katabazi and 2 others v Katsitsi and 3 Others (Civil Suit No. 0418 of 2012) [2014] UGHCLD 273 (20 October 2014)

# LAND DIVISION THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA

### **IT** CIVIL SUIT NO. 0418 OF 2012


## Before: The Honourable Mr. Justice J. W. Kwesiga

## JUDGMENT

The Plaintiffs, Administrators of the Estate of Late Kanyemera sued the Defendants seeking orders of vacant possession of land comprised in BULEMEZI BLOCK 919 LRV 2856 FOLIO 18 PLOT 7 at Kiswaga-Kyabagagi, further seeking cancellation ofthe Title and several other orders.

**So** The alleged cause of action is that the suit land is part of the Estate of Kanyemera who is stated to have died in 1983 and Letters of Administration were granted to the Plaintiffs under Administration Cause No. 1454 of 2005 by the High Court ofUganda. The Plaintiffs alleged that the Defendants trespassed on the land in 2005 and fraudulently transferred the land into their names.

Asked for Judgnjent-against the Defendants for the following orders:-

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(a) Vacant possession for the suit land.

(b) Cancellation ofthe Certificate ofTitle.

**5** (c) <sup>A</sup> permanent injunction.

(d) Payment ofmesne profits.

(e) General damages.

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(f) Costs ofthe suit.

*IS* The Defendants denied the allegations and averred that they are the rightfill owners of the suit land, they occupied and registered the land in 2001 and not 2005 as alleged by the Plaintiffs. They pleaded that they are Bonafide Purchaser for value and that they purchased the land from former registered proprietors who included the first Plaintiff who presented himself as Kanyemera.

*&* A joint Scheduling Memorandum was filed duly signed by the parties' Advocates, namely, M/S Rugambwa, Gadala Advocates for the Plaintiffs and M/S Mungoma Justin & Co. Advocates for the Defendants. The following facts were admitted/agreed on by the parties:-

The Plaintiffs are the Administrators of the Estate of the Late KANYEMERA JAMES and they obtained Letters ofAdministration on 24th August, 2010. Late Kanyemera was a registered proprietor of the suit land, Bulemezi Block 919 Plot 7, LRV 2856 Folio 18. This Certificate of Title was transferred into the names of the Defendants on 31st January, 2001 from the names of Lawrence


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Ruremcza, Nkurunziza, Kanyemera, Petero Kagire, Yosefu Sehene, Mabubu and Kaberuka.

The Defendants became registered proprietors and have been in occupation since 24<sup>111</sup> January 2001.

The parties agreed on three issues namely:-

1. Whether the suit land is part ofthe Estate of Late Kanyemera James.

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2. Whether the transfer ofthe suit land was obtained fraudulently.

- 3. Whether the Plaintiffs are entitled to the reliefs sought. - **/5** 18 at Kiwaga. P. W. I Sam Katabazi testified that his father James Kanyemera died in 1983 and was buried in Kisozi and that he left the suit land as his share of 183 acres, the land currently occupied by the Defendants. That the land is currently registered in the names of the Defendants as Bulemezi Block 919 Plot 7 LRV 2856 Folio

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It is not contested that the Defendants are the registered proprietors of the suit land therefore their Certificate of Title shall stand as conclusive evidence that they are the proprietors of the land unless successfully impeached by proving fraud in the process ofregistration which must be attributed to the Defendants.

See JIMMY TUMWINE Vs NKURUNZIZA AND ANOTHER H. C. C. S. NO. 479 OF 2002.


Kiryabwire J (as he then was) held that the Registration of Titles Act Cap 230, Section 591? except for fraud attributable to the person whose Title is sought to be impeached a Certificate of Title shall be conclusive evidence of all particulars or endorsement and that the person named in the Certificate as the proprietor is possessed ofthe estate or interest described.

Fraud was defined in several decisions ofsuperior Court and it is sufficient for this case to refer to and rely on two ofthem:-

In WAIMIHA SAW MILLING CO. LTD. Vs WAINOE TIMER CO. LTD [1926] AC it was stated: **IO**

> *"Ifthe designed object oftransfer be to cheat a man ofa known existing right, that isfraudulent, and also fraud may be established by deliberate and dishonest trick causing an interest not to be registered and thus fraudulently keeping the Register clear. "*

Further reference is made to KAMPALA BOTTLERS LTD Vs DAMANICO (U) LTD Civil Appeal No. 22 of 1992 (SC. U).

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Fraud must be pleaded with all its particulars and the particulars must be proved and attributed to the Defendants as Transferees. The Transferees must be guilty of some fraudulent act or must have known of such act by somebody else and took advantage ofsuch act.

See Fredrick J. K. Zaabwe Vs Orient Bank Ltd. C. A. No. 4 of 2006 (SC. U).

In the instant case, the Plaintiffs'caseJsAhftt-Kanyemere James died in <sup>1983</sup> and that the land was transferrejKlL^^Mfi^fla^^js^act offraud.

