Kalyegira v Rukundo (Civil Suit No. 181 of 2019) [2023] UGHCLD 120 (25 April 2023)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA LAND DTVISION CIVIL SUIT NO. I8I OF 2019 ROGERS KALYEGIRA EULOGIUS : : : : : : : : : : : : : : : : : : : : : : : : : : : : PLAINTIFF

#### VERSUS

## IRENE RUKUNDO POTTS : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : DEFENDANT BEFORE: HON. JUSTICE NYANZI YASIN

#### JUDGMENT

- 1. The plaintiffsued the defendant for the declaration that the defendant is a trespasser on the suit land, a declaration that the defendant fraudulently/unlawfully acquired or procured the suit land, an eviction order, msene profits, General damages for trespass, permanent injunction and any other consequential orders. - 2. The brieffacts - 3. According to the plaintiff the facts are that he bought Kibuga Block 24 Plot 142 land at Lungujja approximately 0.50 acres from a one Paul Ziraye Mpagi, the original registered proprietor of the suit land and later transferred the same into his name on 5th June, 1990. On the29thl0712005, under instrument KLA 336090 of 2110512007, a one Francis Kalema illegally and fraudulently caused the subdivision ofthe suit land into plots 1240 and 1241 respectively. On 1010712006 the said Francis Kalema purportedly sold and transferred plots 1240 and 1241 respectively to a one John Bosco Lubega and Victoria Lisa Mudogo and the defendant respectively who were registered as the proprietors under KLA 336091 and KLA 336092 on 21 105 12007 and 241 5 12007 respectively. Upon discovering

the above, the plaintiff wrote a letter dated30/0112012 to the Registrar of Titles requesting for cancellation of the transfer and subdivision made in respect of the land and the registrar accordingly cancelled them as requested.

- 4. The defendant filed a written statement of defence from where she stated that John Bosco Lubega the broker found this suit land for her and they jointly purchased it from a one Francis Kalema which was later divided in to plots 1240 and 1241 respectively. The defendant claimed to be a bona fide purchaser for value without notice of Iiaud. - 5. In addition to the written statement ofdefence, the defendant filed a counter claim and prayed for a declaration that she is a bona fide purchaser for value without notice by the time the Commissioner Land Registration cancelled her title comprised in Kibuga Block 24 plot 1241, a declaration that the title in kibuga Block 24 plor l24l was illegally cancelled by the Commissioner Land Registration to the detriment of the counter claimant, an order cancelling the reinstated Kibuga Block 24 plot 142 and reverse the same into Kibuga Block 24 plot 1241, a declaration that the second counter- defendant pursues his claim against the Attorney General under the assurance policy for his land so lost to the bonafide purchaser for value without notice, an order for permanent injunction against the counterdefendants and/ or their agents, assignees and seryants never to trespass on the said reverted kibuga Block 24 plot l24l and costs ofthe suit. - 6. This suit proceeded by way of written submissions. Mugisha Namutale & Co Advocates represented the plaintiff whereas BKA Advocates represented the defendant.

- 7. The issues as argued by both counsel and for this court's resolution are as follows; - Whether the plaintiff is the rightful owner of the suit land comprised in Kibuga Block 24 Plot 1486 formally plot 142 at Lungujja - ll. Whether the defendant is a trespasser onto the suit land - l. Whether the defendant obtained the suit land fraudulently - lv. Whether the defendant is a bonafide purchaser for value without notice - Whether the cancelation of title on Kibuga Block 24 plot 1241 by the Commissioner Land Registration was lawful - vl Whether the parties are entitled to the prayers sought for in this court - 8. The plaintiff called a total of 3 witnesses to prove his case to wit; Rogers Kalyegira as PW1, Wasswa Rogers as PW2 and Kasule A. N Semugenze as PW3. The defendant also called 3 witnesses to prove her case to wit; Katongole Mathias as DWl, Rukundo David as DW2 and Fred Makade as DW3

### 9. Preliminary obiection

- l0. Looking at the submission of the counsel for the plaintiff he raised a preliminary objection. I will resolve that objection first. - <sup>1</sup>1. In his submission he argued that the sale agreement Dexh. 3 which is the root cause of this case is inadmissible. He cited S. 67 of the Evidence Act which provides that a document must be proved by a party to it or a person attested to it. He stated that at the trial of this case, none of the attesting witnesses on the said sale agreement was brought to this court for purposes of proving its existence. He argued that all the defence witnesses did not

witness the sale agreement and therefore had no capacity to give evidence on the document they did not attest or witness. He prayed that the sale agreement be struck off the record.

