Male v Nsubuga and Another (Civil Suit No. 240 of 2008) [2022] UGHCLD 116 (31 May 2022)

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMALA

#### **LAND DIVISION**

#### **CIVIL SUIT NO. 240 OF 2008**

$\mathsf{S}$

$\mathbf{L}$

**BENEDICT MALE ::::::::::::::::::::::::::::::::::::**

#### **VERSUS**

#### 1. NSUBUGA SAMUEL 10 2. GEORGE WILLIAM SEMIVULE ::::::::::::::::::::::::::::::::::::

#### Before: Lady Justice Alexandra Nkonge Rugadya

#### 15

#### **JUDGMENT**

#### Introduction:

The plaintiff filed this suit seeking orders for cancellation of title of the land comprised in **Busiro** Mengo Block 314, plots 448 and 314; general damages for fraud; a permanent injunction restraining the defendants from interfering with the suit land; and costs of the suit.

The plaintiff claimed that he had bought seven acres of the land from the late Nsubuga Ernest who signed transfers into his names and handed over to him a duplicate title. He claimed therefore to be the lawful owner of the land having taken vacant possession to date.

The plaintiff handed over the transfer documents and title to his surveyor to one Baba to effect 25 the transfer. However the surveyor died after lodging the said documents in the said registry, but before effecting the transfer.

$\Omega$ elog<sup>1</sup>

Ile later discovercd that the 2nd dcfcndant, had his name rcgistercd on thc disputed land purporting to havc bought it from the 1"r defcndant.

#### R9trt1!€94!4!!o1L:

The plaintiff was represented by M/s Matoltu & Matovu & Co. Advocates. The defendants were represented by M/s Nsubuga Mublru & Co. Adaocates.

Somc preliminary issucs wcre raised by counsel for thc plaintiffs by which he requested court to consider his earlicr ex parte submissions. I howevcr declincd to grant that request since the submissions were premised on exparle proccedings which had been set aside and which no Ionger constituted part of the court record; more so on they wcre based on evidence that had not

10 been subjected to cross examination.

> The cnsuing dccision also thercforc ceascd to bc thc judgmcnt of this court, as it was to be superseded by the intcrparty decision awaiting to be delivercd in this matter.

> In that regard, I am gratcful to thc authority of Eriaku Dro.slku as Jlnmg Rog Jut'ua Clvll Reuislon No. OOO2 of 2O77 cited by counscl for the defcndants, kcy principlcs of which I find applicablc to this casc.

### Isq!es

At thc scheduling, thc following wcrc thc agrccd issucs:

# 7. Whether the plqtntifJ is the rtghtJul owner oJ the land?

20 2, Whethel the l.t defend.d'at's transfer and. sale of the ,q.^d. to the 2nd deJendant uas ur:lld on account fraud?

# 3. Whether the plai^dff b entitled to the relleJs sought?

# Isse !\_o.\_-1: Whsthcrlhe platntill ie lbr7shtful oaryelelllte laad

25 The core issue in this matter as understood by this court is whethcr or not the purported agreements invariably entered between the respective parties in this suit were valid. I will accordingly deal with the aspect of validity of thc various agrccments in respect of this land, in two sub titles:

\"\rf

$\begin{smallmatrix}1&&&&2\\&1&&&&2\\&\bullet&&&&\\&&\bullet&&&\\&&&\bullet&&&\\&&&&\bullet&&&\\&&&&&&\bullet\end{smallmatrix}$ $\langle \cdot \rangle$ $\bullet$

# a). Whether or not there was a valid sale between the late Erinesti Nsubuga and the plaintiff:

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 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.

It is also trite law that in all civil matters, the onus rests on the Plaintiff who must adduce evidence to prove his or her case on the balance of probabilities if she is to obtain the relief sought. See: Sections 101-103 of the Evidence Act, Cap.43.

#### Analysis of the evidence:

$\mathbf{v}$

$\mathsf{S}$

15 I have read the pleadings, studied the evidence presented and submissions made by each side, which I shall not reproduce here, but which I have considered very carefully in this judgment.

The plaintiff relied on the evidence of four witnesses. He testified as **Pw1** and in his evidence told court that the land in dispute was formerly the property of Erinesti Nsubuga who died in 2005. He had bought from him a total of 7 acres on 10<sup>th</sup> May, 2002 for *Ugx 9,900,000/=* for all the acres and the consideration had been paid in instalments.

That the family members had been witnesses on the sale agreement. The deceased signed the transfer forms in 2003 upon payment of the last instalment. He then gave the forms to his surveyor the late Balaba, who however died before completing the work.

For **plot 448**, the plaintiff presented **PExh 4** which were the transfer Forms for that plot by the 25 deceased, bearing the stamp of 12<sup>th</sup> July, 2005. These were purportedly signed by the deceased in the names of Samuel Nsubuga, the 1<sup>st</sup> defendant. Consideration for the transaction was indicated as a gift.

The plaintiff claimed that upon the surveyor's death, he tried to look for the sale agreements, but could not find them. He however started utilizing the land, started up a farm which he later

30 relocated to another area; put up a two bedroomed house and left someone there as a caretaker. That he also allowed Robinah Nalukenge Nsubuga, the widow of the late Nsubuga to grow some crops on the land.

