statement of Defence (WSD), the defendants denied the Plaintiff's claims and contended that they neither sold any land to the plaintiff nor entered into any contract of sale. That the 1st Defendant has never been **Kahwerire Dina**, the vendor in the land transaction and the 2nd – 6 th Defendants were only called upon by the vendor to witness the land transaction between **Kahwerire Dina** and the Plaintiff. - [9] The Defendants further averred and contended that all the instalment payments for the land transaction were acknowledged by the vendor and the 2nd – 6 th Defendants only signed the sale agreement of the land as witnesses. - [10] The Defendants finally contended that the plaintiff having bought the said land and transferred the title into his names is proof of his legal ownership and therefore, he cannot claim refund of **Ugx 396,000,000/=** which if allowed would amount to unjust enrichment of the Plaintiff. - [11] The **3 rd Defendant** filed a Counter claim against the **1 st & 2nd Defendants** contending as follows: - a) That the 3rd Defendant was neither a land broker nor commission agent in the subject land transaction. That he is a cousin to the 2nd Defendant. That upon being aware that the Plaintiff wanted to purchase land and the 2nd Defendant had land to sell, he linked both parties together as purchaser and vendor. - b) That at the material time, the 2nd Defendant represented to the 3rd Defendant that he was the defacto owner of the subject land though registered in the names of his sister i.e, the 1st Defendant whom he also knew as so. That the 1st Defendant was represented as having names corresponding with those on the certificate of title of the suit land and hence, she was accordingly the registered proprietor.

c) Finally, that the 3rd Defendant was an innocent party who linked the Plaintiff and the 2nd Defendant as vendor and purchaser. He denied being a party to the misrepresentation, fraud and or illegal conduct of the 2nd defendant in cohort with the 1st Defendant. He however admitted that all the plaintiff's payments for the land were sent to him as consideration, which he passed to the 2nd Defendant and therefore, that he stands to be indemnified against any liability arising from this suit by the 2nd Defendant who was the beneficiary of all the Proceeds from the purported illicit transaction.

## **Counsel legal representation**

- [12] The Plaintiff was represented by **Mr. James Nangwala** of **M/s Nangwala, Rezida & Co. Advocates, Kampala** while the 1st, 2nd, 4th and 5th Defendants were represented by **Mr. Simon Kasangaki** being assisted by **Ms. Gertrude Nabirye** both of **M/s Kasangaki & Co. Advocates, Masindi**. The 3rd Defendant was represented by **Mr. Mbabazi Muhammad** of **M/s Nyanzi Kiboneka & Mbabazi Advocates, Kampala.** All the counsel save for the 3rd Defendant filed their respective submissions for consideration in the determination of this suit. - [13] During scheduling conference by the counsel in the matter, issues were framed for the determination of this suit. I however found them duplicating each other and reframed them as follows: - **1. Whether the Defendants jointly and/or severally obtained a sum of Ugx 396,000,000/= from the plaintiff by false pretence and or through fraud.** - **2. Whether the 1st & 2nd Defendants are liable to indemnify the 3rd Defendant (Counter claimant) against any liability resulting from the fraudulent transaction.** - **3. What remedies are available to the parties.**