- l2. Counsel for the defendant on the other hand submitted that S. 67 ofthe Evidence Act only applies to documents which are required by law to be attested. He stated that documents which are bound to be attested include a will, a mortgage deed, a caveat, a memorandum and articles of association of a company, a transfer form and power of attomey among others. - l3. Counsel argued that there is no law which requires a sale agreement to be attested and therefore S. 67 ofthe Evidence Act does not apply to a sale of land agreement since an agreement is not one of the documents required by law to be attested before it becomes valid or adduced in evidence. - 14. I have looked at the arguments of both counsel and noted that the preliminary objection arouses from the fact that no attesting witness to the sale agreement was called to prove its existence as per section 67 of the Evidence Act. - l5. Section 67 of the Evidence Act proves that "If a document is required by law to be attested, it shall not be used in evidence until one attesting witness at least has been called for the purpose of proving its execution, if there is an attesting witness alive, and subject to the process of the court and capable of giving evidence." - 16. It is trite that in the sale of registered land a sale agreement is not mandatory and it is not one of the documents required to prove such a transaction. This

is so because a sale agreement does not transfer any interest in the registered land.

- 17. In the case of Lumu V. Lindo Musoke 119741 HCB 19, it was held by Musoke J, that the agreement for sale of land did not transfer any interest in the disputed land to the defendant. It merely gave him a contractual right entitling him to bring an action against the plaintiff for damages or for specific performance if the plaintiff refused to execute in his favour the statutory transfer. - 18. Counsel for the defendant argued that a sale agreement is not one of the documents required by law to be attested to as per section 67 of the Evidence Act. I agreed with counsel's submission. - l9. Accordingly, the preliminary objection is ovemrled. - 20. Going back to the gist of this suit, I will answer the issues in the following order 3, 4, 5,2, I and 6 will be answered last.

### 2l. Issue No.3: Whether the defendant obtained the suit land fraud ulently.

- 22. In resolving this issue I will look at the relevant parts of the pleadings, evidence and submission. - 23. In the plaint under paragraph 5(a) the plaintiff stated that;'failure by the defendant to conduct an elaborate due diligence exercise involving, but not limited to, visiting the suit land , make inquiries from Local Council leaders, persons owning land adjacent to the suit land to ascertain history and rightful ownership of the land amounted to fraud. "

- 24. PW1 Rogers Kalyegira told court in his evidence in chief that \*In 2011 I went to check on my land to open boundary on KB 24 Plot 142 at Lugujja. I was with my son l[/asswa Rogers. In the course of doing so I found <sup>a</sup> building that was coming up that is when one lady called lrene Rukundo said it was her land sold to her by Francis Kalema. I had never transferred or sold the suit land to anybody. I had my DCT all the time. She called the person who sold her the land. Llhile we were there a person came with police men and told us the land belongs to lrene Rukundo. He came with police andwe were told to go away and said Rukundo owns the land. I was taken to police and kept for about 4 hours later released and told never to go back to the land. It is Kalema who took me to police. After release from police I went to the chairman of the area and reported to him. He told me to report back the following day when he would have called Kalema and Irene. The next day I went there but they did not report. Ijust kept waiting. Llthen they failed to show up I went to the RDC Rubaga but they did not come when summoned. The building I saw remained going up by construction. I went to police at Lugujja. I tried to talk to Rukundo but each time I would "fird policemen as the construction went on - 25. PW3 Kasule A. N Semugenze a resident of Lugujja parish in Ssendawula Zone and the Chairman L. C.1 aged 72 in his evidence in chief said "l grew up from Lugujja and it is where I was born from. I got to htow Mr. Kalyegira (the plaintffi around 1995 when I used to see him coming to inspect his land (Kibuga Block 24 plot 142). In around 2011, Kalyegira came to my office together with his son called Ll/asswa and told me that there is a woman who is constructing on the part of his land and also asked me if I knew her. I told him that I do not know her but I requested him to come back the next day so that I can go and summon the woman in my

