Kalyesubula v Abaasa & Another (Civil Appeal 12 of 2012) [2023] UGHC 363 (8 May 2023)

## **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT MASAKA**

# **CIVIL APPEAL NO. 12 OF 2012**

## **(ARISING FROM CIVIL SUIT NO. 94 OF 2009)**

## **KALYESUBULA FRED :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

## **VERSUS**

### **1. ABAASA PITSON**

# **2. KEBIKOMI PHIONA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS JUDGMENT**

### *Before the Hon. Lady Justice Victoria N. N. Katamba*

### **BACKGROUND**

The Late Christopher Obey now represented by the Respondents who are beneficiaries to his estate instituted Civil Suit No. 94 of 2009 against the Appellant for a declaration that former is the legal owner of land comprised in Kabula Block 71 Plot 13 land at Kinvunikidde measuring approximately 10.10 hectares among other reliefs.

The Late Chritopher Obey annexed his owner's copy of the title that was originally held by the former registered proprietor a one Matayo Zake and his administrator, Joseph Sekiya under High court Administration cause no. 709 of 2005

The Defendant in his defence stated that he had been a lawful occupant on the land for 20 years, that he had since been registered on a special certificate of title to the suit land created on 10/11/2004 with a report that the owner's title was lost. The Defendant's special certificate of title was created under Chief Magistrates court letters of Administration no. 212 of 2004 issued to Alex Kirangwa as Administrator to the estate of the Late Matayo Zake.

At the trial, the Appellant did not specifically tell court how his special certificate of title was created nor remember that an application for creation of the same was ever made. The trial Magistrate found for the Late Christopher Obey and the Appellant was dissatisfied with the findings of the court thus the instant appeal.


# **Representation**

The Appellants were represented by **M/s Nansubuga, Awelo & Co. Advocates**

The Respondent was represented by **M/s Apio Byabazaire, Musanase & Co. Advocates**

**At institution of the Appeal, the Appellant raised four grounds of appeal to wit;**

- *1. That the learned Trial Chief Magistrate erred in law and fact when she failed to properly evaluate the evidence before her, thereby arriving at an erroneous decision.* - *2. That the learned trial Chief Magistrate erred in law and fact when she held that vacancy of land passed good title to the Respondent.* - *3. That the learned chief Magistrate erred in law when she held that the title to the suit land passed to the Respondent in the year 2000.* - *4. That the learned chief Magistrate erred in law and fact when she rejected the evidence of the Registrar of titles in respect to the special and substitute certificates of title.*

# *APPELLANT'S SUBMISSIONS*

The Appellant resolved grounds one and three concurrently.

The Appellant submitted that the learned Chief magistrate erred in law and fact when she failed to properly evaluate the evidence before her and she held that title to the suit land passed to the Respondent in the year 2000.

The Appellant submitted that his late father Livingstone Kiyingi bought the suit land from the **late Matayo Zaake** in 1970's and he gave it to him in 1982 and he utilized it by planting Eucalyptus trees.

The Appellant further submitted that since he acquired an equitable interest in the suit land in 1982 and took possession of the same when he was 8 years old, he had a better title to it than the Respondents who purchased it later in the year 2000.

To support his claim, the Appellant cited the case **of Kari & Ors V Ganarani [1997] 2 NWRR 380, cited with approval in the case of Musogo Fred V. Kasagalya & Ors Civil Appeal No.088 of 2011 in which it was** *held that the first land sale transaction takes precedent over the 2nd land transaction based on the principle of "qui prior est temper" "he who is earlier in time is stronger*


# *in law and when equities are equal and neither claimant has a legal estate, the first in time prevails.*

The Appellant also attacked the Respondent's purchase because Sekiya who sold to them the land in 2000, had not yet obtained Letters of Administration, that he only acquired them in 2005.

The Appellant also submitted that Sekiya was not related to the deceased registered proprietor and for all this invited this court to make a finding that the trial Magistrate omitted to properly evaluate the evidence and arrived at a wrong conclusion.

