Kyakuwa v Balaba and Another (Civil Suit No. 438 of 2012) [2022] UGHCLD 201 (5 October 2022)

Full Case Text

### THE REPI'BLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT XAMPALA

#### (LAND DIVISIONI

# cIvIL SUIT NO. 43a OF. 2012

| JOSEPHINE KYAKI'WA NAMBUSI | |-----------------------------------------------------------| | (Sut'rg through | | the 'I.ext lrle^d' so,io.h Muko.so. Kd.lutubaLPLNNTIFF |

VERSUS

# 10

# 1. BALABA LUKE

2. MUKASA XALUMBA JOSEPH.........,.....,................ DEFENDANTS

### JUDGMENT:

# Before: Ladu Justice Alexqndra Nko'toe Ruoqdua.

# 15 Introductlon:

The plaintiff, Ms Josephine Kyakuwa Nambusi, is the rcgistcred proprictor of private mailo land situate at Iengo Kgddond.o plot 5Ol Block 795, mcasuring approximately O. 139 hectarcs. As minor in 2012, she filed this suit through hcr next friend and biological mother, Ms Sarah Mukasa Kalumba.

- It is the plaintiffs claim that in 2010 the l defendant, Luke llalaba trespassed on the suit land and constructed thereon a semi-permanent structurc claiming beneficial interest on the suit Iand from /cibanja of Serapio Mukasa who was his grandfathcr. That Balaba is a biological child of the late Sserwanga Luke, one of the children of thc late Serapio Mukasa. 20 - 25 On his part however, Balaba claimcd however that his grandfathcr was by thc time of his death in 1969, the owner of th.e kibanja situate at Kyanja plots 5O7 and 5O2, both of Block 795, lonnerlg plot 39, Block 195 Kyadondo, which also had burial grounds for thc entirc family; and that some of the relatives had been buried thcre, That his grandfather died intcstate leaving his widow and the family of I-uke Serwanga in the home of thc latc Scrapio Mukasa, whcrc Ilalaba has lived to date.

In his counterclaim he further contended that Kalumba had in 2001 connived with the land lord Sarah Buteba and Joshua Lwere to convert the said kibanja into registered mailo interest in favour of the plaintiff who happens to bc Kalumba's daughtcr.

5 He further claimed that he and othcr bencficiarics wcrc entitlcd to their share in thc said kibanja that now lies on plots 5Ol and 5O2. That thc transfcr of the mailo intcrcst to Kyakuwa therefore was intended to defeat his ard other benehciarics' intercst thcrein; and was thercfore fraudulent.

The 2"d defendant/3'd counter defendant, Mukasa KalumbaJoscph however dcnied those claims maintaining that the suit land was originally the propcrty of the late Sarah Buteba who had offered it for sale to various individuals.

That at all material times Balaba had been asked to leave the suit land to no avail and instead had gone ahead to bring policemen to arrest him when he was trying to carry out some developments on thc said land, on beha-lf of Kyakuwa. 10

In her rejoinder, Kyakuwa contended that her fathcr had purchased the suit land from the land lord Sarah Buteba through her administrator, Joshua Lwcre. Her father had granted her his

interest in the suit land. She therefore rcfuted the claim that she had connived with him to have the suit land registered into her names. 15

That Balaba never in any case objected to the issuance of thc ccrtificate of title for plot 5O7 which was legally bought and transferred into her namcs with full knowledge of all the stakeholders involved. That given that the suit property had bccn registcred without any fraud or connivalce she was entitled to quiet enjoymcnt of thc property.

### Representqtlon:

The plaintiff/ 1"r counter defendant, Ms Joscphinc Kyakuwa Nambuusi was reprcscntcd by ,l/s Magende & Assoclctes. The 1"t defendant/ counterclaimant, Mr. Luke llalaba was represented by M/s Sernwonga" Muutazl & Co. Advocqtes. A noticc ofjoint instructions was filcd by III/s MOM Adoocqies to reprcsent the dcfendant/ countcr claimant on 17rt'August, 2022.

On 12s Decembcr, 2013, by consent, Kyakuwa withdrew thc suit against her father whom she originally sued for giving Balaba acccss to hcr land over which he claimcd no interest. Upon such withdrawal, Ba-laba remained thc solc defendant and a counter claimant in this suit.

### ,ssues,'

#### 7. Vlhether the suit l(r'rd rorrns pqrt oJ the estate of Serq.pio Muko.sd 30

2. Whether the deJendant ho's a beneJicial interest ln the sl.tlt lo.nd,

0,b/^t 2

# 3. Whether the plaintiff was fraudulent in the acquisition of the suit land

# 4. Remedies available.

# Issue No. 1: Whether the suit land forms part of the estate of Serapio Mukasa

And:

#### Issue No. 2: Whether the defendant has a beneficial interest in the suit land. $\mathsf{S}$

The plaintiff's side did not file any written submissions as court had directed. The defendant's side however did, and this court has taken the same into consideration in dealing with the issues raised for determination.

I will handle the first two issues since they are intertwined.

#### Analysis of the law and evidence: 10

By virtue of **section 101 (1) of Evidence Act, Cap. 6,** whoever desires court to give judgment to any legal right or liability depending on the existence of any facts he/she asserts must prove that those facts exist. (George William Kakoma v Attorney General [2010] HCB 1 at page 78).

The burden of proof lies therefore with the plaintiff who has the duty to furnish evidence whose 15 level of probity is such that a reasonable man, might hold more probable the conclusion which the plaintiff contend, on a balance of probabilities. (Sebuliba vs Cooperative Bank Ltd. [1982] HCB 130; Oketha vs Attorney General Civil Suit No. 0069 of 2004.