The plaintiff who did not give details about thc exact portion of the disputed land which he had allowed the widow to utilizc, informcd court that he discovcred later around March, 2008 that the 2nd defendant had chased away his people from his land.

That he had reported the matter at the I-C following which a mecting had been convened to resolve the matter. fle was advised by the LCs to go to court since the matter was beyond tieir jurisdiction.

As per PExh 8, thc matter had also bccn reportcd to Police and Nsubuga Samuel had recorded a statement which is dated 4'h Deccmber, 20 1i. This was thrcc ycars aftcr the suit had been filed. lt appears howcver that no follow up was madc in rcspcct to that case,

- From the evidence of Pur3, one of the childrcn of the deceascd, their God father one Georgc William l,umala had custody of the land titlcs for the land owncd by their latc father. At a family mecting held with him on the 3.d September, 2006 he had provided information on the status of the estate arld names of peoplc to whom the latc had sold land, but wherc no transfers had been effected yet. The plaintiffs name appcared on that list. 10 - Furthermore, that the l"t defendant, onc ofher elder brothers, was to assist the plaintiff in mutation of the land and causing a transfer in the namcs of Mr. Male Benedict. The family were shocked to discover later following thc threats made to the widow that thc 2nd defendant, one George William Semivulc was claiming to havc bought thc lartd from Samuel Nsubuga the lst defendant). That since the 1"1 dcfendant nevcr reportcd back to anyone about the responsibility he had been given he had acted dishoncstly. 15 20

The witness who presented lcttcrs of administration tcndcrcd in as PExh 7, The said grant had becn issued to two daughtcrs and two sons of thc latc Nsubuga on 171h l)cccmber, 201O, some two years after this suit had becn filcd. PurS furthcr stated that she and her co administration never sold or transferred the said land to eithcr Nsubuga Samuel or George William Semivule.

That neither consent nor authority had been granted to thc l"t defendant to deal with the estatc. The family meeting had mercly tasked the 1"t dcfendant to assist the plaintiff in mutation of the land and causing a transfcr in the names of Mr. Male Benedict (the plaintif|. 25

That position however did not tally with the plaintiffs evidcnce rn paragraph 8 of his statement, for according him, the sale agreemenls and duly signed transfer instruments had bcen given to

the surveyor who died before effecting thc transfer. He never mentioned thc lstdefcndant as the recipicnt of thosc instru mcnts. 30

\il"ry <sup>4</sup>

Court also noted that thc details of that mccting, the namcs of the farnily members who attcnded it and the particulars of the spccific titlcs which the God father had rclcased to 1,r defendant were all not provided in court.

No minutes of that meeting were presented; and bcsides, Mr. Lumala the pcrson who had custody of thc titles was never summoned to testify in court, and no reasons were given as to why he did not attend.

Although therefore the name ofthe ptaintiff came up, what was conspicuously missing from that interaction as narrated by thc witness was the actual number of acres that the piaintiff had acquired and the details of the plots from which the land he claimed had been created. There was no actual record of what had transpircd in that meeting.

Pw2 and Pru3's evidence that the meeting took place on 3.d Septcmber, 2006. However by that time the Iand had already been sold by the 1'' dcfcndant; thc salc agrecment already signed between the two defendants; and the 2"d dcfendant already registered on the litle. (Reler to DExh 7 (Ind DExh 2).

It did not come out from the plaintiffs cvidencc whcther or not during the family meeting any member had raised any conccrns against the 1\*r defendant's actions relating to thc suit land. Without such evidencc, the family is decmed to have had constructive knowledge of both the legal interest and physical occupation of the 2\*r defendant at that time. 15

Going by the evidence of Pur2 o,nd Puts, I do not see how the family could have trusted the l"t defcndant, enough to hand over any othcr titles to him if hc had made thc transfcr of plot 448 irrcgularly into his namcs and subsequcntly in the namcs of the 2,d defcndant. 20

Therefore it was also a distinct possibility that thc titles which may have been handcd over to him at that mccting cxcluded those in dispute since thc transaction with thc 2",, dcfendant and transfers to him for plot 448 had alrcady becn effcctcd by that time.

I{aving noted all the above, I would now proceed to considcr the validity of the contract between the plaintiff and the late Nsubuga. 25

It is settled law that once a contract is valid, it automatically creates reciprocal rights and obligations bctwcen thc parties thereto and when a documcnt containing contractual terms is signcd, thcn in the abscncc of fraud, or misreprcsentation thc party signing it is bound by its

terms. (See: Wllllam Kasozl versus DrcU Bo,nk Ltd Htgh Court Ciult Slrlt No.7 326 of 2OOOJ. 30

The underlying principle governing contractual relations as duly recognized and codihed under sectlon 70 o,f the Contr(,.cts Act, ivo. 7 of 2O1O is that a contract ariscs when an agreement

\r}'t

madc with the free consent of parties with capacity to contract, for a lawful consideration and with a lawful object, with the intention to be lcgally bound. It may be an oral or written commitment or may bc implicd form thc conduct of thc partics.

