Kaaya and Another v Matovu and 4 Others (Civil Suit No. 143 of 2011) [2021] UGHCLD 218 (24 May 2021)

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

### (LAND DTVTSTON)

# clvrL suIT No. 143 0F 2011

### 1. MOSES KAAYA

a

### 2. ANNET I(AGOLO

(Suing as Administrators

of the Estate of the Late Pulikeliya Namuddu) PLAINTIFFS

#### VERSUS

### 1. CHARLES MATOVTI

2. MARY NANTONGO DAMBA

### 3. AHMED KIGGUNDU MASAGAZI

## 4. CHARLES MATOVU (As Guardian Ad Litem of Alex Lubega)

# 5. RTGISTRAR OF TITLES : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : DEFENDANTS

BEFORE: HON. JUSTICE DR. FLAVIAN ZEIJA

### JUDGMENT

### 1. O Background

The plaintiffs', who are Administrator and Administrix of the estate of the late Pulikeliya Namuddu respectively, brought this suit against the defendants jointly and /or severally for fraud in respect of land comprised in Kyadondo Block 265 plot 1 134 Bunamwaya (suit land).


It is pleaded by the plaintiffs' that before her death, Pulukeria Namuddu took the 1"t plaintiff to a one Prince Nkizi Katarina who was the former owner of the disputed land (later caretaker thereofl, to inform him that the duplicate certificate of title of the suit land was lost in 1979 and wished to obtain a special certificate of title of the same. That Prince Nkizi introduced them to a surveyor called Kawemba who commenced the process of obtaining a special certificate of title but he later died before completing the process.

After the death of Kawemba, Prince Nkizi introduced the l"t Plaintiff to the 3.d Defendant who was meant to take over from where Kawemba stopped. After obtaining the Iile from Kawemba's residence, the 3,d defendant advised the 1"t plaintiff to procure Letters of Administration for his late mother's estate (Pulukeia Nammuddu) to enable him have locus standi to process the special certifrcate of title. That upon obtaining the Letters of Administration, the 3.d defendant started acting in a dubious manner and ignored the 1"t plaintiffs calls whenever he would try to contact him. Due to his nature of work, the 1"t plaintiff had to leave for Tanzania and while there he received a ca-ll from his cousin, a one Kalemba informing him that he had seen people grading the suit land and wanted to know whether he had sold it.

Upon his urgent return to Uganda, the l"t plaintiff discovered that the suit land had been subdivided into several plots of land claimed by different individuals.

On the other hand, the 2"a defendant who claims to be Pulikeliya Namuddu and Mary Nantongo Ddamba interchangeably states that she purchased t of the suit land for value without notice from the

2"d defendant, having been introduced to her by the 3rd Defendant as Pulikeliya Namuddu in whose narnes the suit land was registered.

The 3'd defendant, who was previously employed by the 2"d defendant as a 'surveyor' for purposes of subdividing the suit land, picked interest in the suit land and claims to have purchased plots 7089, 7O9O,7O9l and 7092 from the 2"d defendant. He states that the l"t and 2"d defendants approached him and introduced themselves as brother and mother to the 1"t plaintiff who, they claimed, had drowned in Lake Victoria. The 3'd defendant alleges to have lodged a caveat on the suit land after realizing that he had been conned through the connivance of the 1"t and 2nd defendants.

It is through this contentious background that the plaintiffs sued the defendants for fraud and recovery of land.

During Joint Scheduling, the following facts were agreed:

The suit land which was originally Block 265 plot 1134 was subdivided into five plots i.e. plot numbers 7088, 7O89,7O9O,7091 and 7092. A caveat was lodged on all the plots by the 3.d defendant. Plots 7088 and 7O9 1 are registered in the names of the 2"d defendant while plots 7090 and 7092 are registered in the names of the l"t defendant. Plot 7089 was further subdivided to create plots 7444 and 7445.

