Kiwanuka v HB Matovu Properties Consultants and Company Limited and Another (Civil Suit No. 118 of 2018) [2022] UGHCLD 226 (2 December 2022)

Full Case Text

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

#### [LAND DIVISION]

# **CIVIL SUIT NO. 0118 OF 2018**

RONALD KIWANUKA:::::::::::::::::::::::::::::::::::

# **VERSUS**

# 1. HB MATOVU PROPERTY CONSULTANTS & <table> COMPANY LIMITED DEFENDANTS 2. ANN TASHOBYA KIBEHERERE

#### **BEFORE:** HON. JUSTICE JOHN EUDES KEITIRIMA

#### JUDGMENT

The Plaintiff sued the defendants jointly and severally for the following declarations/orders:

- 1. That the plaintiff is the lawful/rightful owner of land measuring approximately six (6) acres of land comprised in **Bulemezi Block 1026 at** Namaliga. - 2. That the Defendants fraudulently transferred the plaintiff's land to the $2nd$ Defendant's name. - 3. An order directing the Defendants to survey and sub divide off the said 6 acres and transfer the same into the plaintiff's names. - 4. Special damages

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- 5. Punitive damages - 6. General dames - 7. Interest

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8. Costs of the suit

# **PLAINTIFF'S CASE**

The Plaintiff's case is that he purchased land measuring approximately 6 acres through a one Ssekamate Christine from Ruth Obella in 2007. That the plaintiff took actual and active possession of the land to date. That however, the said Ruth Obella later sold the residue on the title to the land to the 1st Defendant who prior to the sale was informed of the legal interest of the plaintiff. That upon the 1st Defendant's purchase of the residue, the vendor handed over the entire certificate of title to the 1st defendant to cause a sub division and mutate off the plaintiff's 6 acres and obtain a certificate of title for him.

The Plaintiff contended that he advanced money to a tune of six million shillings $(6,000,000/=)$ to facilitate the process of obtaining a certificate of title to Musisi Lawrence the 1st Defendant's manager. That instead of subdividing and giving the plaintiff his title, the 1st Defendant connived and colluded with the 2nd Defendant and fraudulently transferred the entire land into the 2nd Defendant's names.

The defendants never filed written statements of defence in this matter.

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This Court ordered the matter to proceed ex-parte after the Plaintiff proved that he had duly served the defendants but they had failed or neglected to file their written statements of defence. This was in accordance with the provisions of

# Order 9 Rule 10 and 11(2) of the Civil Procedure Rules.

It is only the Plaintiff who adduced evidence in this case.

The issues raised for determination of court as per the plaintiff's scheduling memorandum are;

1. Whether the 1st Defendant fraudulently transferred the plaintiff's land measuring approximately 6(six) acres comprised in Bulemezi Block 1026 Plot 511 to the 2nd Defendant.

# 2. What remedies are available?

Counsel for the plaintiff filed written submissions which I have perused and considered.

# **Consideration of Court.**

**ISSUE 1:** Whether the 1st Defendant fraudulently transferred the plaintiff's land measuring approximately 6 (six) acres comprised in Bulemezi Block 1026 Plot 511 to the 2nd Defendant.

In the case of Fredrick Zaabwe Vs Orient Bank & Others SCCA No, 4 of 2006, the Court defined fraud to mean the intentional perversion of the truth by a person for the purpose of inducing another in reliance upon it to part with some valuable

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thing belonging to him or her or to surrender a legal right. It is a false representation of a matter of' lact whether by words or by conduct, by false or misleading allegations or concealment of that which deceives and it is intended to deceive another so that he or she shall act upon it to his or hcr legal injury.

It was held in the case of Kampala Botllers Lltl vs Damsnico (U) Ltd, SCCA No.22 of 1992, that'i'fraud must be stricily proved, lhe hurden being heavier than one on bolance of probabilities generally applied in civil matlers... ", It was fu(her held that; "The party must prove that lhe fraud was attribuled to lhe transferee. It must be altributahle either direcily or by necessary implication, that is; the transferee must be guihlt of some fraudulent acl or musl have known of such act by somebody else ond taken advantage ofsuch act."

