Bulesa and 3 Others v Nakitto and Another (Civil Suit No. 274 of 2016) [2021] UGHCLD 169 (19 January 2021)

## THE REPUBLIC OF UGANDA

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

## CIVIL SUIT NO. 0274 OF 2016

# 1. BULESA ROBERT 2. LUBEGA JOSEPH ::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFFS

- 3. NAKACHWA ROSE - 4. BUKENYA BENEDICTO

#### VERSUS

1. NAKITTO ROSE ::::::::::::::::::::: DEFENDANTS

2. COMMISSIONER LAND REGISTRATION

## JUDGMENT

### BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA

- [1] In the amended plaint, the Plaintiffs; Bulesa Robert, Lubega Joseph, Nakachwa Rose and Bukenya Benedicto (herein referred to as the 1st , 2 nd, 3rd and 4th Plaintiffs respectively) filed this suit against the 2 Defendants; Nakitto Rose and Commissioner Land Registration (herein referred to as the 1st and 2nd Defendants respectively) jointly and severally for the following: - a. A declaration that the land comprised in Busiro Block 383 plots 37 and 38 formerly plot 14 at Lumuliis part and parcel of the estate of the late Kapere Atenyi Nviri. - b. A declaration that the registration of the 1 st Defendant's grandmother on land comprised in Busiro Block 383 plot 38 and issuance of title to her was fraudulently done by both Defendants. - c. An order directing the 2 nd Defendant to cancel the 1st Defendant's grandmother's name on the Certificate of title for the land comprised in Busiro Block 383 plot 38 and reinstate the Plaintiffs' names as Administrators of the estate of the late Kapere Atenyi Nviri.

- d. An order directing the 2 ndDefendant not to register the 1 st Defendant as an Administrator of the estate of the late Anna Nambi on the title for the suit land. - e. A declaration that the 1stDefendant is a trespasser onto the suit land and an order for eviction and removal of all trespassing structures. - f. A permanent injunction restraining the Defendants, their servants, agents from registering the 1st Defendant as an Administrator of the suit land, transferring, sub dividing, alienating, trespass and or in any way dealing with suit land comprised in Busiro Block 383 plot 38. - g. General damages and costs of the suit. - [2] The brief facts constituting the cause of action are as follows: - a. The Plaintiffs are the Administrators and some of the beneficiaries to the estate of the late Kapere Atenyi Nviri. The late Kapere Atenyi was the lawful owner of the land formerly comprised in Busiro Block 383 measuring approximately 29.7 acres currently subdivided into plots 37 and 38 hereinafter referred to as the suit land, having bought the same from the late Nasanaeri Kiraga then described as F. C. No. 8848 Busiro. - b. The late Kapere died in 1931 before getting registered on the suit land but his late son Sebastian Yiga got registered thereon following a letter from the Lukiiko office dated 14th March, 1944 addressed to the Registrar of titles Entebbe. - c. That the suit land has at all material times been occupied by the family and relatives of the late Atenyi K. Nviri, particularly Mubiru Robert as a caretaker with his house thereon. When Mubiru Robert, the caretaker had travelled to Sudan in 2013, the 1st Defendant then a mere licensee on the suit land entered the same and constructed a house thereon without authority and or approval from the Plaintiffs' family. - d. That in around 2015, upon visiting the Lands office, the Plaintiffs discovered that the suit land had been fraudulently subdivided into plots 36, 37 and 38 and in around July 2016, the Plaintiffs discovered that the 1st Defendant had a title for the suit land issued to her grandmother on 21 st September, 1943 with a Government charge as an

encumbrance. Then around September 2016, the 1 st Defendant applied to the 2 nd Defendant for the removal of a Government charge as well as being issued with a duplicate Certificate of title to the suit land for which she was issued in December 2016.