# <sup>5</sup>Certaln ln ^ditio^s to ect i'rtentio'l the s,'

For a contract to be binding, its terms ought to be ccrtain leaving no room for speculation, violation, breach or frustration. The parties must in all instanccs havc thc capacity to contract: which includes the age of eightecn years or above; a pcrson of sound mind. A party should not be disqualiired from contracting by any law to which he or she is subject.

#### 10

This court would consider it as a key term of the agrcement that the consideration of Ugx 6,600,000/= had to be paid within 2 months in respect of four (4) acres. This was contained in the agreement PExh 2, purportcdly signed by thc deceased and the plaintiff.

Pur2, Robinah Nalukenge Nsubuga, the widow of the late Nsubuga corroborated the evidence of the plaintiff who was known to her as a family friend that he had purchased the land from her late husband, with whom they had sevcn children. 15

ln paragraph 4 of her statemcnt she mcntioncd a total 7 acrcs, which thc plaintiff claimed to have purchascd in threc phascs. She testified that 6 acrcs wcrc crcatcd from plot 448, Block 374 and 1 acre from plot 34O, Block 374, to makc a total of 7 acrcs.

20 She had signed as a witness to thc agreements PExh 2 dated l0'h May, 2OO2 ar.d PExh f dated 15th May, 2002. It was duly noted by this court howcvcr that she did not sign PExh 3 which is dated 31"1 May,2OO3, thc onc which appcared to havc sealed off the entire transaction.

According to thc plaintiff, this had becn a three phased transaction. In the first phase he bought 4 acrcs; 2 acres in the sccond phase; and an acrc in the third phasc. Howevcr, from thc contents of PExh 2 which thc widow Pw2 }lad signed, therc was mcntion of only four acres.

A carcful scrutiny of each of thc above documcnts revcaled that 3 acrcs wcre to be curved off from plot 448 and an acrc from plot No. 34O, Oul of lhrc Ugx 6,600,0O0/= a sum of Ugx 1,5OO,OOO/= was madc as part payment on that day. A furthcr sum of Ugx 7,8OO,OOO/= as shown in PExh I was allegcd to havc bcen paid on lSth May , 2OO2, in thc presencc of Par2.

The rest ofthc money totaling Ugx 3,OOO,OOO/= was to bc paid to the vcndor within 2 months, that is by l0'h July, 2002. Whether or not the plaintiff had fulfilled that part of the dea1, and on the actua.l datc as intended is not known sincc such evidence was missing. 30

6 (\/'\*t

But what comes out clearly is that the third documcnt PE:h3 had been signed one year later. Secondly, under unclear circumstanccs, the number acres had increascd from 4 acres to 6 acres, with thc price for cach acrc now indicatcd as Ugx 7,650,000/=. Thc rest ofthc details concerning the actual plot number(s) from where the 6 acres wcre to be created were all left out in that document.

4,4, Yosia Muwumuza aka Yosia Kizito (as per statutory declaration on record) one of the children ofthe deceased and Robinah Nsubuga Nalukcnge told court that 7 acres had been sold to the plaintiff at an agreed sum of Ugx 9.9OO,OOO/=, That thc final instalmcnt had been paid on 31"' May, 2003. Court notcd howcver that thal Put4 had neithcr bcen a party nor a witness to that transaction.

Thus contrar-y to what the plaintiff wished this court to believe, this appeared as more or less a single transaction intendcd to be paid out in thrce phascs for the 4 acres but not 6 or 7 acres, as purported to have bcen bought by thc plaintiff. Thus what was originally intended on lorh May, 2002 under PExh 2 was different from what was indicated under the 15 agreement/acknowledgment dated 31sr May, 2003, (PExh 3), Besides also was the fact that the full payment of the consideration had to be effected within a period of two months only, not one year later.

Ultimately there had bccn no written exprcssion of the intention of both sides to scll 7 acres as thc plaintiff and his witncsses seemed to suggcst in their individual testimonies. As dictated by

sectlon 92 ol the Evtdence Act, Cap. 6, (thc rule against parolc evidence), oral evidence that tends to add to, crcatc variations or contradict any writtcn agrecmcnt cannot bc admitted. 20

Since the completion and execution ofa written contract is typically the concluding point in the bargaining process, one's ordinar1r expcctation is that the document itself will contain all the conscious and important elements of thc dcal.

The parole cvidence rulc assumcs that thc formal writing would reflect thc parties'minds at a point of maximum resolution, The rule applics to written agreements which are intended by the parties to be a complete integration of the terms of the contract and intended to be final. lAftol vs Doka" Ctntl Appeal 7 of2OM [2076 . 25

To that extent, this court found the contradictions and inconsislencies in the plaintiffs case rn so far as it relal.es to the sizc and paymcnts of consideration hard to rcconcile, bringing to doubt the actual intention of thc contracting partics, 30

T\*% Since **Pw2**, the widow and **Pw4** were not witnesses to the third undertaking, **(PExh 3)**, their evidence on that score was hearsay and could not therefore be relied on to confirm exactly what had been paid and what was actually paid for.

