Maria Mpinga and Others v Sensalire and Others (Civil Appeal No. 10 of 2001 and No. 118 of 2003; Civil Appeal No. 118 of 2003) [2009] UGCA 78 (31 March 2009)

Full Case Text

![](_page_0_Figure_0.jpeg)

[Appeal from the Judgement of the High Court (Tinyinondi, J), dated 15/01/1999 in HCCS No.432 OF 1998]

$25$

$30$

$35$

## JUDGEMENT OF KITUMBA, JA.

This is an appeal from the judgement of the High Court, whereby the learned trial judge dismissed with costs the appellants' suit, which they had filed against the respondents claiming for specific performance of the lease. Originally, the appellants had filed two separate appeals namely: Civil Appeals No.10 of 2001 and No.118 of 2003, Counsel for all parties agreed that both appeals should be consolidated. On 8th November 2005, this Court consolidated both appeals and heard them as one appeal.

![](_page_0_Picture_4.jpeg)

## The back ground to the appeal,

Maria Nalikka Mpinga, Joseph Kasoma, John Sseruma and Joachim Bamugye, herein after referred to as the first, second, third and fourtl appellants and jointly as the appellants sued in their joint capacity as legal representatives of the late Joseph Mpinga. They held letters ol administration. The appellants sued Ernest S. Sensalire, Maritin. B. S. Muyibwa, Joyce N. Galabuzi, Charles Segujja and Lodoviko Mwanje, herein after referred to as the 1st, 2nd, 3rd, 4lh and the 5th respondents respectively and together as the respondents. The first, second and third respondents were sued as joint legal representative\*?' of Gabriel Galabuzi (deceased) They too held letters of administration. The 4lh respondent, was the customary heir as well, as one of the administrators of the said late Galabuzi and was sued as such. The 5th respondent was sued as the registered transferee of the disputed land.

**55**

**15**

**20**

**25**

**30**

**5**

**10**

**•' J**

**I**

**H**

The suit land was KIBUGA BLOCK 7, PLOT 89, measuring 0.22 of an acre at Mengo (Ndeeba Mutawe Zone). It was alleged in the 'plaint that by a lease agreement dated 14/3/1957, the late Joseph Mpinga agreed to take a lease of the late Gabriel Galabuzi's aforementioned land. Th^ terms of the lease were contained in exhibit "P5 (1)" and its English translation "P5 (2)".

The appellants' claim against the first, second, third and fourth respondents was for an order directing all of them to jointly specifically perform the aforementioned lease agreement.

The claim against the a respondent was for a declaration that he acquired the suit property subject to the Lease interest of the appellants. It was the appellants case that immediately after the execution of the lease the lessee w^^^o^^^rp^j^^^^r(JC(ecj anj continued to

maintain a modern commercial building. Furthermore, that during his lifetime, the lessee promptly paid to the lessor the annual rent reserved. That on 22/10/1986 the appellants paid to the $1^{st}$ – $4^{th}$ respondents, through the latter's lawyers shs.50,000/= (fifty thousand shillings only), to cover both the unexpired term of seventeen years and prepaid ground rent in case they exercised the option of renewing the lease. During 1988, the $1^{st}$ – $3^{rd}$ respondents threatened to alienate the property alleging that the appellants had no interest in it. By reason of that threat, the appellants lodged a caveat on 16/1/1989 and at the same time, through their advocates, requested the respondent's interalia, to execute a registrable lease in proper form in specific performance of the 1957 agreement. On or about 16/6/1989, the appellants filed their suit. But before it was heard on 24/11/94 the $1^{st}$ – $3rd$ appellants with intent to defraud, transferred the reversion to the $4th$ respondent and on 19/4/1995, the 4th respondent wrongfully and fraudulently purported to transfer the said property together with the commercial buildings thereon to the 5th respondent.