- e. That the 1 st Defendant has further applied to be registered as an Administrator of the estate of the late Anna Nambi, her grandmother, on the suspected forged title for the suit land and has also ferried building materials on the suit land to carry out construction activities which actions amount to trespass. - [3] The Plaintiffs aver and contend that the transactions leading to the subdivision of plot 14 into plots 37 and 38 and the subsequent registration of plot 38 into the 1 st Defendant's grandmother Anna Nambi were marred with fraud, illegalities and irregularities. - [4] The Plaintiffs particularized fraud by the Defendants as follows: - a. Forging the signatures of the late Kapere Atenyi Nviri on the mutation forms leading to the subdivision of plot 14 into plots 37 and 38. - b. The 1 st Defendant obtaining registration on the suit land as the owner thereof in the absence of an appointed administrator of the late Atenyi Nviri. - c. The 1 st Defendant presenting a forged Area schedule for plot 38 to the 2 nd Defendant as an independent plot and or original survey well knowing that plot 38 is a residual by balance after subdivision of plot 14. - d. The 2 ndDefendant issuing of two titles in favour of the 1st Defendant on the same piece of land with contradicting features. - e. Subdivision and transfer of the suit land into the 1 st Defendant's grandmother's names without knowledge and consent of the Plaintiffs as Administrators of the deceased's estate. - f. Purporting to transfer land into their names which was already occupied by the Plaintiffs' family.

- [5] On her part, the 1 st Defendant in her amended Written statement of defence dated 10th May, 2017 denied the Plaintiffs' allegations of fraud and trespass and contended as follows: - a. That she is a granddaughter of the late Anna Nambi, the registered proprietor of the suit land who has at all material times been in physical possession, control and use of the suit land. - b. That consequent to her demise, the late Anna Nambi left a Will in which she bequeathed her property comprised in the suit land measuring approximately 9.60 acres to her biological daughter Nalumansi Rwiza with instructions for her daughter never or at all transfer the same into her names as proprietor. - c. That the said Nalumansi Rwiza as Nambi's only daughter together with the 1 st Defendant maintained and lived on the suit land until her demise upon which the suit land was left in the custody and control of the 1 stDefendant who assumed direct management, control, occupation and use to date undisrupted. - d. That both her grandmother Anna Nambi and her mother Nalumansi Rwiza were buried on the suit land where they had lived for over 30 years undisrupted. - e. That on her part, she has stayed on the suit land for now over 40 years and sometime in 2010, she sought and obtained a Certificate of no objection from the Administrator General's office for administration of the late Anna Nambi's estate, and upon petitioning the High Court of Nakawa, she was granted Letters of Probate vide Probate/Administration Cause No. 783/2015 dated 09th December, 2015. - f. That recently, people allegedly from the family of a one the late Atenyi Kapere (the Plaintiffs) without any claim of right commenced illegal activities on the said land claiming the suit land without justifiable cause at all with claims of forgery all in a bid to hoax her into accepting sharing a portion of the suit property something she finds reprehensible and contemptible. - g. That the Plaintiffs and a one Dr. Kigonya have subjected her to a spate of violent attacks using police to illegally arrest and detain her and while in detention, they descended on the suit land with a grader

tractor, destroyed all her crops and attempted to remove her family entombments all in a bid to grab her late grandmother's land, something her children fervently resisted.

- [6] The 1 st Defendant raised a counterclaim against the Plaintiffs jointly and severally for the following: - a. A declaration that the suit land belongs to Anna Nambi, the registered proprietor thereof whose family has been in occupation for the last 40 years and that she is the undisputed rightful equitable owner of the suit land. - b. A declaration that she is the undisputed rightful equitable owner of the suit land and an order compelling the Commissioner Land Registration to register her in the register book as proprietor to the suit land vide Probate/Administration Cause No. 783 of 2015. - c. A declaration that the counter defendants/Plaintiffs are trespassers on the suit land and an order of permanent injunction restraining them, their agents, employees, servants or any person deriving authority under them or claiming from them from further trespass or interfering with the suit land. - d. General damages, special damages of shs. 16,000,000/- and interest thereon at commercial/bank rate of 25% from date of filing suit till judgment in full. - e. Mesne profits and costs of the suit. - [7] The counterclaimant/1stDefendant contended that the counter defendants/Plaintiffs have absolutely no interest in the suit land or at all and particularized illegality of the counter defendants/Plaintiffs and the special damages. - [8] Further, that the counter defendants/Plaintiffs illegally and/or fraudulently encroached on the suit land without any justifiable cause whatsoever or without first seeking her consent. - [9] In their Written statement of defence, the 2 nd Defendant denied the allegations of the Plaintiffs but averred and contended that the suit land title is a forgery as it was issued in error basing on forged Instrument and that by the time the Plaintiffs instituted this suit, the 2 nd Defendant was in process of cancelling the suit land Certificate of title. The

2 ndDefendant denied being part to any of the events that led to the issuance of the alleged title whose issuance was based on a forged title and or instrument.