office. I went to the land immediately and I found when they were constructing a house, I asked the one who was in charge and a woman came to me that she was the owner. I told her that there is a complaint in my ffice and asked her to appear the next day and further advised her to stop constructing until the complaint is resolved. Rukundo the next day did not appear. After Kalyegira had gone, I went back to the land and did not find the woman there but other men were still constructing with police around giving the security... ............. .fro\* the time I have been the chairman, I have never seen lrene Rukundo coming in my ffice for anything nor consulting me on the issue of the said \and......"

- 26. In cross- examination PW3 said "I have eyer been away for reasons of sickness and burial and in absence other committee members would act - 27.1n re-examination he said "when you are away and come back, you are briefed about what went on when away" - 28. DW2 Der:rick Rukundo said in evidence in chief that"prior to purchasing the suit land, the defendant contacted the L. C.l ofthe area. The defendant started staying in Lungujja when she met her late husband, Brent Potts sometime in 2001. That prior to his matiage with the defendant, the late Brent Potts had resided in Lungryja since 1995 and he was well known within the locality. " - 29. Katongole Mathius who became vice chairman in 2004 to 2019 testified as DWl and told court in evidence in chief that "l had seen the said Francis Kalema on about t'wo occasions at our ffice and he had indicated that he was the owner of the said land. In or around 2006, the defendant and her husband approached us as the L. C.1 ffice and I told them that there was no dispute on the land and I or our ffice had no information of any dispute whatsoever over that land. "

- 30. DW3 Fred Makada an advocate of the High Courl in his evidence in chief said"l lcnow that the defendant and her late husband, BRENT POTTS, used to stay in Lungujja, the same area where the suit land is located even before the defendant purchased that land. The defendant purchased the suit land in 2006 jointly with a one Lubega John Bosco who I met and I lcnow. That prior to buying the land, on my advice, the defendant and her co-purchaser physically inspected the land and hired surveyors who opened boundaries of the land to ascertain the acreage and whether there was encroachment. On my advice, the defendant and her late husband consulted the LCs ofthe area who were well l\*town to them and the neighbors to ensure that there was no dispute over the land. The visit to the LCs was also attended by my colleague and the landwas not developed andwas not occupied by anyone. I personally conducted a title search and a search report was issued which showed that at the time of purchase the land was registered in the name of the seller, a one Francis Kalema. Unfortunately, when these disputes came up, I could not locate the report...... " - <sup>3</sup>1 . Counsel for the defendant submitted that this is a case of fraud. The law on civil fraud is that where fraud is alleged, the same must be pleaded and the burden ofproof of fraud though lower than beyond reasonable doubt, is still higher than the balance of probabilities required in other civil cases. - 32. This court finds the binding positions stated by the superior courts in the decisions below relevant here. - 33. In the case of Fredrick Zaabwe V. Orient Bank Limited and others, SCCA No. 4 of 2006 Courl defined fi'aud to mean "an intentional

perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. A false representation of a matter of fact whether by words or conduct by false or misleading allegations or by concealment of that which deceives and intended to deceive another so that he shall not act upon it to his legal inquiry."

