Kisekka v Mukimbiri & 3 Others (Civil Suit 82 of 2017) [2025] UGHC 35 (16 January 2025)

Full Case Text

### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MPIGI CIVIL SUIT NO. 82 OF 2017

| | LABAN KISEKKA | | PLAINTIFF | |----|---------------------------------------|--------|-----------| | | | VERSUS | | | | 1. RONALD MUKIMBIRI | | | | | 2. PERUSI NAZZIWA | | | | | 3. KYAMBADDE FRANK | | . | | 10 | (Administrators of the estate of | | | | | The late Saida Mawemuko) | | | | | 4. THE COMMISSIONER LAND REGISTRATION | | |

### BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK

### Judgment

The plaintiff brought this suit against the defendants seeking to recover the suit land comprised in Block 91 Plot 5 land at Mugaiu.

It is the plaintiff's case that in 1974 he bought a kibanja of 15 acres from Yakobo Ntamiigo on the square mile (621 acres) of Ali Makengi and settled on the land as a kibanja owner.

On the $18^{th}$ of March, 1978 the plaintiff then entered into an agreement of sale with siblings Yusufu Ssengojje, Saida Mawemuko and Mariya Bamwegeya children of the late Ali Makengi as joint owners of the said land (621 acres) at UGX $67,000/$ and a sale agreement was executed to that effect.

That after the said purchase he was handed the documents of ownership in the 25 possession of the vendors at the time following the said purchase, the plaintiff moved into effective possession and took on the bibanja owners who were on the land at the time and subsequently purchased their interests as well. Thus, remaining in sole possession of the land. That when he entered into the agreement he did so under the impression that the three vendors were joint owners and upon 30 conducting a survey he realized that each vendor had a separate share of the land. The plaintiff then engaged each vendor or their representatives separately whereof Yusufu Ssengojje and Maria Bamwegeya had their portions transferred to the plaintiff. The plaintiff however, failed to find Saida Mawemuko. And, despite the $2nd$ and $3rd$ defendants having knowledge that the plaintiff had been in possession 35 of the suit land since 1978 having purchased the same, went ahead and obtained Letters of Administration to the estate of Saida Mawemuko and fraudulently sold

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the same to the $1^{st}$ defendant.

The plaintiff having learnt about the fraudulent sale and purchase of the suit property between the defendants, lodged a caveat onto the suit property and filed this suit seeking cancellation of their title and a declaration that he is the rightful owner of the suit land.

- $\overline{5}$ The $1^{st}$ defendant on the other hand averred that he is a bona fide purchaser/transferee of the suit property for value without notice of any third party claims as he conducted a search on the suit property prior to the purchase and discovered that the same was registered in the names of the 2nd and 3rd defendants and had never held it in trust for the plaintiff. - The $2nd$ and $3rd$ defendants averred that at all material times, they were lawfully 10 registered on the suit property as administrators of the estate of their late grandmother Mawemuko Saida a.k.a Erios and that the $2^{nd}$ and $3^{rd}$ defendants lawfully sold/transferred the same to the 1st defendant. - The $2^{nd}$ and $3^{rd}$ defendants contended that the sale agreement dated 18th March, 1978 together with the alleged transfer found in possession of the plaintiff is a 15 forgery in its entirety as it was never signed by any of the purported vendors. As such, the purported acquisition of the suit land by the plaintiff is currently subject to criminal investigations by the criminal investigations department, Katonga Region. - The 2nd and 3rd defendants further contended that the plaintiff attempted to deprive 20 them of their mother's estate by fraudulently obtaining letters of administration in the estate of the late Mawemuko Saida a.k.a Erios vide HCT $-$ 00 $-$ FD $-$ AC $\sim$ 152 of 2015 dated the 2nd October, 2015.

The $1^{st}$ , $2^{nd}$ and $3^{rd}$ defendants prayed that the suit be dismissed with costs to them.

#### Representation: 25

Counsel Allan Sserulika together with Nicolas Kyeswa appeared for the plaintiff while Counsel Kaggwa David appeared for the $1^{st} - 3^{rd}$ defendants. Both parties filed written submissions.