- [10] At scheduling, the following issues were agreed upon by parties for resolving the suit, but I shall present them in the following order: - a. Whether the Plaintiffs have a cause of action against the Defendants. - b. Whether the 1st Defendant/counterclaimant has a cause of action against the Plaintiffs/counter defendants. - c. Who is the rightful owner of the suit land described as Busiro Block 383 plots 37 and 38 land at Lumuli. - d. What remedies are available to the parties.

## Issues (a) and (b): Cause of action:-

- [11] The principles upon which the court determines whether a plaint discloses a cause of action are enunciated in the famous case of *AUTO GARAGE VS. MOTOKOV (NO. 3)[1973] E. A 514 at 519*summarized by Spryvp of the East African Court of Appeal as; that the plaintiff enjoyed a right; that the right has been violated and thirdly that the defendant is liable. Under *Order 7 rule 11 Civil Procedure Rules*, a plaint which discloses no cause of action has to be rejected, it is a nullity. The question as to whether a plaint discloses a cause of action is determined upon perusal of the plaint alone and any attachments to it on the assumption that the averments in the plaint are true (See *SIKUKU AGAITANO VS. UGANDA BAATI LTD H. C. C. S. NO. 298/2012 (Commercial Division)* and *A. G VS. OLUOCH (1972) E. A 392.*Lastly, therefore, all necessary facts to establish the cause of action have to be alleged in the plaint for it to disclose a cause or causes of action; *SULLIVAN VS. MOHAMMED OSMAN (1959) E. A 239.* - [12] It therefore follows that for the Plaintiffs and counterclaimants to have cause of action against the defendants and counter defendants, they must show that they have a right, which right was violated by the Defendants and counter defendants and that they are liable. - [13] In the instant case, the Plaintiffs' claim against the Defendants is for certain declarations to wit, Inter alia, that the suit land comprised in

Busiro Block 383 plots 37 and 38 formerly plot 14 at Lumuli is part and parcel of the estate of the late Kapere Atenyi Nviri whose estate they administer, and the 1st Defendant is a trespasser. It is the Plaintiffs' contention that the suit land was fraudulently subdivided by the Defendants into plots 36, 37 and 38 in favour of the 1st Defendant's grandmother Anna Nambi from whom the 1st Defendant derives interest.

- [14] The foregoing clearly shows that the Plaintiffs have disclosed their right over the suit land which was violated by the Defendants' act of fraudulently subdividing it in favour of Anna Nambi from whom the 1 stDefendantclaim to derive interest from and therefore, hold the Defendants liable. It is therefore my view and I hold that the Plaintiffs through their pleadings disclosed a cause of action against the Defendants. In any case, the 2nd Defendant itself admitted issuing the suit Certificate of title in error basing on a forged Instrument and contend that they were actually in the process of cancelling it. - [15] On the other hand, the 1 st Defendant/counterclaimant raised a counterclaim against the Plaintiffs/counter defendants for certain declaration, Inter alia, that the suit land belongs to Anna Nambi (from whom she derives interest) and that the Plaintiffs/counter defendants are trespassers. The foregoing similarly show that the counterclaimants have through their pleadings shown that they have a right which the Plaintiffs/counter defendants have violated and hold them liable. - [16] Besides, in any case, it was held by Bankes L. J in *GUARANTY TRUST CO. OF NEWYORK VS. HANNAY & CO. LTD [1915]2 KB 536at p. 527* that a suit for declaratory orders cannot be defeated on the ground that the Plaintiff allegedly does not have a legal cause of action; see *Order 2 rule 9 Civil Procedure Rules* and the observations of Justice Madrama Izama (as he then was) *IN SIKUKU VS. UGANDA BAATI LTD* (Supra). - [17] It follows from the foregoing therefore, that both the Plaintiffs and the1stDefendant/counter claimant have causes of action meriting trial. The Plaintiffs' claim that the counterclaim is rooted from a title to the suit land which no doubt is a forgery and thus illegal is a matter for evidence meriting trial.