In his evidence in chief, PWI Ronald Kiwanuka, states that he purchased the suit land measuring approximately 6 acres of land comprised in llulemczi Illock 1026 Plot 551 land at Namaliga through a one Ssekamate Christinc from Ruth Obclla on 29th May, 2007. The plaintiff adduccd cvidence through a sale agreement that was marked I'}EXl. In paragraph 4 of his witness statemcnt, the plaintiff testified that he took possession of his land upon purchase to date. Further, in paragraph 5, it is the plaintifls evidence that the l" defendant purchased the residue from the then registered proprietor of Bulemezi Block 1026 Plot 551 and the titlc of the entire land including the plaintifls 6 acres was handed over to the l't dcfendant. That the l" defendant was supposed to do

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subdivisions and give the plaintiff his title of 6 acres. It is the plaintiff's testimony that he advanced a sum of Ugshs. $6,000,000/=$ (six million shillings only) in instalments to the $1^{st}$ defendant as per the payment receipts marked PEX 3.

It is counsel's submission that the transaction between the 1st defendant and the $2nd$ defendant in regards to the suit land was fraudulent as it was in total disregard of the plaintiff's legal interest in the same.

### **Burden and Standard of Proof**

In the case of *Uganda Petroleum Co. Ltd versus Kampala City Council Civil* Suit No.250 of 2005, it was held that; "In civil cases the burden lies on the party who alleges to prove his or her case on the balance of probabilities. It is also provided by Section 101 (1) of the Evidence Act cap 6 that whoever desires Court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts, must prove that those facts exist. In this case, the Plaintiffs bear the burden of proving the above issues on the balance of probabilities".

I have analysed the evidence adduced in court.

The basis of the plaintiff's claim is a sale agreement; PEX 1 dated 29th May, 2007. A perusal of this sale agreement shows that the transaction was between **Ruth Obella** as vendor and **Ssekamate Christine** as purchaser as per the 1st paragraph of the agreement (PEX 1).

July 22

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l'he sale agrecment indicatcs Ssekamatc Christinc as the purchaser. The name ol' the plaintil'{- is not indicatcd anywherc and thc purchascr ncvcr indicatcd anywherc that she was purchasing the suit land on behall-of thc plaintifL

'l'he said Ssekamate Christinc is not a party, not cven a witncss in this case to clarify to court on how shc purchascd thc suit land on bchall'o1'thc I'}laintill. There is therelorc no iota of evidence on record to satisfy this cou( that the plaintifl has any intcrest in the suit land to lead to a conclusion that thc I't dcfendant I'raudulcntly translcrrcd it to thc 2''d I)cl'cndanl.

'l'he plaintiff had the burden to prove to this court that he had an interest in the suit land beforc it was purportedly lraudulently translerrcd to the 2"d defendant.

All the plaintiff said was that hc purchascd the suit land through Ssckarnatte Christine; see paragraph 5(a) ol' the plaint and paragraph 3 of his witness statcnrcnt However, as noted above, thc sale agreement altached to that cffect does not mention anywhere that the said Ssekamatte was purchasing the suit land lor and on behalf of thc plainti f'f .

I have also perused PIIX3 which are rcceipts that the plaintiff avcrs is his cvidcncc that he advanced money amounting to six million shillings (6,000,0000/:) (Uganda shillings six million), to securc a title lbr thc suit land. 'fhc said reccipts Musisi l.awrence, for the land title but it is not indicated anywherc that the title was lor the suit land rnerely indicatc that the plaintiff was paying money to the plaintif ls Managcr,

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The Plaintiff has therefore failed to prove his case to the required standard and it will be dismissed.

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$2ng$ freg.

Hon. Justice John Eudes Keitirima

$2/12/2022$ .