The defendant, Luke Balaba as counter claimant also had to satisfy this court that the land in 20 dispute constituted part of the estate of his late grandfather, Serapio Mukasa and that he had a lawful claim through his late father, Sserwanga Luke.

He also had to substantiate his allegations that Josephine Kyakuwa and her father had fraudulently acquired and transferred the suit land into the names of Kyakuwa; and that the fraud had been committed directly or indirectly by either or both of them.

#### 25 The law on trespass:

In the case of: Justin Lutaya v Stirling Civil Engineering Company, Supreme Court Civil Appeal No. 11 of 2002, the Supreme Court, trespass was defined as an unauthorized entry upon land that interferes with another person's lawful possession.

It will occur when a person makes an unauthorized entry upon land and thereby interferes or 30 portends to interfere, with another person's lawful possession of that land. Trespass to land was

Unberg?

also held to be coEmitted where a person wrongfully and unlawfully sets foot upon or takes possession or takes material from the land belonging to another.

Needless to say, a tort of trespass to land is committed, not against thc land, but against the person who may be in physical or constructive possession thcrcof. (Scc: .htstlne E. M Luta.ago.

5 us Stlrllng Clull Dnglneertng Conpa g Ltd. Ciull Appeo.l No. 11 oJ 2OO2).

ln the amended plaint in the present case, Ms. Josephine Kyakuwa Nambusi, who is registered owner of ptot 5O7, Block I95, land measuring 0.139 hectares (0.343 acre) claimcd that around 2010 Luke Balaba, w"ithout consent from her had settled on hcr land and constructed severe semi-permanent structures thereon.

It is Kyakuwa's claim that this land was bought by her parcnts Joscph and Sarah Mukasa Kalumba, between 1998- 1999. Thcy had verbally donatcd it to her, aftcr obtaining consent and transfer from the registcred proprietor Joshua Lwerc in 200 1. 10

Balaba, who claimed to have bencficial interest in the suit land which his grandfathcr, Scrapio Mukasa had left behind however rcfused to vacate thc land and hencc this suit.

- Joseph Kalumba in his counter defence and in support of Kyakuwa's claims told court that Kyakuwa was born in 1995 implying that she was at the matcrial time still a minor. That Balaba had always been under his care since the age of 4 to 15 ycars ald has always stayed in Jinja, while Luke Sserwanga, his brother and father to llalaba resided in Makindye prior to his death in 1992. 15 - h paragraph 4 ofhis counter defence, he argucd that the land in disputc belongcd to Sara lfutcba and added in paragraph 5 thereof that the land was under hcr administrator, Joshua Lwere. That upon the death of Serapio Mukasa, the owner had thrcatcncd to sell thc kibanja land. 20

That he was appointed heir to his father and that his siblings had lcft him on the suit land which he and his wife had duly paid for in installments bctwcen1994 1999 al a consideration of Ugx

1,OOO,OOO/=. Others who were willing buyers and occupants in thc neighboring plots had also been given opportunity to purchase their respcctivc plots. 25

Kalumba maintained however that prior to the purchasc he had informcd the family mcmbers who did not offer arty help to pay up for the kibanja, currently occupied by his nephew, Luke Balaba who refused to vacate it. According to him this was not ancestral burial lald and therefore no law was barring him from registering it into his daughtcr's names.

ln paragraph 7 of his written statcment he further addcd that hc had allocatcd his aunt to stay ot\ plot 5Ol where she was to date (as at 81h Scptcmbcr, 2010), and that hc promiscd not to evict her. [t struck this court as odd that the prayers sought against t]alaba the defendant werc for

his eviction from that plot, which was jointly owned by Kyakuwa and Pius Mukasa Kalumba. The two were minors at the time of registration but at the timc of filing the suit Pius Mukasa Kalumba had already attained the age of majority.

Although he was not party to the main suit, he had been joined as a party in the counter claim in respect lo plot 5O2. It is however not clear thercforc whclhcr Kya-kuwa had filed the suit on her own behalf or for both of them. No authority to thal effect was availcd to court.

As proof of payment for consideration of l}jre kibanjq, Kyakuwa relied on PExh 7, a payment receipt dated 19rh February 199Al PExh 2 was acknowledgmcnt of money received on 30th March, 1999 totaLling Ugx 25O,OOO./=.

PExh 3 is another acknowlcdgmcnt by one Fred Kisakye of reccipl of Ugx 25O,OOO/= dated 1\$ April, 1999, which sums according to Kalumba were receivcd on bchalf of Joshua Lwere, the administrator of Sarah Buteba, the recognized mailo owncr. 10

This court noted that the registration of the two plots was made on same date of 14th November, 2001 as per the certificates of title attached to thc amcnded plaint. The sizc of plot 5O.l was

indicated as 0.139 hectarcs (0.343 acrcs). 15

For plot 5O2 however the total area is 0.397 hectares (0.98 1 acrcs). The originals/certified copies of each of these titles were not availed to court, nor werc the two titles or area schedule for each tendered in as evidence.