## Capacity of the deceased to enter into binding relation:

- On the issue of the capacity of the deceased to enter into a binding relationship as raised by $\mathsf{S}$ counsel for defendants, the underlying principle is as enshrined in the provisions of **section 11(1)** of the Contract (supra), which states that a person has capacity to contract where he/she is of eighteen years and above; of sound mind; and not disqualified from contracting by any law to which he or she is subject. - 10 As noted by this court, the first two agreements alleged to have been made between the deceased and the plaintiff was in May, 2002, thumb printed by the deceased and signed by the plaintiff. On the third one, **PExh 3** made in 2003, the deceased's name had also appeared as the vendor.

However he never signed or thumb printed that agreement. I cite below what someone else had written on his behalf:

15 However due to my illness I have not been able to append my signature to this transaction which is why I have chosen my daughter Nakkazi Rebecca who is 18 years of age and my granddaughter Mulinda Codrine who is 13 years of age so that they can both sign on my behalf and therefore Mr. *Male Benedict does not owe me any money. (emphasis mine).*

The value, consequences, meaning and implication of the contents of that document ought not be overlooked, as it served both as an acknowledgment of the consideration by the deceased who 20 according to the plaintiff was too sick. Yet going by the contents of that document a seemingly fresh contractual engagement was in the offing, purported to have been being entered between the two parties.

Given the fact that the document was not signed/thumb printed by the deceased, the author of 25 the document ought to have been called as one of the key witnesses in this suit. But just like the rest of the witnesses to that agreement/acknowledgment, he was not called in to testify and confirm the correctness of the contents thereof. His name did not even appear at all on that record as the author.

Besides, no explanation was offered as to why the deceased chose his child of 18 years and his 30 grandchild of 13 years to be the witnesses, instead of any of the other elder children or the widow(s), whose interests here were at stake. There was no endorsement by the LC.

Valout?

The defence evidence that thc deceased was believcd to have lost his mind also came up through the evidence of Dur2 Mr. Lulc Joseph who at the material time was the LCI Chairman and who knew the family quite well. It brought out another angle to thc dispute.

5 The plaintiff himself did acknowledge in his testimony that the deceased at the time of signing the agreement had been so sick, evcn to thc point of being unconscious. The suggestion made therefore that the deceased was so sick, or had become a person of unsound mind could only imply that he lacked the mcntal capacity to sign or thumbprint the purported sale agreements arld instrumcnts of transfer of thc land.

The procedure to bc followcd for managing thc statc of a person of unsound mind is streamlined undcr Rule 3 (1) of the Adrnl'alstration ol the Estates o.f the Persons of Unsound Mtnd (Procedure) Rules S, iVo. I55-I, which I nccd not rcproducc hcrc.

Suffice to state that the nct ensures that the property of a person in such state must be preserved. As such thcre must be a managcmcnt order issucd by court. But even then, by virtue of sectlon 4(Qfiof Adrnlnlstro;tlon oJ the Bstates of Persons o,f ar'!.sou'td. lfrlnd, Cap.755, the manager would rcquirc special permission from court to make any transfcr or otherwise dcal with the cstatc. Since the plaintiff in this casc was a friend to the family, hc ought to have known bettcr, arld not takc advantage of his fricnd's vulncrability.

All in all, no court would in fairness endorse any transaction made by a party in that state, The plaintiff could not thereforc rely on any such documents, with all its inconsistencies and gaps as noted to allege as he did that thc deceased had at thc timc the mcntal capacity to transact; that the intention by the deccased was to scll him 7 acres; thc full consideration had been paid; and that entire family witnessed the transaction.

## Vdlldltu of the trqnsfe- rs:

ln paragraph 4 (d) and (e) of lhe plaint, it is plcaded that thc dcccascd had handcd over signed transfer instruments and a duplicatc certificate of litle to thc plaintiff which he had handed over to the surveyor, Ilowevcr thc copics of the said documents were not made available to cou . 25

The widow Pu2 howcver contradicted the plaintiffs claim when rn paragraph 4 of her statement testified that her husband had not effectcd a transfer into thc plaintiffs names. This thcrefore left court wondering as to which documents the survcyor had takcn to thc land registry to cause

the transfer, as allcged by the plaintiff. 30

t\^}"t t 9

The plaintiff instead prcsentcd PExh 6, the transfcr form datcd l5th July, 2006, signed by the l"t defendant Samuel Nsubuga, in the names of the 2,d dcfendant. PExh 5 was the application for consent to transfer.

This was sufficient evidence that Samuel Nsubuga had sold the land comprised in plot 448, 5 which the plaintiff claimed as his. From the evidence of Pw2 and. Pw3 as noted earlier, this had happened some months before the family mecting had been held and in which he was purportedly givcn some titles.

Givcn the abovc as jointly put together, the plaintiff failcd to convince this coufi that the elements ofa valid and binding contract bctween him and his fricnd had bcen fulfilled.

## 10 b). Whether there wa.s a valld and bind.inq contrqct between the defendants:

The defendants on their part relied on evidence of 5 witnesses to prove the 2nd defendant's interest in the suit land. The 1\*idefendant Samuel Nsubuga tcstificd as Dur 4. The 2nd defendant testifying as Durs prcsented DExh7, a copy of the sale agreement and memorandum of understanding, dated 116 February, 20O6.