## C. Who is the rightful owner of the suit land described as Busiro Block 383 plots 37 and 38 land at Lumuli:

- [18] The Plaintiffs through the 2nd Plaintiff, Lubega Joseph (PW1) gave the history of the suit land, briefly as follows: - a. That the suit land was formerly owned by the Plaintiffs grandfather, Kapere Atenyi who died in 1931 before it was formerly registered in his names. - b. That the suit land was formerly Vol. 16 Folio 10 F. C. 8848 currently Block 383 – 391 plot 14 that was later subdivided by the Defendants into plots 36, 37 and 38. - c. That PW1's late father Sebastian Yiga had applied to the Buganda Lukiiko to have the suit land registered in his father's names and it had eventually been registered into KapereAtenyi's names, but upon the Plaintiffs acquisition of Letters of administration in respect of their grandfather Kapere Atenyi, a search in the Land Registry revealed that the suit land had been registered in the names of Nambi Anna who had no relationship at all with their grandfather Kapere Atenyi either by kindred and consanguinity. - d. That further search in the Land Registry to establish the root of the said Anna Nambi's ownership yielded no results as her Certificate of title had no history and further, the blue page of the late Kapere Atenyi was also missing and there was no Instrument that led to the subdivision of Block 383 plot 14 to create plots 36, 37 and 38. - [19] It is the submission of Counsel for the Plaintiffs that the Plaintiffs' grandfather Atenyi Kapere was the lawful owner of the land formerly comprised in F. C. No. 88848 MRV 16 Folio 10 which was converted into Busiro Block 383 plot 14 measuring approximately 29.7 acres. That around 2015, the Plaintiffs discovered from the Lands office that the suit land had been fraudulently subdivided into plots 37 and 38, the suit land, that the 1st Defendant had a title to it issued to her grandmother Anna Nambi on 21st September, 1943 under Instrument No. 59804 (P. Exh. IV(a)). Then, that around September, 2016, the 1st Defendant applied to the 2ndDefendant for the removal of a Government charge that had been lodged thereon as an encumbrance as well as being issued with a duplicate Certificate of title.

- [20] Counsel submitted further that when the Plaintiffs engaged the 2 nd Defendant, it was discovered that the Instrument No. 59804 used to register Anna Nambi on the suit title (P. Exh. IV(b)) was a forgery because the same Instrument number had been used for another title MRV No. 892 Folio 7 which had earlier been issued to a one Anna Tumudentereze on 16th October,1933 (P. Exh. V), presently in the names of Semu Musoke. - [21] It was his further submission that as per the evidence of Mr. Ojera Venancio, the Wakiso District Cartographer, plot 38 on which the 1st Defendant's great grandmother Anna Nambi was registered as proprietor was a result of subdivision of plot 14which at the time was in the names of A. Kapere. That as reflected in the Area schedule (P. Exh. VIII A), plot 38 was not an original plot as reflected by the Area schedule (P. Exh. VIII B) used by the 1st Defendant but was a residual by balance, an entitlement of the original owner, Atenyi Kapere. This was corroborated by the 2nd Defendant's witness Mr. Bamwite Emmanuel (DW6), the Senior Registrar of titles, Wakiso. - [22] Further, that the office responsible to issue Area schedules by then was Mpigi Land office and not the Entebbe office where the Area schedule in favour of Anna Nambi was secured from. - [23] In *FredrickJ. K. Zaabwe vs. Orient bank ltd & ors. S. C. C. A. No. 4/2006* Justice Katureebe JSC referred to the definition of fraud in Black's Law dictionary 6thEdn. which defines fraud thus:

*"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 legal right. A false representation of a matter of fact, whether by words or 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…"*

[24] A party relying on fraud must specifically plead it and particulars of the alleged fraud must be stated on the face of pleadings; *JWR KAZOORA VS. M. K. S RUKUBA [1994 – 95] HCB 58.* [25] In *KAMPALA BOTTLERS LTD VS. DAMANICO (U) LTD S. C. C. A. NO. 22/1992,*Justice Katureebe JSC further stated;

> *"… fraud must be attributable to the transferee. I must add here that it must be attributable either directly or by necessary implication. By this I mean transferee must be guilty of some fraudulent act or must have known of such act by somebody else or taken advantage of such act."*

Secondly that the standard of proof in an allegation of fraud, because fraud is regarded as a very grave assertion, is much higher than the standard of proof on a balance of probabilities generally applied in ordinary civil suits.

