Mbogo v Namwandu Nyanzi (Civil Suit No. 390 of 2007) [2021] UGHCLD 172 (15 April 2021)

## THE REPUBLIC OF UGANDA

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

## CIVIL SUIT NO. 0390 OF 2007

### CHARLES MBOGO :::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF

#### VERSUS

NAMWANDU NYANZI KAGGWA ::::::::::::::::::::::::::::::::: DEFENDANT (Administrator of the estate of the late Patrick Nyanzi Kaggwa)

#### JUDGMENT

## BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA

- [1] The Plaintiff Charles Mbogo initially sued the Defendant Patrick Nyanzi Kaggwa for Inter alia a declaration that the Defendant unlawfully and fraudulently took possession of the Plaintiff's Certificate of title and fraudulently transferred it into his names, a declaration that the transfer of the land to the Defendant was illegal, null and void, an order that the Defendant surrenders the duplicate Certificate of title to the Plaintiff and that the Registrar of Titles cancels the Defendant's names from the Register and instead registers the names of the Plaintiff, general damages for fraud, inconvenience and trespass. - [2] During the course of this suit, the Defendant Patrick Nyanzi Kaggwa passed on. Under Misc. Application No. 1628/2017, the said Defendant was substituted with the widow Namwandu Nyanzi Kaggwa (Administrator of the estate of the late Patrick Nyanzi Kaggwa) as the legal representative of the deceased Defendant for purposes of this suit. - [3] The Plaintiff's case is that he was at all material times the unregistered owner of the suit land comprised in Kyadondo Block 113 plot 211 land at Bumbu together with all developments thereon and also a registered proprietor of the adjoining piece of land comprised in Kyadondo Block 113 plot 215 while the Defendant owns another adjoining piece of land comprised in Kyadondo Block 113 plot 213.

- [4] That both the Plaintiff and the late Defendant Patrick Nyanzi purchased their respective plots from a common vendor to wit; Night Sola, Astansio Musoke Nganda, Nantongo, Kagabane and Kitagana Edward. That there was a dispute over the suit land arising from the tenants by occupancy thereon and as a result, the vendors had engaged the services of Ms. Semakula, Kiyemba & Matovu Advocates to assist in resolving the compensation issue with the tenants by occupancy and in pursuing a settlement, Kyadondo Block 113 plot 211 (suit land) was partitioned out and set aside to compensate the Katende – Semakula family tenants and the Certificate of title together with the duly signed transfer Instruments were deposited with the said firm of Advocates. - [5] That the said Advocates failed to settle the issue of compensation with the tenants by occupancy and as a result, the Plaintiff opted to enter into fresh and direct negotiations with them and he successfully caused the tenants to vacate at a consideration of shs. 15,000,000/-. - [6] That upon succeeding in settling the tenants by occupancy, the said Advocates who had custody of the Certificate of title and the presigned transfer Instruments surrendered them to the Defendant who transferred the suit Certificate of title to plot 211 into his names. - [7] On the other hand, the Defendant denied all the allegations of the Plaintiff and contended that her late Defendant husband purchased the suit plot from the common vendor and it is apparently registered in the Defendant's names. - [8] At scheduling, the following were the agreed framed issues:- - 1. Who of the parties is entitled to plot 211. - 2. Whether the Plaintiff has a cause of action against the Defendant. - 3. Whether the Defendant is a bonafide purchaser of plot 211 and or acquired it fraudulently. - 4. What are the remedies available to the parties. - [9] It is the view of this court that the determination of issue No. 1 resolves all the other framed issues. It shall therefore be issue No. 1 that shall be stated and resolved to dispose of this suit.

Issue No. 1: Which of the parties is entitled to plot 211

## Burden of proof:

[10] In the case of *SHEIKH HUSSEIN MAYANJA VS. MUBIRU CHRISTOPHER KISINGIRI H. C. C. S. NO. 0129/2010,* in all civil matters, the Plaintiff bears the burden to prove his/her case on a balance of probabilities. *Section 101(1) of the Evidence Act* provides that *"whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist."* The Plaintiff in this case therefore has the burden to prove the facts alleged by the plaint on a balance of probabilities.