PExh 4wasthe acknowledgment ofreceipt ofa sum of Ugx 7,25O,OOO/=, dated 22\*rApril, 1995. This amount was the consideration for the purchased land for one acrc of land, purported to have been received by Sara Buteba, the land lady, who thumb printed the acknowledgment of receipt of the said sums. The remaining 0.87 acres for the second plot was to be paid later at a sum of Ugx 1,75O,OOO/=. 20

It was Joseph Kalumba's evidence in chief that an agrccment was made in that rcspect for the one acre of land comprised rl plot 5O2. Court noted howevcr that despite the fact that a survey was to be made by the purchasers, no survey report was filcd meaning therefore that the exercise was never conducted to help in determining the actual size a[rd boundaries ofeach ofthese pl01s. 25

At the Iocrrs visit, Balaba told court that he was in occupation of plot 5O2, measuring around al acre in size, which facts could not be readily verified since there no such cvidence was provided to prove that a prior the survey had becn conducted to determine the boundaries of plot 5Ol and plot 5O2.

F\rthermore, no sale agreements wcre availed to court to provc that thc sale transactions took place for both plots. What was availcd however was the said document, PExh 4, tilledl 'Acknoutledgment of receipt, dated 22"d April, 1995.

The said document which was thumb printed by Sarah Buteba as the vcndor on the one hand and Joseph and Sarah Kalumba as purchasers on the other hand, was witnessed by Joshua Lwere, and read as follows:

> I Sarah Buteba of Mutundu.)e Kampala Do I lerebA Acknowledge receipt of Shs 1,25O,OO0/=... from Mr. Joseph & Mrs Sozoft Mukasa Kalumba of ETATS Ltd P. O Box 1304 Jinja as pagment of one acre of land localed at Kganja Kqadondo Luhere u)e are resident.

The remaining O.87 acres are to be paid later at q sum of Ilg shllings 1,150,O0O/ =...

We haue aareed that uhen Mr. qnd Mrs Mukasq Kq.lumba haue paid for the second DIot, that is tbe O.=87 qqes I full aqreement and transfer u,till be siqned for both plots

Houeuer Mr & Mrs Kelumba are free to surueg this one acre theg haue paid for if theA so wish; and for that purpose I haue signed prouisional transfer forms.

On the same date 22"d April, 1995, a transfer was purported to have been made by the land lady who again thumb printed the transfer instrument. (PExh 5). As noted by this court, the plot numbers were neither indicated on any ofthe various acknowledgements (PExh 7-PExh 4), relied on by the plaintiff. 15

The transfer form which had no specific plot number: (PExh 5)}:.ad been thumb printed by the said Sarah Buteba as vendor, signed by Joseph Mukasa as purchasers, with Joshua Lwere as a witness, 20

PExh 6 is a letter by Joshua Lwerc as 'administrator', datcd 1Sth August, 1994 and addresscd to Joseph Kalumba who was acknowledged as one of thc squatters on thc land originally plot 39, block I95, out of which both plots No. 507 and 5O2 (suit land)had been curved.

Joshua Lwere, from the wording of that lettcr, had bccn tasked to probe into the status of tenureship of all the occupants on the land belonging to thc estate of Sarah l3uteba, who presumably, was still alive at the time . It was a form of authority thal the administrator wrote for himself. It was not written by the principal. 25

The name ofthe person who was issued with lettcrs of administration upon the principal's death

was however not revealed to court. What is clear from Kalumba's evidence is that Lwerc was never granted the authority to manage Buteba's estatc. 30

Kalumba's response to the letter, PExh 6 is dated 11th Scptember, 1994, PExh 7. From the contents thereof, the communication to regularize thcir occupancy had been directed to him and Filista Namala his paternal aunt. Several visits had been made by the two to Lwere's office between 5s August and 10th September, 1994.

His brother and wife had also joined them on some oI the visits to the land lady. However from the contents of that correspondence they had not succeeded in reaching an agreement on the rate at which to buy the /cibanja. 5

ln that same responsc in the last pcragraph lhereol, he had this to say

I also request gou to prouide grentee bic!) that afler mu 'kwegula' paA for the kibanja I Luill 10 comfortablu transfer thal piece of land in m names without on1l ob-s locle from mu land ladu or her heirs cnd .succe.ssors. (emphctsis qdded).

Since Lwere never wrote back to address the concerns as exprcssed by Kalumba, it is presumed that Lwere had no requisite authority from Bateba to allow him to handle matters beyond the scope of his purported powers as an agent/administrator and make the transfers to Kyakuwa

15 arld her sibling, as he had done.

> Not only was Joseph Kalumba aware of the other intcrcsts he represented but was also aware that the person he was dealing with was only tasked lo probe into lhe sta'tus of tenureship of all the occupants on the land belonging to the estate of Sarah Buteba. (PExh 6).

20 He could not thereforc also deny that what he was buying at the time was his father's kibanja which involved other interests.

Equally surprising was that whercas Kalumba thought it propcr to rcduce into writing such concerns as expressed in that communication, he ncvcr deemed it nccessary to obtain writtcn assurances from the beneficiaries of his father's estate and secure their approval/ consent for the purchase of ll:.e kibanja in his names.

25 Kalumba thus allegedly bought mailo intercst from Sara Ilutcba, plots 5O2 and 5O1, block I95, when the titles he secured indicate that thc rcgistered owncr at the time was in actual fact . Ioshua Lwere.

On the same date and year 1 1th November, 2001, thc land had been transferred respectively, into the names of his childrcn relying on a 'provisional' transfer, which had no narned plot numbcrs.

This was a transfer relied on by Kyakuwa, the plaintiff, no1 from her parents as a gift as she wanted court to believe but from Lwere who had becn dealing with the lartd merely as an agent without express authority to do so from Buteba or from this court. 30

a&b

In a handwritten letter dated 1sth Octobcr, 1998 (PExh 9,f by Kalumba to Lwere, Kalumba had requested from him a signed transfcr, mutation forms for the plots, and copies ofthe blue prints. None of these however were to be found on thc court rccord. The failurc to prcsent those vital documents never prevented Kalumba some three ycars later, from transferring the land into his children's names.