- 34. In the Supreme Court Decision of Kampala Bottlers Ltd Vs. Damanico (U) Ltd SCCA No. 22 of 1992 court stated that fraud must be attributed to the transferee either directly or by necessary implication. The transferee must be guilt of some fraudulent act or must have known of such act by somebody else and taken advantage of such act. Platts S. C. J held that fraud must be attributed to the transferee and it being a very serious allegation to make against another person, where a person accuses another of fraud it must be pleaded. - 35. In Ueanda Posts & Telecommunication V. Abraham Katumba (supra) citins Tavlor V. Stilbbert 11803-131 ALLER 432 court held that failure to make reasonable inquiries ofpersons in possession and use of the land or the purchaser's ignorance or negligence to do so formed particulars of fraud and the purchaser acquires and takes such purchased land subject to its equities let alone a finding that he or she committed fraud. - 36. In Danld,Seiakka Nalima vs Rebecca Musoke Civil. Appeal No. 12 of 1985 unre rted Court observed that abstaining from making Inquiries does not make you a bona fide purchaser for value and fraud may be attributed to you.

- 37. In the instant case it is the evidence of DWI and DW2 that the defendant stayed in the same area as a tenant before the purchase of the suit land as far as 2001 . It is trite that search in the register is not enough. The purchaser must take further steps to inspect the physical land and also inquire about the history ofthe land from the neighbors. - 38. DW3 told court in his evidence in chief that on his advice the defendant consulted the LCs of the area who were well known to them and the neighbors to ensure that there were no disputes. This however contradicts the evidence of PW3 the chairman of the area who said he did not know the defendant and that he has never seen her in his office. PW3 added that he is born in the same area and that he started seeing the plaintiff in 1995 when he used to come and inspect his land. - 39. DW1 Katongole Mathius the Vice Chairman on the other hand said that the defendant inquired about the suit land from their office and they indicated to her that there were no disputes on the suit land. - 40. From the above, it is clear that what the parties understood to be physical inspection and inquiries is only limited to Local council leadership. In my view this is wrong. Physical inspection and inquiries of the land extend beyond the local council leaders to people like the elders on the village or those who have stayed in the village for some reasonable time. - 4l. In light of the above, I have found it perlinent to define what it is meant by due diligence. - 42. The Black's Law Dictionary 2"d Edition defines due diligence to mean "a measure of produce or activity to be expected from, and orclinarily erercised by a reasonable or prudent man under the particular

circumstonces, not meosured by an absolute standard but dependent of lhe relevonl facts ofa parliculur cose."

43. Lexixnexis. com defines due diligence to mean "the process by which information about the proposed purchase is collated and assessed. It enables a buyer to check what he is purchasing and that he is paying the right price for it. Ultimately, the due diligence exercise should provide the buyer with the information he needs to make an informed decision as to whether to proceed with the purchase and on what terms. "

44. Lexisnexis added that legal due diligence involves investigation of;

- The sellers title lo the property (or interest) to ensure that the buyer will oblain a good and marketable title - The extent of any legal rights, restrictions, obligations, liabilities and ris lrs associated with the property or interest in it. (including those arisingfrom the sale and purchase contract with the seller or the lease with the land lord) - Whether any third party consents are required... - 45. The definitions of due diligence given above go beyond mere search in the register and if given ordinary meaning, they extend to inquiring about the history of the land before purchase to establish whether after purchase one would obtain a marketable title. - 46. In the instant case, the only neighbor that DW3 state they inquired from was DWl the Vice Chairman who in my view did not know much about the suit land. It leaves unanswered questions why the defendants elected to deal with the vice chairman and gave no reason for such a decision.

- 47. Secondly, the information he says he gave to the defendants if at all he did,, was never shared with the chairman of the area. Matters of land as serious as they are, if it were not for fraud, one would wonder why it never came to the knowledge of the chairman L. C.1 who seemed to know much about the suit land given the time he has been in the village. - 48. It is the evidence of PW3 that he is 72 years, bom and raised in the area where the suit land is situated. I believe there were other people like PW3 who had long stayed in the village and could give better history about the suit land than the local council leaders. - 49. The plaintiff under paragraph 5(a) of the plaint pleaded that'failure by the defendant to inquirefrom persons owning lond adjacent to lhe suit land to ascerlain hislory and righlful ownership of the suit land amounted lo fraud." Constrained to add that having been a resident of the area prior to purchase with all neighbors well known to her. - 50. DW3 in his evidence in chief told court that "I personally conducted a title search and a search report was issued which showed that at the time of purchase the land was registered in the name of the seller, a one Francis Kalema. Unfortunately, when these disputes came up, I could not locate the report. " I did not believe DW3 in this regard. - 5l. Ordinarily a search is conducted for a person who is already your client with a file opened in chambers. Meaning any document, you get as a lawyer in line with such a file is placed on that file. Given that background, this court then wonders how such a document could get lost from the file.

