Dr. Kityo and 2 Others v Kamya Semakula and Another (Civil Suit 359 of 2013) [2023] UGHCLD 214 (27 July 2023)

Full Case Text

#### THE REPUBLIC OF UGANDA

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

#### (LAND DIVISION)

### CIVIL SUIT NO. 359 OF 2013

### 1. DR. LIVINGSTONE KITYO SEMAKULA

2. ROBERT KUSASIRA SEMAKULA

3. DR. ELIZABETH NABATANZI SEMAKULA LUGUDE KATWE ::::::::::::: PLAINTIFFS

#### **VERSUS**

1. IEFFREY KAMYA SEMAKULA 2. NATIONAL DRUG AUTHORITY ::::::::::::::::::::::::::::::::::::

#### Before: Hon. Justice Byaruhanga Jesse Rugyema

### **JUDGMENT**

- $[1]$ The Plaintiffs in this suit who are all siblings and children of the late Yosamu Kanyomo Semakula Salongo and as such beneficiaries of the estate of the late Yosamu Kanyomo sued the Defendants jointly and severally for inter alia, illegal and fraudulent sale and buying and subsequent transfer of the suit land comprised in **Busiro Block 423, plot** 1 land at Mbubuli Entebbe, Wakiso District (Now subdivided into plots 11,13,15 and 16), destruction and trespass to property and cancellation of the title of the $2^{nd}$ Defendant allegedly and/or wrongly and fraudulently issued on the suit land. - It is the Plaintiffs' case that the Plaintiffs' father Yosamu Kanyomo $[2]$ **Semakula** was the registered proprietor of the suit land and before his demise, he bequeathed it to the Plaintiffs through his last WILL and testament dated 13th November, 1978. That the 1st Defendant obtained letters of probate with the help of the $2^{nd}$ Defendant and using the said WILL, applied for a special certificate of title of the suit land claiming that

the original title was lost and that he wanted to distribute the suit land to the Plaintiffs.

- $[3]$ That during the application for letters of probate, the $1^{st}$ Defendant in collusion with the 2nd Defendant concealed the true identities and all names of the beneficiaries of the estate of the late Yosamu Kanyomo Semakula who were all living abroad in the USA at the time and upon obtaining the special certificate of the suit land, went ahead and concluded their transactions and subsequently transferred the same into the names of the $2nd$ Defendant. The remaining portions of the land were sold to other people after subdividing the whole suit land into diverse plots with the sole purpose of defeating the beneficiaries' interests in the suit land. - The Plaintiffs aver and contend that the actions of the Defendants jointly $[4]$ and severally as regards the suit land were illegal and/or fraudulent and the title obtained by the $2^{nd}$ Defendant ought to be cancelled as it was fraudulently and /or illegally and irregularly obtained. - $[5]$ The Defendants on the other hand, denied the Plaintiffs' allegations of any liability. - $[6]$ It is the 1st Defendant's case that whereas the Plaintiffs are sons and daughter of the late Yosamu Kanyomo Semakula and therefore are beneficiaries to his estate, they are not entitled to the suit land. That by virtue of the last WILL of the late **Yosamu Kanyomo Semakula** dated $4th$ November 1989, the deceased revoked his earlier made WILL of 13th November 1978 and absolutely bequeathed all his remaining unsold part of the estate to the $1^{st}$ Defendant upon which the $1^{st}$ Defendant lawfully obtained letters of probate to the estate of his late father Yosamu Kanyomo Semakula after court had proved and registered the deceased's last WILL dated 30th November 1989 in the High Court. - $[7]$ As regards the $2^{nd}$ Defendant, he averred and contended that he is the registered proprietor of the suit property being a bonafide purchaser for value having bought the suit property from the then registered proprietor thereof, the 1st Defendant. That the findings of negligence and fraud made by court in HCCS No.91/2009 against the $1^{st}$ Defendant do not affect its

title in so far as it was not a party to the said suit and the judgment and decree therein have no retrospective application.