The above exchanges were demonstration that Kalumba was dealing with Lwere, paying him money at times through third parties, for the purchasc of thc two plots purportedly on behalf of Buteba, fully aware that he had no authority to do so.

Evident from the plaintiffs evidence, Lwere though rcgistered on both titles as early as 2001, was not the law.ful owner of the mailo interest which alonc ought to have put Kalumba on sufficient notice of the nature of the transaction. 10

Even more baffling is the qucstion as to how, when and at what point Lwerc had tal<en ovcr proprietorship of that land. As such therefore, the circumstances under which the agent became actual owner and how all this could have happened wcre not revea.led to court.

Besides also was the fact that no signed transfer instrument by Sarah Buteba had been made to Lwere. ln consequence therefore Kalumba presented documcnts which wcre missing vital information. He bought registered interest from a person who was not recognized or known to have been the rightful owner of the land. 15

The capacity under which Lwere appeared to have acted and the issue of how in the first place he had acquired Buteba's property whether as a gift interviuos, purchase or as an agent was not known to court, 20

Regardless of whether or not the land was a donation, the transferors still had to fulfilt the requirement to sign transfer forms. But other than PExh 5 a 'provisional' transfer (which was not in the names of the transferees) none ofthe documents relied on by the plaintiffs side could

show with certainty how thc land had moved from its original ownership to Lwere and later to Kyakuwa and her brother. 25

I could not agree more therefore wilh the proposition as stated in the authority of NdigelJerawa Versus Klzlto qnd Sa,bo,ne Kubulam'uana [7953] 7 ULR 3I which was cited by counsel. Any land that is subject to the Reglstratlon o.f Tltles Act can bc transferred only by cxecution and

registration of lhal instrument. 30

No document or instrument howcver perfect is cffectual to trarsfer any interest in land until it is duly and properly registered. It is only then that a legal intcrest is sold to have been created.

0'&-,d'

As per PExh 4, (acknowledgment of receipt), thc purportcd vendor had committed herself to wdte a full agreement and transfer of the land for the two plots afi.er alt paymenls had been made bg Mr. qnd Mrs Kalumbq.

5 The fact also therefore that there was no full agrccment signcd betwccn Sarah Ilutcba or her Iegal representatives was clea-r manifestation that by 2001 when thc transfcrs were made for the land comprised in plots 50l and 5O2 in the names of Kalumba's children, the total amount of consideration had not been fully paid to the estate.

Under those circumstances, this court could not also rule out the possibility that thc amounts that were invariably paid out by Kalumba and his wife as consideration to Lwere ald his agents for the disputed land were not agrecd upon or cven reccived by the principal as thc rightful mailo owner. It created doubt in the mind of this court on thc validity of the contract.

Balaba in his defencc presented proof that sevcral mectings had been held, (ReJ' DExh 3-DExh 6,f, in a bid to resolve the dispute between the parties. Scvcral recommendations werc madc which however failcd to resolve the disputc.

15 Having determined that the lcibcnja constituted part of the cstate of thc late Scrapio Mukasa, the question becomes whether or not any of the parties to this suit is entitled to a share under his estate.

Sectlon 29 l2l (a) of the Land Act, Cdp.227 providcs that an occupant of land secking to benefit from the provision of a bona Jide occapant has to prove that he had been in such possession for a minimum of 12 years, w"ithout any challcnge to such occupation bcfore the coming into force of 1995 Constitution. 20

Furthermore, sectlon 29(5) oJ the Lo.nd Act Co.p 227 provid.cs that any person who has purchased or otherwise acquired thc intercst of the person qualificd to bc a bonafide occupant under the section shall be taken lo be a bonafide occupant for thc purpose of the Act.

The intention of the makcrs of the Constitution oJ Uganda L995 o.nd. the Land Act, Cap. 227 was to protect such occupancy for as long as court is able to satisfy itsclf that thc occupants did not have the status of licencecs, but bona fide occupants of thc suit land.(Ciuil Suit No. 857 oJ 2OOO: Jonathan Masetabe qnd 3 others as. Ma.kere.e Unluersltg & 2 others). 25

Serapio Mukasa had bought the said piece of kibanja in the 1950s from one Sendege Alinaya, constructed his home on the kibonjq, and resided in that homc with several of his children, who included the Iate Sserwanga Luke, I3alaba's late father, and Joscph Mukasa Kalumba. 30

Arr,l"%

Balaba Luke himself was a minor, and under the care of Joscph Kalumba's family emd one or two things may not have been known to him at the time. But much of what he stated in court was either corroborated or not in dispute.

Neither the plaintiff nor her father could for that matter refute the claim that Serapio Mukasa had other children including Balaba's father, who had beneficial interest in the estate. Needless to add, upon the demise of Serapio's children their own children became bcneficiaries thereof, claiming under their parcnts.

Kalumba, ParI in his own evidence in chief also confirmed that Serapio Mukasa had settled on plot 39, Block 795 measuring about 4 acres in total, which not only included plot 5O7 and. 5O2 but other plots as well. However sincc no survey rcport was filcd in court, the actual size of t}:.e kibanja whlch he had acquired could not be rcadily establishcd.

Following Serapio Mukasa's death in 1969, the said kibanja had becn entrusted to one Namala Felista their paternal aunt. Balaba's contention that his father had at the time of his death in 1992 started constructing a house on the same s:uil kibanja was a.lso supported by Dw2 Nabayaza Juliana, a sister to Serapio Mukasa.

