Kisinde v Sil Investment Limited and 3 Others (Civil Suit 749 of 2016) [2024] UGHCLD 116 (18 April 2024)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CIVIL SUIT NO.749 OF 2016

TEDDY

MALE

KISINDE : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :PLAINTIFF

#### VERSUS

- 1. SIL INVESTMENT LIMITED - 2. EVELYN NANYONGA - 3. KASIGWA DAVID - 4. COMMISSIONER

LAND

REGISTRATION : : : : : : : : : : :DEFENDANTS

# JUDGEMENT

# BEFORE JUSTICE TADEO ASIIMWE

The plaintiff sued the defendants seeking for declarations and orders that aspecial cerlificate of title issued by the 4th defendant to the l't and 2nd defendants in respect of land comprised in Kyadondo Block 244 Plot 3618 at Kisugu was done frau lently

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and in error, that the subsequent sale by the I't and 2d defendants to the 3'd defendant was illegal, that the special certificate of title be handed over to the plaintiff as a lawful owner, mesne profits, general damages, interest and costs.

#### BACKGROUND

The plaintiff and her late husband purchased land comprised in Kyadondo Block 244 Plot 3618 at Kisugu (herein referred to as the suit property) and it was registered as a joint ownership with her late husband. That Engineer Moses Bitagase of M & B Engineers Limited requested for a power of attorney to use the suit land to secure a loan from Greenland Bank which was granted and a certificate of title was mortgaged in Greenland Bank in 1997 under a power of attorney but subsequently redeemed from the liquidators of the Bank by paying Nile River Acquisition Company in 2012 and a title handed over. That however, in2012 when the plaintiff was on her way from Kangelu village Gomba to Kampala, a porter while moving from New Park to Old park disappeared with her luggage containing the certificate of title and release of mortgage with all belongings and she reported to the matter to police. That she applied to Nile River for a replacement

of her documents for purposes of obtaining a special certificate of title. That however in 2015, the 2'd defendant fraudulently applied to the Registrar of Title for a special certificate of title in the suit property and it was illegally issued to her on 15'h July 2015.

The I't and 2d defendants denied the plaintiff s claim and stated that the plaintiff and her late husband on 7'h February 1997 executed a power of attorney in favor of M & B Engineering Limited authorizing a mortgage of the suit property as security for credit facilities from Greenland Bank which was granted but not settled until the Bank was put under liquidation. That the suit property was passed over to the liquidator of Greenland Bank to recover the debt in vain and as a result, the security was realized by way of sale of the suit property to the 3'd defendant.

That the plaintiff never paid the loan so as to redeem the suit property from Nile River Acquisition Company Limited. The I't and 2d defendant asserted that the plaintiff has no interest in the suit property and prayed for dismissal of the case with costs'

The matter proceeded exparte against the 3'd and 4th defendants who never participated in the case.

### ISSUES AGREED.

- l. Whether the plaintiffs paid and redeemed the suit property. - 2. Whether the suit property was assigned to M/s Nile River Acquisition Company Limited and not the I't defendant. - 3. Whether there was any fraud committed by the l't and 2nd defendants. - 4. What remedies are available.

At the hearing, the plaintiff was represented by Counsel Aggrey Amagu holding brief for Yusuf Niwamanya and the 1't & 2d defendants were represented by Counsel Walukagga lsaac. At end of the trial, both Counsel filed written submissions which I will consider in this Judgment.

# BURDEN OF PROOF.

In all civil matters, the plaintiff bears the burden to prove his/ her case on the balance of probabilities. The plaintiff in this case by virtue of section 101, I 02 and 103 of the Evidence Act has the burden to prove all the facts alleged by him in the plaint; section 101 of the Evidence Act, provides that;

"Whoever desires any court to give Judgement as to any Legal right or Liability, defendant on the existence of facts which he or she asserts must prove that those facts exist".

In abide to prove her case, the plaintiff led evidence of one Witness and the defendants called one witness as well.