### **Determination**

- **Issue No.1: Whether the Defendants jointly and/or severally obtained a sum of Ugx 396,000,000/= from the Plaintiff by false pretence and /or through fraud.** - [14] Counsel for the Plaintiff submitted that in this case, an overt fraud was knitted mainly by the 2nd and 3rd Defendants, blessed by the 4th – 6 th Defendants using the 1st Defendant as a proxy to perfect it. That as a result of the fraud, the Plaintiff became the victim thereof and unsuspectingly parted with his hard earned money hence this suit. That therefore, the Plaintiff is entitled to recover a sum of **Ugx 396,000,000/=** from the defendants as money for a purported sale of the suit land plus special and general damages arising from the misrepresented sale. That on completion of the payment, when the Plaintiff tried to take possession, it emerged that a one **Yosamu Kubalikenda** was the customary owner of the land and the name appearing on the certificate of title was a name of the deceased mother of the 1st and 2nd Defendants who had died in 1999, about 12 years before the very transaction was initiated. - [15] Relying on the Kenyan case of **Charles Karaithe Kiare & Ors Vs Administrator of the Estate of the late John Wallace Mathare & Ors, CACA No.225 of 2006 (K), [2003] KECA 335 (KLR),** Counsel submitted that the Court of Appeal found that a company referred to in that judgment was not in existence at the time it was registered as owner of a property and accordingly a non-existing company could not hold a title. Counsel argued that the foregoing illustration is very persuasive in guiding the court to hold that a person who is not biologically alive cannot acquire title. - [16] Counsel concluded that a deceased cannot acquire property after death and neither can somebody purport to acquire property in the name of the deceased after death. Further that the 2nd – 6 th Defendants misled the Plaintiff in presenting land owned by **Yosamu Kubalikenda** and they caused an Agreement of sale and transfer, to be executed by **Rosemary Komweru** (1st Defendant) pretending to be **Kahwerire Dina** which rendered the agreement and transfer of the land null and void. That since the

Plaintiff was induced to part with **Ugx 396,000,000/=** in order to purchase land which eventually was found non-existent, he is entitled to refund of the consideration sum from the defendants who fraudulently sold to the Plaintiff non-existing land and obtained the consideration sum by false representation.

- [17] Counsel for the 1st, 2nd, 4th, 5th and 6th Defendants submitted that the Plaintiff's allegations are primarily based on a claim of fraud and deceit but that the evidence, when carefully examined, reveals no direct involvement or fraudulent intent on the part of the 1st, 2nd, 4th, 5th & 6th Defendants. Counsel concluded that the plaintiff failed to establish that all Defendants were equally complicit in the alleged fraud to be entitled to joint and several remedies against each and all of them. - [18] I have considered submissions of both counsel. It is trite that he who approaches the court has the burden of proving the entitlement to the reliefs sought. Both the case law and the statute support this proposition. **In Sebuliba Vs Coop. Bank Ltd [1982] HCB 130,** it was held that in civil suits, the burden of proof lies with the plaintiff who has to prove his or her case on the balance of probabilities and **Ss.101 & 103 of the Evidence Act** 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 the proof of that fact lie on any particular person. He who asserts must affirm, See also **Jovelyn Barugahare Vs A. G, SCCA No.28 of 1993.** - [19] In this suit, the Plaintiff raised allegations of misrepresentation and fraud against the Defendants. It is trite that misrepresentation and fraud must be specifically pleaded and strictly proved, the burden being heavier than on a balance of probabilities generally applied in civil matters, **Kampala Bottlers Ltd Vs Damanico (U) Ltd, SCCA No.22 of 1992.** - [20] In the instant case, it was not in dispute that 2nd to 6 th Defendants presented to the Plaintiff the suit land as being available for sale, see the cross examination of both **Nebba Gracious** (DW2) and **Kajuma Edward** (DW3). It is also not in dispute that the plaintiff purchased the suit land at a

consideration of **Ugx 396,000,000/=** which he fully paid by instalments as per the sale agreement between **Kahwerire Dina** (the 1st Defendant), as vendor and the plaintiff as the purchaser, witnessed by **Nebba Gracious Irumba** (2nd Defendant), **Kajuma Edward** (3rd Defendant), **James Irumba** (4th Defendant), **Simon Babiiha Kajongo** (5th Defendant) and **Isingoma Emmanuel** (6th Defendant), the LC.1 Chairperson of the area. According to the plaintiff, upon conclusion of the execution of the sale Agreement and payment of the purchase price, when he tried to re-open the boundaries of the land, he found resistance from **Kubalikenda Yosamu** who claimed ownership of the land and the purported vendor, **Kahwerire Dina** was not in existence. During cross examination, **DW2** conceded that the purported vendor, **Kahwerire Dina,** his late mother was long dead in 1998 when he processed the title in her names. He however explained that the 1st Defendant, **Komweru Rosemary** adopted the names of her mother, **Kahwerire Dina** and further, that he did not want to process the title in his names or those of his sister, **Komweru Rosemary** for fear of their respective children interfering with claims of shares on the land.

