Kamya v Musoke and Others (CIVIL SUIT NO. 2042 OF 1997) [2004] UGHC 98 (10 September 2004)

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA **CIVIL SUIT NO. 2042 OF 1997**

KAMYA ABBEY SOWEZI ::::::::::::::::::::::::::::::::::::

## **VERSUS**

$\mathbf{I}$ . SOWEDI MUSOKE $\mathbf{I}$

$\overline{2}$ . NAKITENDE GORETTI MADINAJ

$3.$ **BUMBAKALI MAGALA**

$4.$ KALIFANI KATENDE ] :::::::::::::;;;;:: DEFENDANTS

## BEFORE: THE HON. MR. JUSTICE P. K. MUGAMBA

## **JUDGMENT**

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- $\Diamond$ The plaintiff filed this suit against the defendants seeking the following reliefs: - (a) An eviction order against the $2^{nd}$ , $3^{rd}$ , and $4^{th}$ defendants. - (b) General damages, for trespass, as regards the $2^{nd}$ , $3^{rd}$ and $4^{th}$ defendants. - (c) General damages for breach of contract as regards the $1^{st}$ defendant. - (d) Interest at 26%p.a. on the decretal sum from the date of judgment till payment in $\rightarrow$ $\overbrace{\phantom{000000000000000000000000000000000000$ full. - (e) Costs of the suit.

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- (f) Any other relief that this Honourable Court may deem fit - Although the first defendant had filed a defence at the commencement of the hearing of $\longrightarrow$ 1 $\circ$ this case the plaintiff withdrew the suit against him. Sadly that defendant is now dead. The $2^{nd}$ , $3^{rd}$ and $4^{th}$ defendants accompanied their joint defence with a counter claim which sought: - $-(a)$ A declaration that the plaintiff obtained the land comprised in Kibuga Block 15 Plot $-15$ 541 at Kibuli fraudulently and irregularly. - (b) An order cancelling the registration of the plaintiff as proprietor of Block 15 Plot 541.

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$-(c)$ In the alternative but without prejudice to the aforesaid, an order declaring the defendants bona fide occupants of the land in question according to the Constitution of Uganda and an order restraining the plaintiff from evicting them.

(d) Costs of the suit. $\Box$

$-$ (e) Any other relief this court shall consider fit.

At the outset of the hearing the following documents were agreed and admitted:

- 1. The sale agreement as exhibit P.1. - 2. The title deed to Kibuga Block 15 Plot 541 as exhibit P.2. - 3. The letter of 14<sup>th</sup> July 1997 as exhibit P.3. - $1 \odot$

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4. The temporary injunction as exhibit P.4.

The background to this case is that by an agreement made on 20<sup>th</sup> January 1997 the plaintiff bought from the first defendant property known as Kibuga Block 15 Plot 451 for a consideration of Shs. 5,500,000/=. I shall hereafter refer to the said property as the suit property. The extent of the suit property is 0.06 Hectares. It was understood at the time of the agreement that any persons who were living on the suit property then would be $-15$ removed from the property by the first defendant within a fortnight in order to make it. possible for the plaintiff to have vacant possession of the suit property. The 2<sup>nd</sup>, 3<sup>rd</sup> and 4<sup>th</sup> defendants have refused to vacate the suit property despite the fact that the property has since been transferred from the names of the 1<sup>st</sup> defendant to those of the plaintiff. The 2<sup>nd</sup>, 3<sup>rd</sup> and 4<sup>th</sup> defendants on the other hand contend that they are bona fide $-20$ occupants of the suit property having developments thereon and that as such they cannot merely be removed from the suit property. The plaintiff is desirous of developing the property registered in his names and brings this suit seeking for the eviction of the three " defendants in order for him to be able to carry out developments on the property.

The following issues were agreed:

- 1. Whether the defendants' developments were in place at the time of the sale agreement. - 2. Whether the plaintiff was a bona fide purchaser without notice of the defendants' interests. - 3. Whether the defendants were bona fide occupants. - 4. Available reliefs.

