Kayanja v Ssenyonga and 3 Others (Civil Suit 618 of 2019) [2023] UGHCLD 457 (18 October 2023)

# **THE REPUBLIC OF UGANDA**

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

**(LAND DIVISION)**

## **CIVIL SUIT NO. 618 of 2019**

5 **GEORGE KAYANJA------------------------------------------------------PLAINTIFF**

**V**

**1. RONALD SSENYONGA**

**2. KIBUUKA KALULE WILLIAM**

**3. PATEL MUKESHBHAI CHARTUBHAI**

10 **4. COMMISSIONER LAND REGISTRATION------------------------DEFENDANT**

# **Before: Hon. Lady Justice Olive Kazaarwe Mukwaya**

# **JUDGMENT**

The Plaintiff, Mr. George Kayanja brought this suit against the Defendant jointly and 15 severally seeking the remedies below:

- a) A declaration that the Plaintiff is the unregistered owner of the suit property situated in Kyadondo Block 82 Plot 3512 at Kungu. - b) An order cancelling the 3rd Defendant's registration and any subsequent registration. - 20 c) A permanent injunction restraining the Defendants, their servants and workmen from further dealing in the suit property. - d) General damages for trespass and fraudulent misrepresentation. - e) An order of eviction. - f) Punitive and exemplary damages. - 25 g) Special damages of UGX 50,000,000/= - h) Costs of the suit.

### **PLAINTIFFS' CLAIM**

The Plaintiff, Mr. Kayanja George, PW1 stated that he is business man who deals in land by buying and selling it in the greater Wakiso area. He explained that before he purchases land, he first carries out due diligence and consultations widely in addition to having a 5 group of land brokers he trusts. Prior to purchasing the suit property, he inquired from Mr. Matovu Kato, one of his contact brokers who assured him that the title was clean. Through Mr. Matovu, the Plaintiff met the 1st Defendant at the suit property in Kungu on 15th June 2017. Being satisfied with what he saw after searching the land registry, he executed the sale agreement marked Exb. P.1. The Plaintiff then made part payment of UGX 10 100,000,000/= and it was agreed that the balance of UGX 30,000,000/= was to be paid within a reasonable time, after which he was to get the original land title. On his part, the 1 st Defendant gave the Plaintiff a blank transfer from that was duly signed complete with photographs.

Surprisingly, brokers continued to bring prospective buyers as if the suit land was still on 15 the market. To protect his interests, the Plaintiff fenced off the land and put a signpost that the land was not for sale. He took photos of the sign post. After sometime, he found that the fence and the signpost had been removed. He later learnt it is the 2nd Defendant in the company of the Divisional Police Commander Kasangati, a one Mr. Magyezi who had removed the sign post and deposited it at Matugga Police Post. Wary of the developing situation, the Plaintiff went to the 1st 20 Defendant's home at Kawanda and he was informed that he had relocated to South Africa but he managed to get his contact number. On calling him, the 1st Defendant apologised for the mishap and informed him that he had borrowed UGX 43,000,000/= from the 2nd Defendant who told him to write that he had sold the land to him which was untrue. He further promised to explain the

25 truth to the Court at an appropriate date.

Consequently, the Plaintiff reported the case to the office of the Resident District Commissioner Kasangati who gave an order that the status quo be maintained by both parties until Court resolves the impasse. Mr. Kayanja later confronted the 2nd Defendant who insisted that he was bonafide purchaser since he had even transferred the suit land

30 into his names. When the Plaintiff checked the land registry, he found that the land had

hurriedly been transferred into the 2nd Defendant's name in a period of 6 days. Subsequently, he filed the suit whereupon he got interim order which was served on the 4 th Defendant. However, in spite of this, the land title was subdivided and transferred to the 3rd Defendant on the 3rd October 2019. Eventually, the Plaintiff learnt that the 1st Defendant was not coming home soon and ever since then, the 2nd and 3rd 5 Defendant became more unyielding. Hence this suit.

