Migadde (Administrator of the estate of the late Sajabi sikamituba Temitewo) v Nalwadda Nasande and Another (Civil Suit No. 19 of 2019) [2021] UGHCLD 213 (10 February 2021)

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT MASAKA

## LAND DIVISION

#### CIVIL SUIT NO. 19 OF 2019

## CHARLES MIGADDE (Administrator of the estate of the

Late Sajabi Sikamituba Temitewo ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF

#### VERSUS

- 1. NALWADDA NASANDE JOYCE NALONGO - 2. COMMISSIONER LAND REGISTRATION :::::::::::::::::::::::::::::: DEFENDANTS

#### *Before; Hon. Lady Justice Victoria Nakintu Nkwanga Katamba*

### **JUDGMENT**

The Plaintiff instituted this suit against the Defendants seeking an order for recovery of land comprised in Buddu Block 152 Plot 9 at Mutuda (the suit land), a declaration that the 1 st Defendant obtained registration as a proprietor of the suit land fraudulently, a declaration that the Plaintiff and his siblings are the lawful owners of the suit land, an order that the 2nd Defendant cancel the title registered in the 1 st Defendant and register it in the Plaintiff, a declaration that the letters of administration granted to Mary Nabatanzi be cancelled because they were acquired illegally and fraudulently obtained, general damages, interests and costs of the suit.

The Plaintiffs case is that he is the administrator of the estate of the late Sajabi Sikamituba Timutewo who died intestate and left 10 acres of land. The family of the late held a meeting and appointed a one Mukiibi Joseph as administrator but Mukiibi died in August 2015 before obtaining the letters of administration. Mary Nabatanzi (the Plaintiff's) sister registered herself on the Certificate of Title fraudulently relying on forged family minutes and sold the estate illegally, three plots of which were sold to the 1st Defendant. One of the plots was sold to the 1st Defendant illegally and it is the suit land. The 1st Defendant registered her names on the title illegally with no interest whatsoever. The particulars of fraud are that the 1st Defendant registered herself on the suit land with no interest and also forged signatures on the sale agreement, the late Mary Nabatanzi dealt in the suit land with no letters of administration.

In her Written Statement of Defence, Counsel for the 1st Defendant averred that the suit is unmaintainable in law as the letters of administration granted to the late Nabatanzi remain unrevoked. She denied the claim and stated that the late Nabatanzi was the rightful and lawful administrator of the estate at the time of the sale. That as such, she is the rightful owner and has been unchallenged since 2009 and acquired the suit land as a *bona fide* purchaser for value.

In reply, Counsel for the Plaintiff stated that the Defence was filed out of time without leave of court and it ought to be struck out. The Defence is denied in toto as the late Nabatanzi never acquired letters of administration from any court pertaining to the estate of the late Ssajjabi.

The Parties filed witness statements.

In his witness statement, the Plaintiff stated that he is the administrator to his late father Ssajabi Sikamituba's estate having been appointed vide Admin Cause No. 194 of 2018. The suit land comprised in Buddu Block 152 Plot 9 was to be preserved as burial grounds. In 2009, the 1st Defendant attempted to enter on the Plaintiff`s ancestral land but failed as the Plaintiff's family resisted. She reported them to police and they were arrested. While they were in prison, the 1st Defendant forcefully entered into possession. The 1st defendant bought 5 plots of land from the Plaintiff`s sister measuring approximately 2 acres and the Plaintiff acknowledges these plots but not the interest in the suit land. The Plaintiff's elder brother lodged a caveat on the 6th day of May 1996 to preserve the suit land but the 1st defendant was registered on the land after securing a forged removal of caveat since the

Plaintiff`s brother was in prison at the time. The Plaintiff's sister died on the 13th day of December 2008 and was buried on the suit land but she had also suffered a mental illness so there is no way she could have signed transfer forms.

In his testimony during cross examination, the Plaintiff stated that his father's name is Ssajabi Timutewo. His father left 14 children from four mothers and his father gave him 5 acres adjacent to the suit land. He occupied the land in 2000 and sold part of it to the 1st Defendant. His father forbade the transfer of Buddu Block 152 Plot 9. He has a title to the land he was given from his father's estate and it is still registered in Timutewo Sajjabi's name. He left the land to be distributed by the clan leaders who gave the suit land to the Plaintiff. He sold part of the land to the 1st Defendant. The father forbade selling the suit land in his Will which is in the custody of Namakula Teo. He learnt that the late Nabatanzi was registered on the suit land in 1986. The family never sat to concede the sale of the suit land. The family nominated Yozefu to be the administrator and they never removed the caveat he lodged on the suit land. Nabatanzi was registered proprietor of the suit land in 1986 and he knew that she sold to the 1st Defendant as registered proprietor. She sold in 2002, sixteen years after she had been registered as proprietor. His older brother and heir, Mukiibi lodged a caveat on the suit land.( It was admitted in evidence as PEXh7.) He had been nominated to be administrator of his father's estate and had applied for letters of administration but died before he obtained the granted.