**o** <sup>i</sup> **S'** the fust issue, the sale agreement, exhibit P.l mentions the improvements °n the suit property as 'a two roomed building (MIZIGO) and a store . This is also the testimony of PW1, Advocate Henry H. J. Kaala as well as PW4. In his evidence <sup>1</sup> W2 said that only one house was then on the suit property. The evidence of PW3 is that ,— originally there was one house with two rooms on the suit property but that in 1994 the ±3 J and 4th defendants built two small houses without the permission of their father,— Sowedi Musoke. PW5, Mukasa Badru Kajubi, testified that initially there was a house containing two rooms on the suit land but that additional structures were constructed after Sowedi Musoke introduced the plaintiff to the L. C.s of the area as the purchaser. In his testimony PW6 said that there used to be a small house containing two rooms on the suit — property but that later an extension was made to it with half baked bricks. Bumbakali Magala, DW1, gave evidence to the effect that in 1970 their mother, Jaliya, was taken to settle on the suit property with her children by her husband, Sowedi Musoke. It was his

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**Is /S** occupied not only with her children but also with her husband. DW1 further testified that — in 1983 he and others of the children were shown where each was to build on the suit property by Sowedi Musoke and that DW1 went ahead and put up a house. It was his evidence that at the time he was testifying three houses were on the suit property. Two were constructed from permanent material while one was made of temporary material. The witness however showed neither proof of the date of construction of the structures \_ nor authority for their construction if any. -— *2.*0

evidence that Jaliya immediately constructed a house on the suit property which she

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property funeral, evidence was to show owner \_\_\_\_ preponderance property at developments Mohamed Mukiibi testified as DW4. It was his evidence that Jaliya built a house on the suit property and that the house contained two rooms. It was his evidence also that Sowedi Musoke had told his children that they were free to build on the land and that in consequence the children had proceeded to do so. However when asked details of the in issue he said he had gathered the information at <sup>a</sup> family gathering during <sup>a</sup>— XS I did not find this witness testimony reliable. DW5 Kasamba Muzamiru's that he had built a small house on tire property in 1970. His evidence was that Jaliya employed him to build the house but that he did not know who the of the land was. I have considered the evidence as a whole and from the of the same <sup>I</sup> find that although there were developments on the suit the time of the sale agreement there is nothing to suggest that any belonging to the 2nd, 3rd and 4,h defendants were in situ. Those

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- developments then on the suit property were most probably those of Sowedi Musoke as $-$ O exhibit P.1 itself suggests.

The next issue is whether the plaintiff was a bona fide purchaser without notice of the defendants' interests.

- It was the evidence of the plaintiff that he bought the suit property from Sowedi Musoke - for Shs. 5,500,000/= and that he was made to understand that Musoke had permitted - $\zeta$ some people to be staying on the land. It was further understood and included in the sale agreement that Musoke would ensure the people then on the land left within a fortnight of the agreement. There were no structures on the property apart from a two roomed house and a store which Sowedi Musoke claimed were his. The plaintiff was not aware of any - $10 -$ other claimant. Where a party buys land knowing it to be encumbered, the presumption $-10$ is that the ownership is in dispute and the buyer therefore is not a bona fide purchaser for value. See Nakabiri and 2 others vs Masaka District Growers Co-operative Union [1985] HCB 38.