In further corroboration of Balaba's evidence, Du3, Nakyazze Joyce elder sister to Kalumba stated that while she herself was born in Naluvule, her siblings, Namata Florence and Muyinda Anthony were born in Kyanja at the suit kibanjawhich she confirmed belonged to her late father Serapio Mukasa.

That when her parents separated she had remaincd on that land with her father, who eventually got himself another wife, Regina Nakalema. Her brother and sister subsequently left the home with their mother. 20

Her aunt Felista Namala, the care taker of the kibanja, built a house on the upper side of the kibanja w}:,ich is now plot 5OI. According to Sarah Kalumba Mukasa, Prrrg however, it was Kalumba himself who put up a small house for the aunt on that plot.

But it was also Ka.lumba's evidence that he never had any intentions of cvicting his aunt from the land, and within the spirit of section 29 of the Land. Act, thc land on which her late brother had stayed and utilized, unchallenged for dccadcs by the rightful owner of the mailo intercst.

Further corroboration was by Dut2 Nabayaza Juliana, a sister to Serapio Mukasa who confirmed lhat lhe kibanja initially belonged to Serapio Mukasa and that it had been occupied by his widow after his death. It is on the said kibanja where Scrapio Mukasa and other relatives had been buried. The graves had howevcr bccn rcmovcd by Kalumba and rclocatcd to Kiboga. 30

The above is clear demonstration that the late Serapio Mukasa had for long held utrliz,ed a kibanja on the suit land on the two plots, enjoying unintcrruptcd occupation and possession.

Joseph Kalumba Mukasa as the heir and successor to his deceased father and having stayed on the said land with the family of his deceased father was just as entitled to a share out of the estate, like the rest of the family/beneficiaries.

Pursuant to sectlon 29(2) and 29(5) of the Land Act and as correctly pointed out by counsel for the defendant, Balaba who claimed under his fathcr's estate, togcther with all the other beneficiaries under the estate of the late Sarapio Mukasa qualified to be a bonafide occupants on the suit kibanja ar.d were not trespassers to the land. Ile Ernd other beneficiaries accordingly 10 derived protection under the above provisions ofthe law, as bonaf.de occuparrts holding equitable interests therein.

It is the law under section 35 P) oJ thc't sq.me Act that a changc of owncrship of title effected by the owner by sale, gralt and succession or otherwise shall not in any way affect the existing Iawful interests of bonafide occupants, and the ncw owner is obliged to respect the existing

interests. 15

Upon the death of intestate the codified rules of succession under thc Succession Act, Cap. 162 must apply. The administration of the estate of arl intestate is governed by Sectlon I8O which provides that it is the person appointed as administrator of the estatc of a deceased person who is his or her legal representative for a1l purposes.

It is also clearly stated in sectlon 25 oJ the so'ld Act, that all property in an intestate devolves arld vests in the personal representative of the deceased, as trustee for all the persons entitled to the property. 20

The representative duly appointcd is under an obligation to hold the property for the benefit of others, known as ce.stuis que trust or bcneficiarics. Ilc/shc cannot act without consultation,

consent or approval from the beneficiaries. lRefi Aufig & Trttsts, Dauid Baklblnga 2077, La ut Afrlca, page 66). 25

A constructive trust attaches by law to specific property which is neither expressly subject to arly trusts nor subject to a resulting trust but which is held by a person in circumstanccs wherc it would be incquitable to allow him to assert fully owncrship of thc propcrty.

A person who rcceives property in the circumstanccs whcre he has actual or constructive noticc that it is trust property being transferred to him in brcach of trust will however also be a constructive trustee of that property. (Stcnblc U Ltd us Joseph Alne & Others Cluil Suit .lVo. 314 oJ 2OO5; see clso.' 48 Halsbury's Lo.nts OJ England, 4th Edltlon, para 587.) 30

U\*t'"'6

It therefore also goes without saying that administration of the deccascd's estate without prior authority of court amounts to intermeddling with the estate, in violation of sectlon 268 of the Su ccesslon Act.

As heir, beneficiary, or as party who claimed to have inherited thc property, Kalumba could not argue as he did that his father had no property under his estate to be distributed among beneficiaries.

His father from the above findings had. a kibanja which he had occupied uninterrupted for decades. Kalumba's claim therefore that it had not been necessary to obtain letters of administration did not hold any merit.

- He could only purchase, dispose or otherwise deal with his father's kibanja as an administrator arld upon securing the written consent of the family to do so. With due respect, the estatc had to be distributed as the law offers no exceptions for property inherited by an heir. Save of course where there is clear proof that it had been received as a gift interuiuos. No such proof was presented to court. 10 - It is immaterial therefore that Kalumba with his wifc had struggled to get money, investing a lot in salvaging the suit land, or the fact that the rest ofthe Serapio family did not ma1<e any hnancial contribution to the purchase; or that Kalumba and his wife had taken care ofBalaba's education as a child. 15 - They could not simply rely on those assertions to claim ownership, without taking into account what they owed to the rest ofthe beneficiaries in trustecship. Llaving acknowledged that this was a kibanja that originally owned by his father, he could not claim exclusive ownership over it under the pretext that he was the heir to his father, and then transfer it into his children's names without prior authority. 20

Isszes IVo. 7 and. 2 arc thereforc answered accordingly.

# 25 -Issue .llo. 3: Whether the Dlrrlntlff r.r.ras lent ln the a.coulsltlon of the sult land:

This issue has been addressed in part

ln general terms, a certificate of titlc is conclusivc cvidcnce of title and takes priority ovcr any adverse claims and save for fraud, it is also an absolute bar and estoppcl to an action of ejectment or recovery of any land. (ReJer also S, 64 (1) RTA).