PW2 Flazia Nalubega stated in her witness statement that she was married to the late Timutewo Ssajabi who died on the 30th day of December 1965 and left 14 children. They had a matrimonial home with three wives in it on the suit land and burial grounds for the deceased's family. The suit land was never distributed by the late Ssajabi and it was left out as matrominoal home and burial grounds. Around 1986, the late Nabatanzi started threatening her to vacate. The late Nabatanzi forcefully evicted her out of the suit land and transferred the title to the land into her names. The 1st Defendant bought the land well knowing that the late Nabatanzi had no good title to it. She does not know the part that Nabatanzi sold neither does she know how the land was distributed or if Nabatanzi got land. That was the close of the Plaintiff`s case.

In her witness statement, the 1st Defendant stated that in 2008, she bought the suit land comprised in Buddu Block 152 Plot 9 from the late Nabatanzi Mary and became the registered proprietor on 06.10.09. She bought approximately 10 acres. Nabatanzi had become the Registered Proprietor on 24.4.86 under Instrument No. MSK 68930 as administrator of the estate of Sajabi dec'd Administration cause No.4 of 1985. The Land Register shows that on 6.5.96, under Inst. No. MSK 79056 one Yozefu Mukiibi lodged a caveat on the Certificate of Title. Yozefu filed a notice to withdraw the caveat in 2009 and the withdrawal was registered on 18.08.2009 as Inst. No. MSK 946719. The transfer to the 1 st Defendant was lodged by Kikerengoma Edward Advocate and she was registered as proprietor. She has been in continued occupation and possession of the suit land from the time of purchase and has made several developments on the land. She learnt that the Plaintiff obtained letters of administration in 2019. She is a *bona fide* purchaser of the suit land and the Plaintiff has no locus to bring the suit. In cross examination the 1st Defendant testified as follows: Nabatanzi sold to her six bibanjas measuring slightly over two acres. They used boundary plants (Mpanyi) to indicate the boundaries. The bibanja measured about 5 acres. In 2011 she occupied the 10 acres of the land she had bought. She bought in 2002 was in possession but had not got money to utilize the land. She took possession of the different parcels as she acquired them from 2002. There were many agreements between her and Nabatanzi and the last agreement was made in 2008. Transfer forms were signed to her by Nabatanzi on 26.06.2009 and when she conducted a search, it established that Nabatanzi was the Registered proprietor and didn't see the caveat. She found a banana plantation and burial ground on the land. Nabatanzi did not sell the burial ground to the defendant. She reported some of the family members and they spent six months in prison around 2010 after the death of Nabatanzi. The last agreement she made with the late Nabatanzi was in 2009. When shown the thumbprints on the different agreements by Plaintiff's Counsel, the 1st Defendant said that they looked the same to her and on some agreements, Nabatanzi used the fluid from tomatoe leaves as ink and in others, the ink of a

pen. Lastly, that Nabatanzi died on 17th January, 2010 after the caveat had been removed and sales completed.

That was the close of the Defendant`s case.

The issues for determination by this court as agreed upon by the parties in their joint scheduling memorandum are as follows;

- 1. Whether the 1st Defendant is a bona fide purchaser for value without notice of fraud for land comprised in Buddu Block 152 Plot 9. - 2. Whether the 1st defendant fraudulently transferred the certificate of title of the suit land into her name. - 3. Whether the 2nd Defendant was negligent in transferring the Certificate of Title to the suit land into the 1st Defendant's names.

Both parties filed written submissions and they are on the record. I will set out the pertinent aspects of each here below:

Counsel for the Plaintiff submitted that it is not in dispute that the 1 st Defendant for this particular case first bought 5 bibanja/plots from the late Nabatanzi Mary starting in June 2003 and registered herself on the suit land in 2009. By first being a kibanja holder and later registering herself on the title 5years later, excludes her from being a bona fide purchaser. It is settled law that a defence of bonafide purchaser for value without notice only applies to a person who follows under the category provided for in Hannington Njuki vs. William Nyanzi CS No. 434 of 1996; where court of appeal went to hold that for a purchaser to successfully rely on the *bona fide* doctrine, he must prove that he holds a certificate of title, he purchased the property in good faith, he has no knowledge of fraud, he purchased for valuable consideration, the vendor has apparent title, he purchases without notice of fraud and was not party to the fraud. The 1st defendant does not fulfill any of these grounds as she was registered after the death of Mary Nabatanzi whose title was also tainted with fraud.

