Kizza and Anor v Senkoma and 3 Others (Civil Suit No. 158 of 2007) [2021] UGHCLD 173 (5 February 2021)

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION)

### CIVIL SUIT NO. 0158 OF 2007

KIZZA JJEMBA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF

#### VERSUS

1. GEORGE WILLIAM SENKOMA

#### 2. TOM KIBIRIGE

Administrators of the estate of the late MiiroGerald::::::::::::::: DEFENDANTS

- 3. WILLIAM KAYONDO - 4. ESTHER JANET KYAKUWA

#### JUDGMENT

### BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA

- [1] In the amended plaint dated 18th April, 2019 but filed on 25th April, 2019, the Plaintiff Kizza Jjemba sued the Defendants; George William Senkoma and Tom Kibirige (Administrators of the estate of the late Miiro Gerald), William Kayondo and Esther Janet Kyakuwa (hereinafter referred to as the 1st, 2nd, 3rd and 4thdefendants respectively) jointly and severally for a permanent injunction restraining them, their agents/servants or any other person lawfully claiming under them from any further trespass on the Plaintiff's land, cancellation of the Defendants' title to the suit land, a declaration that part of the suit property belongs to the Plaintiff, general damages and costs of the suit. - [2] From the pleadings and evidence, the Plaintiff's case briefly is as follows:- - (i) On 29th August, 1977, the Plaintiff purchased 6 acres out of land comprised in Kyadondo Block 99 plot 32 at Busimbo (hereinafter referred to as the suit land) from the then registered proprietor, the late Miiro Gerald (hereinafter referred to as the deceased) and upon completion of the payment of the purchase price, he took possession and began developments thereon which included building a permanent house and carrying out cultivation of both

food and cash crops. The deceased passed on in 1978 before effecting the transfer of the purchased piece of land and processing of the Certificate of title into the Plaintiff's names. The 1 st and 2nd Defendants, claiming to be the sons of late Miiro Gerald (the deceased) applied and were appointed Administrators of the deceased's estate. On 15th March, 2005, the 1st and 2nd Defendants were registered on the suit land as proprietors and on 17th May, 2006, they purported to transfer the suit land into the names of the 3 rd Defendant while at the same time they subdivided the suit land into several plots to wit plot numbers 390, 391, 392, 393 and 394 of which plot 390 was sold and subsequently transferred to the 4th Defendant.

- (ii) On the 06th day of September, 2006, the Plaintiff lodged caveats on the said plots to protect his interests. He avers and contends that he is a lawful occupant on the suit land and that the 1st and 2nd Defendants fraudulently obtained Letters of administration to administer the estate of the late Gerald Miiro and the purported transfer of the suit land into the Defendants' names was fraudulent and intended to defeat his interests in the suit land. - (iii) The Plaintiff particularized fraud as against the Defendants as follows:- - (a). The 1st and 2nd Defendants purporting to be sons of the late Gerald Miiro and apply for Letters of administration of his estate whereas they were not. - (b). The 1st and 2nd Defendants transferring the suit property into their own names as lawful Administrators and then subdivide it into different plots, selling them to different people without regard to the Plaintiff's equitable and/or legal interest. - (c). The 3rd and 4thDefendantsknowingly obtaining land titles of the suit land without regard to the Plaintiff's equitable and or legal interest as he has been in occupation of the suit land for over 40 years. - [3] The Defendants' case is as follows:-