A registered proprietor of land is therefore protccted under section 776 RTA to thc extcnt that no action of ejectment or other action for recovery of any land shall lie or be sustained against the person registered as proprietor under thc Act, save in thc cases as spelt out under that law, 30

\r^)d"d'

including, where a person deprived of any land by fraud as against a person deriving otherwrse than as a transferee bonafide for value from or through a pcrson so registered through fraud.

Fraud was defined in the casc ol tred.rlck Zaabue us Ortent Bq.nk ond Others SCCA No. 4 oJ 2006 as an intentional prcvcntion of thc truth for the purposc of inducing anothcr in reliafrce upon it to part with some valuablc thing bclonging to him or to surrcndcr a lcgal right.

Fraud is such grotesque monster that courts should hound it whcrever it rears its head and wherever it seeks to take covcr behind any legislation. It unravels everything and vitiates all transactions. (Fqrn Internatlonq.l Ltd. o.nd Ahmo.d Farqh vs Mohamed El tr)tth [1994|KARL 3o7).

It is trite law that that fraud that vitiates a land title of a rcgistercd proprietor must be attdbutable to the transferee and that fraud of a lransfcror not known to the transferee cannot vitiate the title. See.' Wo.mbuzl C. J, Ka.mpd.la. Bottlers vs Dqtnsnlco (q LfD, SCCA No. 27 oJ 2O12O.lt can manifest itself in sevcral acts and aspects of a transaction. 10

It is also well established law that a cause of action in fraud must bc spccifically pleaded,

particulars thereof providcd and the claim proved at a highcr balance of probabilities. See fifrr Lukuago os Sqtnruulrl Mudde Klzza & Another Clull Appeal No. 73 of 1996 (SC). 15

Balaba in his defence told cou that Joseph Kalumba had connived with the land lady Sarah Buteba al:d Joseph Lwere to convert lL,e kibanja into registered mailo interest in favour of Kyakuwa, claims which Kalumba however re futed.

- In the counterclaim against the plaintiff; Pius Mukasa Kalumba; Sarah Mukasa Kalumba; and Joshua Lwere as administrator of the estate/agcnt of Sarah Buteba, the following were the particulars of the fraud, as gathered from the counter claim: 20 - 7) That the 3d counter defendant swore o,rl qffiddutt on the &h dag o! Septenber, 2O7O and on 2"d dag of Decernber, 2OO3 to prove hls ownership oJ the suit lon,d get he kneu thqt 7"r q.nd 2^d counter deJendants raere alreadg the reglstered olaJners the'r; - 2) Thct the 3d qnd 4th counter deJendants (pq.rerlts of the 7"r counter defendant) htJ(r,ckl'rg the sult lc,nd. and donatlng it to the l.t and 2^d counter defendant wlthout approval of other beneficlarles;

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- 3) That the $3^{rd}$ counter defendant by shifting all the 8 graves without the consent or approval of other beneficiaries/relatives with intention of taking over the land to the detriment of other beneficiaries; - 4) That the $3^{rd}$ and $4^{th}$ counter defendants hurriedly transferring the suit land into names of the $1st$ and $2nd$ counter defendants who were minors then in order to defeat the interests of the other beneficiaries; - 5) That the $3rd$ and $4th$ counter defendants dealing with the suit kibanja and transferring the mailo interest therein without the consent and approval of the kibanja owners or beneficiaries who were lawfully in occupation of it.

Citing the case of Kampala District Land Board and Another Versus Venansio Babweyaka and 4 Others Civil Appeal No. 2 of 2007), among others, counsel in his submission contended rightly so, that these two plots of land were fraudulently created over his grandfather's kibanja without the knowledge of the beneficiaries to defeat the unregistered interest of the defendant.

This court earlier found that no prior written approval/consent had been sought in relation to any of the transactions entered or actions taken by Kalumba (including the shifting of the graves), prior to the transfers.

It is also therefore reasonable to conclude in light of the earlier findings above that Kalumba and 20 his wife, respectively the 3rd and 4th counter defendants, hurriedly transferred the suit land into names of the 1st and 2nd counter defendants who were minors then, in order to defeat the interests of the other beneficiaries.

There is hardly any doubt that Kalumba had beneficial interest in his father's estate. But so did the rest of his siblings and those who claimed under them. He therefore betrayed the trust bestowed upon him as the heir.

A trust is a relationship recognized by equity and arises where property is vested in a person who is under a duty to hold for the benefit of others known as *cestuis que trust* or beneficiaries. Such person must do as the settlor directs. (Equity & Trusts, David Bakibinga 2011, Law Africa, page 66).

30 Kalumba in connivance with his wife and Lwere dealt with the family property, in contravention of the provisions of section 39(1) of the Land Act, Cap 227 (as amended by the Land amendment Act, 2004)-

I who are

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within the spirit of that law, a person is barred from selling, cxchanging or othcrwisc dealing with family land; enter into any contract for thc sale, cxchange, transfcr or gtue awag family land rnterulvos

The argument that the land was given out to the plaintiff by hcr parents, with all due respect does not therefore hold for in any case the law does not recognize a verbal gift of land. Such donation is characterized by a deed.

The known principle is that in equity a gift is only complcte as soon as the donor has done everything that he/she is required to do, that is to say, as soon as the donor has within his/her control done all those things necessary for him as donec to complete his title.