- [26] In the instant case, it is the submission of Counsel for the Plaintiffs that the 1st Defendant's act of using a forged Instrument No. 59804 which related to land earlier issued and registered in the names Tumutendereze dated 16th October, 1943 and producing an Area schedule showing plot 38 as an original plot whereas not were acts of fraud and proof that she procured the issuance of the title for plot 38fraudulently. That the fact that the 1stDefendant grandmother Anna Nambi having had land in the neighborhood, plot 17 Block 383 (P. Exh. VI) is evidence that she had actual knowledge that the suit property belonged to A. Kapere, the grandfather to the Plaintiffs. - [27] On the other hand, it is the 1st Defendant's Counsel submission that the above allegations of fraud are not only false, but that they are also not in any way imputable on the 1 st Defendant. That the 1 st Defendant was not in any way responsible for the issuance of the Certificate of title in the names of Anna Nambi (issued on 21stSeptember, 1943) or the alleged subdivision of plot 14 into plots 36, 37 and 38. That the subdivision in question happened at least 5 years before she was born and that it is therefore false to allege that the 1 st Defendant subdivided, transferred and or was involved in the registration of Anna Nambi as the owner of the suit land. - [28] Though Counsel for the Plaintiffs appear to had wrongly referred to Anna Nambi as a grandmother to the 1stDefendant in his submissions, the correct relationship is that of "great grandmother." However, the misdescription of Anna Nambi in relation to the 1 st Defendant

notwithstanding, I find that there was no distortion of the facts of the case. The 1st Defendant maintained that the said Anna Nambi, her great grandmother was the rightful owner of the suit land described as Busiro Block 383 plots 37 and 38 land at Lumuli.

- [29] Secondly, that she applied and obtained Probate (D. Exh. II) in respect of the estate of her great grandmother Anna Nambi upon which later, she applied to be registered on the certificate of title of the suit propertythat was in the names of Anna Nambi. - [30] The 1st Defendant tendered in court the last Will of the late Anna Nambi dated 28th December, 1979 (D. Exh. III A) wherein plot 38 Block 383 is named as one of the properties left by the deceased as justification for her application to be registered as proprietor on the suit Certificate of title. - [31] However, during cross examination, the 1st Defendant, first of all, denied knowledge of plot 37 being part of her claim. She stated that she knew nothing about it. Secondly, she also denied ever applying to be registered on Anna Nambi's Certificate of tile, the suit property plot 38. On record however, it is evident that by letter dated 05th September, 2016 (Annex "F" Plaintiffs; trial bundle), she personally applied to be registered as proprietor on plot 38 Block 383, the suit property. Thirdly, on 11thOctober, 2016, the Government charge on the suit Certificate of title was removed in favour of the deceased registered proprietor Anna Nambi. In court however, it was apparent that the 1stDefendantappeared ignorant of the foregoing, an implication that these transaction were effected by somebody else with an interest but without the knowledge of the 1st Defendant. - [32] In her evidence, the 1st Defendant testified through her witness statement that in 2013, Uganda National Roads Authority (UNRA) intended to pass or make a "flyover" of Entebbe Expressway through her land. That it is this development which prompted her to secure documents relating to the suit land upon which she retrieved Anna Nambi's WILL(D. Exh. I). That it was with the help of her neigbour a one Miiro and a one Kabuye Ronald who called himself "Doctor" apparently because of his proficiency in land transactions that she presented the WILL to the office of Administrator General upon which she was granted a Certificate of no objection that enabled her obtain Probate(D. Exh. II)

in respect of the estate of the late Anna Nambi. It is the Probate vide H. C. A. C No. 783/2015 (D. Exh. II) which she presented to UNRA as proof of her interest in the suit land for purposes of claiming compensation for the portion of the suit land on which the "flyover" Entebbe Expressway was to pass. It is her further evidence that later, she applied to be registered on the Certificate of title of the suit land as the Administrator of the estate of the late Anna Nambi, a fact she in the same breath denies during cross examination.