#### EVIDENCE

PWl, Teddy Male Kisinde testified that her late husband bought the suit land and she was registered as joint tenants with her late husband in 1986. She was approached by a family friend Engineer Moses Bitagase of M&B Engineering Limited for Powers of Attorney to use the suit plot to secure a loan from defunct Greenland Bank to which they agreed to and the same was mortgaged accordingly. That the certificate of title had been mortgaged to Greenland Bank limited in 1997 under a power of attorney but the same was redeemed from the liquidators of the Bank who were M/s Nile River Acquisition Company on 20th September 2012. That Nile River Acquisition company was the officially appointed liquidators of the defunct Greenland Bank. That she was able to redeem her property by paying the liquidators of M/s Greenland Bank and her title was handed back

to her by M/s Nile River Acquisition Company. That the duplicate certificate of title together with the release of mortgage were duly handed over to her by M/s Nile River Acquisition Company as the liquidators of the said Bank and paid requisite stamp duty and mortgage registration fees to free the title of encumbrances. That M/s Nile River Acquisition Company notified the I't & 2d defendants of the said loan settlement in a letter dated lgth November 2015. That in December 2012 on her way from Kampetu Village, Gomba District to Kampala and a porter from New Taxi Park disappeared with her luggage containing the certificate of title and release of mortgage and her belongings. That armed with the police report of the lost title and release of mortgage, she applied to M/s Nile River Acquisition Company for replacement of original mortgage release and she was issued with a letter confirming the release and redemption of her title which she lodged to KCCA registry together with her application for special title and an affidavit in support. That on the I't day of April 2015 Evelyn Nanyonga, a Director in I't defendant acting as an agent of the 1't defendant and at the same time purporting to be my agent without powers of attorney from me swore a false affidavit and fraudulently applied to the Registrar of title for

issuance of Special Title of the same property and the title was illegally issued to her on 15th July 2015. That the 4'h defendant disregarded her application for special certificate of title which she had earlier before the 2nd defendant applied and instead granted the special title to the 2nd defendant applied and instead granted the special title to the 2nd defendant. That the I't and 2nd defendani went on and sold to the 3'd defendant the suit property despite the existence ofa caveat that had been lodged by her on 30'h November 2004 vide KLA 260772. That she complained to officials of the 4,h defendant about the fraudulent dealing with my title by the l.t, 2"d and 3'd defendants but the 4th defendant riled that she would not release the suit title to any of the parties until directed by a Court through a Court Order. That she is the rightful owner of the suit property and also the administratrix of her late husband Francis Kisinde. That she does confirm that the acts of the 1", 2nd, 3'd and 4th defendants are all unauthorized and unlawful and she has never granted permission to the defendants to undertake the activities complained of.

Upon cross-examination, PWI confirmed that the 1" defendant illegally obtained a certificate of title in

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respect to her land comprised in Kyadondo Block 244 Plot 3618. That at the moment the land is in possession of one Masengere and family since 1986. That its true she agreed to share the suit land with Mr. Masengere in 2018-2019 and they executed an agreement of sharing. That she was to get 20 decimals and Masengere 15 decimals but the said Masengere never gave vacant possession and to date his family occupy the entire land. That the 1" defendant has never taken possession of the suit land. That even the 2'd and 3'd defendants have never utilized and or possessed the suit land. That the land title was mortgaged to Greenland Bank by the company on the basis of a power of attorney by her and her husband. That she signed the Power of Attorney and not the mortgage deed. That she signed the mortgage deed after seeing the document PE1 and her husband too signed. That it's the company M & B engineering owed money to the Bank at its liquidation time. That she didn't know the exact amount which was borrowed and that Its Bank of Uganda which liquidated the Greenland Bank. That she wrote 2 Ietters to Mr. Sekabira of Bank of Uganda about the loan and seeking to redeem the property as per DE1 & DE2. In Further cross-examination she stated that they never paid the loan obligation and that the debtor was MB engineering. That the total loan amount was shs 50,454,575/= as per bank statement and that she didn't pay that amount to bank of Uganda. That she redeemed the property from liquidators, Nile River and pard Ug. shs 17,000,000/= after negotiations with them. That she has no documents since they were stolen with land title and that she reported a case of theft of her title and documents as per police report (PE7). However, the report only indicates Ioss of land title. That she went back to Nile River to get replacement of her documents but she does not have them. That she also got an acknowledgment of receipt of title which got lost.