# Legal Counsel representation:

- [11] The Plaintiff who is an advocate with M/s Mbogo & Co. Advocates was represented by Counsel Kiwanuka Samuel of the same firm while the Defendant was represented by Counsel Opio Moses of M/s Sekabanja & Co. Advocates. Both Counsel filed their respective submissions as directed by court and the submissions shall be relied on in the determination of this suit. - [12] In his submissions, Counsel for the Plaintiff stated that it was the Plaintiff's evidence that he was assigned the suit land by Josephine Olivia Ddungu (PW2). He defined an Assignment as the act by which one person transfers to another, or causes to vest in that other, the whole of the right, interest, or subsidiary estate therein; *Black's Law Dictionary 2nd Edition.* - [13] In his evidence that was in form of a Witness statement, Mbogo Charles (PW1) testified, briefly as follows: - a. The suit land is plot 211, Kyadondo Block 113 land at Bumbu measuring 0.15 acres of which he is the assignee and unregistered owner from Josephine Olivia Ddungu, the Headmistress of Nkumba Primary School Entebbe. - b. That the suit land had a problem of tenants by occupancy and as a result, on 07th May, 2007, he entered into negotiations with the family of the late Semakula – Katende who were occupying part of plot 215 and the entire plot 211 and paid them shs. 15,000,000/- (Fifteen million) for their vacation of the land. An

agreement to that effect was executed and admitted in evidence as P. Exh. 3.

- c. That on 22nd May, 2007, the family of Semakula Katende assigned to him, the Plaintiff, their kibanja interest in plot 215 and registrable interest in plot 211. An additional agreement dated 22nd May, 2007 was executed to that effect and it was admitted in evidence and marked P. Exh. 4. - [14] Upon perusal of both the Plaintiff's agreements dated 07th May, 2007 and 22nd May, 207 (P. Exhs. 3 and 4) referred to above, I find it clear that the vendors Katende – Semakula family were not the registered proprietors of the suit plot 211 Kyadondo Block 113. They were bibanja occupants who sold and later assigned, as the Plaintiff testified, their kibanja interests to the Plaintiff at a consideration of shs. 15,000,000/- (Fifteen million shillings only). It is therefore contradictory when the Plaintiff in his opening statement of his written witness statement claimed that he was assigned plot 211 by Josephine Olivia Ddungu (PW2) and then concluded in the same breath, stating that actually the plot was assigned to him by the Katende – Semakula family. If any assignment took place in favour of the Plaintiff by the said Josephine Olivia Ddungu, it was in regard to plot 215 and not plot 211. - [15] Now, having found that as per the Plaintiff's evidence on record, the Plaintiff purchased and was assigned kibanja on plot 211 from the family of Katende – Semakula, I turn to his claims which inter alia are: - a. A declaration that the Defendant unlawfully and fraudulently took possession of the Plaintiff's Certificate of title and fraudulently transferred it into his names. - b. A declaration that the transfer of the land to the Defendant was illegal, null and void. - c. An order that the Defendant surrenders the duplicate Certificate of title to the Plaintiff and that the Registrar of titles cancels the Defendant's names from the Register and instead registers the names of the Plaintiff. - [16] The Defendant on the other hand testified that the late Defendant Patrick Nyanzi acquired the suit plot No. 211 from the registered

proprietor upon which it was transferred into his names as per the Certificate of title D. Exh. II.