## Issues:

- 1. Whether the plaintiff owns the suit land? - 2. What remedies are available to the parties?

## Burden and standard of proof:

In civil matters the burden of proof lies on the plaintiff and the standard of proof is on a balance of probabilities. (See; Sections 101, 102 and 103 of the Evidence, Act and the case of Nsubuga v. Kavuma [1978] H. C. B 307).

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It is trite that he or she who asserts must prove and burden of proof therefore rests on the person who must fail if no evidence at all is given on either side. In Miller v. Minister of Pensions [1947] 2 ALLER 372, it was stated;

"That the degree is well settled. It must carry a reasonable degree of probability but not too high as is required in criminal cases. If the evidence is such that the tribunal can say, we think it more probable than not, the burden of proof is discharged but if the probabilities are equal, it is not..."

Resolution of issues:

$\mathsf{S}$

Issue 1: Whether the plaintiff owns the suit land?

It was submitted for the plaintiff that he first entered into an agreement with 10 Yusufu Ssengoje, Maria Bamwegeya and Saida Mawemuko in 1976 for the purchase of a square mile owned by them which he never fulfilled. He then entered into another agreement with them on the 18th of March, 1978 and purchased the said land from the same vendors at a consideration of UGX 67,000/ $=$ . That prior

to the purchase of the land he visited Yusufu Ssengoje who invited his siblings, 15 Maria Bamwegeya and Saida Mawemuko and he confirmed that the land belonged to them as children of the late Ali Makengi. That the siblings suffixed their thumb prints on the agreement and two other witnesses; Kiwanuka and John Sserunkuuma. Upon purchase, the vendors gave him a purchase agreement which their father (Ali Makengi) entered while purchasing the said land dated 11th 20 September, 1906. That the plaintiff exhibited both sale agreements of 1976 and 1978 marked as PEX2 and PEX3.

Further, that it was the testimony of the plaintiff that before purchase of the square mile he had a kibanja thereon that measured 15 acres that he had bought from Yakobo Ntamiigo. That upon purchasing the square mile he engaged services of a survey whereof he realized that following the death of Ali Makengi, his children severed the land and each had separate pieces with Maria Bamwegeya owning 220 acres, Yusuf Ssengoje 200 acres and Saida Mawemuko 201 acres. That the plaintiff then went on to acquire the certificates of title from the three vendors but has so far only managed to acquire two of them and failed to get the one belonging to Saida Mawemuko which is now the suit land which he has been possession of since 1978. And this was corroborated by the evidence of his sons PW3 and PW4 who

told court that they had been in occupation of the suit land as a family all their lives.

Counsel added that it was the evidence of the plaintiff that there were no bibanja 35 holders on the land since they were all bought out and surrendered their interests to him. And during the locus in quo visit the plaintiff was found in occupation of

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the suit land and that in the life time of Saida Mawemuko who died in 1996, she had never contested the occupation of the plaintiff on the suit land from the time he purchased the same. That while the $2^{nd}$ and $3^{rd}$ defendants contend that the suit land belonged to Saida Mawemuko, they obtained Letters of Administration in 2016, which is 20 years after her death and 38 years of possession by the plaintiff. Thus, by the time the $2^{nd}$ and $3^{rd}$ defendants registered the title from the blue page. the late Saida Mawemuko had ceased being the owner 38 years ago having sold off the same.

Counsel noted that even if it were true that the late Saida Mawemuko never sold to the plaintiff, he had been in uncontested possession of the land for 18 years from 1978 to 1996 when she died and 46 years after her death which makes him an adverse possessor.

Counsel for the plaintiff further submitted that it was the testimony of the plaintiff that he knew the 1st defendant however, he had never approached him over the suit land. While the plaintiff's son told court that the 1st defendant before this suit approached them and told them that the land where their plantations and animals were found was his and that he wanted to negotiate with the plaintiff to give him 100 acres. Counsel noted that the 1st defendant had knowledge of the fact that the plaintiff owned the suit land since he grew up with the plaintiff's children who lived and utilized the suit land. That the $2^{nd}$ and $3^{rd}$ defendants got registered on the 8th December, 2016 and 12 days after ownership changed to Nazziwa Peruth and before title could be changed into her names, the 1st defendant had already paid stamp duty of 900,000/= on the 13th December, 2016. He had also submitted a transfer form for valuation on the 9th December, 2016 as per PEX22 yet the property was still registered in the names of both administrators.