# **Ground two;**

The Appellant submitted that there was no evidence adduced by the Appellant to demonstrate that the land was vacant at the time the Respondents purchased it. He further reiterated that he had been in occupation of the suit land since 1982.

He thus concluded that the Trial Magistrate erred when she held that vacancy of the land passed good title to the Respondents.

# **Ground 4;**

The Appellant submitted that the learned Trial Magistrate erred when she ignored the evidence of the Registrar of titles who testified that the white page and duplicate certificates of title were misplaced and new ones were created.

The Appellant referred this court to **Section 70 of the Registration of Titles Act Cap 230** which provides *that if the duplicate certificate is lost or destroyed or becomes obliterated, the person having knowledge of the circumstances may make a statutory declaration stating the facts and registrar if satisfied may issue a special certificate.*

The Appellant further submitted that **DW3 (Registrar of Titles**) testified at **page 23 of the record of proceedings** that the plaintiff's title was invalid because it was on records that had been declared lost.


In conclusion, the Appellant submitted that the trial Magistrate ought to have obliged to the Registrar of titles testimony being an expert witness on registered land and that she erred when she ignored his evidence.

# *RESPONDENT'S SUBMISSIONS*

# **Grounds 1 and 3**;

The Respondents submitted that "*Lands are not vegetables that are bought from unknown sellers. Lands are valuable properties and buyers are expected to make thorough investigations; not only of the land but also the sellers before purchase."* They referred this court to the authority of **Naome Juma & Anor v Nantume & Anor (Civil Suit 363 of 2010).**

They further submitted that PW1 (the Late Christopher Obey) testified on page 6 of the record of proceedings that he owns the land having bought the same from Sekiya Joseph the Administrator of the Estate of the late Matayo Zake who did not transfer his title until 2008 when he had got letters of administration of the estate. That the sale agreement was executed by his lawyers M/S Kaala and Co. Advocates and was exhibited and marked Ex2 at trial.

They further submitted that PW2, a lawyer from M/S Kaala and Co. Advocates who carried out due diligence interviewed Sekiya Joseph that produced a Duplicate certificate of title bearing the name of Matayo Zake who was his brother. PW2 also wrote a letter to the LC1 of the area who replied that the land belonged to Matayo Zake who was the brother of Sekiya. The letter was produced and marked Exh. P1. PW3, the LC1 Chairman of the area corroborated this evidence when he testified that he received the letter and replied confirming that it belonged to Matayo Zake. That the Lc1 official further stated that in 2000 no one was using the land and that he knew the father of the Appellant very well.

The Respondents argued that the special certificate of title and substitute certificate of title that were relied on to register the Appellant are tainted with irregularities and that the Appellant did not adduce any evidence to show that he applied for the special certificate of title using lawful channels.


The Respondents also argued that the trial Magistrate rightly ignored the substitute and special certificates of title. They also observed that the Appellant had admitted that Christopher Obey acquired an equitable interest when he purchased the land in 2000.

The Respondents also cited Section 101 (1) of the Evidence Act which imputes a duty on a person who alleges to prove each of his claims and stated that the Appellant failed to prove his claims. They prayed that court answers these two grounds in the negative.

#### **Ground Two**

The Respondents submitted that the late Christopher Obey testified during cross-examination on page 6 of the record of proceedings that he had lived on the land before he bought it and that the Appellant was not using it at the time of his purchase. That at the time he bought it, it was open space and the Appellant never claimed ownership of it at all and for over ten years' no one challenged him. The said evidence was corroborated by PW3 Kiifa Benon the LC1 Chairman who testified at page 11 of the record of proceedings before the court that no one was using the land at the time it was bought.

The Respondents also testified that the Appellant did not adduce any evidence to demonstrate that either his father bought the land from the said Matayo Zake nor that his father gave him the said land. Further that the Appellant did not adduce any evidence to prove that he was in possession of the suit land and was using it by 2000. Also, the Special Certificate of Title on record does not show that the Appellant's father was ever registered as the proprietor at any point in time.