## 2. O Representation

The plaintiffs were represented by JM Musisi Advocates and Legal Consultants while the 1"t defendant 4th defendants were represented by M/s Kavuma Kabenge and Co Advocates. The 2"d defendant was represented by M/s Kintu Nteza and Co. Advocates and the 3.d


defendant was represented by M/s Balikudembe and Co. Advocates Written submissions were filed by all parties which are on record.

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### 3. O lssues

The issues raised for determination by this court that were;

- 1. Whether the plaintiffs' have a cause of action against the defendants? - 2. Whether the defendants or any of them acted fraudulently in relation to the suit land? - 3. Whether or not the lst and 4th defendants are bonafide purchasers for va-lue of the suit land without notice of fraud - 4. What remedies are available to the parties?

During the hearing of the matter the plaintiffs brought a total of 7 witnesses to testify in their favor. However, the l"tplaintiff reportedly passed on after testifying and the suit has since been pursued solely by the 2na plaintiff. Both the l"t and 3.d defendants did not bring any witnesses while the 2"d defendant brought 4 witnesses. The Sth defendant never filed a defense and subsequently the suit proceeded exparte against it.

## 4. O Resolution

### Issue <sup>1</sup>

# Whether the plaintiff has a cause of action against the defendants

The plaintiffs' in their capacity as administrators of the Late Pulkeria Namuddu sued the defendants for fraud and recovery of land. Counsel for the 2"d defendant submitted that the plaintiffs' fr4udulently a ed for and were granted Letters of Administration

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, to the estate of the 2"d defendant who is still living. Further, that since it had been stated that the 'Late Pulkeria Namuddu'did not know how to read and write, her will was incompetent in the absence of a certificate of translation in light of Sections 2 and 3 of the Illiterates Protection Act. Counsel for the 1't and 4th defendants contended that the provisions of section 2 and 3 of the Illiterates Protection Act are couched in mandatory terms and the Will therefore bears glaring irregularities and illegalities. Counsel for the 3rd Defendant conceded that the suit land belonged to the estate of the Late Pulkeria Namuddu.

PW1 testified in cross examination that he did not know how the Late Pulkeria Namuddu acquired the suit land but the late Pulikeliya Namuddu was in possession of it in the late 1960's and 1970's and had a house thereon. However, PW2's testimony was not really helpful in determining how the Late Pulikeliya Namuddu acquired the suit land. PW2 did not have any personal knowledge of the suit land save that the Late Pulikeliya Namuddu once mentioned to her of land located at Bunamwaya. Of course, land in Bunamwaya is vast and the late Pulikeliya Namuddu could have been referring to land other than the suit land.

PW3 testified that he was the LC1 Chairman of Kabindula Village, Namalrumba Sub County, Busiro Countlr, Wakiso district where the Late Pulkeria Namuddu died and was buried. Besides his evidence relating to the death of Pulikeliya Namuddu, PW3 did not know how she acquired the suit land if at all. PW7 the Senior Registrar of Titles would have been in a better position to highlight to court the particulars of registration on the original plot 1134 but he testified


that the page bearing the said details was missing from the registry record.

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How such vital information could go missing from the records of the land registry is a revelation of the many ingenuities of forgery involved in today's land transactions. The absence of a clear record of previous transactions leaves the identities of the previous proprietors of the suit land inconclusive in respect of PW7's testimony.

Nevertheless, in the instant case, a cause of action can be established from the relationship between the late Pulukeria Nammuddu and the plaintiffs. It therefore appears that the authenticity, or otherwise, of the contested will is immaterial as long as the plaintiffs can prove that they are children of the late pulukeria Nammuddu and hence beneficiaries of the estate. The plaintiffs testified that they were children of the late Pulukeria Namuddu. PW4 testified that he is son to the Late Mawule Phillip who was brother to the Late Pulkeria Namuddu and he personally witnessed the writing of the will in question. The will states in part,

"Nina ettaka e BunamwaAa- Kgadondo lat Block 265 plot 1134...." translated to mean that she has land at Bunamwaya- Kyadondo at Block 265 Plot 1134. The will was the basis upon which Letters of Administration dated 9th April 201O were granted to the Plaintiffs vide HCT-OO-FD-AC-1129-2OO9. The Judicature Act, Cap 13 gives the High Court unlimited jurisdiction to inter alia take any steps to verify any wrong findings on the face of the record which comes to its attention. However, in the absence of a fraudulent misrepresentation of an essen -(""t at the time of applying for Letters of