[17] Counsel for the Defendant relied on *Section 34(1) and (3) of the Land Act Cap 227* for the principle of law that in selling/purchasing of a kibanja on a titled land, the consent of the landlord is mandatory*. Section 34* provides for transactions with the tenancy by occupancy as follows:-

*Section 34(1) "A tenant by occupancy may, in accordance with the provision of the Section, assign, sublet or subdivide the tenancy with the consent of the land owner."*

*Section 34(3) "Prior to undertaking any transaction to which subsection (1) refers, the tenant by occupancy shall submit an application in the prescribed form to the owner of the land for his or her consent to the transaction." And*

*Section 34(9) "No transaction to which this Section applies shall be valid and effective to pass any interest in land if it is undertaken without the consent as provided for in this Section, and the recorder shall not make any entry on the record of any such transaction in respect of which there is no consent."*

[18] The above provisions of the law were sealed in *DAVID BYATIKE VS. KIKONYOGO H. C. C. A. NO. 3/2019* where Justice Kwesiga while also referring to *MULUTA VS. KATAMA S. C. C. A. NO. 11 OF 1999* held that:-

*"In selling/purchasing of a kibanja on a titled land, the consent of the landlord is mandatory ... the purchaser had a duty to take essential steps of obtaining the consent of the registered proprietor."*

There is no proof in this case that the Plaintiff took this diligence to purchase the kibanja and therefore the transaction between him and his purported seller offended the provisions of *Section 34(3) of the Land Act* and the transaction did not transfer kibanja holding. I agree with the above principle of law.

[19] In the entire evidence of the Plaintiff and his witnesses, no evidence is found that he obtained the consent of the registered proprietor referred to as "common vendor"; Night Sola, Astansio Musoke Nganda, Oliver Nantongo, Kagabane and Kitagana Edward and or from Ahmed Kigundu, Masagazi, Lukiya Nampara and Sekajja Steven who had purchased and acquired the land before the alleged transaction on it.

- [20] In view of the totality of the above, I find and hold that the Plaintiff does not have any lawful claims against the Defendant's late husband. There was and there has never been any transaction regarding the suit plot 211 between the Plaintiff and either the Defendant or the former registered owner. The Plaintiff did not show in his pleadings that he enjoyed any right on the suit plot that was in any way violated by the Defendant to entitle him the suit land Certificate of title he claims from the Defendant. It is apparent that if the Plaintiff was to demand for any Certificate of title for the suit land, he should or ought to have demanded it from the vendors or the firm of Advocates who were allegedly entrusted with the custody of the Certificate of title and the pre-signed transfer Instruments. From the way things stood, it appeared as if the Plaintiff merely wanted the Defendant's title free from any consideration. - [21] Katende David (PW3) named by the Plaintiff as one of the vendors of the suit plot 211 never led any evidence to the effect that the Plaintiff was entitled to any land. Neither Josephine Olivia (PW2) nor Katende (PW3) alluded to the claim by the Plaintiff that the registered proprietors of the suit plot had surrendered its Certificate of title to the vendors as part of their settlement/compensation as tenants by occupancy. PW3 actually testified that instead, it is the Plaintiff who appeared and represented himself as the owner of the land, who wanted tenants out of it and as a result, managed to coax them into selling their kibanja to him. It is my ruling that this transaction without the knowledge and consent of the registered owner is not protected under the law and passed no valid interest to the Plaintiff *(Section 34(9) Land Act.* As regards the Defendant, there was no cause of action disclosed against him.

## Issue No. 2: What remedies are available to the parties:

[22] Counsel for the Defendant submitted correctly on this issue that the Plaintiff is not entitled to any orders prayed for in the plaint. He however, submitted that this court should order the Plaintiff to pay a sum of Ugx 7,000,000/- the value of the bounced cheque, D. Exh. III released in favour of the Defendant for release of title for plot 215 and it bounced. It is the position of this court that in the absence of any claim for the same, this court cannot delve into the issue of the bounced cheque.

[23] Judgment is therefore in the circumstances of this case given in favour of the Defendant by way of dismissal of the Plaintiff's suit with costs to the Defendant.

Byaruhanga Jesse Rugyema JUDGE 15/04/2021