#### **Ground Four**

The Respondents submitted that DW3 the Registrar of Titles Masaka District Galiwango Herman at page 20 of the record of proceedings testified that the documents for registration of the respondent on the suit land were presented by M/S Kaala and Co. Advocates. That Dw3 identified the Duplicate Certificate of title issued by himself to Obey Christopher in his names. He also identified the Special Certificate of Title in the names of the Appellant

The Respondents further testified that the Registrar on page 21 of the record of proceedings


testified that the special certificate was **issued on the 10th day of November 2004** and the Substitute Title was issued on the same day to replace the original white page which got lost. That the Administrator of the Estate of the late Matayo Zake and the Appellant were **registered on the 28th of October 2004** as seen in the special certificate of title. That the Registrar on page 21 of the record of proceedings testified that the Appellant was registered on the **24th day of October 2004**. The Respondents contend that these are inconsistencies and discrepancies that cannot be ignored and that the same were not explained by the Appellant or his witnesses. These leave a lot of unanswered questions which bring doubt as to the authenticity of the Appellant's Special Certificate of Title.

The Respondents cited Justice Murangira Joseph in *Patel v Commissioner Land Registration and 2 Ors (HCCS 87 of 2009) [2013] UGHCLD 1 (21 January 2013)* wherein he interpreted section 64 and section 70 of the Registration of Titles Act when faced with a Special Certificate of Title and Duplicate Certificate of Title in respect of the same land thus;

*"It is my interpretation of the law that Section 64 (1) read together with Section 176 (e) RTA on the priority of titles is quoted out of context. It deals with a situation where there are two or more conflicting registers (folios) in respect of the same piece of land. It does not deal with a situation where under Section 70 of the RTA a duplicate certificate of title is issued. Here there are no two conflicting certificates of titles but a replacement of the same certificate of title"*

The Respondents also faulted the Appellant and Registrar of titles for faulting the procedure for obtaining a Special Certificate of title which is provided for in Section 70 of the Registration of Titles Act Cap 230 thus; , i*f the duplicate certificate of title is lost or destroyed, the persons having knowledge of the circumstances may make a statutory declaration stating the facts and the particulars of the land and the registrar if satisfied as to the truth of the statutory declaration and the bona fides of the transaction may issue to the proprietor a special certificate of title to the land but the registrar before issuing a special certificate always shall give at the applicant's expense at least one month's notice in the Gazette of his or her intention to do so.*

The Respondents submitted that the practice of getting a Special title where the duplicate is lost has been that there must Letter of Application for Special Title, Statutory Declaration, Gazette


Extract, Passport Photographs, and General receipts of Payment and there is no exception to the said procedure.

The Respondent also submitted that at page 16 of the trial bundle, the Appellant testified that he went to the land office with Alex Kirangwa and effected the transfer after the administrator signed the transfer form. He then gave the surveyor Sadique Kigongo the documents **who called him after 3 days** and told him that his documents would be ready. However, when he reached the land office, he was informed that his title was lost and could not be found and as result, a special title was made for him and a substitute was created for office records.

In conclusion, the Respondents concluded that there is no way the office of the Registrar of titles could have issued a special certificate of title in three days and thus prayed that the issue be answered in the negative and the appeal be dismissed with costs.

### **DETERMINATION OF COURT**

I am alive to, and I have discharged the duty of this first appellate court which is to re-appraise the evidence and subject it to an exhaustive scrutiny and come to its own conclusions as it was stated in a plethora of authorities like *Uganda Revenue Authority versus Rwakasanje Azariu & 2 Ors; CACA No. 8/2007; Fr. Narsensio Begumisa and 3 Ors versus Eric Kibebaga; SCCA No. 17 of 2002 and Banco Arabe Espanol versus Bank of Uganda; SCCA No. 08 of 1998.*

The Appellant argued grounds 1and 3 jointly and I will also address them together.