- (i) The 1st and 2nd Defendants are lawful Administrators of the estate of the late Miiro Gerald who died Intestate and that the alleged sale agreement between the late Miiro Gerald and the Plaintiff is a forgery as no such sale ever took place and the Plaintiff has never lawfully transferred the said in his names. - (ii) The 2ndDefendant on 27th November, 2006, lawfully transferred part of the land comprised in plot No. 390 into the names of Esther J. Kyakuwa, the 4th Defendant who is currently a lawful registered proprietor thereof and he is also the current lawful registered proprietor of the remaining part of the land comprised in plots 391 – 393. - [4] Both the 2nd and the 4thDefendants as counter claimants filed their respective counterclaims against the Plaintiff as counter Respondent that; - (i) The 1stDefendant and 2ndDefendant/counterclaimants were the lawful Administrators of the estate of the late Miiro Gerald who died Intestate and they lawfully got registered as the proprietors of the suit land. - (ii) That the 4th Defendant/counterclaimant bought her 3 acres of land(plot 390 of Kyadondo Block 29) from the Administrators unencumbered and subsequently legally got registered as proprietor without knowledge of the Plaintiff/counter Respondent's interest. - (iii) The alleged sale agreement between the Plaintiff/counter Respondent and the late Miiro Gerald is a forgery and that the Plaintiff/counter Respondent unjustifiably lodged caveats on the suit land and therefore his continued acts of its entry, farming, developing gardens, growing of crops and construction of dwelling houses amount to trespass. - [5] The 2nd and 4th Defendants/counterclaimants sought the following declarations and orders: permanent injunction against the Plaintiff/counter Respondent from further trespass, eviction and demolition of the Plaintiff/counter Respondent's residential house and structures, mesne profits, general and exemplary damages all at 20% per month interest from the date of cause of action until payment in full and costs of the suit.

- [6] In the joint scheduling memorandum notes of 16th March, 2020, the following were the agreed issues for resolving this suit: - (i) Whether the Plaintiff is the lawful owner/purchaser of the suit property measuring 6 acres and entitled to possession and Certificate of title for the same. - (ii) Whether the Defendants are trespassers on the suit property. - (iii) Whether the Defendants fraudulently acquired Letters of administration to the estate of the late Miiro Gerald. - (iv) Whether the Defendants are the lawful registered proprietors of the suit land. - (v) Whether the counter Respondent is a trespasser on the 2 ndDefendant/counterclaimant's suit land. - (vi) What remedies are available to the parties in the circumstances. - [7] On the 30th of November, 2018, the suit against the 1 st and 3rdDefendants was struck out because the 1 st Defendant passed away and no Letters of administration to his estate have ever been obtained while the 3 rdDefendant had never been served with Summons to file a defence.

# BURDEN OF PROOF:

[8] In civil matters generally, the Plaintiff bears the burden to prove his/her case on the balance of probabilities. The Plaintiff in this case, by virtue of *Sections 101, 102 and 103 of the Evidence Act* has the burden to prove the facts alleged by him in the plaint. The *Sections* put the burden of proof on whoever desires court to give a judgment as to any legal right or liability dependent on the existence of facts, to prove that those facts exist; *MAYANJA HUSSEIN VS. MUBIRU CHRISTOPHER H. C. C. S. NO. 129 OF 2020 [2018 UGHCCD 29].*

## PRELIMINARY OBJECTIONS:

[9] In an unnecessarily lengthy and argumentative submission, which I think should be discouraged, Counsel for the 1st Defendant raised 3 preliminary objections; firstly that the Plaintiff has no cause of action against the 1st and 2 nd Defendants; secondly, that the suit against them is frivolous and vexatious and therefore the Plaintiff is not entitled to any reliefs sought and thirdly, that the Plaintiff's suit is barred by limitation. While relying on *Order 6 rule 28 Civil Procedure Rules*, he argued that any party shall be entitled to raise by his or her pleading any point of law and any point so raised shall be disposed of by court at or after the hearing, except that by consent of the parties, or by order of the court on application of either party, a point of law may be set down for hearing and disposal of at any time before the hearing. That if a point of law substantially disposes of the whole suit or of any distinct cause of action, ground of defence, set off or counterclaims, or reply the court may thereby dismiss the suit, or make such order in the suit as may be just. Where it is in the opinion of the court that an issue of law would dispose of the suit entirely or substantially, the court shall try those issues first in accordance to *Order 15 rule 2 of the Civil Procedure Rules.*