- 52. PW 1 said in 201 t he went to the land to open boundaries and found a house under construction. When he asked who the owner was, the lady whom he later came to know as the defendant said she was the owner. That he tried so many times to talk to the defendant but every time he went to the suit land the constmction was on going under police security guarding the construction. This fact was buttressed by the evidence of PW3 the chairman when he said that he went to the suit land to stop the defendant from constructing and he found policemen guarding the construction. This evidence was never disputed but only stated that she (the defendant) completed construction in 2009. I did not believe her. - 53. On the issue of survey DW3 said "That prior to buying the land, on my advice, the defendant and her co-purchaser physically inspected the land and hired surveyors who opened boundaries of the land to ascertain the acreage and whether there was encroachment... " This survey would have revealed that the land is already surveyed and registered in different names. - 54. In the case of Obina & 6 others V. Okumu & others CA NO. 42 of !Qft, Justice Mubiru defined a bonafide purchaser as"apurchaser 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. It connotes an honest intention to obtain from taking undue advantage of another. 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 to be presumed in the absence of proof to the contrary, requires a well-founded belief that the person from whom title was receiyed was himself or herself the owner of

the land, with the right to convey it. There is good faith where there is an honest intention to abstain from taking any unconscientious advantage of another. Otherwise stated, goodfaith is the opposite offraud and it refers to the state of mind which is manifested by the acts of the individual concerned. "

- 55. He quoted the case of Hunt V. Luck (1901) I ch 45 where Farwell J said: Constructive notice is the lonwledge which the courts impute to a person upon presumption so strong of the existence of the lcnowledge that it cannot be allowed to be rebutted, either from his lcnowing something which ought to have put him onfurther inquiry orfrom willfully abstainingfrom inquiry to avoid notice. " - 56. It is trite that the notice is implied when a purchaser omits to investigate the vendor's title properly or to make reasonable inquiries as to the deeds or facts which come to his knowledge. See Cheshire and Bums in their nook Modern Law of Rqal Prop!4y 16th Edition page 60. - 57. In Okullo V. Apiyo CA No. 26 of 20L6 at pase l0 Justice Mubiru noted that "the ascertainment of the lack of good faith or lack of it, and the determination of whether due diligence and prudence were exercised or not, are questions of fact which require evidence. Mere refusal of <sup>a</sup> purchaser to believe that such defect existed, or his or her willful of his or her eyes to the possibility of the existence ofa defect in the vendor's title will not make the purchaser an innocent purchaser for value if it later develops that the title was in fact defective, and it appears that he or she would hsve had suclt notice of the defecl had he or she acted with that messure of precoution which may reasonably be required of a prudent person in a like situation. The burden of proof to establish the status ofa purchaser in faith lies upon the one who asserts it. This onus probandi cannot be discharged by mere innovation of the legal presumption ofgood faith." I agree.