- [33] The implication and significanceof the 1 st Defendant's admission and denials is that she knew and had knowledge and therefore consented to what was being done on the suit land. The transactions were done by the said Miiro and Kabuye Ronald who must have been interested or expected to benefit from the UNRA compensation for the "flyover" passing on the suit land. This is further explained, I think, by the fact that it is even the said Kabuye Ronald who secured for the 1st Defendant 2 lawyers; Lugoloobi Hamidu and Arthur Kirumira when she faced trouble with police over allegations of forgery of the suit Certificate of title in the names of the deceased Anna Nambi. The extent of involvement of this Kabuye Ronald, the self-styled "Doctor" of land transactions is confirmed by the 1 st Defendant's son Tomusange Livingstone (DW2). - [34] Counsel for the 1st Defendant however, faulted the Plaintiffs' claims; that the Plaintiffs failed to show any proof of possession or occupation of the suit land while on the other hand, the 1st Defendant presented concrete proof that the suit land has at all material times been in her possession/occupation and her family. - [35] In her witness statement, the 1stDefendant stated that the suit land belonged to her great grandmother Anna Nambi who owned and utilized it since 1943. In cross examination, shestated that Anna Nambi purchased the suit land from a one Nasanaili Kiraga for her daughter Nalumansi Rwiza who stayed on the land with her children; Ben Musoke, Farasika Namirembe and Nanziri Tereza, her mother. That she stayed on the land with her mother since 1982 at the start of the bush war when they came to join her grandmother Nalumansi Rwiza. It is therefore the contention of Counsel for the 1st Defendant that the 1 stDefendant's possession/occupation is a key determinant of the

ownership of the land. He cited the case of *MAGBWI VS. M. T. N LTD & ANOR. H. C. C. A. NO. 27/2012 [2017] UGH CLD 53.*The same authority however, I find it held that possession presumes ownership which is recognized as such unless disproved by someone holding a more valid claim. This is the position the 1st Defendant has to contend with vis a vis the Plaintiffs.

- [36] In the instant case, the Plaintiffs in their bid to prove a more valid claim of the suit property, presented a letter dated 14th March, 1944 written by the Lukiiko Land office addressed to the Registrar of titles (P. Exh. XI) and an Area schedule of the suit land Wakiso MZO dated 18th July, 2018 (P. Exh. VIII). - [37] Letter dated 14th March, 1944 written by the Lukiiko Land office was written at the instance of Sebastian Yiga, father to the 2 nd Plaintiff and son of A. Kapere notifying the Registrar of titles about A. Kapere's 30 acres interest on MRV Vol. 16 Folio 10 F. C 8848 by virtue of purchase from a one Ezra Mukasa (deceased). It is the evidence of the 2nd Plaintiff (PW1) that his late father, the late Sebastian Yiga, successor to A. Kapere, later applied to the Buganda Lukiiko and had the land registered in Kapere Atenyi's names upon conversion of plot 14 Block 383 – 391. - [38] The letter is however silent about what kind of interest the said Ezra Mukasa had and sold to A. Kapere. However, since it is Nasanaeli Kiraga and Asanasiyo Kabale who held legal interest as per the letter, it is most likely that Ezra Mukasa held an equitable interest and that is what he sold to A. Kapere. This letter being a document that was merely recovered by the Plaintiffs in their pursuit for their father's property they could not explain some of its contents. It is however a fact that the land in question was later to be the one reflected in the Area schedule (P. Exh. VIII) asplot 14 measuring approximately 29.7 acres (upon survey). It is therefore not a contradiction for the letter (P. Exh. XI) to reflect A. Kapere's purchased interest as 30 acres and the Area schedule upon survey (P. Exh. VIII) to indicate the actual 29.7 acres. - [39] The other complaint by the 1st Defendant's Counsel is that the letter (P. Exh. XI) which the Plaintiffs derive interest had contradictory dates; 14th March, 1944 on top yet at the bottom it has a date of 14th November, 1960. This, I find is explained by the fact that 14th November, 1960 was a date of its certification.