- [10] I agree with the foregoing position of the law. It is trite law that points of law can be raised at any stage of the proceedings whether or not they were pleaded in the proceedings; *MATHIAS LWANGA KAGANDA VS. UEB H. C. C. S. NO. 124 OF 2003*. However, when a point of law is being raised as a preliminary objection, it should be raised at the earliest opportune time before or at the commencement of the hearing of the suit and court may at its discretion, make a ruling at that stage, upholding or rejecting the preliminary objection or it may defer its ruling on the objection until, after the hearing of the suit depending on the circumstances of the case; *EVERET VS. RIBBANDS & ANOR. (1952) 2 QB 198 at page 206,* see also *A. G VS. MAJOR GENERAL DAVID TINYEFUZA CONSTITUTIONAL APPEAL NO. 1 OF 1997 (S. C).*The rationale here is to save time and costs if the objection is upheld. This is exactly what Mr. Semuyaba for the Defendants did in this suit on 31st October, 2014. Counsel Semuyaba raised similar objections at the appropriate time and the then trial Judge Hon. Lady Justice Eva K. Luswata overruled him, finding no merit in the 2 objections as follow: - *(i) That the Plaintiff enjoyed a right (by purchase and possession of the suit land), that right has allegedly been violated by the Defendants who after being appointed Administrators and procuring registration, subdivided the land and sold it to the 3rddefendant and other persons.* (This is the principle in *AUTO GARAGE VS. MOTOKOV [1971] E. A 514).* - *(ii) That the first recorded interference of the Plaintiff's possession in the suit land, came into 2005 when the defendants obtained registration of the suit land and caused its subdivisions in August*

*2006 with no due regard to the interest that the Plaintiff is alleged to have acquired in 1977. Therefore, the plaint being filed only three years after the events, would make the suit well within time of the statutory period prescribed by the limitation time.*

- *(iii) That under Section 59 Registration of Titles Act, a Certificate of title issued to the defendants is impeachable or indefeasible. However, that right was qualified by Section 176 and 177 Registration of Titles Act which removes the cloak of protection for registered proprietors where fraud is pleaded.* - [11] Clearly in this case, all the preliminary objections raised by the defendants had been raised at the commencement of the hearing of this suit and were all disposed of at that stage by way of dismissal. It is therefore surprising that Counsel raised them again at this stage at the closure of the suit. - [12] Besides, it should be noted that the Plaintiff as a party in physical possession of the suit property, he was not suing for recovery of land but for trespass even though another person held indefeasible title to that land. As was held in *JUSTINE E. M. N. LUTAYA VS. STERLING CIVIL ENGINEERING CO. LTD S. C. C. A. NO. 11 OF 2002,*a person in physical possession can sue for trespass even though another person holds absolute indefeasible title to that land. - [13] As regards the question whether the High Court of Uganda, Land Division was a competent court to grant the order requested for, I find the lengthy submissions for Counsel for the 2nddefendant on this aspect misplaced. In this case, the Plaintiff is not seeking for an order either of cancellation of the Letters of administration or for any order relating to administration of estate of any deceased person, *H. C. MISC. APPLICATION NO. 976 OF 2012; BALIKUDDEMBE JUMBA PETER & ORS. VS. JJAGWE MBUGA & ANOR* and *BEVAM VS. HOULD WORTH [1948]1 ALL ER 273*are distinguishable and not applicable to the instant case. They were in regard to matters relating to administration of estates of deceased persons. In this case, the Plaintiff was entitled to file the present suit in the High Court of Uganda, Land Division because to expect him to first file the sub issue matters in the other relevant High Court Divisions would merely be a creation of a myriad of suits in those different Divisions when one suit as the present one would sort out and dispose of all the relevant issues pertaining to the parties.

[14] In conclusion, all the preliminary objections raised by Counsel for the defendants fail for they are devoid of merit and are accordingly dismissed. I now go to the merits of the suit.