- [8] The 2nd Defendant filed a Counter claim as a Counter claimant against the $1st$ and $3rd$ Plaintiffs/Counter Respondents for inter alia, a declaration that the Respondents have no registrable interest in the suit property, a consequential order directing the Registrar of titles to remove the caveat lodged by the Respondents on the suit land, and general and aggravated damages to trespass. - It is the Counter claimant's case that sometime between 2013 and 2014, $[9]$ the Respondents/counter defendants wrongfully entered upon the suit land without its permission and consent and took possession of part of the suit land, made a pathway through it, started erecting a structure thereon and went ahead to lodge a caveat thereof thereby causing loss and damage for which it holds the Respondents liable.

## **Counsel legal representation**

- [10] The Plaintiffs were represented by Ms. Nsereko Sauda of Nsereko-Mukalazi & Co. Advocates, Kampala while the 2nd Defendant was represented by Mr. Esau Isingoma of K & K Advocates, Kampala. Both counsel filed their respective written submissions as permitted by this court for consideration in the determination of this suit. - [11] During the court proceedings of $14^{th}$ November 2019, the $2^{nd}$ Plaintiff was reported dead by the then counsel for the Plaintiffs and his name was accordingly replaced by that of the Administrator of his estate (the $3^{rd}$ Defendant as per P. Exh.1)

### **Issues for Determination**

- [12] Issues agreed upon by both counsel for determination of this suit are; - 1. Whether the sale of the suit land by the $1^{st}$ Defendant to the $2^{nd}$ Defendant was lawful.

- 2. Whether the Plaintiffs have a cause of action against the $2^{nd}$ Defendant. - 3. What remedies are available to the parties.

## Resolution of the issues

### **Standard and Burden of proof**

[13] In civil suits, the burden of proof lies with the Plaintiff who has to prove his or her case and the standard of proof is that on the balance of probabilities, Sebuliba Vs Co.op. Bank Ltd [1982] HCB 130. See also **S.101(1) of the Evidence Act** which provides thus:

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

- [14] In relation to fraud in civil matters, it is trite that 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.22/1992. - [15] In this suit, the Plaintiffs raised allegations of fraud against the Defendants and therefore, the burden to prove the alleged fraud to the required standard falls on the Plaintiffs who allege it.

## Issue No.1: Whether the sale of the suit land by the 1st Defendant to the $2^{nd}$ Defendant was lawful.

### **Counsel submissions**

[15] Counsel for the Plaintiffs submitted, rather prolicy that the sale of the suit land by the $1^{st}$ Defendant to the $2^{nd}$ Defendant was conducted with several fraudulent acts which warrant cancellation of the $2^{nd}$ Defendant's title.

- [16] That the $2^{nd}$ Defendant approved and advanced payment for the purchase of the suit land, facilitating the 1st Defendant to fraudulently obtain letters of administration through the 2nd Defendant's lawyers of the estate of the late **Yosamu Kanyomo Semakula.** According to counsel, the participation of the $2^{nd}$ Defendant in the procurement of letters of probate by the $1^{st}$ Defendant (which were subsequently annulled for fraud vide HCCS No.91 of 2009), was an act meant to defeat the other beneficiaries of the estate including the Plaintiffs because at the time of approval of payment for the suit land by the $2^{nd}$ Defendant, the land was registered in the names of the late Yosamu Kanyomo Semakula and therefore, the 1st Defendant had no capacity to enter into any transaction on behalf of the other beneficiaries unless he was at the time a holder of letters of administration. - [18] Counsel further submitted relying on the authorities of David Sejjaka Nalima Vs Rebecca Musoke, Civil Appeal No.12/1985[1992] KALR 736 and Bhimji & aAnor Vs Gian Singh & 3 Ors, HCCS No.298/2010 for the proposition that where a purchaser employs an agent such as Advocate to act on his or her behalf, the notice the advocate receives, actual or constructive, is imputed on the purchaser and that similarly, where the advocate acts for both parties, any notice he or she acquires is ordinarily imputed on both parties except were the agent deliberately defrauds the purchaser. - [19] That in this case, the $2^{nd}$ Defendant had prior knowledge about the material facts surrounding the suit land but went ahead to instruct their lawyer $M/s$ Buwule & Mayiga Advocates to execute a memorandum of sale between the $1^{st}$ and $2^{nd}$ Defendants (P. Exh.4), the same lawyers who acted for the $1^{st}$ and $2^{nd}$ Defendants to fraudulently obtain letters of administration of the estate of the late Yosamu Smakula with the intention of unlawfully benefiting from the suit land to the detriment of the interests of the beneficiaries to the estate of the deceased. - [20] Further, according to counsel for the Plaintiffs, the $2^{nd}$ Defendant before purchase of the suit land did not carry out any due diligence on whether the beneficiaries of the estate of the late **Yosamu Semakula**, the registered proprietor at the time they bought the suit land, either consented to the