The $1^{st}$ – $4^{th}$ respondents filed a joint amended written statement of defence. They contended that the alleged lease was in respect of $20$ Kibuga Block 7, Plot 67, but not plot 89. It was based on an agreement dated 22/1/1958 effective from 14/3/1957. The $1^{st}$ - $4^{th}$ respondents further alleged that the purported payment of shs.50,000/ $=$ was made only to justify the suit. They denied any fraud. The $1^{st} - 4^{th}$ respondents counter - claimed for orders that the appellants have no $\overline{25}$ registrable interest and prayed for orders and damages on that account. The 5th respondent filed a written statement of defence. He alleged, inter alia, that he was a bona fide purchaser for value without notice.

$\mathfrak{I}^i$

$10$

$15$

During the trial.the following issues were framed for determination. V

*(') Whether plaintiffs have a valid lease on the sun property capable of being enforced by specific performance?*

................................................................................................ ............................................... ................................................................................................................................... ' '

- *(") If there was any such lease, whether it can be enforced against 5th defendant who is a registered proprietor?* - *th (Hi) Whether 5 defendant is bona fide purchaser for value without notice of the alleged existence of the plaintiff^ on registered lease?* - **f/v;** *Whether the commercial building on plot 89 is the property of Joseph Lutti Musisi or the plaintiffs?* - *What remedies are available to the parties?*

The learned trial judge answered issues 1 and 2 in the negative and issue 3 in the affirmative and the fourth issue, was decided in favour of the appellants. Regarding issue five, the judge found for the appellants and ordered that the fifth respondent pays shs 4,000,000/= to them as customary owners of the buildings on plot 89. He ordered the appellants to pay costs to the respondents.

- **25** The appellants were dissatisfied with judgement and orders of the learned trial judge. They filed their appeal to this Court on the following eight grounds. - *1. 4th respondents^* **30** *The learned trial judge erred in law in allowing the filing of a written statement of defencdjjn respect of the 1st, 2nd Um^lVIE 3rd and tffifflt LEAVE of Court; which*

**Ji**

**5**

**!U )**

**15**

**20**

*\$*

**I**

**1 -**

**I**

Omission rendered their pleadings NULL and VOID and therefore, ought to have been struck out from the record.

- $2.$ The learned trial judge erred in failing to hold as a fact that the Agreement for a Lease, dated $14/3/57$ affected two (2) separate unsurveyed and undemarcated pieces of land and a lease for one plot, which was undeveloped was eventually registered, whereas, a lease for the suit property, which was fully developed was not registered but for which ground rent was at all times being paid and accepted by the landlord. - $\mathfrak{F}$ The trial judge erred in law after finding as a fact that the appellants and their deceased father, were CUSTOMARY TENANTS on the suit land in failing to hold that the appellants were by operation of law converted into TENANTS BY OCCUPANCY and therefore not liable for eviction by any Court, except under the express provisions of THE LAND ACT, 1998 which was already in force. - The learned trial judge erred in failing to hold as a matter of $4.$ $\overline{70}$ law that the $5th$ respondent bought the suit land subject to the appellants' vested interest in land as the unregistered tenants and therefore, holds the Certificate of Title thereto subject to that interest. - 25

$\mathsf{S}$

$\overline{10}$

$15$

The trial judge erred in law, after finding as a fact the 5. appellants were Customary Tenants on the suit land to hold that the $5th$ respondent was entitled to an order of eviction on payment to the appellants a paltry sum by way of

![](_page_4_Picture_6.jpeg)

*compensation, which order the learned trial judge wrongfu^ and /or unlawfully made.*

*'*

**'wk I**

**6.** *occupation of thi without notice of the appellants physical and ownership commercial/residential buildings on the land. The trial judge erred in law, in holding that the 5 respondent, contrary to his pleadings and evidence o, record, was a BONA FIDE purchaser of the suit property fo valuable consideration*