ISSUE NO. 1:

Whether the Plaintiff is the lawful owner/purchaser of the suit property measuring 6 acres and entitled to possession and Certificate of title for the same:

- [15] Counsel for the Plaintiff submitted that:- - (i) The Plaintiff, Kizza Jjemba, entered into a purchase agreement with the late Miiro Gerald on the 29th of August, ,1977 and bought legal interests on part of the suit land measuring approximately 6 acres and he paid the entire purchase price in two instalments. That this evidence was corroborated by Wamala Joseph (PW1) a biological child of the late Miiro Gerald who knew about the sale of the 6 acres to the Plaintiff and that the Plaintiff had first occupied the suit land as a kibanja occupant and later on purchased the legal interest in the same. It is the Plaintiff's case that the late Gerald Miiro died before signing for him transfer forms. - (ii) That much as the sale agreement referred to the suit land as being in Kiti and not in Mawule where the suit land is currently situate, the Plaintiff through cross examination clarified that the agreement referred to Kiti because all the surrounding villages were within the same mailo land which was then within Kiti. That Kiti was then the main village and Mawule or Busimbo among other villages were just small villages within Kiti way back in 1977 when he purchased the suit land and that as we talk now, they are different villages. - [16] On the other hand, both Counsel for the Defendants submitted as follows:- - (i) That the Plaintiff is neither a son of the late Miiro Gerald nor a beneficiary of his estate and that therefore he has no locus standi in this matter and any alleged sale agreements are forgeries and the Plaintiff is a trespasser. - (ii) That the purchased agreement dated 29th August, 1977 was completed on 01st September, 1977 but it is not clear whether the kibanja the Plaintiff claims is located in Kitior Busimbo village.

- (iii) That during cross examination, the Plaintiff stated that he did not understand English having stopped in P. 3 and therefore uses a thumb print as he did on his witness statement. That the sale agreement in question having his signature in latin character makes it doubtful whether it was him who made it. That the document therefore offended *Section 3 of the Illiterates Protection Act* and therefore, it is null and void. - [17] In this case, I find that the Plaintiff's claim is based on the sale/purchase agreement where he bought6 acres of land comprised in Kyadondo Block 99 plot 32 (P. Exh. II). It is the defendants' case that this agreement is a forgery. In fact, the 4th Defendant Esther Janet Kyakuwa particularized the forgery thus; the agreement being written by 2 persons with two different handwritings, and the agreement not bearing the Plaintiff's signature but bearing Kizza Steven as the purchaser. - [18] I have perused the questioned purchase agreement being relied on by the Plaintiff. It is to the effect that the Plaintiff purchased 6 acres of land from Gerald Miiro at a total consideration of shs. 6,5000/- (P. Exh. II) and upon completion of the payment of the purchase price, P. Exh. III was executed. I was not able to appreciate the 4thDefendant's claims of the alleged forgery. The document was duly executed by "Jjemba Kizza" and not "Kizza Steven" as wrongly written in the English translated copy. P. Exh. II, the purchase agreement bear the Plaintiff's signature as the purchaser. - [19] It is true that the purchase agreement (P. Exh. II) and the subsequent document (P. Exh. III) appear to be of different handwritings but it is my view that there is nothing wrong with the 2 documents. The 1st one was actually the purchase agreement while the 2nd one was a mere acknowledgement of the balance of the purchase price. The 2 documents could have been written by different people but what is paramount is that they were signed by the relevant parties to the purchase. It is my contention that the Defendants in the case have failed to adduce any evidence pointing at the forgery of P. Exh. II & III. - [20] It is also true that the agreement in question (P. Exh. II) does not state or refer to the fact that the purchased 6 acres were out of Kyadondo Block 99 plot 32. It is however clear that the purchase agreement referred to that land located at Kiti Kyadondo. In this case, the Plaintiff having established that he purchased6 acres of land out of the late Gerald Miiro's land by way of a purchase agreement (P. Exh. II), then, it was incumbent on the defendants to show by way of evidence that the purchased property referred to was land elsewhere and not that one on Kyadondo Block 99 plot 32*(Section 102 Evidence Act*).