#### **Allegations of misrepresentation and/or fraud against Rosemary Komweru (1st Defendant)**

- [21] Counsel for the 1st, 2nd, 4th, 5th, and 6th, Defendants submitted that the Plaintiff failed to establish fraudulent intent on the part of the 1st Defendant who denies ever selling the suit land to the Plaintiff but that her name was used by the 2nd Defendant during the time when she was unwell and had signed the documents regarding the sale and transfer of the land without understanding their full implication. - [22] However, I find that in her witness statement filed in court on 5/3/2024, the 1 st Defendant, **Rosemary Komweru** (DW1) stated that she sold the suit land which belonged to her. That she is also called **Kahwerire Dina**, the name she inherited from her mother and therefore uses the names "**Komweru Rosemary"** and "**Kahwerire Dina"** interchangeably. - [23] During cross examination, **DW1** stated that the land she sold to the plaintiff is registered land in the names of **Dina Kahwerire,** the name she

adopted from her mother who died sometime back before 2010 when the certificate of title of the suit land was issued.

- [24] Though the 1 st Defendant **(DW1)** in her pleadings denied selling the suit land to the Plaintiff, in her written witness statement and during cross examination in court, she gave contrary evidence. She instead testified that she sold the suit land to the plaintiff under her late mother's names of **Kahwerire Dina.** In the premises, I find that **Mr. Kasangaki** based his submissions and arguments on the 1st Defendant's pleadings instead of basing them on her evidence. Pleadings have never been evidence to be relied on to prove a fact. - [25] The 1st Defendant appeared in her evidence to claim that she sold the Plaintiff land that she inherited from her mother, **Kahwerire Dina**. I need however to state that whether one is an heir or heiress, donee of a gift or property or inheritor of property of the deceased, that does not entitle him or her adopting or assuming the names of the deceased. The person retains his or her actual names unless he or she follows the legal process of acquisition or change of name. For one to assume or call himself or herself the names of the deceased and carry out a transaction in those names amounts to fraud. - [26] In the instant case, I find that the 1st Defendant called herself the names of her late mother **Kahwerire Dina** well knowing that she is not the deceased but **Komweru Rosemary** as per her National Identity card **(P. Exh.10)** and by virtue of that misrepresentation, fraudulently sold the suit land to the Plaintiff and transferred the land title which was fraudulently registered in the names of her mother after she was long dead. As rightly submitted by counsel for the Plaintiff, **Mr. Nangwala** relying on the authority of **Charles Karaitha Vs The Administrator of the estate of John Wallace Mathare (supra),** by analogy, a person who is not biologically alive cannot acquire title and therefore the 1st Defendant's deceased's mother, **Kahwerire Dina** could not have acquired the suit property by registration after her death and nobody can purport to acquire property in the deceased's name after death. [27] In the circumstances above, I find that the 1st Defendant concealed the fact that the purported vendor of the suit land **Kahwerire Dina** was nonexistent and then sold the suit land to the Plaintiff misrepresenting herself as **Kahwerire Dina** whereas she is not. I find her actions and conduct to have amounted to fraud within the meaning attributed to fraud in **Fredrick Zaabwe Vs Orient Bank Ltd, SCCA No.4 of 2006.**

> *"An intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which deceives and is intended to deceive another so that he shall act upon it to his legal injury."*

Indeed, in this case, the 1st Defendant misrepresented herself as **Kahwerire Dina**, her deceased mother and sold the suit land to the plaintiff for consideration of the sum of **Ugx 396,000,000/=** which conduct and act occasioned the Plaintiff damages for which he rightly holds her liable and for refund of the consideration.