**5**

**)5**

**20**

**25**

**0 I**

**I**

*\*

**'5**

- 7. *value of the and other The learned trial judge erred in assessing the appellants' commercial/residential buildings developments on the suit land at shs.4,000,000/= without any evidence on record in support of the assessment, contrary to the unchallenged expert evidence on record which put the value of the developments at a much higher figure.* - *8. The learned trial judge erred in law and fact in failing to consider the appellants' alternative offers as lawful holder" of customary tenure on the suit land: (i) to take of fresh lease on new terms or (ii) to refund to the 5th respondent the purchase price paid for the land excluding the appellants' commercial/residential buildings or (Hi) to purchase the absolute mailo land from the 5th respondent who bought the same and held the Certificate of Title thereto subject to their vested interest in the land as "TENANTS BY OCCUPANCY'' instead of ordering an outright eviction and payment of compensation, which orders were unlawful.*

During conferencing before the Registrar of this Court before the hearing of this appeal, counsel for parties agreed that the following five issues should be determined by the Court.

## Agreed issues:

- *(1) Whether there was a lease between the father of the appellants* . *and the father of the 4th respondent over plot 89?* - *(2) Whether the 5th respondent was a bona fide purchaser of the suit land, or not?* - *(3) Whether the appellants were customary tenants on the suit land or not?* - *(4) What are the available remedies under the circumstances9* - **)5**

**io**

According to the issues framed and arguments of counsel during hearing of the appeal, ground 1 in the memorandum of appeal was abandoned.

**20**

Mr. Kulumba Kiingi, for the appellants argued issues 1 and 3 together followed by issue 2 and then 4. Mr. Charles Mbogo, learned counsel for the 1st, 2nd and 3rd, respondents, argued issues number 1 and 4 together. Those were the only issues concerning his clients.

Mr. James Nangwala, learned counsel for the 411' and 5lh respondents,

**25** argued the issues consecutively. In this judgement, I will handle the issues separately and consecutively.

![](_page_6_Picture_12.jpeg)

**30**

Regarding the first issue.

**5**

**10**

**I**

*"Whether there was a lease between the father of the appellants and the father of the four respondents over plot 89."* This covers ground 2.

Mr. Kulumba - Kiingi contended that Clause 2 of the lease agreement dated 14lh March, which was exhibit P.5 (1) at the trial and its English translation exhibit P.5 (2) show that the agreement was in respect of two plots, separated by unsurveyed and undemarcated land. He argued that the lessor, Gabriel Galabuzi and the lessee, Joseph Mpinga, took measurements by a tape measure. The first piece of land was the one Mpinga had occupied as a customary tenant and upon which he had erected a commercial/residential buildimci since 1950. It was described by measurement and referred to above a s 92' x 55'. The

- **15** second piece of land was described by measurement as 172' starting from the road reserve line on Kampala - Masakai Road; upwards, towards Tereza Namatovu's plot. Counsel submitted tnat the width of the land to be leased was not stated because the parties were not represented by a lawyer. Mr, Kulumba - Kiingi argued that the shaper^ - **• 20** of the two plots are as shown on the survey plan attached to certificate of title exhibit D.3.

Counsel submitted that if the parties had intended to lease only one plot, there is no reason why they should have measured two plots. Counsel contended that the registration of the lease under Vol.442 folio

**25** 9, the lease hold instrument was prepared by the late Ben Kiwanuka (Advocate) on 22nd January 1958 and by then the land was not yet surveyed and the area was not known. The lease was registered as an encumbrance over the parent title. Vyheptthe plot of the area was known after the survey, the Assistant'Registrar who registered the lease

**<S**

n margin. **30** inserted the area 0.23Hn ink and sigrxW, Counsel further contended that the evidence of PW2 supported appellant's case, that two plots were leased. Plot No.67 was not developed by the lessee because there was a land dispute between him and the neighbour, one Tereza Namatovu. He submitted that the evidence of that, is a letter from the lessor to the lessee dated 6/11/1957 exhibit P6 (1) and translation of the same exhibit P6 (2).

. Counsel argued that land known as plot 67, was abandoned but the lease affecting the same was prepared on 22 January 1958 by the late Ben Kiwanuka. He submitted this was an error on part of the lessee through his advocate to prepare the lease and register it on the land where he had no interest. Counsel emphasised that the lessee was paying ground rent and the evidence to prove that was the receipt, exhibit P.7.