*Ground 1; That the learned Trial Chief Magistrate erred in law and fact when she failed to properly evaluate the evidence before her, thereby arriving at an erroneous decision.*

*Ground 3; That the learned chief Magistrate erred in law when she held that the title to the suit land passed to the Respondent in the year 2000.*

Ground one is very general and offends the rules on drafting grounds of appeal nevertheless, I will address it briefly together with ground 3 as presented.

I find that the trial Magistrate properly evaluated the evidence on record and correctly found for the Respondent because the Appellant's claims on acquisition and registration on the suit land were unsubstantiated. The Appellant claimed to be a beneficiary of the suit land through a gift deed inter vivos but no written deed to confirm this gift was availed to court.

Secondly, the duplicate certificate of title and white page to the suit land were wrongly reported to be lost yet they existed and were in hands of persons who should ordinarily have had custody over them. The Appellant and his benefactor Administrator never tendered on court record, a copy of their Application for a special certificate of title to guide court on how the same came to be created.

Thirdly, the Appellant who did not testify to being a family member to the former registered proprietor, Matayo Zake sought to challenge Sekiya's grant by claiming that he is not related to the deceased without any substantive evidence. All he brought on the court record were mere unfounded hearsay allegations.

It is therefore the finding of this court that the Appellant never acquired an equitable interest in the suit land because his alleged gift was never proved. On the other hand, the Respondent acquired an equitable interest when he paid UGX. 5,000,000/= to Sekiya, the Administrator of the estate of the Late Matayo Zake.

Proof of registration on title and the priority based on date of registration as argued to favor the Appellant who got registered earlier on the suit land in 2004 as compared to the Respondent that got registered in 2008 are no longer the direct yardstick for proof of ownership. *See Molly Turinawe & Ors vs. Eng Ephraim Turinawe & Anor SCCA No. 10 of 2018.*

Owing to the above findings, I hereby resolve grounds 1and 3 in the negative.

# *Ground 2; That the learned trial Chief Magistrate erred in law and fact when she held that vacancy of land passed good title to the Respondent*.

I have critically analyzed the Judgment of the learned trial Chief Magistrate and I have not found a statement containing a finding that vacancy of the land passed good title to the Respondent. This statement, had it been succinctly made in the Judgment, would by implication mean that whenever land is vacant, it is always available for sale and any such sale made in respect to vacant land would amount to passing of good title which interpretation would be repugnant.

The trial Chief Magistrate did not make such a repugnant statement, she simply stated that at the time of purchase by the Respondent, the suit land was vacant. She also stated that in her opinion, the vendor passed good title to the Respondent.


In conclusion, I would not criticize the trial Chief Magistrate for her findings on this matter, this ground also fails and it's answered in the negative.

# **Ground 4; That the learned chief Magistrate erred in law and fact when she rejected the evidence of the Registrar of titles in respect to the special and substitute certificates of title.**

As already noted, the circumstances under which the special and substitute certificates of titles were created where never satisfactorily explained to the trial court. No copy of application for the special certificate of title was adduced in court by either the Registrar of titles nor by the Appellant in their evidence.

All that the Registrar of titles did was to demonstrate to the trial court that documents may easily disappear from the land registry and when they do, his office may transact on a substitute or the white page, depending on which of the original is available at the moment. This kind of testimony leaves this honorable court in doubt as to whether the substitute title still exists since it was reported by the Registrar of title as having disappeared sometime in 2008 which incident led to the registration of the Appellant.

The learned Chief Magistrate considered the evidence of the Registrar of titles and accorded it the weight it deserved and rightly elected not to fully rely on it for her findings.

This ground is also rejected

In the end, the appeal fails, the Judgment of the trial Chief Magistrate is hereby upheld.

This appeal is dismissed with costs to the Respondent.

### Orders:

- 1. The Appeal is hereby dismissed. - 2. The Respondents are also awarded costs of this court.

Dated and delivered electronically at Masaka this 8th day of May, 2023.


# **VICTORIA NAKINTU NKWANGA KATAMBA**

# **JUDGE**