# **Allegations of fraud against the 2nd & 3rd defendants**

- [28] Counsel **Kasangaki** submitted that the 2nd Defendant acknowledges being involved in the transaction by linking the Plaintiff to the 1st Defendant but denies any fraud or misrepresentation. He claimed that he acted only as an intermediary and that he had no knowledge that the 1st Defendant's ownership was fraudulent. - [29] As regards the 3rd Defendant, he submitted that for him he denied being a land broker but only facilitated the transaction by receiving payments from the plaintiff through his bank account on behalf of the 2nd Defendant. That he therefore had no knowledge of fraud. - [30] In evidence, during cross examination, the 2nd defendant (DW2) stated that the 1st Defendant who fraudulently sold the suit land to the Plaintiff is his sister. It follows therefore that he knew that the 1st Defendant was not called **Kahwerire Dina** but **Komweru Rosemary**. He conceded that he and

the 3rd Defendant were looking for money to secure treatment of the 1st Defendant who was sick and that is how they came to sell the suit land. Though he denied knowledge of the dispute on the suit land with **Mr. Kubalikenda Yosamu** who was claiming ownership of the suit land, he later stated thus:

*"The dispute over the land with Kubalikenda was there but I decided to process the title in the names of our late mother….. we did not want to process the title of the said land in our respective names including those of Komweru Rosemary for fear of her children and our respective children interfering with us to get a share from it and as a result, we decided to process the title in the names of our late mother, Kahwerire Dina."*

- [31] Then lastly, he testified that the plaintiff paid a consideration of **Ugx 396,000,000/=** which was received by the **3 rd Defendant** and when the monies were passed to him, he distributed it to the **1 st -3 rd Defendants** who got the biggest chunk of the money and then, to the **4 th Defendant** who is his wife and the **6 th Defendant**, the chairman of the area. - [32] The 3rd Defendant **(DW3)** on his part, testified denying that he never got any share of the proceeds of the sale of the suit land. I find the foregoing a lie. According to his brother **DW2**, it is him, **DW2** and **DW3** who are among those who got the biggest chunk of the share. I do find that there is no way the funds (the proceeds of the fraudulent transaction of sale of the suit land) would pass via his bank account and then come out of this bonanza with nothing. - [33] The 3rd Defendant is a relative of both **DW1** and **DW2** for they are his cousins. He calls their late mother auntie as he admitted during cross examination. It becomes surprising that during the conclusion of his cross examination, he denied knowledge of the names of his auntie, the mother of **DW1** and **DW2.** He however conceded that he knew the 1st Defendant as **Komweru Rosemary** and not as **Kahwerire Dina**. He did not explain why he witnessed the sale agreement of the suit land to the Plaintiff in the names of **Kahwerire Dina** whom he never knew about. Both the 2nd and 3rd Defendants admit that in the absence of the 1st Defendant who was

bedridden down sick, they are the ones who presented the suit land to the Plaintiff for purchase and it is evident that they knew it had been registered in the names of the deceased after her death because during cross examination, the 2nd Defendant confirmed that he participated in the processing of the title to the suit land in the names of the deceased and the 3rd Defendant was the one in custody of the certificate of title.

- [34] As rightly submitted by counsel for the Plaintiffs fraud was knitted by mainly the 2nd and 3rd Defendants. They witnessed the sale agreement of the suit land well knowing that the vendor named thereon **Dina Kahwerire** did not exist and they caused and or allowed the 1st Defendant to sign as seller well knowing that she was not **Kahwerire Dina**. They were aware of the customary interests of **Yosamu Kubalikenda** whom they had been disputing with over the suit land but they deliberately refused to disclose such vital information to the Plaintiff during the transaction of the sale of the suit land to the Plaintiff. - [35] The 2nd and 3rd Defendants concealed important information regarding ownership and other interests on the suit land and induced the Plaintiff into the purchase of the land transaction whereupon he became a victim thereof and unsuspectingly parted with a whole **Ugx 396,000,000/=** which the Defendants, save for the 5th Defendant shared. It was a bonanza. I find that the 2nd and 3rd Defendants' acts and conduct amounted to an intentional perversion of truth for purposes of inducing the Plaintiff to part with his hard earned money for which I find, he is entitled to recover from them, i.e the purchase price amounting to **Ugx 396,000,000/=** and damages suffered. - [37] It is clear from the evidence of the Plaintiff that generally, the 4th 6 th Defendants merely witnessed the sale agreement, **P. Exh.2** and were not involved in the alleged fraudulent sale. It cannot be presumed that the 4th Defendant being a wife to the 2nd Defendant or the 5th & 6th Defendants must have known during the absence of the 1st Defendant, that she assumed the names of her deceased mother for purposes of orchestrating a fraud against the Plaintiff when witnessing the sale agreement of the suit land. Whatever money they received from the proceeds of the sale of the