- 58.1n Hai i Abdu Nasser Katende V. Vithaalidas Haridas & Co. Ltd CACA No. 84 of 2003 citing the case ol- Sir .fohn Mageire V. Ausi Matovu CACA No.07 of 1996 where Kikonyogo DCJ quoted Okello JA (as he was) emphatically states that: "Lands are not vegetables that are bought from unknown sellers. Land is valuable property and buyers are expected to make thorough investigations not only ofthe land but also the sellers before purchase." - 59. The evidence of the defence witnesses indicate that the defendant stayed in the same area prior to purchase of the suit land. Meaning she knew all the neighbors very well as well as the chairman of the area. Because of this, the defendant ought to at least mention one or two neighbors that she inquired from about the suit land. Secondly, even if the chairman of the area was not in office, the defendant ought to at least find him at his home and do the necessary inquiries since ordinarily Local Council leaders reside within the same area and are always available to the residents for consultation be it at their homes or office. This was not done. - 60. Like the chairman said he knew that the suit land belonged to the plaintiff. If the defendant had inquired from him, I believe he would have clearly indicated to her that he knew the owner of the suit land to be the plaintiff and that he has never heard ofany sale or transfer. - 61. With the so many land wrangles today as the case of Haii Abdu Nasser Katende V. Vithaalidas Haridas & Co. Ltd CACA (supra) emphatically

noted, land are not vegetables and therefore purchasers are advised to be more vigilant and take extra mile while carrying out due diligence about the land before purchase.

- 62. As already noted in this judgment the fact that the vendor is the registered proprietor is not enough. Inquiring about the history of the land from the neighbors is paramount. - 63. I note that from the record there is a one Samba Nsubuga who is alleged to have impersonated himself to be the plaintiff. I did not believe this fact. There were people on the village like PW3 who knew the plaintiff as the owner of the suit land and it is not correct that Samba Nsubuga could impersonate himself before such people to be the plaintiff. - 64.1f it is true that a one francis Kalema indicated to the local authorities that he was the owner of the suit land, one would wonder why the same Francis Kalema did not inform the local council authorities when he was purchasing the suit land and only informed them after purchasing. That question having been left unanswered, I did not believe the evidence of DWI when he said Francis Kalema went to the local council offices and informed them he was the owner of the tand. If that were to be the truth, then the chairrran of the area would have known that fact but he instead knew the plaintiff to be the owner. - 65. Secondly, if at all it is true that Francis Kalema indeed purchased the suit land, my view is that it is the duty of the vendor to introduce him to the local authorities but not introducing himself.

- 66. In reference to the authorities above, had the defendant carried out measures of precaution required ofa person in her position like inquiring from the adjacent neighbors and people who had long stayed on the village like PW3, it would have come to her knowledge that the plaintiff had never sold or transferred the suit land to the one Francis Kalema. - 6T. Furthennore, if she had listened to what the plaintiff had to tell her at the time of construction, she would have known that indeed the plaintiff had never passed over his interests in the suit land to Francis Kalema. - 68. It should also be noted that PWl and PW3 tried so much to stop the defendant from constructing but every time they went to the suit land, the construction was being guarded by the police. This evidence was never challenged by the defendant. Ifat all the defendant did not know about the fraud that was committed by Francis Kalema, then why was the construction guarded by police? This question would only lead this court to a conclusion that the defendant used the police to cover fraud. - 69. Accordingly, it is the finding of this court that the defendant did not acquire the suit land in good faith. The defendant ignored all the chances she had and saw to realize the defect in title that she paid for. That alone made her party to the fraud. - 70. Issue No. 3 is answered in affinnative. - 7l. Having answered Issue No. 3 in affirmative, Issues No. 4 and 2 have become academic to resolve.

## 72. Issue No. 5: Whether the cancelation of title on Kibusa Block 24 plot 1241 by the Commissioner Land Resistration was lawful.

- T3. Section 157 of the Registration of Titles Act provides that "Appropriator may apply for the rectification of the original and duplicate certificate of title of any other proprietor or proprietors, in any case in which the land described in the applicant's certificate of title and actually and bona fide occupied by him or her comprises land which by reason oferror in a survey or other misdescription is included in the land described in any other certificate or certificates of title." - 74.1n the instant case, the plaintiff said that upon finding out that the suit land had been fraudulently transferred into the name of Francis Kalema and subsequently subdivided into plots 1240 and 1241, he applied to the Registrar Land Registration for cancellation of the defendant's name. The Registrar Land Registration cancelled the defendant's name and reinstated the plaintiff. - T5. Counsel for the defendant submitted that the Commissioner Land Registration was wrong to cancel the defendant's title. He cited section 91 of the Land Act and the Supreme Court case of Hilda Wilson Namusoke and 3 others Vs. Owalla's Home Investment Trust (EA) Ltd and Anor SCCA No. 15 of2017, where court held that the Commissioner cannot determine allegation of fraud and that any allegation premised on fiaud rnust be referred to court for detennination and the Commissioner can only act on the consequential orders issued by court to alter the register and,/ or cancel a certi ficate of title. - 76.lhave looked at P. Exh.3 and in that exhibit under paragraph 3 the plaintiff stated "l am writing to you requesting for cancellation of the transfer and subdivision made on that land due to the fact it was done without my consent "