transaction or that the other members of the family were constituted to find out if the 1"' Defendant had authority to transact on their behalf.

- [21] Counsel concluded that from the foregoing, due to the above fraudulent acts of the Defendants, the sale between the 2 parties was unlawful and this court should cancel the 2"d Defendant's title accordingly. - [22] Counsel for the 2'd Defendant on the other hand submitted that the Plaintiffs' claim that the 2'd Defendant connived with the 1"'Defendant to fraudulently deprive the Plaintiffs of the suit land have not been supported by any evidence, that the 2"d Defendant was aware or participated in any fraudulent dealing with the 1" Defendant. - [23] That in the instant case, the 2'd Defendant purchased the suit land for valuable consideration as per the sale Agreement (P. Exh.a) in good faith whereby its officials carried out due diligence by physical inspection of the land with the involvement of L. Cs prior to the purchase. - [24] That upon the 2'd Defendant identifying the suitability of the suit land for its use, the 2"d Defendant insisted on the 1"' Defendant obtaining letters of administration as condition precedent before any purchase could be concluded. - [25] Counsel concluded that the 2"d Defendant was therefore a bonafide purchaser of a legal estate without notice of fraud since there is no way it could have known about the existence of the Plaintiffs and their siblings who were all in the United States of America yet the 1"' Defendant vendor, the known heir of the deceased's estate, had obtained letters of probate and was in possession of the suit land at the time of purchase. That the subsequent revocation of the letters of probate did not in the premises affect the 2'd Defendant's title.

# Determination by court

[26] In Fredrick Zaabwe Vs Orient Bank & Ors, SCCA No.4 of 2006, fraud was defined to mean,

"the intentional perversion of the truth by a person for the purpose

of inducing another in reliance upon it to part with some valuable thing belonging to him or her to surrender a legal right. It is a false representation of a matter of fact whether by words or by conduct. by false or misleading allegations or concealment of that which deceives, and it is intended to deceive another so that he or she shall act upon it to his or her legal injury."

[27] In Kampala Bottlers Ltd Vs Damanico (U) Ltd, SCCA No.22/1992, it was held that.

> "The party must prove that the fraud was attributed to the transferee. It must be attributable either directly or by necessary implication, that is, the transferee must be quilty of some fraudulent act or must have known of such by somebody else and taken *advantage of such act."*

- [28] The Plaintiffs in this case contend that the Defendants were involved in the fraudulent dealing in the suit land right away from the $1^{st}$ Defendant's application and acquisition of the letters of probate in respect of the estate of his father, the late **Yosamu Kinyomo Semakula**, to the eventual sale and purchase of the suit land. - [29] The $2^{nd}$ Defendant on the other hand contend that it is a bonafide purchaser of a legal estate without notice of fraud in respect of the suit land. - [30] In David Sejjaka Nalima Vs Rebecca Musoke (supra), Justice Odoki observed thus;

"While the burden of proving the case lies on the plaintiff, it is well settled that the onus of establishing the plea of a bonafide purchaser lies on the person who sets it up."

It follows therefore that in this case, the burden is on the Defendant to prove and satisfy court that he purchased the suit land in good faith and therefore, a bonafide purchaser.

[31] It is well established that for a defendant to be deemed a bonafide purchaser of land whose title is unimpeachable on grounds of fraud, he has to prove all the elements laid down in Hannington Njuki Vs G. W Musisi, HCCS No.434/1996 [1999] KALR 794, namely; - i) That the defendant holds a duplicate certificate of title. - ii) That he or she purchased the property for valuable consideration. - iii) That he or she bought in good faith without any defect in title. - iv) That the vendor was the former registered owner of the property.