PW2, Mr. Matovu Kato, the land broker corroborated the Plaintiff's testimony in all material particulars. He added that the Plaintiff made a payment of UGX 100,000,000/= at Maria's Galleria, chambers of Counsel Rukundo Seth on 16th June 2017. PW2 10 explained that he affixed his signature as a witness and a balance of UGX 30,000,000/= remained.

PW3, Mr. Ssebagala Patrick, a land broker in the greater Wakiso area testified that the Plaintiff consulted him when he was about to purchase the suit property. He then used his network of land brokers and found out that there was no lawful impediment to his 15 buying the land which information he communicated to the Plaintiff. PW3 stated that he accompanied the Plaintiff to the chambers of M/S Rukundo & Co. Advocates where the agreement of sale was made, though he did not append his signature thereon since there was no provision for him to sign. He nonetheless witnessed the Plaintiff paying the sum of UGX 100,000,000/= out of the total purchase of UGX 130,000,000/=.

20 PW4, Mr. Rukundo Tumukiza Henry Seth, a practicing Advocate who drafted the sale agreement between the Plaintiff and 1st Defendant corroborated the Plaintiff's testimony in that regard. He testified that the Plaintiff and the 1st Defendant approached him together and instructed him to draft the sale agreement for the suit land. He explained that the total consideration was UGX 130,000,000/= and on that day, the Plaintiff was to pay UGX

25 100,000,000/= though he did not see the cash exchange nor the certificate of title. Mr. Rukundo also stated that he does not know whether the balance of UGX 30,000,000/= was paid and he also never visited the land.

PW5, Mr. Kalule Paul, a former business partner of the 1st Defendant also testified that he was present when the initial payment of UGX 100,000,000/= for the suit property was made leaving a balance of UGX 30,000,000/=. Later on, the 1st 30 Defendant wished to relocate urgently to South Africa where he had an urgent assignment which is why he borrowed UGX 43,000,000/= from the 2nd Defendant on the security of the suit property. He went on to explain that after the 1st Defendant got the money from the 2nd Defendant, he disappeared and has never seen him again although they occasionally talk.

#### **2 nd** 5 **DEFENDANT'S DEFENCE**

The 2 nd Defendant denied all the Plaintiff's claims and in his defence he averred that he met the 1st Defendant as a person who was desirous of selling his plot which is the suit land. And after carrying out due diligence which confirmed that the 1st Defendant was the registered without any encumbrances, he purchased the suit land. He denied any 10 knowledge of the Plaintiff's alleged purchase of the suit land or at all. He thus maintained that he was a bonafide purchaser for value without any third party claims and lawfully subdivide his land part of which he sold to the 3rd Defendant.

DW1, Mr. William Kibuuka Kalule, the 2nd Defendant, testified that he was introduced to the 1st Defendant as a person who was desirous of selling his land comprised in 15 Kyadondo Block 82, Plot 3512 at Kungu. He then visited the plot and found that it was vacant, undeveloped and had no sign post or fence as alleged by the Plaintiff. Additionally, he carried out due diligence which revealed that the 1st Defendant was the registered proprietor of the said land without any encumbrance. The 1st Defendant thereafter sold the suit land to him on the 31st day of August, 2017 at a consideration of 20 UGX 100,000,000/= according to their sale agreement marked Exb. D.1. After the sale, the 1st Defendant voluntarily handed over to him the certificate of title, signed transfer forms, consent forms, copy of his national ID and passport size photos to enable him transfer the title into his name.