- <sup>15</sup> It was signed by both him as the purchaser and thc 1\*' defcndant as thc vendor for land comprised in plots 448. Undcr that agreemcnt he also claimcd to bc an equitable owner of Block 374 plots 34O and 447, Bwslro at Kasero -Buloba, which in tota.l added up to <sup>10</sup> acres, acquircd at a considcration of Ugx 45,OOO,OOO/=, - 20 ln paragraph 2O of Dur 5's statement, hc stated that sincc the documents showed only plot 448 was owned by the vendor the two defendants had agrecd that thc 1"r defcndant hands over the title for plot 448 to the 2"d defcndant and that he regularizcs his ownership of plot 34O.

Counsel for the plaintiff howcvcr argued that this togcther with PExh 8 (statement made at Police) amountcd to an admission. In that record (portions of which were difficult to read), the 1"1 defendant is said to have admitted that he had told the 2\*l defendant about the plaintiffs intercst on the land. Ilc did not however specify the actual area.

made to court.

With all due rcspect however, an admission has to be clear and unambiguous. It must state precisely what is being admittcd and must not bc open to doubt. Once arr admission of facts is made it then that court upon application may make such order or file such admission. fRef Jc,mll Sengon|o vs ,lonc'tho,n BunJo Ctvtl Sult iVo, lao of 2072). Llccause the statements alluded to in this casc did not qualify to be admissions by law, thc application was therefore not

Dw2, Mr. Lule Joseph was a rcsident and formcr LC in that arca who knew all the parties and the area in dispute. He knew the 1"t defendant s family rather well since they were all residents in his area.

In corroboration of Dur4's cvidcnce, he told court that he had moved around with the defendants, inspected the area and found that it was surrounded by a bush with an abandoned house which had neither roof nor windows,

The issue ofthe access route was raised during the inspection and this was to be resolved by the 1"t defendant. The agreement bctween the defendants for the purchase of thc land as confirmed by Dur2 himself, had been made in the said LC's presence as he himself confirmed.

This also draws thc attention of this court to the fact that the plaintiff himself was not able to show that he had introduced himself to the LCs whcn he was purchasing the land. That conclusion is reinforced by the fact that none ofthc agrcements which wcre signed bclween him and the deceased/family had becn witncssed by any LC official. 10

Since the deceased had no capacity to contract with him at that time, he had entered on that land without the valid consent of the registered owner at that time. As such, sectlo^ 29(7Xb) ol the land Act, Cap.227 which guarantees protection to bona fi.deflawful occupants did not applv. 15

From the evidence of Dto2 on the other hand, the 2"d defendant had rcgistered the 2"d defendant as one ofhis residents in that area and from that point hc had settled onto the land, worked on the abandoned house and for about one and halfyears no onc ever came up to complain about the 2nd defendant's presence on that land.

With particular reference Lo plot 448, a certificate of title was presentcd to court, DExh 2 for the land comprised in Block 374, plot 448., This provcd that the t\*r defendant got registercd on the said title on lSth July, 2O05 and the 2nd defendant on 27'h July, 2006, almost a year later,

in execution of the salc agrcemcnt, DExh 7. Thc 2nd dcfcndant did not requirc the consent or approval of the family to cffect the transfer in that respect. 25

A certifilalc of titlc is conclusivc evidencc of title and takes priority over any adverse claims. By virtue of section 776 of the Registrdtlon oJ Tltles Act, Cap 23O Bfq, savc for fraud, it is also an absolute bar and cstoppcl to an action of cjectmcnt or rccovery of any 'land. lReJer also

## s. 64 (t) Rr,.,. 30

Regarding Plot 34O however, the circumstances werc different. In the agreement between the defendants, thc 2nd defendant claimed to hold an equitablc intcrcst in that land. Counsel for the

71 U"b"A

plaintiff citing thc casc of Drina Lam Oto Ontgom Vs Opoka and Anor (Clvtl Appeal 97 oJ 2019) [2O2O] VoHC 185, pointcd out that it is tritc that thc right to scll un-registered land is vested only in the pcrson who holds valid litle to that land.

That he or she who has no titlc cannot sell (see Mortage Buslness Plc Vs O'shaugh'ressg [20121 lWLR7521]. Thc common law principlc of memo dat quod non habethas long held that a person cannot convcy a supcrior title to thc onc already hcld,

Accordingly, one can sell only what onc owns or is author2cd to sell and thc buyer can acquire no more than what the sellcr can legally transfcr. Counsel in reply however argued that the principle was only applicable to tangible goods.

In thc view of court however, similar principles would bc applicable to land. However as duly noted by court, in paragraph 4 of thc plaint the claim madc against the defendants was in respect of registered land. IIis contention was that he had obtained a duplicate certificate of title from the deceased as well as signed transfer forms, copics of which hc could not produce. 10

There was no certifrcate of title to prove the cxistence of plot 34O, to show the origins and genesis

of ownership and status of this land. Thc land as describcd by thc plaintiff ncighbours Kamira, Robinah Nalukengc (Pw2) and Muwumuza Yosia. 15

Yet according to the widow Robinah Nalukenge (Put2l tlr,e land is located near Hajji Malagala Bisaso. The question whether or not this was the sarne land and whether or not they bought registered land remained unanswered.