# 1. That the Defendant holds a duplicate certificate of title

[32] In this case, it is an undisputed fact that he $2^{nd}$ Defendant holds a valid certificate of title derived from the 1st Defendant, the Administrator of the estate of the late **Yosamu Kanyomo** (P. Exh.3/D. Exh.9). I find that the $1^{st}$ Defendant satisfies the 1st element of being bonafide purchaser of land.

#### 2. That he/she purchased the $\quad\quad\textbf{for}\quad$ valuable property consideration

[33] It is also not in dispute that the $2^{nd}$ Defendant purchased the suit property from the 1st Defendant at a consideration of **Ugx 40,000,000/=** as per the memorandum of sale of land that was admitted in evidence as P. Exh.4/D. Exh.6. Purchaser for value is defined in Grace Asaba Vs Grace Kigaiga, SCCA No.14/2014 as,

> "Purchaser for value means that valuable consideration must be given to earn immunity from equitable claimants. Value means any *consideration in money or money's worth..."*

[34] In the instant case, since **P. Exh.4** is to the effect that $Ugx$ 40,000,000/= was paid as consideration for the suit property and **David Nahamya** (DW1), the Secretary to the $2^{nd}$ Defendant confirmed payment of the sum, I find that the $2^{nd}$ Defendant has satisfied the $2^{nd}$ element of a bonafide purchaser for value.

## 3. That he/she bought in good faith without any defect in title

[35] Good faith is defined in Obina & 6 Ors Vs Okumu & Ors, HCCA No.42 of 2018 as follows:

> "A person is considered a purchaser in good faith if he or she buys the property **without notice** that some other person has a right to

or interest in such property and pays its fair price before he or she has notice of the adverse claims and interest of another person in the same property... Good faith consists in the buyer's belief that the person from whom the buyer purchased the land was the owner and could convey title. Good faith, while it is always presumed in the absence of proof to the contrary, requires a well founded belief that the person from whom title was received was himself or herself the owner of the land, with the right to convey."

- [36] **Without notice** means that the purchaser must have no notice of the existence of any equitable interest. He or she must have neither actual. constructive notice nor imputed notice; Grace Asaba Vs Grace Kagaiga (supra). - [37] In the instant case, it is the Plaintiffs' contention that the $2^{nd}$ Defendant's lawyers, M/s Buwule and Mayiga Advocates for the purpose of the transaction, were also the $1st$ Defendant's lawyers in respect of his application for letter of probate (P. Exh.8) and therefore, the $2^{nd}$ Defendant is privy to the fraud due to the fact that its lawyer were always aware of the 1st Defendant's fraudulent actions. - [38] I have carefully perused both the suit land transaction Agreement between the Defendants dated 24/7/2001 (P. Exh.4) and the $1st$ Defendant's application for probate dated 12/6/2001 in respect of the estate of Kanyomo Semakula Yosamu (P. Exh.8), indeed, it is clear that the firm of M/s Buwule and Mayiga Advocates got involved in both processes. However, though the Plaintiffs claim that the $2^{nd}$ Defendant colluded with the 1st Defendant by paying Ugx 10,000,000/= to the 1st Defendant as a first instalment and thereby facilitating the 1st Defendant's lawyers M/s Buwule and Mayiga Advocates to process the grant of probate with the sole purpose of defeating the interests of the Plaintiffs and other beneficiaries, the Plaintiffs have not adduced any evidence that indeed, the said sum was paid for that purpose, i.e to facilitate $M/s$ Buwule and Mayiga Advocates to process the impugned probate. - [39] Rather as clearly indicated in the Agreement (P. Exh.4) and other correspondences on record (**P. Exh.5 & 6**), the said Ugx $10,000,000/=$ was

deposited with the 1st Defendant as their commitment to purchase the land on condition that the 1st Defendant secures the necessary grant. **Paragraph 2** of Memorandum of sale of the suit property (P. Exh.4) partly explains thus;