**15** He submitted that the evidence of Mariton Binayombe Semakula Muyimba, in cross examination supports the appellant's case that the late Joseph Mpinga had a lease on plot 89. He argued further that by the will, Exhibit D5, of the lessor rent from plot 89 was bequeathed to one of his daughters called Natenza.

Messrs Kulubya and Co. Advocates by their letter, exhibit P8 dated 14!h January 1985, demanded for rent for Block 7, Plot 89. The sum of shs 50,000/= was paid by the appellants and the receipt, dated 22/10/1986, exhibit P10, was issued by the respondents' lawyers. The receipt indicated that it was for ground rent for Kibuga, Block 7 Plot 89 at Ndeeba.

**25** Mr. Charles Mbogo, learned counsel for the 1st, 2nd and 3,d respondents, did not agree. He contended that the lease agreement, exhibit P5, is in respect of Plot 67 and not plot 89. His argument was that exhibit P5 is clear and according to section 91 of the Evidence Act, no intrinsic evidence can be allowed to prove tNamr^ot 89 is part of exhibit P.5. **lx**

![](0__page_8_Picture_5.jpeg)

**10**

**)**

**.? ) •W** **5**

**'';V7.,.x** *■■* **•■.■/,;** *'^ZzZZ^^^*

**• Iw**

**T,;-/**

*w*

**20**

**)**

**O**

He submitted that the evidence of DW1 was never challenged in cross examination

Mr. Nangwala for the $4^{th}$ and $5^{th}$ respondents supported the finding of $\mathsf{S}$ the learned trial judge. He submitted that the learned trial judge properly evaluated the evidence and came to the right conclusion. No lease was created on plot 89. He prayed court to find that there is no merit in issue No.1.

- $\overline{10}$ The learned trial judge found that according to the evidence adduced at the trial, the late Mpinga had only one lease registered on Block 7, Plot 67. He held that the evidence from PW2 that his father told him that he had leases on both, Plot 67 and 89 was hearsay and therefore, did not believe his evidence. Similarly the evidence by PW2 that his late tather - told him that he used to pay rent for both plots 67 and 89 was hearsay. $15$ Exhibit "P7" which was a receipt purporting to show that ground rent was paid for plot 89 did not prove so because the burden to prove such payment was on the appellants who alleged that payment was made. - The judge found that the fact that the late Galabuzi bequeathed re $\mathbb{R}$ 20 from shop at plot 89 to his daughter Nanteza, did not at all prove that the appellants' father had a lease on that plot. He found that alternative offers to buy the land were desperate steps to acquire plot 89 in the absence of the lease. In his view, there was neither oral nor documentary evidence to prove the existence of a lease on the suit $25$ land.

This is a first appellant court and has the duty to re appraise the evidence and draw inferences of fact. See: Rule 30 (1) of the Court of

Appeal Rules. $30$

The matter to be decided in the first issue is whether there was a lease between the father of the appellanT'and the father of the' respondents over Plot 89.

- **5** In an attempt to prove the existence of the lease, the appellants' counsel relied on Clause 2 of exhibit P5 and the payment of ground rent for plot 89. We shall re evaluate the testimonies of the relevant witnesses relating to the above. - **10** reads- There is no dispute between the parties that exhibit P5 was executed between the lessor and lessee on the 14lh March, 1957 and it read that the agreement is to lease land on the lessor's land and final certificate No.14146 folio 10 volume 112. The controversial Clause 2 of exhibit P5

*"The lessor has agreed to lease part of the land measuring 172' that is from the road reserve upwards to Tereza Namatovu feet 92' x 55' and from the west side feet in accordance with Fredrick Ziwa's plot towards the Eastern to Mr. Serunkuma's plot"*