That Its true Nile River and the 1" defendant, Sil Investment Limited were working together but she did not pay any money to the 1" defendant and never dealt with the 2'd defendant but dealt with Nile River only. That the 2'd defendant stole her title pretending that she was receiving it on her behalf.

On the other hand, DWl, Evelyn Nanyonga the 2"d defendant testified that she is the Managing Director of the l't defendant Company. That Nile River Acquisition Company Limited has never been a liquidator of Greenland Bank since the liquidator was Bank of Uganda through Mr. Ssekabira. That the suit property was moftgaged to Greenland Bank through M & B Engineering company limited for loan facilities which was never paid back until the Bank was closed and put under liquidation where Nile River Acquisition Company Limited purchased the entire residual loan portfolio including the loan in issue. Later Nile River Acquisition Company Limited entered an agreement with the 1't defendant to recover all the loan dues as its agent. That the 1't defendant made attempts to contact M/s M&B Engineering Limited to seffle its indebtedness in vain and as a result, the

Page 10 of 19 security was realized by way of sell to the 3'd defendant. That at the time of the said sale, the l't defendant was not aware of any payments made to Nile River Acquisition Company Limited by the plaintiff as alleged by the plaintiff and is not aware of any such payments to date. That Nile River Acquisition Company Limited was not selling any securities directly as alleged by the plaintiff. This explains why the plaintiff has no agreement with the Nile River Acquisition company Limited or official receipts of the money allegedly paid to redeem the property. That on the above basis, the sale of the suit property was legitimate as the same was mortgaged by the plaintiff, who defaulted and the sale of the property in accordance with the law. That the plaintiff allegation that all the documents pertaining to the suit property got lost is untenable. That particulars of personal liability against her by the plaintiff are unfounded and have no basis. That she confirms the sale of the suit property was conducted at arm's length with no fraud on the part of the I't defendant or any of its staff. That the alleged redemption of the suit property from M/s Nile River Acquisition Company Limited by the plaintiff has no legal basis. That the claim of mesne profits in the sum Ugx 30,000,000/- (thirty Million) by the plaintiff as special damage

has no basis. There is no evidence to prove this claim and how it arose. The plaintiff has never suffered any loss and it should be disregarded. That the plaintiff s claim against the defendants is unfounded and should be dismissed.

In cross examination, DWl testified that she is familiar with Nile River Investment and SIL Investments. That SIL investment is an agent of Nile River Acquisition Company. That Nile River purchased the portfolio (residue)-the suit property from Bank of Uganda as aliquidator of Greenland Bank and SIL was working on behalf of Nile River as its agent. That Its Nile River that instructed her to depone an affidavit in support of the Application and that Its true there were 2 properties mortgaged but by the time Nile River purchased it, only Plot 3618 Block 244, Kyadondo was purchased. She further stated that the plaintiff was informed after the sale of the suit property. She also confirmed that she has a contract with Nile River Company and is also a director in SIL Investment Limited which was contracted by Nile River Company to deal with the suit property. That Mr. Kakembo was keeping title on behalf of Nile River and it got lost in his hands. That the process of acquiring a special was done by SIL investment Company. That she is aware of the alleged title release by Mr. Kakembo to the plaintiff and that It was 1" defendant, Sil investment Limited to do the title release. That the title had an encumbrance in favour of Greenland Bank but she is Not aware of encumbrances now.

## RESOLUTION OF ISSUES.

Four issues were framed for determination and I shall handle them in the same order.

ISSUE 1. Whether the plaintiff paid and redeemed the suit property.

It is the plaintiffs case that the plaintiff and her husband granted powers of attorney to engineer Moses Bitagase of M and B engineers ltd to use the suit land to secure a loan from green land back and it was granted. That the plaintiff managed to successfully redeem the suit property from green land bank successor Nile river. That a release of mortgage and the tittle were given back to her but were stolen from her as per PEX5 and PE7' That the l't and 2nd defendant sold the suit property to the 3'd defendant illegally.

To begin with, it is not in dispute that the suit sit land was mortgaged to Greenland bank to secure a loan with her consent/power of attorneY PE3.

What is in contention is the redemption of the suit property after payment of the said loan.

The plaintiff testified that she made payment of 17,000,000/ after negotiations to Nile river acquisition company but all documents handed to her but stolen from her as per PEX5 and PE7.