- "2. TERMS OF PAYMENT - a) The Buyer will pay Ush. 10,000,000 (Ten Million only) upon the vendor's obtaining a grant of letters of administration to the estate of the late Yosamu Semakula, the registered proprietor of the demised land..." - [40] Clearly, the above sum was paid upon the vendor's obtaining the grant of probate but not to facilitate him to secure one as clearly the Secretary of the 2nd Defendant, Mr. David Nahamya (DW1) explained during cross examination thus:

"It is possible that by the time we entered the agreement of sale, the vendor had already obtained a probate but it was not presented to us thus our undertaking to pay the 10m shillings on the condition of the vendor securing probate."

On this aspect, I don't see any element of collusion between the Defendants during the processing of the probate for the 1st Defendant.

- [41] 2ndly, there is no evidence that can be inferred from anywhere that the $2nd$ Defendant was aware that the $1st$ Defendant was using or would use M/s **Buwule & Mayiga Advocates**, its advocates, for processing the grant, unlike in the case of **Bhimji Vs Gian Singh (supra)** relied on by the Plaintiffs where there were correspondences by same lawyers of the parties on the subject matter thus evidence of sharing knowledge. Indeed, in this case, during the execution of the sale Agreement (**P. Exh.4**), the $1^{st}$ Defendant was represented by Mr. Mathias Ssekatawa, an advocate who witnessed the agreement on the $1^{st}$ Defendant's behalf. - [42] I am alive of the fact that subsequently, vide the exparte proceedings in HCCS No.91/2009 dated 3/4/2014 (P. Exh.5), the grant of probate issued to $1^{st}$ Defendant was annulled for fraud. However, since the execution of the sale of the suit property had been concluded on $24/7/2001$ (P. Exh.4) the decree in HCCS No. $91/2009$ could not in any way affect the 2nd

Defendant's title when he was not aware of the defect as he was not party to the proceedings.

- [43] In conclusion, I find that the $2^{nd}$ Defendant's payment of the $1^{st}$ instalment of $Ugx$ 10m/= on the purchase price as commitment for purchase of the suit property before the vendor secures the grant, as it later manifested is not evidence of fraud. - [44] It is evident on record that the $2^{nd}$ Defendant carried out due diligence before purchase of the suit land by physical inspection of the land by its agents/officials and involvement of the L. Cs of the area who are vital in purchase of land since they are deemed to be the ones on ground with knowledge regarding true ownership of land any other adverse claims, see evidence of DW2. - [45] The Plaintiffs allege that during the acquisition of probate, the $1^{st}$ Defendant presented a forged WILL dated $4/11/1989$ purporting that it is of the late **Yosamu Semakula**. There is however no evidence adduced by the Plaintiffs that at the time, the WILL was suspect or suggesting that it was brought to the attention of the firm of the advocates that the WILL being relied on by their client, the petitioner for probate was a forgery so as to deem the firm of Ms Buwule & Mayiga Advocates as having knowledge of the forgery so that the knowledge is transferred or imputed on the purchaser, the 2nd Defendant. The WILL itself was to the effect that the deceased had absolutely bequeathed the suit land to the 1st Defendant vendor. In the absence of any evidence that there was any protest from any of the family members of the deceased, the 2nd Defendant would not in the premises be required to look beyond the certificate of title presented by the 1st Defendant to investigate the Grant of probate as no suspicion had been aroused regarding the ownership of the suit land so as to attribute fraud, if any, to the $2^{nd}$ Defendant. - [46] In the premises, I find that the $2^{nd}$ Defendant has satisfied the $3^{rd}$ element for a plea of bonafide purchaser as it bought the suit property in good faith without any defect in title from the vendor who was the former registered owner. The $1^{st}$ issue is in the premises found in the affirmative.