**20**

**d. / \***

*I*

*'4*

**: iHr** *&*

**i**

**25**

**15**

**30** This receipt is dated 15 However, it does not aid. The witness testified ing rent for the two plots and The Clause refers to "part of the land" but not plot or plots. According to the evidence of John Seruma, PW2, exhibit P5 was a lease agreement between his late father and the late Galabuzi, starting 14th March 1957. The land was then not surveyed but when surveyed one piece of land became plot 89 and another one became plot 67. PW2 maintained that his late father was paying ground rent for plot 89 and produced a receipt, exhibit P7. Thisreceiptisdated15th March 1975, and the amount of money paid is shs 960/=. indicate for which land/plot the money was that his late father told hfrn tl^at h

had registered them. He produced exhibit P.10 which was a receL from Kulubya and Company Advocates acknowledging receipt of th< sum of shs 50,000/=. According to his testimony it was a deposit oi ground rent, Kibuga Block 7 Plot 89 Ndeba. 9,500/= covered rent fo

**'WX'..**

**I**

- **5** the un expired term of 17 years of the original lease. The balance was paid in anticipation of the renewal. This was done because, the first second, third and the fourth respondents had threatened them that the^ were squatters and wanted to evict them from plot 89 on which their late father had constructed a commercial building. The appellants wantec - **) 10 15** the administrators of the' estate of the Galabuzi to execute a forma, registable lease in the appellant's favour. Alternatively, they were ready to commence a new lease with effect from 13/3/89 to cover the period of 32 years at a yearly rent of 10,000/=. The reserved rent revisable after 15 years and thereafter every 10 years. In the alternative, the appellants were willing to purchase the reversion at the price to be agreed upon by the parties However, the respondents did not reply to the letter from the appellant's lawyer, exhibit P15, which was setting down all that the appellants were trying to negotiate in the new terms of

lease on plot 89.

**20 25** her's will, was to get rent nistrators of the Mpinga's DW 1 Mariton Binayombwa Ssemakula Muibwa's testimony was that, he was a friend of the late Galabuzi and was in charge of surveying his land. He is the one who surveyed plots 67 and 89 The late Galabuzi permitted the late Joseph Mpinga to build on plot 89 but there was no / lease created on that plot. The late Mpinga did not pay any rent or "busulu" in respect of plot 89 and throughout his life, he did not claim interest in that plot. There was a lease created between the late Mpinga and the late Galabuzi on plot 67. One Nanteza who was one of the daughters of the late Galabuzi by her fa from plot 89. This was not done by

![](0__page_11_Picture_4.jpeg)

**11**

estate. M/s. Kulubya & Co. Advocates demanded for payment by their letter exhibit P8

Exhibit P8 dated 14th January 1985 and reads –

Our Ref: 149/75

| Messrs. Kanakulya | | Nakawuka | |-------------------|-----|----------| | Giligoli | And | | | Mpinga | | Ndeeba | | Nabadda | | | | | | |

Dear Sirs.

$RF$ : SHOPS AT NAKAWUKA AND NDEEBA – G. GALABUZI (DECEASED)

$15$

$\mathsf{S}$

$10$

We act for and on behalf of the Administrators of the Estate of G. Galabuzi, deceased, who have instructed us to advise you that under the Will of the said deceased, rentals from your abovementioned shops were bequeathed to Nanteza.

$20$

$\overline{25}$

You are therefore, hereby directed to pay the same to the beneficiary directly and to deal directly with her in all matters related to the rentals.

Yours faithfully,

For: KULUBYA & CO.

cc. Mrs. Nanteza.

$30$

$35$

JSS/rnk.

In my view, this letter refers to payment of rents for shops and does not indicate that the people to whom it was addressed were being required to pay ground rent.

From the testimony of DW1, which was unchallenged by counsel for the appellants, there was a practice at the land office to lodge a caveat on the land to protect an unregistered interest. According to the Certificate of Title of Block 7, Plot 89, Exhibit DI the first proprietor of that land was

the late Gabulieri Galabuzi and later the administrators of his os' were entered on the title. On the encumbrance page, there are foY j caveators, who lodged caveats on that title claiming lease interest onl the same. However, the name of the late Joseph Mpinga is not among those caveators. In case Mpinga had had a lease on that Plot, he should have lodged a caveat.