On record there is no evidence of payment of the said 17,000,000/: (Seventeen million) apart from the plaintiffs testimony. There is no final agreement between the parties reflecting the said payment and or any receipts of payment' Although the plaintiff claims that her mortgage release forms, tittle and receipts were stolen as per PE7, the said police report

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only mentions a land tittle and nothing else. No explanation about other important documents It is not surprising that the plaintiff stated in cross examination that she did not know the loan amount that was borrowed. Further her evidence of a mortgage release as per PE5 is doubtable since it was issued by Nile river acquisition company and yet the said Nile river company had contracted the 1't defendant, SIL investment as its agent to deal with the suit properfy to realise the loan outstanding amount. Therefore, Nile river acquisition company could not deal with a property at the time as they had assigned it to its agent, the l't defendant. Therefore, the confirmation of payment by Nile river through PE6, a letter from JN KIRKLAND ASSOCIATES is doubtable as well and cannot amount to sufficient evidence to substitute real evidence of payment which was not produced in Court.

Under normal circumstances, confirmation of payment should have been accompanied by documentary evidence from the 1't defendant, the appointed agent of Nile river acquisition company to deal with the suit property. One wonders why the said crucial evidence of payment receipts were not reported to police as per PE7 or why Nile River Acquisition Company failed to provide her with copies yet she testified having received a copy of the mortgage release(PE5) which was doubted by this Court.

Therefore, the plaintiff s claim of payment and redemption of the suit property remains doubtable. Instead, the defence evidence as per DWI that the suit property was mortgaged to Greenland Bank through M & B Engineering company limited for loan facilities which was never paid back until the bank put the property under liquidation and sold to the 3rd defendant to realize the loan obligation is more believable in light of the actual sale by the l't defendant, a known agent of Nile river Acquisition company. It is clear the suit property was acquired by Nile River Acquisition Company Which Authorized the 1" defendant to sale the suit property. It is my finding that that the plaintiff never paid the loan facilities so as to redeem the suit property.

Therefore, issue one is answered in the negative.

ISSUE 2. Whether the suit property was assigned to M/s Nile River Acquisition Company Limited and not the lst defendant.

In the resolution of issue one, I have already found that the suit property was assigned to Nile river Acquisition company but the 1't defendant was simply its agent as per PE4.

It obvious that the suit property was assigned to Nile River Acquisition Company Limited. However, this does not affect -\*7''theactions of the l't defendant as its agent acting on behalf of a known principal.

This issue is answered in affirmative.

ISSUE 3: Whether there was any fraud committed by the lst and 2nd defendants.

Fraud denotes any act of dishonesty. This definition has also been noted in the case of Zabwe Fredrick versus Orient Bank & Others SCCA No. 4 of 2006. According to that case, fraud constitutes;

An intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. A false representation of a matter of fact, whether by words or by conduct, byfatse or misleading allegations, or by concealment of that which deceives and is intended to deceive another so that he shall act upon it to his legal injury.

In order to succeed on an action based on fraud, the Plaintiff must attribute the fraud to the transferee that is; by showing that Defendant is guilty of some dishonest act or must have known of such act by somebody else and taken advantage of such act. See: Supreme Court decision of Kampala Bottlers Ltd vs Domanico (U) Ltd SCCA No.22 of 1992.

Further the law requires that fraud must be pleaded and particularized in the pleadings.

In this case, the plaintiff raised a number of particulars of fraud. The plaintiff failed to led sufficient evidence in proof of the alleged fraud. I have already found that the suit property was properly mortgaged and eventually sold by the I't defendant company upon failure to redeem it since there was no sufficient evidence on record to support the plaintiff s claim.

There is equally no sufficient evidence on record to support the particulars of fraud raised against the transferee as the law requlres.

Therefore, on the balance of probabilities I find that the plaintiff has failed to prove that the suit property was fraudulently sold. Issue 3 is resolved in the negative.

## Issue 4 what remedies are available to the parties.

Since allthe issues have been resolved in favor ofthe defendants, the plaintiff is not entitled to any remedies.

In conclusion, I find no merit in the plaintiff s case, the same fails and it is hereby dismissed with costs to the I't and 2nd defendants who defended the case.

I so order I ( ( 'Ear

TADEO ASIIMW

JUDGE

1810412024.

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