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. Administration, the grant cannot be interfered with. See: Sanvu Lwanga Musoke v Sam Galiwanso SCCA +Al95

Counsel for the lst, 3rd and 4th defendants contended that the Plaintiffs are imposters and not children of the 'Late Pulikeliya Namuddu'. If this contention is true, then court should certainly be inclined to annul the grant. However, PW1 and PW2's testimony that they are children of the Late Pulikeliya Namuddu was corroborated by the testimony of PW4 who testified that the Plaintiffs were well known to him as the children of the Late Pulikeliya Namuddu and they were the ones she mentioned in her Will. PW3 the Chairman of Kabindula village confirmed his knowledge of Pulikeliya Namuddu's sudden illness, death and burial. PWs the investigating officer testified to having discovered that indeed Pulikeliya Namuddu was deceased.

Counsel for the 2"a defendant's contention that the Letters of Administration should be annulled, on grounds that the Plaintiffs fraudulently misrepresented that Pulikeliya Namuddu had yet she is alive, cannot stand in light of the corroborated evidence. The burden is on he who alleges fraud to prove the fact so alleged albeit the burden on a balance of probabilities being heavier than that generally applied in civil matters. See: Kampala Bottlers Vs. Damanico lUl Ltd SCCA No. 22 of L992. It is trite lavv that fraud must also be specifically pleaded and strictly proved. Apart from their allegations, the 1"t, 2"d and 4th defendants have not discharged the burden of proving that the grant was obtained by the plaintiffs fraudulently neither have they proved that the will, upon which the Late Pulkeria Namuddu derives title to the suit land, was defective. As such, the


first issue is resolved in the affirmative, in the spirit of the celebrated case of Auto Garage and Anor Vs Motokov (No3) (1971)EA 514

### Issue 2

# Whether the Defendants or any of them acted fraudulently in relation to the suit land

The Supreme Court decision of Fredrick Zabwe Vs. Orient Bank & 5 others, Civil Appeal No. O4 of 2OO6 is instructive on the law regarding fraud. To act "fraudulent" was defined to mean acting wilfully and with the specific intent to deceive or cheat; ordinarily for the purpose of either causing some financial loss to another or bringing about some financial gain to oneself.

The particulars of fraud pleaded by the plaintiffs are contained in paragraph 5 of the plaint. In respect to the 2"d defendant from whom all the subdivided titles emanate, the particulars of fraud against her are partly as follows;

a) Claiming to be Pulikeliva Namuddu whereas not

PWS testified that during his investigations, he discovered various identities of the second Defendant. He obtained documents from Wakiso Land office, the Electora-l Commission, Photocopy of the Register Book of Nakasozi LC I where the 2"d Defendant ordinarily resides and also obtained statements from the people in the area. PWS recovered a Voter's Card No 081734472 from land office issued on the 21"t May 2OO2 bearing the photograph of the 2"d Defendant with the names Pulukeria Namuddu. This was actually a forgery. A verification with the Electoral Commission data shows that the 2"d defendant was actually registered as Ddamba Mary. \uthentic This was <sup>e</sup> voters Register. The voters Card No

081734472, according to the record of Electoral commission, is registered in the name of Batistas Nsubuga a resident of Kazo Central Wakiso District. The 2nd Defendant also bore the Village Identity Card for Nansana Town Council in the names of Nammuddu Pulukeria issued in 2009. PW5 concluded that the actual names of the 2na Defendant was Ddamba Mary.

In her defence the 2"d defendant claims to have derived the name Ddamba Mary from her husband. PW4 Solomon Sekayiga a member of the Electoral Commission testified and presented the actual voter registration representation of the 2nd Defendant. The 2"d defendant's actual names are Marry Nantongo Damba of Nakasozi, Nsangi Sub County. He presented a Form that was bearing the photograph of the 2"a Defendant as Damba Mary. The 2"d Defendant indeed acknowledged that she was the one on the form.