# Issue No.2: Whether the Plaintiffs have a cause of action against the $2^{nd}$ Defendant.

- [47] While relying on Auto Garage Vs Motokov (No.3) [1971] EA 514, Counsel for the 2nd Defendant submitted that the plaint in this suit does not disclose a cause of action against the $2^{nd}$ Defendant after having demonstrated and proved that it is a bonafide purchaser for value without notice. - [48] In Tororo Cement Co. Ltd Vs Frokina International Ltd, SCCA No.2 of **2001,** court held that a cause of action is disclosed when it is shown that the plaintiff had a right, and that the right was violated resulting in damage and the defendant is liable. The question of whether a plaint discloses a cause of action must be determined upon perusal of the plaint alone together with anything attached so as to form part of it upon an assumption that any express or implied allegations of fact in it are true: Jeraj Shariff & Co. Vs Chotai Fancy Stoves [1960] EA 374. - [49] It therefore follows that in the present case, the $2^{nd}$ Defendant ought to have brought out this issue as a preliminary objection at the commencement of the hearing of the suit or these submissions for its determination does not require any evaluation of evidence but perusal of the plaint alone together with anything attached to it as its part. - [50] The above notwithstanding, from the plaint, it is clear that the Plaintiffs are suing as children of the late Yosamu Kanyomo Salongo for their share in their father's estate as beneficiaries with a beneficial interest which claim of right they allege was violated by the Defendants whose actions have deprived them of their share, and they hold the Defendants liable for this loss. - [51] In the premises, I find that the Plaintiffs have a clear cause of action which arose when their alleged rights were adversely affected by the Defendants' actions and omissions on the suit land and therefore hold both Defendants liable.

## **Issue No3: What remedies are available to the parties**

### 1. Plaintiffs' claims

[52] In this suit, the Plaintiffs claimed that the Defendants jointly and severally fraudulently and wrongfully acquired the suit land and sought for inter alia, a declaration that the Plaintiffs are the rightful owners of the suit land as beneficiaries of the estate of their late father and that therefore the $2^{nd}$ Defendant's title of the suit land be cancelled. The Plaintiffs however, failed to adduce sufficient evidence in support of their allegations of fraud against the $2^{nd}$ Defendant who successfully pleaded bonafide purchaser for value of the suit land without any notice of fraud. The 2nd Defendant is in the premises protected from ejectment and cancellation of certificate of title; Dr. Adeodante Kekitiinwa Vs Edward **Wakida, CACA No.3 of 1997.** As a result, the Plaintiffs are not entitled to any of the remedies sought.

#### 2. 2nd Defendant/Counter claimant's claim

- [53] The 2nd Defendant/Counter claimed against the Plaintiffs/Respondents for wrongful entry upon its land without permission or consent. The 2nd Defendant/Counter claimant successfully demonstrated to this court that is a bonafide purchaser for value of the suit land without notice, it follows that it is entitled to the sought declaration that the Respondents/ Plaintiffs have no registrable interest in the suit property, a permanent injunction restraining the Respondents/Plaintiffs and their agents from entering or staying or otherwise trespassing and illegally occupying the suit land or any part thereof and a consequential order directing the Registrar of titles to remove the caveat lodged on the suit land by the Respondents/Plaintiffs. - [54] As regards general damages and aggravated damages for trespass to the suit land, though trespass is actionable per se, no evidence was adduced in support of these claims or later on submitted upon by counsel for the $2nd$ Defendant/Counter claimant. In the premises, none is awarded.

- [55] In conclusion, the Plaintiffs'suit is dismissed with costs to the 2,d Defendant and judgment is entered in favour of the 2"d Defendant,/Counter claimant with the following orders; - a) The Respondents/ Plaintiffs have no registrable interest in the suit property. - b) A consequential order issues directing the Registrar of titles to remove the caveat lodged on the suit land by the Respondents/Plaintiff s. - c) A permanent injunction issues restraining the Respondents/Plaintiffs and their agents from entering or staying or otherwise trespassing and illegally occupying the suit land or any part thereof. - d) No orders are made in respect of the 1"' Defendant for it is apparent that his rights vis a vrs those of the Plaintiffs over the suit estate are pending determination vide HCMA No.95/2014 (Arising from HCCS No.91l2009). Besides, neither counsel of the parties addressed court on what would be the remedies as regards the 1"' Defendant.

o allu Dated at Kampala this 2023

Byaruhanga Jesse Rugyema JUDGE