On the other hand it was held in Daniel Sempa Mbabali vs W. K. Kidza and others

15 $-\frac{19851}{HCB \cdot 46}$ that a bona fide purchaser of a legal estate for value without notice has an $-15$ absolute unqualified and unanswerable defence against the claims of any prior equitable owner. No evidence was led to show that the plaintiff was privy to any litigation concerning the suit land between Sowedi and anyone else. In his testimony the plaintiff said he was aware of none. True a caveat had been placed on the property but the $20$ - plaintiff said he had not been aware of it. It was the evidence of Opio Robert, the - 20 Registrar of Titles, that actual entry of the plaintiff's names on the certificate of title did not take place until after the caveat had been removed on 20<sup>th</sup> June 1997. He stated further that although application for registration was made on 28<sup>th</sup> January 1997 registration took place after the caveat had been removed. The plaintiff testified that when the defendants refused to vacate his property he had reported the matter to Police $25$ who had arrested the defendants as trespassers. He could not have been aware of any of the alleged encumbrances. I note here that PW1 told court that he had been responsible for the transaction relating to the purchase of land by the plaintiff from the first defendant and for its eventual registration. He it was who dealt with the matter of the caveat. The $\rightarrow$ plaintiff testified that he was not aware of the caveat and it was not PW1's testimony that $\rightarrow$ Q plainter that has been seen in the baseline is a seemed in the baseline in the $30$ no make the defendants that because a caveat had been lodged eventual registration<br>contention by the defendants that because a caveat had been lodged eventual registration

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$\circ$ - was done by fraud because registration was done after the caveat had been removed. – $\circ$ Even assuming registration had been done unmindful of the caveat, fraud would be proved if the plaintiff had been involved in it or had had prior knowledge of it. In Kampala Bottlers Ltd. Vs Damanico (U) Ltd. SCCA No. 22/92 (unreported) Wambuzi C. J. stated:

Fraud must be attributable to the transferee. I must add here that it -------attributable either directly or by necessary implication. By this I mean the $-\mathcal{S}$ transferee must be guilty of some fraudulent act or must have known of such act by somebody else and taken advantage of such act'.

I do not find evidence that there was fraud in the entire transaction and must answer this issue in the affirmative.

$10$ – The third issue is whether the defendants (2<sup>nd</sup>, 3<sup>rd</sup> and 4<sup>th</sup>) were bona fide occupants. – $10$ According to Section 29 (2) (a) of the Land Act a bona fide occupant is a person who before the coming into force of the Constitution had occupied and utilized or developed any land unchallenged by the registered owner or agent of the registered owner for twelve years or more. The attribute of a bona fide occupant cannot apply to the defendants when $15 -$ it is borne in mind that the Constitution came into effect on 8<sup>th</sup> October 1995 and that on $-15$ 25<sup>th</sup> August 1995 Civil Suit 454 of 1995 was filed in the Chief Magistrate's Court at Mengo. The civil suit was by Sowedi Musoke the registered proprietor against the 2<sup>nd</sup>, $3<sup>rd</sup>$ and $4<sup>th</sup>$ defendants inter alia challenging their entry on premises which were on the suit property. While DW1 claims in his testimony that Sowedi Musoke had allowed him and others to occupy and develop the land there is nothing to support this claim. Sowedi — $20$ $\overline{120}$ Musoke regarded them as trespassers. I find that in the event the defendants were not bona fide occupants.

> Having found as I have above I give judgment to the plaintiff. As I find no merit in the defendants' counter claim which I dismiss, I proceed to consider the reliefs sought by the plaintiff.

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This court has received no assistance from the plaintiff concerning what he considers reasonable as general damages. Nevertheless I have taken into account the fact that for over 7 years the plaintiff has been denied quiet possession of the suit property. He has

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**o** to develop it and as general damages. & - not been able 3,500,000/= 6 no doubt he has had anxie y I award him Shs.

All in all the plaintiffis entitled to:

(a) <sup>a</sup> -4.- <sup>j</sup> • <sup>x</sup> <sup>o</sup>lld <sup>V</sup><sup>d</sup> and 4th defendants. An eviction order against the <sup>2</sup> , ano <sup>h</sup>-

**£ - (b)** and 4lh defendants. ent till payment in General damages of Shs. 3,500,000/= against the 2 <sup>&</sup>gt; .

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- **(C)** Interest at the court rate of interest from the date ofj full. - (d) Costs ofthe suit.

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**<sup>1</sup>—** Judge