- 77. P. Bxh.5 Notice of intention to sue under paragraph 5 the Commissioner Land Registration stated " since Rogers Kalegira Eulogius has never authorized a subdivision nor transfer of this land to anyone, Francis Kalema entry on the above land was eruoneous because he boughtfrom an imposter who did not have any proprietary interest and therefore Francis Kalema could not pass on a better interest on to you." - T8. Following P. Exh.5 the Commissioner Land Registration accordingly cancelled the defendant's name on the Duplicate Certificate of Title and reinstated the name of the plaintiff. - 79. In light ofthe above, although I agree with counsel for the defendant that a Commissioner cannot cancel a certificate of title on grounds of fraud, in the instant case that is not the position. The Commissioner Land Registration did not base his decision for cancellation of the defendant's name on the Duplicate Certificate of title on ground of fraud as per P. Exh. S, but on obvious illegality which S.91 permits. - S0. Section 157 of the Reeistration of Titles Act as already cited above, allows the proprietor of the land to apply to the Commissioner Land Registration for rectification of the original and duplicate cefiificate in case of any error. This is what the plaintiff did and the Commissioner accordingly rectified the error by cancelling the name of the defendant on the duplicate certificate of title having been entered in error. - 81.1t is therefore this courl's finding that the Registrar Land Registration lawfully cancelled Kibuga Block 24 Plot l24l land at Lungujja.

82. Having answered issues no.3 and 5 in affirmative, the plaintiff automatically becomes the rightful owner of the suit land.

## 83. Counter-Claim

S4. Considering the findings in this judgment, the defendant's counter-claim needs no trial but court heard the matter. The claim fails because the evidence available sufficiently proves the plaintiff case. Accordingly, it is dismissed with costs.

## 85.lssue No. 6: Whether the parties are entitled to the prayers sought for in this court.

## 86. General damages

- 87. In Luzinda v. Ssekamatte & 3 Ors(Civil suit -2017/366 t2<sup>020</sup> UGHCCD 20 13 March 2020 courl held that general damages are awarded at the discretion of court. Damages are awarded to compensate the aggrieved party for any inconveniences accrued as a result of the actions of the defendant. - 88. The facts in the instant case indicate that the defendant was warned that the suit land was under a dispute but she ignored the plaintiff and continued to constmct on his land using police protection. That alone must have made the plaintiff suffer agony and errotional stress. Secondly, the plaintiff was arrested and detained because of his land. Thirdly, he lost over 20 years of ownership. - 89. In the circumstance, the plaintiff is awarded 150,000,000/: (One and Fifty Million Shillings) for general damages.

90. This judgment is therefore entered in the following tems;

- It is declared that the defendant fraudulently acquired the suit land. I - It is declared that the defendant is a trespasser on Kibuga Block 24 Plor 1241 now plot 1487 formally plot 142 ll. - It is declared that the Commissioner Land Registration lawfully cancelled the name of Irene Rukundo Potts on Kibuga Block 24Plot 1487 and reinstate the name of the plaintiff. Iu. - General damages totaling to 150,000,000/: is awarded lv. - It is ordered that the defendant be evicted from the suit land in six months from the date of this judgment. - Costs are awarded to the plaintiff. vl.

GIVN under rny hand and seal of this honorable court this Ag day of 2023

NY YASIN TRIAL JUDGE