The 2"d Defendant's testimony is also surprising. She claimed to be called Pulikeria Namuddu Mary Nantongo Damba. She was also called Nantongo Maria. I have not met a crook of this nature at her age! Her testimony however did not come without drama. Her counsel had suggested to court that she was bedridden and could not appear in court save through a lawyer. Unfortunately for her, Counsel for the plaintiff knew where she was residing and had met her walking with energr the previous week. When this information was put before court, the trial Judge insisted that she should appear in person. She actually appeared on the adjourned date with energz like that of a horse. It appears her fraud runs in her

 blood! I am surprised that Counsel for the 2nd Defendant attempted to distance the 2"d defendant from these documents in his submission yet she gave information consistent with their contents in her testimony. Such an attempt by Counsel was calculated to mislead court.

PWS indeed confirmed that from his investigations, the actual Pulikeria Nammuddu actually died in 1990 and was buried in Kibindula village. This was also confirmed by the LC I chairman of Kabindula Vuillage who testified as PW3 that he knew the plaintiffs as children of the late Pulukeria Nammuddu who is deceased.

PW6 Solomon Sekayiga from the Electoral Commission testified that there is a unique perno number assigned to each voter. Pulikeliya Namuddu's perno Kilyambidde, date of birth is rS 30th 64457593 her November 1944 village is , place of registration is Mpigi district, Mahokota county North, Kanago sub county, Rutoro parish polling station. The document has a photo of Puliketiya Namuddu. On the other hand, the perno for a one Mary Ddamba is O8687848. Her village is Nakasozi, her date of birth is 1"t January 1958 , place of registration is Wakiso district, her constituency is Busiro county East, Nsangi sub county, Nabingo parish, Matutu primary school. The form has <sup>a</sup> photograph of Ddamba Mary. This information is consistent with R12 (Electoral Commission Record). I was shocked that the 2"d Defendant denied her own photograph bearing her exact face on this parti document although her Counsel submitted and

admitted that it is her document. These and many other grave inconsistencies in the 2nd defendant's testimony point to no other inference except that of a woman intending to deceive for the purpose of obtaining fraudulent gain.

## b) Proprietarv interest in Plot 1134

DWS (2"d Defendant) disowned the signature on a land sale agreement upon which she purportedly bought the suit land from a one Ferista Namuddu in I974. She categorically stated that she did not understand that document and that the signature thereon was not hers. On then wonders if she did not acquire the suit land by the sale agreement which incidentally was tendered by her own Counsel in support of her interest, then, how else could she have acquired the purported interest?

Counsel for the 2"d defendant contended that the purported sale agreement was a concoction of the plaintiffs. He in fact unsuccessfully attempted to have it expunged from the record but court declined his application on the basis that the document had been introduced by the 2nd defendant. As Counsel for the plaintiffs rightly submitted, the agreement was purportedly made on 15th February 1974 under two enabling laws: The Reeistration of Titles Act, Cap 230 and the Land Act, Cap 227. The latter law was enacted in 1998 while the former law was known as Cap 205 until the year 2000. This was clearly a clever attempt in futility on the part of the 2nd defendant to commit a blatant forgery. The effect of such an illegality when brought to the attention of court is that it


renders the transaction and anything else that bases on it void abinitio with the exception of a third party who obtains good title without notice of its defect. I have come to the conclusion that the 2"a defendant had no valid proprietary interest and that she imposed the same on herself by fraud. I need not delve into the other particulars of fraud in respect to the 2na defendant because one fraudulent act proved has the same effect as all acts of fraud proved in respect of the same transaction.

Forgery was also evident in the agreement between Pulukeria Namuddu and Ferista Namuddu. The said agreement is alleged to have been made under two enabling laws, The Registration of Titles Act Cap 23O and the Land Act Cap 227 of laws of Uganda. The agreement in this case was purportedly signed on the 15d, of February 1974 yet the Land Act Cap 227 was enacted in 1998 long after the said agreement was purportedly made. The Registratron of Titles Act Cap 230 came into place in 2O0O after the revision of Laws of Uganda. This forgery was intended to show that the 2na Defendant had actually purchased the land. Her counsel attempted in the submissions to distance himself from this agreement yet it was introduced by his client in the trial bundle!