- [40] As regards the proper names of the original beneficiary or owner of the suit land, it is clear from the entire record of this suit, ie the pleadings, submissions and exhibits that the names "AtenyiKapere", "A. Kapere", AtenyiNviriKapere", "Atenyi Nviri" and "Atenyi" are interchangeably used but refer to one person, the grandfather of the Plaintiffs. The claim by the 1stDefendant's Counsel that the names refer to different persons is mere name semantics unless there is cogent proof to the contrary, which proof is lacking in this case. - [41] *Forgery of Certificate of title plot 38 Block 383 in the names of Anna Nambi.* It is the contention of the Plaintiffs that the Defendants forged the above suit land Certificate of title with the view to defraud them of their father's land. - [42] The status of the impugned Certificate of title was explained by Ojera Venancio (PW2) and the 2ndDefendant'sSenior Registrar of titles Mr. Bamwite Emmanuel (DW6) who both revealed that it was a forgery in that it was issued under a forged Instrument No. 59804 which was for MRV Vol. 892 Folio 7 later converted to Kyadondo Block 82 plot 13 that had earlier been issued to Anna Tumutendereze dated 16th October, 1933 (P. Exh. V).

Secondly, it is the evidence of DW<sup>6</sup> that the impugned Certificate of title show that it was prepared by his colleague a one Wamala Ali, a Senior Registrar of titles yet by 1943 when it was purportedly prepared, the said Wamala Ali had not been appointed as a Registrar.

Thirdly, that the impugned title had never been scanned and entered into the Land Registry system and that even its physical file could not be traced as it had no reference point at all. There were no records in the Land Registry reflecting the existence of this title.

Then, lastly, the Kalamazoo the property Register and the Area schedule of the plot in question does not refer to the deceased Nambi as having owned it.

[43] The 1st Defendant did not challenge the above evidence regarding the impugned Certificate of title. The 2ndDefendant conceded that the document is a forgery and that actually, the 2ndDefendant office was in the process of cancelling it. The 1stDefendant's Counsel however in his submissions appeared to show that since the title is in the names of Anna Nambi, whatever fraud there is was not committed by the 1 stDefendant and it should not be attributed to her. It is however my view that the fraud on the suit land in this case appear to had started with the securing of the Will of the late Anna Nambi. It is the 1 stDefendant's evidence that this is the only document she had regarding the suit land which she presented to the Administrator General as proof that the suit land belonged to Anna Nambi and therefore that she was the beneficiary.

- [44] The 1stDefendant's actions with her agents Miiro and Kabuye securing the Probate for which they intended to use and have the 1 stDefendantregistered on the impugned Certificate of title by implication, place her among those behind the fraudulent acquisition of the forged Certificate of title. I find her privy to the fraud. A person becomes privy to a fraudulent transaction either by being an active participant in its perpetration by action or omission, or when having acquired knowledge of its perpetration by others or third parties knowingly and willfully seek to take benefit from it; *ALEX AGANDIRU VS. ETOMA FRANCIS & ORS. ARUA H. C. C. S. NO. 07/2011.*In the instant case, the 1 st Defendant's act of securing the Probate to administer the estate of the late Anna Nambi followed by her application to have herself registered on Anna Nambi's impugned Certificate of title as proprietor on the basis of the Probate coupled with her causing the removal of the Government charge from the title is proof that she was the beneficiary of the fraudulent transaction and therefore privy to it. As per the common parlance now among Ugandans, Anna Nambi's title is a "Nasser Road", Kampala document which the 1st Defendant and her agents intended to use to secure her UNRA compensation funds expected to accrue from the Entebbe Expressway project. Such forged Certificate of title conferred no proprietary rights to either the said Anna Nambi, the registered proprietor thereon or her successors by a WILL and beneficiaries of her estate including the 1stDefendant. - [45] From the totality of the above, I do find that the Plaintiffs have to the satisfaction of court proved fraud against the Defendants in the acquisition of the suit Certificate of title. In the submissions, the 1st Defendant raised complaints against claims by persons she referred to as "other fraudsters" on the suit land. I find this complaint and claim being an afterthought because none of these "other fraudsters" were

either pleaded or made parties to the suit. In any case, H. C. M. A. No. 155/2017 filed by the alleged fraudsters was against the Plaintiffs and it was later withdrawn with costs to the Plaintiffs. It therefore had nothing to do with the 1st Defendant.