On the other hand a close scrutiny of exhibit P16. Kibuga, Block 7, Plot 67 shows that on 27"' June 1958 a lease was registered on the encumbrance page of this title by Joseph Mpinga. It was a lease for T-9 years from 14th March 1957, which is the date when the lease agreement, exhibit P5, was executed.

I have looked at the survey print exhibit, the lease agreement and the

**15** evidence of PW2. He testified that Plot 67 is bigger than plot 89. I am of considered view that the measurement as described in Clause 2 of exhibit P5 refer to plot 67.

I appreciate that exhibit P.10, a receipt from Kulubya and Company Advocate reads that -

**20** "Received with thanks from:

**5**

**I 10**

**\ ) )**

**I i**

- " *Estate of Joseph Mpinga the sum of shillings fifty thousand only being payment of deposit on A/c of ground rent - Kibuga Block 7, Plot 89 Ndeeba"* - **25 I** A lease is not created by simply paying money to the registered owner of the land. There must be terms and conditions of the lease. I appreciate the finding of the learned trial judge that the payment of shs 50,000/= was a desperate attempt to create a lease on plot 89 where there was none. That PW2's father told him that he was paying grounr

**Ob**

**I**

**30** rent for Plot 89, is heary^

I am, therefore, in agreement with the learned trial judge that there was n0 valid lease on Kibuga, Block 7, Plot 89 belween\_tTie appellant and the respondents capable-of being enfo^Ad

<■

- **5** I now turn to issue No.2. - *"Whether the 5th respondent was a bona fide purchaser of the suit property or not. "* This covers ground 5 of the appeal. - **15 20** Mr. Kulumba Kiingi, learned counsel for the appellant contended that the 5th respondent was not a bona fide purchaser. Counsel submitted that according to paragraph 9 of the 5th respondents written statement of defence, he had pleaded that he was a bona fide purchaser. However, according to his testimony in court, he was a resident of Ndeeba since 1969, when he was four years old. He bought the said land in 1995. Mpinga in matters concerning the suit land. His lawyer, Mr. Kityo, at one time represented Joseph Counsel reasoned that, therefore, the 5th respondent knew that the building on the suit land belonged to the appellants and not to one Joseph Luti Musisi from whom he purported to buy it. He submitted that knowledge must impute to him through his counsel. He prayed court to order for cancellation of 5th respondent's certificate of title.

In support of his submissions, he relied on the following authorities David Sejjaka Nalima Vs Rebecca Musoke, Court of Appeal Civil Appeal No.12 of 1985.

**25** Robert A. Lusweswe Vs G. W. Kasule and Another HCCS 10 of 1983 and Crayem Vs Consolidated African Trust (1949) 12 W. A. L. A.443.

respondents submitted that bona contended that a lessee Mr. Nangwala for the 4lh and 5th fideness must arise from

**>**

**I**

**l;**

**i1**

**10 )**

**S**

**1**

**v**

**I**

**)**

could not claim.that a purchaser of a mailo interest is not bona fide, submitted that the appellants' arguments are misconceived.

**5 i 10** The learned trial judge in his judgement held that the 5th respondent was a bona fide purchaser. Firstly, there was no lease on Kibuga, Block 7, Plot 89 as had been alleged. Additionally, the appellants had not followed the correct procedure to prove fraud. They had merely alleged fraud in the amended plaint. They did not plead fraud and particulars of the same. They did not adduce evidence to prove fraud. Counsel for the appellants, simply submitted that the transaction between the 2nd, the 4th and 5U1 respondents was tainted with fraud. The 5lh respondent was not, therefore, protected against ejectment under sections 145, 185 and 189 of the Registration of Titles Act on the ground that he was a bona fide purchaser of the suit property.

**15**

**20**

**r**

*! •*

The law is that to impeach the title of a registered proprietor of land, fraud must be attributable to the transferee, either directly or by necessary implication. The transferee must be guilty of some. fraudulent act or must have known of some act by somebody else anc^ taken advantage of such act.

The burden of proof of fraud must be heavier than a balance of probabilities generally applied in civil matters. The particulars of fraud must always be pleaded since it is a very serious allegation to make.