# (c) Fraud by the Rest ofthe defendants

The testimony of PW5 plus that of PW6 the Registrar of titles shows that no Special Certificate of Title for plot 1134 was ever issued. Instead, the land was subdivided and fresh titles were issued for Plots 7088,7089,7O9O,709 1 and 7092. The subdivision of Plot 1134 was on 22"d September 2008, when there was no

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duplicate certificate of Title for the land. The Gazette for a Special Certilicate of Title was issued on 27th March 2OO9. This was six months after the mutation form was signed. The plots were therefore created when there was no duplicate certificate of title for plot 1 134. The area schedule was also obtained on 3.d October 2008 before the gazette. The gazette therefore was issued for the convenience of the officials of the 5th Defendant. There is no history on which this subdivision could be based according to PW5's investigations.

The defendants connived with officials from Land Office to make the white page and the residue file for former plot 1 134 disappear as well as plots 7093 and 7094. The application for a Special Certificate of title was actually never processed, according to the Registrar of Titles.

What is crucial is for this court to establish the link between the 1st, 2nd and 3.d defendants in this fraudulent scheme. PWl Moses Kaaya was introduced to the 3.d Defendant to help him obtain a Special Certificate of Title. From the testimony of the 3'd Defendant, he claims to have lost contact with Kaaya until 2OO8 when he received a call from a one Busuulwa. It is Busulwa who introduced the 1"t defendant to the 3.d defendant and they set out to do the fraudulent schemes together. The 1"t defendant Charles Matovu introduced himself to the 3.d defendant as a brother to Moses Kaaya (the lil plaintiff and son to Pukukeria Nammuddu). The l"t defendant later informed Masagazi that the 1"t plaintiff drowned in Lake Victoria. Busuulwa then inquired how far


Masagazi had reached with the process of subdivision. The 1"t defendant offered to finance the subdivision with UGX.500,000 for the Gazzette and UGX. 500,000 for stamp duty.

Prior to picking the certificates of tile from land office, the 3'd defendant was informed by the 1"t defendant that the 3'd defendant had promised to give him a plot of land for his effort in processing a special certificate. The 3'd defendant then requested the l"t defendant to inform the second defendant that mutation forms were to be signed for that purpose. The 1"t defendant later returned with Mutation forms. That is how the land was subdivided.

The 3'd defendant also purported to purchase plots from the 2"d defendant at 36,00O,000/=(Uganda Shillings Thirty Six Million Shillings). Later, the trio met in the chambers of Nuwagaba and Mwebesa Advocates to execute a tripartite agreement on how to share the land but when the 3'd defendant went to photocopy the IDs of the 2"d defendant, the 1"t and 2"d defendants disappeared with the titles. After his investigations, he discovered that the 2"d defendant was not Pulukeria Namuddu and the 1"t defendant was not the son of Pulukeria Nammudu. Yet he had worked with the 1"t defendant in concert and conspiracy to obtain the said titles. The 3.d defendant therefore colluded to steal the land of the plaintiffs and he has his signature on all the forgeries that happened.

Interestingly, the l"t defendant claims to have known about the suit land through the 3'd defendant himself. He claims that the 3'd defendant in ced himself to the 2"4 defendant as a purchaser

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of the land. The l"t defendant claims to have purchased from the 2nd defendant plots 7O88,7O9O and 1792 and plot 7089 was purchased by the 4tt defendant a minor who is a son of the 1"t defendant. The 1"t defendant presented various purchase agreements with the 2"d defendant. The dates of the said agreement show that they were concluded after the 3.d defendant had already reported the theft of 5 land titles by the l"t and 2"d defendants. There was a-lso a caveat already lodged on the land on behalf of the 3'a defendant. The l"t defendant cannot be said to be a bona fide purchaser for value. The agreement for the 4th defendant in respect of 7089 was executed when he was a minor and the 1", defendant was a witness yet the 4ti, defendant is his son. This was a ploy by the l"t defendant in furtherance of his fraud.