Further, that the 1st defendant exhibited a sale agreement dated 28th December, 2016 clearly showing that he paid stamp duty and had the transfer assessed before he could buy the suit land. That while he stated that he bought the suit land from both administrators, the sale agreement indicates that he bought from the $2nd$ defendant. Thus, the defendants were fraudulent while dealing with the suit land.

Counsel for the $1^{st} - 3^{rd}$ defendants on the other hand submitted that it was the evidence of DW2 and DW3 that the deceased did not at any one time during her life time sell the suit land to the plaintiff as alleged and that the agreements relied upon were never signed either. That no proof was adduced to prove that the plaintiff ever bought the suit land. That the plaintiff fraudulently applied for letters of administration for the estate of Saida Mawemuko claiming to be her only son and only denounced the same upon realizing that the $2^{nd}$ and $3^{rd}$ defendants had through Police instituted inquiries in the manner he acquired the said Letters.

$\overline{5}$

$20$

Counsel added that the $1^{st}$ defendant acquired a valid title from the $2^{nd}$ and $3^{rd}$ defendants who legitimately were bound to deliver the same.

I have carefully perused the pleadings, evidence, exhibits as tendered in court by both parties, their submissions, the law and authorities as cited there in to resolve this issue.

The plaintiff in this instant case in his testimony stated that he bought the suit land from three people to wit; Yususfu Ssengoje, Eriyosi Mawemuko a.k.a Saida and Mariya Bamwegeya at a consideration of UGX $67,000/$ = and the siblings affixed a thumb print on the agreement dated 18/3/1978 admitted as PEX3. The agreement was attested to by two other witnesses that is Kiwanuka and John Sserunkuuma. That upon purchase, the vendors gave him a purchase agreement which their father (Ali Makengi) entered while purchasing the said land dated 11th September, 1906.

The plaintiff also stated that the 1st defendant in the instant case was at all times aware that the plaintiff occupied and utilized the suit land and even though when 15 he was purchasing the same he did not take the initiative to find out from him the details of the suit land which was admitted by the 1st defendant. The plaintiff clearly through himself and his witnesses PW3 and PW4 testified and clarified about the fraudulent letters of Administration obtained in his name for the estate

of the late Saida Mawemuko as the doing of Amos Mwesige who he had contracted $20$ to help him obtain the certificate of title for the suit land. Upon realizing that Amos instead of obtaining for him the certificate of title had instead obtained applied for letters of administration for the estate of Saida Mawemuko he went ahead through PW4, got a lawyer and renounced the said letters as evidenced by PEx14. The plaintiff also categorically told court that he never at any time appeared before any $25$ judicial officer in regard to the application for the Letters of Administration despite the fact that he signed the petition which he did not read through.

Whereas counsel for the $1^{st} - 3^{rd}$ defendants submitted that the plaintiff went through the entire process of obtaining the letters of administration including attending meetings with the administrator general to obtain the certificate of no objection, no proof was adduced by the said defendants in this regard. Unlike the plaintiff who was able to obtain the minutes of the meeting that was held before the administrator general while the $2^{nd}$ and $3^{rd}$ defendants were in the process of obtaining Letters of Administration of the estate of Saida Mawemuko. Also, no court proceedings were tendered in this court that indicated that indeed the plaintiff had ever appeared before the deputy registrar and which deputy registrar or any judicial officer for that matter to be precise for identification before the letters of administration were granted to him.

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$\mathsf{S}$

$10$

During the locus in quo it was established that the plaintiff was the one in occupation of the suit land which was not disputed by the 1st defendant who was present even though the same is registered in his name.