Parties are bound by their picadings and this is stilt good taw. The plaintiffs claim oscillated from being a law{ul owncr of registered land as pleaded, to owning unregistered interests in land as reflected in his testimony and his counsel's submissions. 20

The boundaries ofthe area he claimed could not be ascertaincd as there was no record of survey. Since therefore his pleadings and prayers relate to registercd intcrest hc cannot bring evidence instead to support his unregistcred interest, all within the samc breath.

For thc 2nd defendant, anothcr ccrtificate of titlc, DExh 3 was presented to court for plot 749O, measuring 0.830 acrcs. It indicates 4th April, 2007 as thc date when the 2"d defendant became registercd onto that title. Thc titlc for plot 447 as listed in thc agrccmcnt howcvcr was also not availed to court. Thc original ownership oI thesc two plots of land could not be ascertained.

30 The burden was still on the plaintiff to prove that some equitable interest in each of these plots 7490 o,nd 447, }l.ad been created out of plot 34O, part of or all of which he claimed as his. It was him who wanted to acquire a lega.l interest, upon handing over all the instruments oftransfer

Sru,6, t2

to the surveyor, as he claimed. IIe had to show that hc had bona Jide intcrcsts in respect to which he would derive protection under section 29 ol the Land Act, Cqp.227, which he however failcd to achieve.

5 As noted earlier there was no signed transfer form as alluded to, or copy of certificate of title for Plot No. 34O out of which the plaintiff claimed to havc acquired an acre; and out of which the 2nd defendant was claiming four acres.

There was also no search certillcate and no arca schedule to show what the actual original plot was, how and when plot 34O had been crcatcd in the first place, by whom, its subdivisions if any; size or ownership. There was no sketch map to indicatc the area boundaries ofthe equitable interests which each party claimed.

Even the actual sizc af plot 34O was based on mere speculation. As deduced from the oral cvidence by cithcr side thc size of that plot was estimatcd to be 5 acrcs. Du4 in paragraph 13 of his statement told court that the 5 acres under plot 34O were shared among his family members: Lutalo Israel and Mutcbi Apollo had takcn an acre. Muwumuza Yosia and Daniel Kaate Gaango a-lso took an acre and Namondo and. Nakazzi also took an acre, making a total of 3 acres. He also

informed court that his brothers with whom they shared plot 34O had since sold their shares to third parties who now occupy the land. 15

That he (i\$ defendant) remained with the two acres which hc transferrcd to thc 2nd defendant, and was yet to hand over 2 acres to him, to makc the 10 acres as per their agreement. The circumstances undcr which that propcrty had been distributed howevcr remained unclear. It was therefore also difficult to establish the ncxus bctwecn plot No. 34O on the one hand and plots 447 r:nd 7490, on the other hand. 20

But even more critical for the 2nd defendant's claim of cquitable interest, the 1"r defendant could not explain why he had given to him a total of 4 acres out of plot 34O when all he claimed as his share as a beneficiary was only 2 acres. The rcmaining part of that land as he himself stated had been distributed among the benehciaries and some even sold off to third parties. 25

Without a survey report, it therefore becomes difficult to understand what equitable interest the 2"d defcndant had actually bought. lt created both doubt and uncertainty about the authenticity of his claims o\ plot 34O.

Sectlon 78O o, thc Successlon Act, Cap. 162 states that an administrator of the estate is his/her legal representative for all purposcs and all thc property of the deccased person vests in him or her as such. 30


In sectlon 792 of lhc samc Act, the lettcrs would cntitlc thc administrator to all rights belonging lo an estate as effectually as if thc administration has bccn granted at the moment after his or her death.

It is not clearly establishcd whcthcr or not plot 34O was part of thc cstate of the deccased at the time of his death. If it was, then the role of the administrators of the estate would come in to settle any debts or claims by or against the estate.

That would also encompass tracing and salvaging the estatc properties, distributing it to among the beneficiaries, taking into account the portions occupicd by each bencficiaries prior to the death of the property owner.

Plot 34O in this case could not thcrcforc bc disposed of without thc consent of thc beneficiaries since at that timc thc administrators of the cstatc had not yct bccn appointcd. 10

If indeed the 1"r defendant was given custody of plot 34O as alleged by the plaintiff witnesses, then the law would presume that he was holding the same merely as the trustee, pending the appointment of the administrators of that estatc. But without the consent and authority of the rest ofthe beneficiaries, any transfers made by him could not havc been valid.

The ls dcfendant to that extent therefore intermeddled with thc estate of his father, in contravention of sectlon 268 ol the Successlon Acr. As an executor in his own wrong he was answerable to the administrators or any creditor of the deceased to the extent of the assets which may have come to his hands.lsect{on 269,r.