Interestingly for plots 7090 and 7092 the purchase agreements show that they were fully paid for at the time of purchase and the titles were handed over to the 1"t defendant. Yet the vendor who is the second defendant lodged a caveat on them claiming interest and stating that the titles for the said plots were missing. All this is a manifestation of fraud and the defendants were all party to this fraud. In the premises therefore this issue is answered in the affrrmative.

### Issue 3

Whether or not the l"t, 3"d and 4th Defendants are bonaflde purchasers for value of the suit land without notice of fraud


SCCA No. L2 lL99S quoting with approval the case of Robert Lusweswe Vs. G. W. Kasule & Another Civil suit No. 1O1O of 1983 {unreportedl, Odoki JA (as he then was) stated in respect to section 189 of the Registration of Titles Act, Cap 23O : The concept of a bonafide purchaser for value without notice was canvassed in the case of David Seiiaka Nalima Vs. Rebecca Musoke

"The effect of this section is thqt once d registered proprietor has purchased the propertg in goodfaith his title cannot be impeached on account of the fraud ofthe preuious registered. proprietor. A bona Jide purchaser therefore obtains a good title eaen iJ he purchases Jrom o proprietor uho preuiouslg obtained bg fraud. Iloweuer, before a purchaser can claim the protection of S. 789 oJthe Registration of Titles Act, he, must act in good faith. If he is guiltg of fraud or sharp practice he will cease to be innocent and therefore lose the protection"

It is Counsel for the lst & 4th defendants'submission that the 1"1 defendant purchased the suit land for value and without any notice of fraud. Counsel for the plaintiffs however contended that the Defendants were part of the fraudulent scheme.

I have come to the firm conclusion that the l"t defendant was not only aware of the fraud that marred the transactions surrounding the suit land but he actively participated in orchestrating the said fraud. He does not qualify to be called a bonafide purchaser for value without notice.


. Having considered the evidence on record, the 3.d defendant is equally culpable for the fraudulent dealings in the suit land. General denials by him cannot erase his purported sell of the suit land to third parties well aware that there were other competing interests in the same. This issue too is answered in the affirmative.

#### Issue 4

### What remedies are available to the parties?

In light of the above deliberations, this suit succeeds with the following orders;

- 1. All fraudulent subdivisions in respect to the suit land are hereby cancelled and the suit land reverted to its original description and acreage, to wit, Kyadondo Block 256 Plot1134. - 2. The Plaintiff are declared the rightful owners of Kyadondo Block 256 Plot1134 and all the Subdivided plots arising therefrom (which now stand cancelledf . - 3. The Commissioner Land Registration is ordered to cancel the certificate of title in the names of the 18t, 2nd and 4th defendants and in respect of Block 265 Plots 7o88,7444,7445,7090,7091,7092, 7093 and 7094 at Bunamwaya and their names be expunged from the Register Book and substitute them with that of the plaintiffs. - 4. An eviction order is hereby issued against the 1"1, 2'd, 3'd and 4th defendants and the same are hereby ordered to deliver physical vacant possession of the suit land to the 2nd Plaintiff.


5. A permanent injunction is hereby issued restraining the defendants and or their agents/servants from interfering with the plaintiffs' interest in the land.

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- 6. The Defendants shall jointly and severally pay General damages to a tune of UGX. IOO,OOO,OOO shillings to the plaintiff. General damages are awarded at the instance of court and the court has discretion to award them or not. It is evident from the proceedings and pleadings that the fraudulent transactions were sophisticated and required a lot of work to unearth them. A sum of UGX. IOO,OOO,OOO/= is well deserving. - 7. Interest on General damages at court rate from the date of judgment till payment in full. - 8. The Defendants shall jointly and severally pay costs of the suit to the plaintiffs.

In view of the above findings, the counterclaim is accordingly dismissed with costs to the counter defendants.

I so order

Dated at Kampala 4th day of lMay 2O2l

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Principal Judge