Dr. Kamanyiro v Ssali and Another (Civil Suit No. 30 of 2017) [2022] UGHCLD 242 (9 November 2022)

Full Case Text

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT MUKONO

### CIVIL SUIT NO. 030 OF 2017

## DR. GRACE HENRY KAMANYIRO ::::::::::::::::::::::::::::::::::::

### **VERSUS**

### 1. SSALI STEVEN

# 2. THE REGISTRAR OF TITLES :::::::::::::::::::::::::::::::::::: BEFORE HONOURABLE MR. JUSTICE DAVID MATOVI JUDGMENT

Introduction

1. Dr. Grace Henry Kamanyiro hereinafter referred to as the plaintiff brought this suit on the $22^{nd}$ day of February 2017 against Ssali Steven and the Registrar of titles, hereinafter referred to as defendants, jointly and severally for recovery of land, cancellation of certificate of title comprised in Kyaggwe Block 111 Plot 1954 at Mawoto measuring approximately 0.212 hectares, eviction orders, a permanent injunction, general damages and costs of the suit

### **Background**

- 2. The plaintiff contends that at all material times he was the registered proprietor of land comprised in Kyaggwe Block 111 Plot 1954 at Mawoto measuring approximately 0.212 hectares, hereinafter referred to as the suit land. - 3. The plaintiff avers that sometime in 2010, he visited the land office to check on the status of his land titles and was shocked

$1$ | Page

to discover that the suit land was registered in the names of the 1st Defendant

- 4. That the $2^{nd}$ Defendant had crossed out the Plaintiff's name from the certificate of title and consequently registered the land in the names of Christine Bwaga and later to the 1st defendant. - 5. The plaintiff contends that he had never signed any transfer and mutation forms in favour of Christine Bwaga in respect of the suit land. - 6. The Plaintiff further contends that this matter was reported to Mukono police station for investigation and while at police, Christine Bwaga denied having knowledge of any dealings in the suit land or even knowing the 1st defendant, Ssali Steven. - 7. That despite efforts by the Police, location of the $1^{st}$ defendant or even his true identity has proved futile. - 8. The Plaintiff further avers that when he returned in 2016, he was shocked to find a permanent house on the suit land, though un-inhabited and remains so to date. - 9. The plaintiff alluded fraud on the part of the Defendants and avers that the acts of using forged transfer forms and transferring the suit land into the names of Christine Bwaga and later the 1st defendant was unlawful, fraudulent and intended to defeat the plaintiff's interest in the suit land. - 10. Wherefore, the plaintiff prays that judgement be entered against the defendants jointly and severally for orders that: - i. . A declaration that the transferring of the suit land by the $2^{nd}$ defendant to the 1st defendant was unlawful and fraudulent hence null and void - ii. An order for cancellation of title

- iii. An eviction order to issue - iv. A permanent injunction - $v.$ General damages - vi. Costs of the suit, and - vii. Any other relief deemed fit by this Honourable Court - 11. The Defendants were served by way of substituted service. - The $2^{nd}$ defendant filed his defence wherein he denied the 12. allegations of fraud on his part and avers that she acted on the transfer forms lodged and dully executed by the plaintiff. - 13. The $2^{nd}$ defendant further avers that it did not in any way flout any legal principles in the execution of its mandate as far as registration of the transfer over the suit land was concerned and was not in any way fraudulent. - 14. Apart from filing the $2^{nd}$ Defendant's written statement of defence, none of the Defendants appeared for the subsequent hearings and as such the matter proceeded ex-parte against both defendants.

### Representation

15. The Plaintiff was represented by Mr. Tonny Tumukunde.

### Submissions

- 16. The Plaintiff presented two witnesses who both filed witness statements, which were admitted as their examination in chief. - 17. Counsel for the Plaintiff also filed written submissions. - 18. Counsel raised two issues for determination to wit: - i. . Whether the 1st Defendant fraudulently acquired the suit land?

### What remedies are available to the Plaintiff? ii.

### Legal arguments by counsel for the plaintiff

- 19. Counsel submitted that the 1st Defendant is fraudulently registered on the suit land and that he is not a bona fide purchaser for value without notice. - 20. Counsel cited Sections 59, 77 and 176 of the Registration of Titles Act. - 21. Counsel also relied on the case of Fredrick J. K. Zaabwe versus Orient Bank and another SCCA No 04 of 2006 regarding fraud.

### Decision of court

22. This court shall resolve the issues as framed by Counsel. Issue one

### Whether the Defendant fraudulently acquired the suit land?

23. Fraud was well defined as an intentional perversion of truth to induce 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. (See Western Uganda **Importers** and Distributers Ltd V Muhasa **Ivan** Mpondi, Kasese District Land Board and Commissioner for Land Registration Civil Suit No. 0014 of 2014 before Hon. Mr. Justice Bashaija)