The 2nd Defendant asserted that the transaction between him and the 1st Defendant was 25 an outright sale and transfer but not money lending as alleged. Subsequently, he was registered as proprietor of the suit land on 6th September 2017. He thereafter sub-divided the suit land into 16 plots i.e. 5106, 5107, 5108, 5109, 5110, 5111, 5112, 5113, 5114, 5115, 5116, 5117, 5118,5119, 5120 and 5121. On 29th April 2019, he sold plots 5106, 5107, 5108, 5109, 5110, 5111, 5112, 5113, 5114, 5115, 5116 and part of plot 5121 to the

3 rd 30 Defendant. He went on to testify that the purported transfer form relied upon by the Plaintiff is fake and irrelevant to the suit land. He thus maintained that the Plaintiff has never been in possession or occupation of the suit land and further denied engaging in any fraudulent or illegal act as alleged by the Plaintiff.

### **THE 3RD DEFENDANT'S DEFENCE**

The 3rd 5 Defendant also denied all the claims contained in the Plaint. He averred that he was never a party to the alleged fraud and is a bonafide purchaser for value without notice of any alleged fraud. He therefore asserted that he is entitled to undisturbed possession and enjoyment of the suit land contained in Plots 5106 to 5117 and part of plot 5121.

DW2, Mr. Patel Mukeshbhai Chartubhai testified that he is the registered proprietor of 10 land comprised in Block 82 Plot 5106 to 5117 and part of Plot 5121. He recounted that he was approached and told about the said land which he got interested in purchasing. Search results in the land registry indicated that William Kibuuka Kalule was the registered proprietor of the land and there were no encumbrances whatsoever as per Exb. D.3 and D.15. Having checked on the physical land and found it vacant and without 15 any sign prohibiting sale, Mr. Patel purchased the land comprised in Block 82 Plots 5106 to 5117 and part of Plot 5121 on the 29th day of April 2019. A copy of the sale agreement was admitted into evidence and marked Exb. D.2. After purchasing the said land, he

same regarding purchase or prior acquisition of the said land and neither did he 20 participate in any fraud whatsoever. Furthermore, he was not aware of any so called transaction which was allegedly in Court by the time he bought the land and neither did he send any emissaries to the Plaintiff seeking for a settlement.

transferred it into his name. He asserted that he did not know any fraud or notice of the

### **REPRESENTATION**

The Plaintiff was represented by Mr. John Fisher Ssengooba from M/S John F. Ssengooba & Co. Advocates, the 2 nd 25 Defendant was represented by Mr. Nelson Nerima from M/S Nambale, Nerima & Co. Advocates & Legal Consultants while the 3rd Defendant was represented by Mr. Andrew Wabwezi from M/S BBM Advocates & Legal Consultants.

Counsel for both parties filed written submissions which I have duly considered.

At scheduling, the following issues were formulated for Court's resolution.

**ISSUES**

- **1. Whether there is a valid sale agreement between the Plaintiff and 1st Defendant and if so, whether the Plaintiiff paid the part payment of UGX** 5 **100,000,000/= consideration for the suit land as alleged?** - **2. Whether the 2 nd Defendant's acquisition and registration upon the suit land was fraudulent?** - **3. Whether the 3 rd Defendant's acquisition and registration on the suit land was fraudulent?** - **4. Whether the 2nd** 10 **Defendant is a bonafide purchaser for value without notice?** - **5. Whether the 3rd Defendant is a bonafide purchaser for value without notice** - **6. What remedies are available to the Parties?**

### **RESOLUTION**

**Issue 1**

# 15 **Whether there is a valid sale agreement between the Plaintiff and 1st Defendant and if so, whether the Plaintiff paid the part payment of UGX 100,000,000/= consideration for the suit land as alleged?**

The Plaintiff's Counsel made no submissions on Issue 1.

On the other hand, Counsel for the 2nd Defendant argued that this issue mainly concerns the Plaintiff and the 1st Defendant and that the Plaintiff has not proved that he paid UGX 100,000,000/= as alleged in the plaint. He further argued that the Plaintiff has not produced a receipt or other acknowledgment that that money was paid upon signing the 25 agreement, a point he confirmed during his cross examination. Counsel noted that PW2 and PW3 claimed in cross examination the Plaintiff was issued a receipt but PW4 claimed in his cross examination that he did not see any money. Counsel implored this court to take note of these contradictions.