10 In determining whether the deceased created a gift interuivos in respect of the disputed land court has to ascertain the intention of the donor arld thcn whether formal rcquirements of the method of disposition which he attemptcd makc have been satisfied. (.lvdssoz, and anor us Kalule HCCA 2012/5).

t5 This was in respect to lald as defined by law, on which was situated the ordinary residence ofa family; ald which quatified to be treated as family land according to the norms, culture, customs, traditions or religion of the family; where the family resided with some degrce of continuity apart from accidental or temporary absenccs. As such one does not have to live on that land year in, year out.

20 In so dealing with the family suit kibanja, lransferring the mailo interest therein without the consent and approval of the bona fide occupants of the kibanja or beneficiaries who were lawfully in occupation of it, and without a valid deed of transfer, fraud had becn committed against the estate.

As if that was not enough, the documentary proof that the land bclonged to Sa-rah Buteba was actually missing as no certificate of title was seen in her names. thcre was no a-rea schedule to

25 that effect availed, leaving court wondering whcther Buteba was indeed the rightful owner of the mailo interest.

Even if one was to assume that Buteba had legal interest, the parties herein did not address court on the validity of the transfer forms and any of those documents which Sarah Buteba had thumbprinted, demonstrating that shc was illiteratc.

30 The term "illiterate" is defined under sectlon 7(b) of the llllterates Protectlon Act to mean, in relation to any document, a person who is unable to read and understand the script or language in which the document is written and printed.

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Section 2 thereof provides for verification of the illiterate's mark on any document, and that prior to the illiterate appending his or her mark on the document it must be read over and explained to him or her.

**Section 3** requires that the document written at the request, on behalf or in the name of any $\mathsf{S}$ illiterate must bear certification that it fully and correctly represents his or her instructions and was read over and explained to him or her.

In Tikens Francis &Another v. The Electoral Commission & 2 Others, H. C Election **Petition No.1 of 2012** it was held that;

- "There is a clear intention in the above enactments that a person who writes the document 10 of the illiterate must append at the end of such a document a kind of 'certificate' consisting of that person's full names and full address and certifying that person was the writer of the document; that he wrote the document on the instructions of the illiterate and in fact, that he read the document over to the illiterate or that he explained to the illiterate the contents of the document and that, in fact, the illiterate as a result of the explanation 15 understood the contents of the document...the import of S.3 of the Act is to ensure that documents which are purportedly written for and on instructions of illiterate persons are understood by such persons if they are to be bound by their content...these stringent requirements were intended to protect illiterate persons from manipulation or any oppressive acts of literate persons." - 20 The Supreme Court in of Kasaala Growers Co-operative Society v. Kakooza &Another S. C. C. A No. 19 of 2010 citing with approval the case of Ngoma Ngime v. Electoral Commission & Hon. Winnie Byanyima Election Petition No. 11 of 2002 held that;

Section 3 of the Illiterate Protection Act (supra), enjoins any person who writes a document for or at the request or on behalf of an illiterate person to write in the jurat of the said 25 document his/her true and full address. That this shall imply that he/she was instructed to write the document by the person for whom it purports to have been written and it fully and correctly represents his/her instructions and to state therein that it was read over and explained to him or her who appeared to have understood it."

The Supreme Court went on to hold that the illiterate person cannot own the contents of the 30 documents when it is not shown that they were explained to him or her and that he understood them

Further, that the Act was intended to protect illiterate persons and the provision is couched in mandatory terms, and failure to comply with the requirement renders the document inadmissible. (See also: Lotay v. Starlip Insurance Brokers Ltd. [2003] EA 551;Dawo & Others v. Nairobi City Council [2001] 1EA 69.

Olubo 16

ln Kasala Grotoers Cooperqtioe Socletg us Kakooza and. Anor, SCC,4 lVo. 79 o.f 2O7O, il was held that the illiterate person cannot own the contents of a document when it is not shown that it was explained to her and that she understand it.

Under the circumstances as highlighted, sectlon 3 of tt,c llllterates Protectlon Act, Cap. No. 78 was applicable to the transfer deed and acknowledgmcnts purported to have been made by the mailo owner.

By virtue of that section, there ought to have been proof that thc contcnts of the documents that she purportedly endorsed with her thumb print had becn properly explained to her and that she had understood the nature of the commitments she made, the obligations therein and the consequences of that decision.

This borders on her competence and/or capacity to entcr into such commitment for by virtuc of sectlon 7O(7) of the Contrd.cts Acts 207O a contract is an agreement made uith afree consent of parties with tlle capacitg to contract, for a lawful consideration and uith a lauful object, utith the intention to be legallg bound. Since no certificate of translation was provided, an illegality was committed in these transactions.

An illegality cannot be ignored by court oncc brought 1o its attcntion. It overrides all manncr of pleadings, including admissions. (Makula Internd:tlonq.l Ltd. us Hls EtnL'rence Card,lna.l Nsubuga & Another Ctutl Appeal No. 4 oJ 7987)

In absence of anything elsc to make court think differently, Buteba's cndorsement which had no certificate of translation, considered together with Joshua I-wcre's lack of written authority and capacity to deal with the estate of thc late Sarah tsuteba amounted to fraudulent dealings in respect of these two estates. Kalumba's failure to secure thc lctters of administration over Serapio Mukasa before dealing with the estate compoundcd the problem. In all this, Kalumba could not therefore have bcen a bona fide purchascr for valuc without notice ofthe fraud. 20

- Whether or not there was fraud and whether or not a party was a bonaJide purchaser for value without notice the question that a court would poise is whether the defcndant honcstly intendcd to purchase the suit property and did not intend to acquire it wrongfully. (Dauld, Sellaka Nq,ltma us Rebeccq. Musoke SCCA ivo. 12 of 1985). It is the conclusion arrivcd at by this court that Kalumba in dealing with Lwere the way hc did, did not do so in good faith. 25 - Lwere, the first 'registered' proprietor for each of the properties in issue relating to the suit land according to Pur3's was busy and could not therefore attend court. This implies that he was fully aware of the counterclaim against him. 30

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It was him who made or witnessed thc majority of the transactions which resulted in the fraudulent transfers. His absence thcrcforc was implied admission of his direct and indirect participation of the fraudulent acts committed in the process of the transfers.