The administrators werc not parties to this suit but by law as provided under sectlon 278 of the Successlon Act they ought to have filed an invcntory to show the distribution; and account for the estate property, which would havc guided court in this matter. 20

In the case of l(ampalo Dlstrlct Land. Board & Arrother uersus Nc.tLon'al Howslng c,nd ConstructTon Corporatlon C:lull Appeal No. 2 of 2OO4, it was also hcld that thc respondcnt who had becn in posscssion of the suit land for a long timc and utilized it was entitled to have its interest recognized and protccted and in the instant case, there was proof of how the plaintiff acquircd the land and utilized it. 25

The authority above with all due respect was not applicable to the prescnt case since neither party was able to satisfy court that hc had been legally in possession and utilDing the land for a long time.

$\overline{ }$ All in all, the $2^{nd}$ defendant just like the plaintiff, lacked credible evidence to show that any interest claimed in respect of **plot 340** had ceased to be part of the estate of the deceased and therefore duly acquired.

## Issue No. 3: Whether the $2^{nd}$ defendant was a bona fide purchaser for value without any $\mathsf{S}$ notice of fraud.

"Fraud" was defined in the case of FJK Zaabwe vs. Orient Bank & 5 O'rs SCCA No. 4 of 2006 (at page 28). In the lead judgment, **Katurebe JSC** (as he then was) relying on the definition of "fraud" in **Black's Law Dictionary (6th Edition) at page 660** defined it to mean an intentional perversion of truth for purposes of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right.

A bona fide purchaser is defined in **Black's Law Dictionary 8<sup>th</sup> Edition at page 1271** as:

"One who buys something for value without notice of another's claim to the property and without actual or constructive notice of any defects in or infirmities, claims, or equities against the seller's title; one who has good faith paid valuable consideration without notice of prior adverse claims."

## Halsbury and Martin Modern Equity (Sweet and Maxwell) Ltd 1977, at page 27 provides:

- 20 "Prior equitable interest in land can only be defeated by a bonafide purchaser for value without prior notice. Then the equities are equal and his estate prevails. If he took with notice, the position is otherwise, as the equities are not equal. If he does acquire a legal estate, then the first in time that is the prior equitable interest prevails as equitable interests rank in the order of creation." - 25 A person who purchases an estate which he knows to be in occupation of another person other than the vendor is not a *bona fide* purchaser for value without notice of the fraud if he/she fails to make inquiries before such purchase is made.

Thus in Uganda Posts and Telecommunications vs Abraham Kitumba SCCA No. 36 of 1995), such failure to make reasonable inquiries or ignorance or negligence was held to form particulars of the offence of fraud.

Fraud that vitiates a land title of a registered proprietor therefore must be attributable to the transferee and that fraud of a transferor not known to the transferee cannot vitiate the title. **See:** Wambuzi C. J, Kampala Bottlers vs Damanico (U) LTD, SCCA No. 27 of 2012.

Usberg

It is such grotesque monster that courts should hound it wherever it rears its head and wherever it seeks to take cover behind any legislation. It unravels everything and vitiates all transactions. (Fam International Ltd and Ahmad Farah vs Mohamed El Fith [1994]KARL 307).

$\mathsf{S}$

On the issue as to whether or not there was fraud and whether or not a party was a bonafide purchaser for value without notice the question that a court would poise is whether the defendant honestly intended to purchase the suit property and did not intend to acquire it wrongfully. (David Sejjaka Nalima vs Rebecca Musoke SCCA No. 12 of 1985).

## Allegations of fraud against the 1<sup>st</sup> defendant:

It is trite law that allegations of fraud must be specifically pleaded and proved.

- 10 The particulars of fraud raised against the 1<sup>st</sup> defendant were that he forged the signature of the deceased; registered the transfer in his names and intermeddled with the estate. The plaintiff however did not lead any evidence to prove that the 1<sup>st</sup> defendant had forged the signature of his father. The allegation of such forgery was never raised by any of the family members who testified in court. - 15 Counsel for the plaintiff referred to the case of **Kampala District Land Board & George Mitala** versus Venansio Babureyaka & 3 others Supreme Court Civil Appeal No. 2 of 2007, where it was held that a person was deliberately dishonest when he proceeded to get a title without consulting with the occupants and authorities of the area. This also applies to the 1<sup>st</sup> defendant in respect of any equitable interests he had dished out and purportedly sold to the 2<sup>nd</sup> defendant. - 20 In that regard, the plaintiff succeeded in proving that the 1<sup>st</sup> defendant never secured the authority and consent of his family when he dealt with **plot 340**.

## Allegations of fraud against the $2^{nd}$ defendant:

As against the $2^{nd}$ defendant, the plaintiff claimed that the $2^{nd}$ defendant had failed to visit the land before purchase; failed to make inquiries from the LCs, widow/beneficiaries; and that he caused the transfer into his names without due diligence and that he never bought the land in question in good faith since he was part of the fraud.

That according to the physical search on the land, the plaintiff had already settled thereon after he made the purchase, he had also tried to have the land registered but he was no successful because the person entrusted by the family of the late Erinesti Nsubuga was doing all it takes to

30 fraudulently deprive the plaintiff of the land.

Julat<sub>18</sub>


The defendants wcre full awarc of all thc dcvelopments but wcnt ahead to make the transfer and register the suit land into their namcs illcgally. That thc rcgistcring of the defendants' interest was donc with the intcntion of defcating thc plaintifls carlier equitable intcrest in the suit land.