- 24. Furthermore, in David Sejjaaka vs Rebecca Musoke, SCCA No. 12 of 1985, it was held that fraud must be attributable to the transferee, either directly or by necessary implication. - 25. In the present case, it is the evidence of PW1 that he had never signed any mutation and/ or transfer forms in favour of anyone in respect to the suit land, however he was shocked to discover that the same had been transferred to a one Christine Bwaga and subsequently to the 1st defendant's name. - 26. That further, when the matter was investigated by Police, the said Christine Bwaga stated that she has never owned the suit land and as such has never even transferred the same to the 1st Defendant. - 27. It is a well-established principle that one cannot pass better title than he himself has. That is the Nemo dat qoud non habet rule, whose main rationale is preservation of property rights. - 28. In light of the above, Christine Bwaga could therefore not pass any title to the $1^{st}$ defendant as she had no title herself. - 29. Further, a close look at PExh 3, it is evident that there are neither passport photographs of the transferor and transferee, nor their identification documents; and yet these are requirements needed to cause the transfer of land. - 30. Further, the said Christine Bwaga used a thumb print on the said transfer form. - 31. Section 148 of the Registration of Titles Act provides for Signatures to be in Latin character and is to the effect that: -No instrument or power of attorney shall be deemed to be duly executed unless either—

(a) the signature of each party to it is in Latin character; or

(b) a transliteration into Latin character of the signature of any party whose signature is not in Latin character and the name of any party who has affixed a mark instead of signing his or her name are added to the instrument or power of attorney by or in the presence of the attesting witness at the time of execution, and beneath the signature or mark there is inserted a certificate in the form in the Eighteenth Schedule to this Act.

Eighteenth Schedule (Section 148) Certificate of attesting witness Signed $bv$

> $(bv)$ his/her

making his/her mark hereto in my presence\*), and I certify that the above instrument (or power of attorney) was first read over and explained to him/her, when he/she appeared fully to understand it. Signature of attesting witness (set **out qualification)**

- 33. However, a closer look at PExh 3 indicates that the said provision was flouted, which also imputes fraud. - 34. Following from the above, it is evident that there was fraud on the part of the $1^{st}$ Defendant. - $35.$ The $2^{nd}$ defendant is liable to fraud only to the extent that it acted on the basis of the fraudulent and forged transfer forms submitted by the $1^{st}$ Defendant which did not meet the criteria as prescribed by law.

36. The first issue is therefore answered in the affirmative.

The wording of the eighteenth schedule is also very clear and 32. is to the effect that: -

### Issue Two

# What remedies are available to the Plaintiff?

37. The plaintiff sought the following reliefs from this Honourable Court; a declaration that the transferring of the suit land by the 2nd defendant to the 1st defendant was unlawful and fraudulent hence null and void, an order for cancellation of title, an eviction order to issue, a permanent injunction, general damages and costs of the suit.

### **Permanent Injunction**

- 38. Permanent or final injunctions are granted as a remedy against an infringement or violation which has been proven at trial. Such an injunction will be granted to prevent ongoing or future infringement or violations. - 39. It is settled law that a permanent injunction is a remedy for preventing wrongs and preserving rights so that by single exercise of equitable power an injury is both restrained and repaired, for the purpose of dispensing complete justice between the parties. (See Akena Christopher and others versus Opwonya Noah CA No. 035 of 2016 before Hon. Justice Stephen Mubiru.)

### Damages

40. Damages are the direct probable consequences of the act complained of. Such consequences may be loss of use, loss of profit, physical inconvenience, mental distress, pain and suffering. (see Kampala District Land Board IG Milali Vs Venansio Bobweyaw Civil Appeal No. 2 of 2007

- 41. As far as damages are concerned, it is trite law that general damages are awarded at the discretion of court. Damages are awarded to compensate the aggrieved, fairly for the inconveniences accrued as a result of the actions of the defendant. It is the duty of the claimant to plead and prove that there were damages losses or injuries suffered as a result of the defendant's actions. - 42. The Plaintiff stated that the 1st Defendant constructed a house in the suit land, which is un inhibited to date. This implies that the Plaintiff was denied a chance to use his land for over $05$ (five) years. - 43. I find that the plaintiff has discharged his duty to prove damages and inconvenience caused as a result of the defendants' actions and is accordingly awarded general damages of Ug Shs 5,000,000/= (Uganda Shillings Five Million $only)$

### **Costs**

44. Its trite law that costs follow the event and the successful party is entitled to costs.

Section 27 of the Civil Procedure Act states:

"Provided that the costs of any action, cause or other matter shall follow the event unless the court or the judge shall for good reason otherwise order".

45. The plaintiff being a successful party is entitled to the costs of the suit.

### Conclusion

- 46. In the final result, this suit is allowed with the following orders: - - The Plaintiff Dr. Henry Grace Kamanyiro is declared $i.$ the lawful owner of the suit land, as the purported transaction was tainted with fraud - The 2nd Defendant herein is directed to cancel the ii. name of the 1st Defendant from the Certificate of title comprised in Kyaggwe Block 111 Plot 1954 at Mawoto measuring approximately 0.212 hectares and transfer the same into the name of the Plaintiff. - A permanent injunction is hereby issued against the 1st iii. Defendant, his agents and assignees from interfering with or occupying the said land. - The Plaintiff is awarded general damages of Ug shs iv. $5,000,000/$ = (Uganda Shillings Five Million only) - The 1st Defendant shall pay costs of this suit to the $v$ . Plaintiff.

Dated at Mukono this day of November, 2022.

David Matovu . IUDGE