**25** Then the onus is on the purchaser to pmve. that he was a bona fide purchaser^—

See: Kampala Bottlers Ltd Vs Damanico (U) Ltd 1990-1994 E. A.141 and David Sejjaka Nalima Vs Rebeca (supra).

![](0__page_15_Picture_7.jpeg)

**30** the Land Act 1998 which gave them security of occupancy. Counsel reasoned that by the provisions of the law above mentioned, the appellants' customary tenancy had become tenancy by occupancy. The judge should have set aside the $5th$ respondent's transfer and ordered cancellation of his title. He argued that the appellants were the ones to have the first option to buy the suit land.

$\mathsf{S}$

Counsel for the respondent submitted that the issue of customary occupancy.did not arise. In all their pleadings the appellants were claiming that they had a lease over Kibuga Block7, Plot 89. They car $10$ not now turn round and say that, they are customary tenants with security of tenure and with the first option to buy the suit land.

The appeal before court is intriguing. The suit was filed in the High Court on 16/11/1989, before the coming into force of 1995 Constitution $15$ and the Land Act. There was a dispute over the suit land. Be that as it may be, there is evidence on record that the late Galabuzi allowed Mpinga to construct buildings on plot 89 in 1950.

However, Galabuzi passed away in 1981 leaving a will and Mpinga $\overline{20}$ passed away on 1/121982. He was intestate. According to Galabuzi's Will, Exhibit D5, he bequeathed his property to his relatives. In 1986 by the letter from Kulubya and Company Advocates, Exhibit P9, the appellant's occupation of Ndeeba, Block 7. Plot 89 was being queried. I am unable to say that the appellants $25$ qualified as customary tenants or bona fide occupants according to the provisions of the 1995 Constitution.

I appreciate that the appellant's father was permitted by the late Galabuzi to construct shops on plot 89. I agree with the learned judge

![](1__page_16_Picture_5.jpeg)

In the appeal before Court, no particulars of fraud were pleaded. I do not think that Mr. Kulumba Kiingi is quite correct in his submission that pleadings do not matter as long as there is some semblance of evidence of fraud on record. The 5lh respondent claimed in his pleading and gave evidence that he was a bona fide purchaser.

The learned judge found and I also agree with him thaOe\_was-a\_bQna\ fide purchaser of plotAbb He made a search at the land office and; **4 - '** found that it was in the names of Galabuzi and there was no problem; . with the title. There were buildings on the land but he believed they / ^belonged to Alex Babu because he used to see him running the/ restaurant. According to the sale agreement between him and Lutti Musisi, he was to compensate the owner of the building. He wrote ; exhibit D8 through his lawyer Kityo and Company Advocates but the appellants did not respond. It was Lutti Musisi, who came forward for\*

#### **15** negotiations.

**If ■:**

**J I» ' -**

**I**

'*)*

*)*

**1**

**f ■I**

**!**

**)**

**20**

**25**

**id**

**T**

Indeed there was a case between Joseph Mpinga and one Kasozi in 1974. I am of the considered view that it would be too much to impute fraud on the 5th respondent because his lawyer had acted for Mpinga in 1974 and more than ten years down the road, he seeks services of the - **Si** same lawyer. When one engages a lawyer, he/she does not ask him who the current former clients are. Society depends on the integrity of the lawyers and in the instant appeal, the 5th appellant is not to blame.

**rd** I now consider the 3ra issue whether the appellants were customary tenants. This covers grounds 3, 4 and 5.

Mr. Kulumba Kiingi counsel for the appellants submitted that the appellants were customary tenants. Counsel submitted that since the learned judge had found that the appellant was a customary tenant he should have^applied the provisions of Article 237 (8) and 9 (a) of the Constitution read together vSlh sections 30 (1) (a) (i) and 30 (2) (a) of **01 17**

**30**

that the shop belongs to the appellants. The government valuer put their value at Shs 4,000,000/=.