As noted earlier, the evidencc of Joseph Lule, the former LC of that area who knew the family well was sufficient to provc that the defendants had visited the land before the purchase was made.

The agreement which conferred ownership of plot 448 to the 2nd defendant may not have been signed by him as thc LC but he admitted to have been the chairman at the time; he was around both at the time when the inspection took place and at the timc when the agreement was concluded.

His evidence which was not discredited by the plaintiff was corroborated by that of Irurr, Dungu Eldadi Nsubuga and that of l)ur3 James Musisi Kawafu who was the broker. The 2\*r dcfendant thus depended on thc broker and LC's knowlcdgc of thc facts and history of that area before entering into the commitment, also aftcr establishing that the land comprised in plot 448 had.

15 no encumbrances.

The family never raised any issue in relation to the possession of the 2"d defendant and in relation to any of the activitics undertaken by him on any part of plot 448land IIe entcred on the said land with the knowledge and consent of the 1"t defendant who had been the registered owner of that land at the timc. As for the land described as adjacent to plot 448, he had to go an extra

20 mile which he never did.

> Counsel for the plaintiff referred to thc statement in paragraph 20 by the 2.d defendant which suggested that the I defendant had been requested by him to regularize ownership of the plot 34o.

25 He also cited the casc of Ko;mpola Dlstrlct Land. Board. & Another Vs Nqtlono.l Houslng & Constructloa Corporatlon in which thc Suprcme Court hcld that knowledgc of equitable interest cannot be imputed as fraud under thc Act. owever wherc such knowledgc is accompanied by wrongful intcntion to dcfcat existing intcrcst this amounts to fraud.

Counsel also referred to PE rh 8 the Police statcmcnt by the l\$ defendant suggesting that the 2n,t defendant was aware of the plaintiffs interest although in that record there was no specific 30 description of land.

[t 1

$\cdot_{\star}$ $\cdot\,$ The above findings lead to the conclusion that any cquitable interest purchased by the 2"d defendant from the 1"t defendant originally constituting part of the estate of the late Nsubuga was a transaction which cannot be sanctioned by this court.

A constructive trust attaches by law to specific property which is neithcr expressly subject to any trusts nor subject to a resulting trust but which is held by a pcrson in circumstances wherc it would be inequitable to allow him to assert full ownership of the propcrty.

Thus a stranger who rcccives propcrty in thc circumstanccs wherc hc has actual or constructivc noticc that it is trust propcrty being transfcrrcd to him in brcach of trust will howevcr also be a constructivc trustce of that property. (Stanblc U Ltd vs Joseph Alne & Others Ciuil Sult lvo. 314 oJ 2OO5; 48 Hq.lsbury's la.tDs Ol Englqnd, 4ch EdltTon, para 587).

The 2n,r defendant was fu lly aware that the 1"1 dcfcndant had no authority to handle any dealings relating to the estate of the deceased, without the knowledge and consent of the administrators or the beneficiaries and property receivcd by him without propcr authority was fraudulently received.

- On the assertion made in submissions by the plaintiffs counsel that thc 2"d defendant by paying less starnp duty than what he was required to had committed fraud, counsel cited the case of the Supreme Court case of Bettg l<lrtto lCtvll Appea.l No, 7a7 of 2012) it which court delined fraud to include land transactions where the purchascr tries to get away with paying Iess transfer tax, or even none, than what is due to the Govcrnment. The said authority was however not 15 - availed to court by counsel. 20

The response by the dcfence counscl which this court would subscribe to is that non-disclosure ofthe contract sum in the transfer documents and paying lcss stamp duty on the sale agreement is a matter that ought to have been reported and invcstigated by the tax Authority. On its own this would not vitiate the contract. Counsel refcrred to Shluabh.rl Patel Ltd and Anor us Wan buga & A^or CACA 57 OF 2O1O),

ln thc premises, this suit would only succccd in part

This court has inherent powcrs under sectton 98 o.f the Cfiil Procedure Act, Cap. 77, to rr.ake orders as the justice of thc case may requirc. This court also has powers to direct the cancellation of titles illegally created.

<sup>1</sup>. The distribution and disposal of propeng consliluling part of lhe estate of the late Erinesti Nsubuga by the ls defendant to the 2,d deferrdanl claimed as equitable inlerest, wilhout

the authority of the beneficiaries or administrators of that estate, was fraudulent and unless and until validated by the administrators of the estate, it shall revert to the estate of the late Erinesti Nsubuga.

$\mathsf{S}$

2. The 2<sup>nd</sup> defendant rightfully acquired Busiro Block 314, plot 448 Kasero Buloba; and is hereby ordered to pay all the outstanding monies owed to Government as stamp duty.

- 3. Any sums of money paid by the plaintiff in respect of the botched contract for purchase of the land formerly constituting part of the estate shall constitute a debt against the estate of the late Erinesti Nsubuga. - 4. 70% of the costs of this suit shall be met by the defendants.

Alexandra Nkonge ug

15 **Judge**

31st May, 2022

Delivered by email<br>Obland<br>31/5/2022