- suit land were mere handouts from the 2nd & 3rd Defendants for their witnessing of the transaction. - [38] In the premises, I find the 1st issue in the affirmative as against the 1st 3 rd Defendants. The 1st – 3 rd Defendants jointly and/or severally obtained a sum of **Ugx 396,000,000/=** from the Plaintiff by false pretences and or fraud. The 4th – 6 th Defendants played no significant role in the fraud transaction apart from merely witnessing the sale agreement.

#### **Issue No.2: Whether the 1st and 2nd Defendants are liable to indemnify the 3 rd Defendant (Counter claimant) against any liability resulting from the fraudulent transaction.**

[39] The 3rd Defendant made a counter claim against the 1st and 2nd Defendants. The 1st and 2nd Defendants did not nevertheless file a reply to the counter claim. During the proceeding, **Mr. Mbabazi** counsel for the 3rd Defendant addressed court that no evidence had been laid in support of the counter claim and he intended to withdraw it. In the absence of any evidence in support of the counter claim, it is accordingly dismissed with no order as to costs since the Counter defendants did not file any reply.

# **Issue No.3: What remedies are available to the parties**

## **a) Refund of the purchase price, Ugx 396,000,000/=**

[40] This court found that the sale of the suit land to the plaintiff was tainted with fraud orchestrated by the 1st – 3 rd defendants and as a result, the Plaintiff could not secure the land he purchased. The sale transaction between the plaintiff and the 1st Defendant was null and void. The Plaintiff is entitled to recovery of the purchase price amounting to **Ugx 396,000,000/=** he paid for the land in the impugned transaction as failed consideration.

- **b) Recovery of other special damages amounting to a total of Ugx 57,000,000/=** - I. **Claim of Ugx 2,000,000/=** as legal fees on sale agreement. The plaintiff did not adduce any evidence in proof of this fee. Though the Agreement **(P. Exh.2**) in question is admittedly drawn by the firm of **M/s Mukwatanise & Co. Advocates,** no evidence was led that the Plaintiff was charged a fee of **Ugx 2,000,000/=.** - II. **Claim of Ugx 5,000,000/=** transfer expenses e.g stamp duty for the transfer of the suit land. Again no evidence was adduced by the plaintiff to prove payment of **Ugx 5,000,000/=** as stamp duty for transfer of the suit land into the plaintiff's names. Though the court believes that the Plaintiff must have paid stamp duty, this court cannot presume that he paid Ugx 5,000,000/= as stamp duty without evidence adduced in support of such a claim. - III. **Claim of Ugx 40,000,000/=** as foreign exchange transfer of funds fees. The plaintiff did not adduce any evidence in support of this claim. The same also apply to the claim of **Ugx 10,000,000/=** as miscellaneous expenses. - [41] It is trite that special damages must be specifically pleaded and at trial, they must be proved by evidence both that the loss was incurred and that it was a direct result of the defendant's conduct, **Joseph Musoke Vs DAPCB & Anor [1990-1994]1 EA 419.** - [42] In the instant case, the Plaintiff fell short of proving those other alleged special damages and as a result, those claims are accordingly rejected.