- [21] In the instant case, both the evidence at locus ie at Mawule and documentary evidence on record show that the location of Gerald Miiro's land was interchangeably being referred to as Mawule and Kiti majorly because, the title traversed the 2 villages. - [22] Besides, in the petition for Probate/Letters of administration by the 1st& 2 nddefendants in respect of the estate of the late Gerald Miirovide H. C. A. C. No. 1305/2004, paragraph 2 of the Petition, it reads thus:

*"The humble Petition of GEORGE WILLIAM SENKOMA and TOM KIBIRIGE. 2. That the deceased left land (about 7 acres) at Kiti – Kyadondo, Wakiso District."*

The above clearly show that the suit property the 1st and 2nd Defendants got registered on as administrators of the estate of the late Gerald Miiro by virtue of the Grant vide Administration Cause No. 1305/2004 includes the Plaintiff's suit portion of land. It is the same property described as Busimbo as per the search Certificates. It follows therefore that the various names attributed to the location of the suit portion of land is mere name semantics.

- [23] The vital fact is that on the suit portion of the land as pointed out to court by the parties at locus, that is where the Plaintiff has his home comprised of a permanent old house evidenced by the old rusty iron sheets. It is the same portion that is comprised in plot 390which the 4 thdefendant purchased from the 1st& 2nd Defendants which had been subdivided from plot 32. It is the same portion of land the defendants claim that the Plaintiff has trespassed upon. It is therefore my view that the 6 acres of land named in the purchase agreement (P. Exh. II) refer to the suit piece of land that was visited at locus. The argument by the defendants therefore that the Plaintiff purchased a different piece of land hold no water when at the same time, during cross examination of the 2nddefendant, he conceded that by the time he got registered thereon, the Plaintiff was already in occupation of the portion of the land. - [24] As regards the objection that the Plaintiff is an illiterate and therefore does not know how to write but thumb prints as evidenced by his

witness statement yet the agreement (P. Exh. II) in question bears his handwritten sign in latin character, the Plaintiff explained as follows:

*"I don't understand English and therefore my witness statement was read back to me before I thumb printed … I do thumb print because I developed asthma and as a result, my hand shakes. I can no longer write."*

The foregoing clearly show that *Section 3 of the Illiterate Protection Act* is not applicable to the instant case. The *Act* was intended for the protection of illiterate persons against an unprincipled opponents and that is why the provision is couched in mandatory terms of which failure to comply with renders the document inadmissible; *KASAALA GROWERS CO-OP. SOCIETY VS. KAKOOZA & ANOR. S. C. C. A. NO. 19/2010.*

- [25] In this case, the Plaintiff owned the document in question (P. Exh. II). It follows therefore that he does not need to be protected because he is not an opponent of himself and he has neither disowned nor contested the purchase agreement. This court therefore appreciated the fact that the Plaintiff at the age of 82 years, had become of advanced age and the age coupled with asthma, he had since failed to write and sign as he used to do or did in 1977 when he purchased the suit piece of land. I, in the circumstances therefore find the 2ndDefendant's submission on this aspect misplaced and unfounded. - [26] In conclusion, I find that the Plaintiff purchased the suit property, measuring 6 acres comprised in Kyadondo Block 99 plot 32 from the late Miiro Gerald at a consideration of shs. 6,500/-. Prior to that, he had previously occupied and utilized the suit piece of land as a kibanja holder as supported and corroborated by the evidence of Wamala Joseph (PW1), the son of the late Miiro Gerald. Block 99 plot 32 was later subdivided into plots 390 – 394 by the 2nd Defendant and the Plaintiff's purchased piece of land of 6 acres falls into plot 390 that was sold by the 1st& 2nddefendants to the 4thdefendant. - [27] It is also not true and correct for the Defendants to claim and aver that the 4th Defendant purchased 3 acres of plot 390 in 2006 when it was vacant and bushy, free from any encumbrances yet at the same time claim that the Plaintiff failed her to develop it! As observed at locus, the Plaintiff had thereon his old house with rusty iron sheets as proof of old age (see locus sketch observations). This was conceded by the 2nd Defendant Tom Kibirige (DW2) who during cross examination stated thus:-