P. W. I, P. W.2, P. W.3 and P. W.4 testified that Kanyemera died in 1983 and it follows that Kanyemera could not have signed the Lease Agreement in 2001 (30 years after death). The unchallenged evidence from the Defence is that Sam Katabazi (P. W. I) and first Plaintiff a son of Kanyemera presented himself as Kanyemera and signed the Lease Agreement in 2001. He signed in the name of Kanyemera.

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The first Plaintiff called himself Kanyemera and Nkurunziza were dead. Kanyemera and he signed the Sale Agreement as Kanyemera. **2D** D. W. I YOKANA RWABIRINDA testified that the Defendants bought the suit land from seven people namely, YOSAMU RUREMESHA, NKURUNZIZA, MABUBU, KAJIYE, KANYEMERA, SEHENE and KABERUKA at a consideration of 120 Heads of cattle. The first Plaintiff now called Katabazi called himself Kanyemera. The Sellers introduced themselves in the above names. An Agreement D. I was signed by all the Sellers and P. W. I signed as Kanyemera. At the time of sale the land was on initial Lease of <sup>5</sup> years. It is now on full term Lease and in the names of the Defendants. The Sellers gave the land free of any occupancy. Under cross-examination D. W. I confirmed that before the purchase he did due diligence search at Bukalasa Land Registry and confirmed the 7 Sellers were the owners. There was no information that

D. W.2 Ruremesha Yosamu corroborated evidence of D. W. I that they sold the suit land to the Defendants. He was one of the Sellers. He stated:- *"Kanyemera had died. His son was present, that is Katabazi the Plaintiff. Katabazi was put in the Agreement as son ofKanyemera. "* The second part of his evidence under cross-examination state as follows:-

*pt Letters of* "... *I knew Katabazi was a son ofKanyinejyj^-Katabpzi had authority to deal with Kanyemeara's Estate. Ldt^ofipteAfc 'th&fed)- he /* COP'\* Of-

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Administration but he has. Katabazi took the cows. I do not know whether other children got shares of these cows. Katabazi took on their behalf."

D. W.3 Kamuhanda Godfrey, the area LCI Chairman confirmed that the Sale Agreement was presented to him to sign as a Witness. The Sellers were not residents of the area by the time they sold to the Defendants who had been residents of the area since 2001. He saw both Sellers and the Buyers. Katabazi was introduced as Kanyemera. They all signed the Agreement and he witnessed the Sale Agreement D. I.

In my assessment D. W.2 and D. W.3 were very truthful witnesses. D. W.2 confirmed he was one of the Sellers and that throughout the transactions P. W. I. the first Plaintiff acted in the name of Kanyemera and on behalf of the Estate of Kanyemera. It is not disputed that Katabazi was a son of Kanymera. It is also not in dispute than Katabazi is the Administrator of the Estate of Late Kanyemera with effect from 24<sup>th</sup> August, 2010 under High Court Administration Cause 1454 of 2005 see P. I. In my most considered view, the authority conferred upon Katabazi under the grant of Letters of Administration confirms all his acts and transactions he entered or executed on behalf of the Estate before the grant. His authority covers the Estate from the time of death of his father. He has the right to sue and be sued by authority of the Letters of Administration of the period after the death of his father.

The evidence of RUREMESHA is very vital on this point that Katabazi was acting on behalf of the Estate of his Late father, Kanyemera, and received the $25$ consideration of the sale on behalf of the Kanyemera's other children.


I have also considered the fact that out of the (7) seven Sellers who jointly received and shared the 120 cows as a consideration of the sale only Katabazi, one ofthe Sellers, is suing. In my view he is suing dishonestly and in bad faith.

*I* As regards the validity and legality of the signatures of Katabazi in lieu of Kanyemera, namely on the Agreements and any other Instruments that passed Title to the Defendants, in my view were ratified by Katabazi's grant of Letters of Administration to the Estate of Kanyemera for which he executed the documents. I have not found any illegality in the circumstances of the case. Both the evidence and succession law allows that the authority under grant of Letters of Administration covers acts done by the Administrator in respect of the Estate before the grant. I hasten to add, this would only be different if the beneficiaries were suing the Administrator challenging the transaction. In the instant case there appears to be a conspiracy by the Administrator of the Estate to unjustifiably cheat the Defendant. IO *5*

The Defendants are bona fide purchasers for valuable consideration and no fraud or any other malafides were proved against them or attributed to them.

In the circumstances, the most appropriate relief is to dismiss the whole of the Plaintiffs' case and I order that the Plaintiffs shall jointly and severally pay the Defendants the costs in this case.

Dated at 14mpa?a this 20th day ofOctober, 2014.

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**•>** J. ^KWESIGA JUDGE

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### Delivered in the presence of:-

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Mr. Patrick Furrah for the Plaintiffs. Mr. Mungoma Justin for Defendants. All the parties present. Mr. S. Magala - Court Clerk.


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