### **c) Payment of General damages**

[43] General damages are awarded at the discretion of the court and the purpose is to restore the aggrieved person to the position he would have been in had the breach or wrong not occurred. They are a natural consequence of the defendant's actions, **Kibimba Rice Ltd Vs Umar Salim, SCCA No. 17 of 1992.**

- [44] In the assessment of general damages, the court should be guided by the value of the subject matter, the economic inconvenience that the plaintiff may have been put through and the nature and extent of the loss or injury suffered, **UCB Vs Kigozi [2002] 1 EA 305.** - [45] In the instant case, it is evident that the Plaintiff incurred loss of money in transferring and processing the certificate of title purportedly sold to him by the 1st Defendant in cohort with the 2nd and 3rd Defendants. During the payments of the purchase price, transfers of the funds were being made to the accounts of the 3rd Defendant. This was also a cost in the bank transactions. He had engaged surveyors to re-open the boundaries of the suit land but a 3rd claimant **Mr. Kubalikenda** could not allow. The drafting of the sale agreement for purchase of the suit land by an advocate was also a cost on the Plaintiff. In addition to all these, the Plaintiff suffered inconvenience, trauma and stress as a result of the 1st – 3 rd Defendants' actions and conduct. In consideration of the totality of the above, I consider an award of **Ugx 50,000,000/=** as general damages.

# **d) Interest**

- [46] An award of interest is discretionary. The basis of an award of interest is that the Defendant has kept the plaintiff out of his money and the defendant has had the use of it himself. So, he ought to compensate the plaintiff accordingly, **Harbutt's Plasticine Ltd Vs Wayne Tank & pump Co. Ltd [1970] 1 QB 447.** In the circumstances of this case, under **S.26 CPA,** I award the Plaintiff interest of **12% p.a** on the special damages from the date of filing the suit and general damages from the date of this judgment till payment in full. - [47] Costs follow the event unless court orders otherwise, **S.27 CPA**. The Plaintiff being the successful party, he is awarded costs of the suit as against the 1st, 2nd & 3rd defendants.

# **Conclusion**

- [48] The $1^{st}$ $3^{rd}$ defendants are found to had connived to cause the registration of the suit land in the names of the $1<sup>st</sup>$ Defendant's deceased mother, **Kahwerire Dina.** Since the deceased cannot acquire property, such registration is found null and void and consequently, the transfer of the title into the names of the plaintiff is also null and void. - [49] In the premises, as a consequential order, I direct the Commissioner Land Registration to cancel the Certificate of title of the suit land in the names of the deceased **Kahwerire Dina** and subsequently in the names of the plaintiffs and it reverts to an unregistered interest. - [50] In the final result, judgment is entered in favour of the plaintiff against the $1^{st}$ , $2^{nd}$ & $3^{rd}$ Defendants in the following terms: - a) The Plaintiff is entitled to the recovery of $Ugx 396,000,000/$ = paid to the $1^{st}$ , $2^{nd}$ & $3^{rd}$ Defendants as failed consideration. - b) General damages of $Ugx$ 50,000,000/= (Fifty Million Shillings Only). - c) Interest at the rate of **12% p.a** on (a) from the date of filing of the suit till full payment. - d) Interest of **12% p.a** on (b) from the date of this judgment till payment in full. - e) Costs of the suit are awarded to the Plaintiff. - f) The suit against the $4^{\rm th},\,5^{\rm th}\,\&\,6^{\rm th}$ Defendants is dismissed with no order as to costs. The $4^{th}$ , $5^{th}$ & $6^{th}$ Defendants merely witnessed the fraudulent execution of the impugned sale agreement. - g) As a consequential order, the Commissioner Land Registration is directed to cancel the Certificate of title of **Bugahya Block 20, Plot** 72 land at Kaburamuro, Hoima in the names of the deceased **Kahwerire Dina** and subsequently in the names of the Plaintiff so that it reverts to an unregistered interest.

Dated at Hoima this $3^{rd}$ day of February, 2025.

. . . . . . . . . . . . . . . . . . . . **Byaruhanga Jesse Rugyema** JUDGE.