- [46] As regards the 1st Defendant's complaints and grievances against Abdul Damulira, Shaban Ssebugwawo, Kabuye Ronald and Dr. Kigonya, it is my view that if the 1st Defendant had justified legal claims against all or any of them, she ought to have included them as Defendants in her counterclaim filed on 09th May, 2017 but she chose not to do that. - [47] The 1st Defendant's claims that H. C. Misc. Application No. 419/2016 and 356/2018, both arising from this suit conferred upon her possessionary rights on the suit property is not correct. These applications were Interlocutory in nature and none of them was therefore intended to or could determine the rights of the parties in this suit. - [48] Be that as it may, it is important in this case, that this court determines the status of the 1stDefendant on the suit land. - [49] It is the 1st Defendant's evidence that she has stayed on the suit land with her family since the 1982 bush war. She has had thereon both seasonal and perennial crops in form of coffee, bananas, yams, trees etc on the 9.6 acres of the land. - [50] On the other hand, the Plaintiffs appear not contesting the occupationary status of the 1st Defendant but were challenging her legal claims thereon. In support of the Plaintiffs, Ssali Godfrey (PW3), who is the L. C1 Chairperson of the area testified that the 1st Defendant was a daughter to Tereza Nanziri a holder of a kibanja on the suit land who died and was buried thereon. He estimated her kibanja to be about ½ an acre. During cross examination, Counsel for the 1st Defendant Mr. Kaganzi intimated to court that his side had also intended to have this witness (PW3) as their witness and he therefore sought to have a certain letter written by the L. C1 Executive committee of Lumuli village where the suit property is located admitted as the Defendants' exhibit. As a result, the letter in question dated 20th March, 2019 which referred to the 1stDefendant as a kibanja holder in the area for a period of about 35 years after her mother Tereza Nanziri, was admitted through this witness (PW3) and marked as D. Exh. VI.

[51] Since PW3's evidence appeared to be adopted by the defence by virtue of D. Exh VI, it is my view that the proper status of the 1stDefendant on the suit land is actually that as reflected by D. Exh. VI. There is no evidence that the 1st Defendant was and is on the suit land on the basis of a licence from the Plaintiffs or their predecessors. There is however ample evidence that the 1stDefendant has been on the suit land since the 1980s unchallenged. The circumstances of the case render her a bonafide occupant on the suit land under *Section 29(2)(a) of the Land Act, 1998, Cap 227.*

## D. Remedies available to the parties:

- [52] The 1stDefendant's physical possession, control and use of the suit land did not confer to her proprietary rights over the land. The 1st Defendant's predecessor's title of Anna Nambi is a forgery and the forgery has been amply attributed to the 1stDefendant and her agents. The 1 stDefendant is found to be a mere bonafide occupant of ½ an acre of the suit land as clearly expressed by PW3 whose evidence was adopted by the defence and enjoys protection thereof as so and as such, she cannot be a trespasser. - [53] Judgment is therefore in this case given in favour of the Plaintiffs in the following terms and orders: - a. It is declared that the suit land comprised in Busiro Block 383 plots 37 and 38 formerly plot 14 at Lumuli form part of the estate of the late Kapere Atenyi Nviri and the Plaintiffs as Administrators of the estate of the late Kapere Atentyi Nviriare therefore the rightful owners of the suit land. - b. It is declared that the registration of Anna Nambi on the suit lad and issuance of the suit lad Certificate of title, Busiro Block 383 plot 38 was fraudulent and an order therefore, directing the 2nd Defendant to cancel Anna Nambi's names on the Certificate of title and instead, replace it with the Plaintiffs' names as Administrators of the estate of the late Kapere Atenyi Nviri is accordingly issued. - c. A permanent injunction restraining the Defendants, their servants, agents from registering the 1st Defendant as an Administrator of the suit land, transferring, subdividing, alienating, and or in any way

dealing with the suit land Busiro Block 383 plot 38 is accordingly issued.

- d. The entire counterclaim fails save for the fact that the 1st Defendant is declared to be a bonafide occupant of ½ acre of land on Busiro Block 383 plot 38 at Lumuli. - e. The Plaintiffs as successful parties would be entitled to costs of this suit but considering the unique nature of this suit whereby the 1st Defendant has been found to be a bonafide occupant, and she appears to had been misled into the fraudulent transactions on the impugned Certificate of title by 3rd parties whose interest appear to had been in securing compensation from UNRA, each party is to bear his or her own costs.

Dated at Kampala this 19thday of January, 2021.

Byaruhanga Jesse Rugyema JUDGE