*"It is true that by the time the deceased Miiro died, Kizza Jjemba (PW3) was already using the land in question. I sold plot 390 to the 2ndDefendant* (Esther Janet Kyakuwa referred to as the 4th Defendant before striking off the 1st& 3rd Defendants) *but before I sold it, it was Kizza Jjemba (PW3) who was utilizing it as a kibanja holder. We apportioned him some land of about 65 decimals but we never put this in writing. These decimals are still intact. Even before I got myself registered on the suit land, Kizza Jjemba (PW3) already was on the ground as a kibanja person. To date, Kizza Jjemba is still in occupation of that kibanja."*

[28] The above clearly is evidence that the Defendants do not dispute the fact that by the time the entire Gerald Miiro's land was registered in the names of the 1st&2 nd Defendants and subdivided to create plot 390which was sold to the 4th Defendant, the Plaintiff was in occupation of his kibanja for which he had a legal interest by virtue of a purchase (P. Exh. II). The Plaintiff therefore, having been in occupation of the suit portion of the kibanja before 1977 and having purchased legal interest of the kibanja in 1977 and has since been in occupation dating as far as before 1977 without disturbance or adverse claim by any person, he acquired title by both possession and legal interest purchase. It cannot be argued that the Plaintiff sat on his rights because all along, nobody had taken out Letters of administration in respect of the estate of the deceased Gerald Miiro until 02nd February, 2005 when the 1st and 2nd Defendants obtained the Grant in respect of the estate of the deceased. Again, still there is no evidence that this was to the knowledge of the Plaintiff until in 2006, when plot 390 was subdivided from the suit land plot 32, then sold to the 4th Defendant and the Plaintiff started facing disturbance, being labelled a trespasser with threats of eviction.

## [29] *Section 78 Registration of Titles Act* provides that:

*"A person who claims that he or she has acquired a title by possession to land registered under this Act may apply to the Registrar for an order vesting the land in him or her for an estate in fee simple or the other estate claimed."*

It is apparent that from the above provision, it recognizes adverse possession as a basis on which a person in use and occupation of land can claim title to the land of the registered owner. It is an exception to the general principle of indefeasibility of the tile under *Section 59 and 176 Registration of Titles Act.*

- [30] In the instant case, it is the evidence of the Plaintiff (PW3) that he occupied and utilized the suit land as a kibanja holder having been given the said kibanja by his grandmother, the late Nampiki Rebecca who had also acquired the said kibanja in around 1920 or thereabout. He was born in 1936 and was raised on the suit kibanja by his parents until 1977, when he purchased the legal interest from the registered proprietor Gerald Miiro. - [31] Though the Plaintiff lost transfer of the legal interest by virtue of the death of the previous registered proprietor in 1978, who passed on without effecting the transfer of the 6 acres of the land as promised in the agreement (P. Exh. II), he remained on the land as a lawful occupant under *Section 29(1)(b) Land Act* and remained so without disturbance or adverse claim to date. Under *Section 78 Registration of Titles Act* and *Section 29 of the Limitation Act,* the Plaintiff is entitled to possession and Certificate of title for the 6 acres suit portion of the land. - [32] The 1st issue is therefore in the circumstances held in the affirmative. Issue No. 5 is also accordingly disposed of. It follows therefore the Plaintiff/counter Respondent is not a trespasser on the suit land.