I consider the issue No.4 remedies. This covers grounds 7 and 8. The learned trial judge made the following orders: -

- **5** *1. That the 5th defendant is a bona fide purchaser of land comprised in Kibuga, Block 7, Plot No.89 and the plaintiffs have no leasehold interest on the said land.* - *2. 'Jr That no declaration is made as regards the prayer directing the Chief Registrar of Titles to remove the caveat lodged on the said land.* - *3. That the 5th defendant does pay Shs 4,000,000/= to the plaintiffs as customary owners of the building on Plot 89.* - *4. That the Plaintiffs' suit be dismissed with costs to the defendants.*

Counsel for the appellant repeated most of his arguments on the other issues. He urged this Court to find that the 5th respondent was not a bona fide purchaser. He bought the land subject to the appellant's interest. He prayed court to order for cancellation of his certificate of title and order that the suit land vests into the appellant.

**25** Counsel for the respondents did not agree and supported the order given by the learned judge.

From what I have stated above in the judgement, I am unable to fault the learned judge on the orders he made.

![](1__page_18_Picture_9.jpeg)

**I !**

**30**

**io**

**is**

**20**

**)**

*I*

**k** *1*

**1**

**3**

**w /**

**c**

**I**

**[**

I find that all the grounds of appeal are devoid of merit.

In the result, I would dismiss the appeal with costs to the respondent.

Dated at Kampala this... $\geq \int_{\mathbb{R}} \int_{\mathbb{R}}$ Dated at Kampala this.................................... $\ldots \ldots \ldots 2009.$

$1 \\ 0$

$\mathsf{S}$

Creb Citing C. N. B. Kitumba JUSTICE COURT OF APPEAL

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA

# AT KAMPALA

CORAM: HON. JUSTICE S. G. ENGWAU, JA HON. JUSTICE A. TWINOMUJUNI, JA HON. JUSTICE C. N. B. KITUMBA, JA.

CIVIL APPEAL NO.10 OF 2009 AND NO.118 OF 2003

# BETWEEN

1. MARIA NALIKKA MPINGA

2. JOSEPH KASOMA

*io?-*

*9*

*iwir*

**ft/**

- ) APPELLANTS 3. JOHN SSERUMA :::::::::: - 4. JOACHIM BAMUGYE

### AND

- 1. ERNEST S. SENGALIRE - 2. MIRITAN P. S. MUYIBWA - RESPONDENTS 3. JOYCE N. GALABUZI ::: - 4. CHARLES SEGUJJA - 5. LODOVIKO MWANJA

*[Appeal from the judgment and orders of the High Court of Kampala (Tinyinondi, J) dated 15th January, 1999 in H. C. C. S. No.432 of 1998]..*

#### JUDGMENT OF ENGWAU, JA.

I had the benefit of reading, in draft, the judgment of Hon. Kitumba, JA. I

entirely agree with her reasons and orders proposed by her. I have nothing

useful to add.

Dated at Kampala this day of 2009. 3..if.

![](1__page_20_Picture_22.jpeg)

**i**

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### HON. MR. JUSTICE S. G. ENGWAU, JA CORAM: HON. MR. JUSTICE A. TWINOMUJUNI, JA HON. LADY JUSTICE C. N. B. KITUMBA, JA

## CIVIL APPEAL NO.10 OF 2001 AND NO.118 OF 2003

1. MARIA NALIKKA MPINGA 2. JOSEPH KASOMA 3. JOHN SSERUMA 4. JOACHIM BAMUGYE ........ APPELLANTS

# VERSUS

- 1. ERNEST S. SENSALIRE - 2. MIRITAN B. S. MUYIBWA - 3. JOYCE N. GALABUZI - 4. CHARLES SEGUJJA - 5. LODOVIKO MWANJE

1......... RESPONDENTS

[Appeal from the judgment of the High Court (Tinyinondi, J), dated 15/01/1999 in HCCS No.432 of 1998]

# JUDGMENT OF TWINOMUJUNI, JA.

**Twind**

TICE OF APPEAL

Hon. Justice.

I have had the benefit of reading the judgment, in draft, of My Lord Justice C. N. B. Kitumba, J. A. I concur and I have nothing useful to add.

Dated at Kampala this. .day o .......................................

$11110$