The plaintiff's occupation was also never challenged by Saida Mawemuko during her life time as he had been on the suit land since 1978. And while the 2nd and 3rd $\mathsf{S}$ defendants claimed that the sale agreement was a forgery, the same had a thumb print and it was the evidence of the plaintiff that the thumb print was appended by Yususfu Ssengoje while he met the three siblings and there were witnesses to the agreement. And in any case if there was no sale as claimed by the $1^{st} - 3^{rd}$ defendants, the plaintiff qualifies as an adverse possessor for having occupied the 10 land unchallenged by the registered owner Saida for a period of 18 years.

On the other hand whereas counsel for the $1^{st}$ – $3^{rd}$ defendants submitted that the 1st defendant legitimately obtained the suit land from the $2^{nd}$ and $3^{rd}$ defendants, it was the $1^{st}$ defendant's evidence that he got the suit land from the $2^{nd}$ defendant

and the sale agreement PEX1 indicates the same so does exhibit PEX22. This $15$ however, leaves this court confused as to who is telling the truth between the 1st defendant and his counsel?

Additionally, the 1st defendant tendered in court his sale agreement $28^{th}/12/2016$ which was marked as PEX1 yet PEX 22 is a consent to transfer by the 2nd defendant in favour of the $1^{st}$ defendant dated 9/12/2016 which was executed before the $20$ purchase of the suit land. More so, PEX20, PEX21, PEX23 and PEX24 were all effected either in the name of the $2^{nd}$ defendant or the 1st defendant in regard to the suit land before the sale agreement could be executed or the transaction of the sale of land taking place. These is my opinion are a clear depiction of fraud on the part of the $1^{st}$ and $2^{nd}$ defendants. $25$

Counsel for the $1^{st} - 3^{rd}$ defendants also in the guise to mislead this court stated that the plaintiff lodged a caveat to protect the suit land while the suit was on going

which is a total lie. Because the caveat as lodged by the plaintiff is dated $09/2/2017$ and the suit was filed on $19/5/2017$ . Thus, the submissions as made by counsel for the $1^{st} - 3^{rd}$ defendant in this regard are false.

In light of the above I find and hold that the plaintiff gave cogent and consistent evidence to the satisfaction of this court that he is the owner of the suit land. This issue is hereby resolved in the affirmative.

# Issue 2: remedies available to the parties.

Counsel for the plaintiff submitted that the 1st defendant fraudulently obtained title 35 and therefore it is only right that the 4th defendant is ordered to cancel the 1st defendant's title. That the plaintiff be declared the legal owner of the suit land and

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be registered as the proprietor of the same. Counsel also prayed for damages and costs.

Counsel for the $1^{st}$ – $3^{rd}$ defendants submitted that the said defendants have proved their case on a balance of probabilities and this court should dismiss this suit with

- costs. Counsel prayed that the said defendants be granted damages to a tune of $\mathsf{S}$ UGX 250,000,000/= and relied on the cases of James Fredrick Nsubuga v. Attorney General, HCCS No. 13 of 1993 and Uganda Commercial Bank v. Kigozi $[2002]$ 1 E. A 305). - The plaintiff in this case has proved his case as against the $1^{st} 3^{rd}$ defendants on a balance of probabilities. The plaintiff prayed for general damages however, I find 10 no justification to award the same since he was found in occupation of the suit land during the locus in quo visit and has been in full of utilization of the same to date. In my opinion the plaintiff has not been deprived of using the suit land by the $1st - 3rd$ defendants. I therefore decline to award general damages. - Having found that the plaintiff is the owner of the suit land and has proved his 15 case on a balance of probabilities, entered is entered in his favour in the following terms; - 1. A declaration that the plaintiff is the lawful owner of the suit property comprised in Gomba Block 91 Plot 5. - 20 - 2. An order is hereby issued for the cancellation of the certificate of title issued to the $1^{st}$ defendant. - 3. A permanent injunction is hereby issued restraining the defendants, their agents, servants and/or workmen from interfering with the suit land. - 4. Costs of the suit are awarded against the $1^{st}$ , $2^{nd}$ and $3^{rd}$ defendants. - I so order. 25

Right of appeal explained.

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OYUKO ANTHONY OJOK

JUDGE 30

$16/01/2025$