Relatedly, Counsel for the 3rd Defendant referred the Court to paragraph 7 and 8 of the witness statement of the Plaintiff. He pointed out that the Plaintiff claims to have paid UGX 100,000,000/= as part payment for the suit land but the testimonies of the other witnesses were so contradictory. Counsel specifically pointed to the contradictions of the

5 Plaintiff's evidence during his cross examination wherein he claimed to pay the alleged UGX 100,000,000/= in cash yet he was not given a receipt. Counsel submitted that PW2, who claimed to have been present during the purported payment, contradicted PW1, when he stated that a receipt was issued.

Furthermore, PW4 who was the lawyer that purportedly presided over the said transaction

- between the Plaintiff and the 1st 10 Defendant, stated that he never saw any cash exchanging hands. A testimony inconsistent with the Plaintiff's, PW2 and PW3's evidence that they saw money being exchanged at the lawyer's office. Counsel argued that these contradictions confirmed that the Plaintiff did not pay any money to the Plaintiff as consideration for the land purchase. And since no consideration was paid, Counsel - argued that there was no valid contract between Plaintiff and the 1st 15 Defendant as envisaged under **Section 10 of the Contracts Act.**

**Section 2 of the Contracts Act 2010** defines the following critical elements of a contract as follows;

'*'acceptance*" *means an assent to an offer made by a person to whom the offer is made;*

20 *"agreement" means a promise or a set of promises forming the consideration for each other;*

*"consideration" means a right, interest, profit or benefit accruing to one party or forbearance, detriment, loss or responsibility given, suffered or undertaken by the other party;*

25 **Section 8 of the Contracts Act 2010** expounds on the definition of acceptance as follows;

*Acceptance by performing conditions or receiving consideration The performance of the conditions of an offer or the acceptance of any consideration for a reciprocal promise which may be offered with an offer, is an acceptance of the offer.*

Finally**, section 10 of the Act** defines a contract as follows;

*10. Agreement that amounts to a contract*

*(1) A contract is an agreement made with the free consent of parties with capacity to contract, for a lawful consideration and with a lawful object, with the intention to be legally*

5 *bound.*

It is undisputed fact that the only evidence adduced by the Plaintiff to prove that he received UGX 100,000,000/= from the 1st Defendant, as part payment for the suit land, was oral evidence. While the Plaintiff and three of his witnesses testified to the payment,

10 the advocate who drafted the agreement admitted that he did not see any money change hands nor did he see the certificate of title. In fact, he clarified that he was paid UGX 200,000/= only, for drafting the agreement. A sum of UGX 100,000/= was paid by each of the parties to the agreement. A fee grossly disproportionate to the amount provided for conclusion of land purchase agreements with a subject matter value of UGX 15 130,000,000/=, under **Rule 14 (a) of The Advocates (Remuneration and Taxation of Costs) Rules S. I 267-4**, the prevailing law as of 16th June 2017.

All in all, I found PW4 to be a more believable witness than the Plaintiff or his other three witnesses. I agree with Counsel for the 2nd and 3rd Defendants that there was no cogent evidence to prove that the Plaintiff paid due consideration for the suit land as he claimed.

- 20 The participation of the advocate dictated the issuance of a receipt for professional services rendered indicating the nature of transaction involved. No receipt was available. And therefore, there was no evidence that there existed a valid sale of land agreement between the Plaintiff and the 1st Defendant as defined under the Contracts Act 2010. - **Issue 1 is resolved in the negative. In my view, this finding in effect, deprives the Plaintiff of any locus standi to bring this claim against the 2nd and 3rd** 25 **Defendants and renders the rest of the issues moot. This suit is accordingly dismissed with costs to the 2nd and 3rd Defendants.**

**-----------------------------------**

**Olive Kazaarwe Mukwaya**

**JUDGE**

**18th October 2023**

**Delivered by email to Counsel for the parties**