## ISSUES NO. 2, 3, 4 AND 5:

- Whether the Defendants are trespassers on the suit property. - Whether the Defendants fraudulently acquired Letters of administration to the estate of the late Gerald Miiro. - Whether the Defendants are the lawful registered proprietor of the suit land. - [33] The Plaintiff (PW3) and Gerald Miiro's son, Joseph Wamala (PW1), testified that on the 29thday of August, 1977, the Plaintiff purchased the legal interest on part of the suit land measuring approximately 6 acres from the registered proprietor, the late Gerald Miiro. The vendor Gerald Miiro unfortunately passed on before effecting transfer of the land to the Plaintiff as agreed in the purchase agreement. - [34] The Plaintiff (PW3) and Gerald Miiro's son PW1, testified further thatthe1stand 2ndDefendants while claiming to be children of the late Miiro Gerald applied for Letters of administration to the estate of the late Miiro Gerald. Upon getting the said Letters of administration on the 15th of March, 2005, the 1stand 2nd Defendants got themselves registered

on the Certificate of title for the deceased's land comprised in Block 99 plot 32, Kyadondo and thereafter subdivided the same into numerous plots (plots 390 – 394) to which they transferred into the names of 3rd parties who include the 4 th Defendant.

- [35] According to Wamala Joseph (PW1) who is one of the biological children of the late Miiro Geraldthe 1 st and 2nd Defendants' application to administer the estate of the late Miiro Gerald was done through fraud. The 2 Administrators have never been the children of the late Miiro Gerald as they alleged in their application for Letters of administration. The known beneficiaries and children of the late Gerald Miiro were never involved and or informed or named as beneficiaries by the 1st and 2 ndDefendants while applying for the Letters of administration. - [36] These facts were never challenged by the Defendants. Tom Kibirige (DW2) during cross examination conceded that he and the 1stDefendant have never been children of the late Gerald Miiro but rather they are children of a one Kasule Semei of Ngeye clan and not that of Mamba, the late Gerald Miiro'sclan. - [37] During cross examination, the 2ndDefendant alluded to the following:-

*"By the time I applied for Letters of administration in respect of the estate of Miiro Gerald, the widow was still alive. We never included the wife in the Petition for Letters of administration … because our father had offered Gerald Miiro land but upon the death of my father, we went to check in the Lands office and found that the land in question had been reverted into our father's names … We never included the children of Miiro in the Petition … I can't explain why. We had a meeting before we were given authority to administer the estate of Miiro Gerald but I don't have a copy of the minutes. I don't remember any of the members of Miiro Gerald who attended the family meeting … I have never filed any inventory regarding how we managed the estate of Miiro Gerald."*

In *TUMUSIIME PAUL & 3 ORS. VS. HAJJI WAHAB SEMAKULA H. C. C. S. NO. 76/2013,* it was held that it is an act of fraud where an applicant for Letters of administration deliberately leaves out the children of the deceased whom he knows that they exist while applying for Letters of administration.

[38] In this case, it is not disputed that the 2nd Defendant and another obtained a Grant by making a false representation of a matter of fact that they are sons of the deceased. This was clearly intended to deceive court to grant the Letters of administration to the Applicants so as to be enabled to defraud the estate, and its genuine beneficiaries who in this case include the Plaintiff who had purchased6 acres of land from the deceased and was waiting whoever would become the legal representative of the deceased to process transfer in his favour. Besides, the widow together with the existing children and beneficiaries of the deceased were left out and inventory and account of the estate has also never been filed in court as required by law. In *F. ZAABWE VS. ORIENT BANK LTD & ORS. CIVIL APPEAL NO. 4/2006 (S. C),* fraud was defines to mean;

*"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, by false or misleading allegations, or by a concealment of that which deceives and is intended to deceive another so that he shall call upon it to his legal injury …"*

- [39] From the above definition of fraud, I find and hold that the 1 st and 2nd Defendants acquired Letters of administration and intentionally left out the known children and other rightful beneficiaries of the estate of the late Gerald Miiro who include the Plaintiff and the widow and purported to be children and beneficiaries of the deceased. This was a concealment of facts or misrepresentation of a matter of fact by the 1st and 2nd Defendants when they were petitioning for Letters of administration to administer the estate of the deceased. Such acts, omissions or conduct amount to fraud and the 3rd issue therefore is found in the affirmative. - [40] It was on the basis of this fraudulently obtained Grant that the 1stand 2 ndDefendantstransferred the suit land which was previously comprised in Kyadondo Block 99 plot 32 into their names as Administrators of the estate of the late Gerald Miiro. Thereafter, they subdivided plot 32 into plots 390 – 394 as evidenced by the Area schedule on record, plot 390 was sold to the 4th Defendant. - [41] In the instant case, it follows that once it has been proved and found that the 1st and 2nd Defendants procured Letters of administration in respect of the estate of the late Gerald Miiro through fraud, the subsequent registration of the Administrators of the estate on the mother title of the suit land, Kyadondo Block 99 plot 32 was fraudulent. This is because