All in all therefore, as stated in Blshopgqtes Motor F-ln@nce us, IlansPort Brc,kes Ltd [7949]

1 KB 332, at page 336-Z in the dcvelopment of our law, two principlcs havc strivcn for mastcry. The first is for the protection of propcrty: no one can givc bettcr title than what he himself possesses. That legal principle was emphasized by the Supreme Court in Holltng Mqnzoor vs. Serlulalr Sl^gh Ba"ano SCCA No.9 of 2OO7.

The children of Kalumba could not thercfore havc obtaincd a good title through fraud sincc thc predecessors in title had no title to pass on to them. In any casc as duly noted by court, the transactions contravened the provisions of sections 38 and 39 the Lznd Act, as cited earlicr and were therefore null and void.

Issue IVo. 3 is thereforc determined accordingly

## Issue IVo. 4: Remedles:

### General dam.aaes. 15

The defendant prayed for an order against eviction in his counter claim as he was likely to suffer Ioss and damage as a beneliciary to the cstate of thc latc Sarapio Mukasa. lle also sought for damages for the wrongful acts attributed to the counter defendants.

It is trite law that damages are granted at the discretion of the court. Its trite law that, that damages which are granted at the discretion of court are the direct and probable consequence of the acts complained of. 20

Such may be loss of profit, physical inconveniencc, mental distress, pain and suffering, (See also Asslt (U) Vs lt. Illa,n AsphrI:ult & Hqulage & Anor HCCS No. 7297 ol 1999 at page 5). llis also a settled position of the law that thc award of gencral damagcs is in thc discretion of court and is always as the law will prcsumc to be thc natural conscqucncc of thc defendant's act or omlsslon

The object of an award of darnages is to give thc plaintiff compensation for the damagc, loss or injury he or she has suffered. (See: Ftedrtck Nsubuga Vs Attorneg General S. C. C. A. No. I of 1999).

Therefore, in the circumstances of the quantum of damages courts are mainly guided by the value of the subject matter, the economic inconvcniencc that the party was put through at the instance of the opposite party and the nature and cvent of the brcach. 30

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A plaintiff who suffers damage due to the wrongful act of the defendant must be put in the position he or she would have been in had he or she not suffered the wrong. He or she ought to lead evidence or give an indication what damages should be awarded on inquiry as the quantum. (Ongom Vs. AG (1979) HCB 267, cited by court in Kamugira Vs National Housing & Construction Co. CS. No. 127 of 2009)

In this instance, a denial by the $3rd$ counter defendant of quiet enjoyment of the beneficial interests to which the beneficiaries under the estate of Serapio Mukasa were invariably entitled, the mental anguish and inconvenience to Balaba as the counterclaimant, arising out the fear of eminent eviction occasioned by the acts of Kalumba, the 3rd counter defendant would attract an award of general damages.

An award of **Ugx 200,000,000/=** prayed for by counsel for the counterclaimant in his submissions was not provided for in the pleadings, and therefore court had no basis upon which to grant the said amount, which in any case appeared to be on the higher side.

In the final result, the main suit is dismissed with costs. The counterclaim succeeds with damages payable by the $3^{rd}$ , $4^{th}$ and $5^{th}$ defendants.

The following orders and declarations are accordingly issued:

# 1. The kibanja portion comprised in plots 501 and 502, Block 195, Kyadondo Mengo, formerly part of plot 39 constitutes part of the estate of the late Sepirio Mukasa.

- 20 2. The commissioner, Land Registration is directed to cancel the names appearing on the titles for plots 501 and 502, Block 195, Kyadondo Mengo created over the kibanja formerly owned by Serapio Mukasa, and under which the beneficiaries of his estate have an equitable interest, and replace them with the names of the person(s) to be appointed by court as administrators of the estate. - 3. The money paid by Joseph and Sarah Kalumba to purchase and/or salvage the kibanja shall constitute a debt against the estate of the late Serapio Mukasa. - 4. Mr. Balaba Luke, the counterclaimant derives his interest in the kibanja from the estate of his father Sserwanga Luke who just like Joseph Mukasa Kalumba, was a beneficiary of the estate of the late Serapio Mukasa. - 5. A permanent injunction issues against the counter defendants and their agents from evicting any member of the family/beneficiaries deriving interest under the estate of Serapio Mukasa.

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- 6. General damages of Ugx 25,000,000/= awarded to the counterclaimant to be paid jointly by the $4^{th}$ and $5^{th}$ counter defendants in respect of the illegalities committed against the estate. - 7. An amount of $25,000,000/$ = shall be paid directly to the estate of the late Serapio Mukasa by the $3^{rd}$ counter defendant as general damages. - 8. Interest of 12% p.a shall be payable in respect to orders 6 and 7 above, from the time of delivery of this judgment till payment in full. - 9. Costs awarded to the counter claimant, Luke Balaba.

I so order.

Alexandra Nko

**Judge**

5th October, 2022.

# Delivered by email Chlorig 5/10/2022

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