the Letters of administration which were the basis for the registration were acquired fraudulently.

- [42] As regards the 4thDefendantEsther Janet Kyakuwa, she got registered on the Certificate of title for plot 390 through fraud. As conceded by her vendor, the 2ndDefendantTom Kibirige (DW2), by the time the 4th Defendant purchased plot 390, the Plaintiff was in occupation with his home and developments. The said plot 390 was not vacant and bushy as the 4thDefendant claims. - [43] I find that the 4thDefendant procured the Certificate of title for plot 390through fraud and therefore she cannot allege to be a lawful registered proprietor on the same since her registration was intended to defeat the purchased legal interest of the Plaintiff. The Plaintiff's physical occupation and developments on the suit land have always been visible for all sundry to see. The developments the 4thDefendant attached to the pleadings were intentional. They left out the old home of the Plaintiff but only flashed out the developments by the off springs of the Plaintiff. Again, this is manifestation of fraud in the face of court. - [44] In the premises, it follows that the 4th Defendant cannot be availed the defence of being a bonafide purchaser for value for she has not established that plea. She can't claim to had purchased plot 390 from the 1st and 2nd Defendants without notice of the legal interest of the Plaintiff who was in physical occupation as conceded by the 2 nd Defendant at the time and to date. The 4th Defendant claim that she purchased the 3 acres of land comprised in plot 390, these are swallowed by the Plaintiff's 6 acres and as a result, the 4th issue is found in the negative.

ISSUE NO. 6: What remedies are available:

- [45] In conclusion, this court having found that the Plaintiff was the lawful owner/purchaser of the suit property measuring 6 acres and entitled to possession and Certificate of title, it follows therefore that any attempt by the Defendants to disturb the Plaintiff's quiet enjoyment of the 6 acres suit portion of land shall amount to trespass. - [46] Secondly, having found that the 1st and 2nd Defendants fraudulently acquired Letters of administration to the estate of the late Gerald Miiro, it follows that the Defendants are not the lawful registered proprietors of the suit land as the registration was based on a fraudulently obtained

Grant. The fraudulent Grant could not confer or be a basis of good title to the 1st and 2nd Defendants. The 4thDefendant had knowledge and or had reason to know and was therefore party to the fraud that was perpetrated by the 1st and 2nd Defendants against the Plaintiff.

- [47] Judgment is therefore given in favour of the Plaintiff with the following orders: - (a) A declaration that the Plaintiff is the legal owner of the suit land measuring 6 acres comprised in plot 32 Block 99 Kyadondo part of it now falling in the current plot 390 Block 99 Kyadondo. The Plaintiff is therefore entitled to issuance of a Certificate of title in his own names in respect of the suit 6 acres of land. - (b) The 4th Defendant's Certificate of title was acquired through fraud and it is accordingly cancelled. - (c) A permanent injunction does issue restraining the Defendants from any trespass and interference with the Plaintiff's quiet possession and occupation of the suit land. - (d) The Defendants' counterclaim is dismissed with costs to the Plaintiff. - (e) The Plaintiff's claim of general damages is rejected as it is not backed by any evidence. It was not shown by the Plaintiff that the fraudulent acts and attempts by the Defendants to interfere with his quiet possession occasioned him any loss or injury. - (f) The Plaintiff is awarded costs of the suit.

Dated at Kampala this 05th day of February, 2021.

Byaruhanga Jesse Rugyema JUDGE