The suit land was not bought in good faith as there was a caveat on the land. She was aware that the suit land was a burial ground and that there was a local council verdict stopping developments on the land and for that reason, she is not a *bona fide* purchaser for value without notice. The Plaintiff adduced evidence that the late Mary died on the 12.12.2008 and yet the 1st defendant stated that she died in 2009 and that the sale agreement dated 10/10/2008 was made in Kampala and all the witnesses travelled to Kampala, yet none testified in court and the agreement is also stamped with the local council chairman stamp. The sale agreement is a forgery as it was made after the vendor's death. The defendant was dishonest when she bought the land knowing that it had a caveat which proves bad faith. The defendant did not pay the full consideration of the land as there is no proof of payment which implies that the land was transferred without full payment. The defendant knew that the land was ancestral land and went ahead to purchase it with equitable interests and later fraudulently registered herself on the title.

Counsel for the Defendant submitted that the Plaintiff has failed to prove on what basis he claims to be a lawful owner of the suit land and his cause of action in the matter. No evidence has been led to prove that Mary obtained registration by fraud and the fact that she had been registered on the land for over 20 years unchallenged, negated all allegations of fraud.

In rejoinder, Counsel for the Plaintiff submitted that the Plaintiff brings this suit as a beneficiary to the estate of the late Ssajjabi which contains the suit land that was fraudulently obtained by the 1st defendant. The Letters of Administration granted to the late Nabatanzi should be revoked and the Plaintiff`s letters from which he assumes capacity to sue should be validated. The cause of action arose on the 6th day of October, 2009 when the 1 st Defendant was fraudulently registered hence the case is not time barred. The 1st Defendant purchased land that had a caveat and she did not inquire to know about it, she was a kibanja holder on the land prior to purchasing the suit land and she knew the wrangles surrounding the estate. This case is not about registration of Nabatanzi onto the title but against the 1st Defendant's fraudulent registration onto the title.

# Determination of the Suit;

The Defendant raised three preliminary objections;

i) Plaintiff has no locus to bring this suit

The Plaintiff prays for an order that the Letters of Administration granted to the late Mary Nabatanzi be cancelled because they were obtained fraudulently without consent of the family. The 1st Defendant avers that this suit is unmaintainable in law in that the letters of administration granted to the Plaintiff are invalid as letters of administration granted to the late Nabatanzi remain unrevoked. Revocation of a grant of letters of administration must be pleaded separately and independently and for that reason, the Plaintiff has no locus to bring this suit.

*Locus standi* means a right to appear in court, and, conversely, to say that a person has no *locus standi* means that he has no right to appear or be heard in a specified proceeding. **(see** *Njau and others v. City Council of Nairobi [1976–1985] 1 EA 397 at 407***).** Counsel for the Plaintiff submitted that the Plaintiff is a beneficiary to the estate of the late Ssajjabi Timutewo and the suit land is burial ground for the Plaintiff`s family and for that reason, the 1st Defendant cannot claim that the Plaintiff does not have locus by virtue of not having letters of administration.

The Plaintiff is the Administrator for the Estate of the Late Ssajabi and a beneficiary as well. Beneficiaries hold equitable interests in the estate and they can institute suits against any persons dealing in the estate fraudulently or even administrators who are mismanaging the estate. Although there are previously obtained letters of administration which have not been revoked by any court, the Plaintiff challenges their authenticity and besides, they have become useless as the previous administrator is dead. Revocation of a grant of letters of administration is provided for under Section 234 of the Succession Act Cap 262 and the procedure is provided for under Section 235 of the same law. I agree with the submissions of Counsel for the Defendant that the Plaintiff has no locus to bring this action in as far as it seeks to cancel letters of Administration, because this procedure is specifically provided for law and that cause of action is independent.

However, since the Plaintiff claims to be a beneficiary of the estate of the Late Ssajabi Timuteo, I find that he has locus to bring a suit for recovery of land that forms part of his estate. The first preliminary objection as to locus standi is therefore overruled in as far as the Plaintiff brings this action for recovery of land as a beneficiary.

ii) Whether the Plaintiff has a cause of action against the 1st Defendant

Autogarage vs Motocov ……defines a cause of action

The plaintiff enjoyed a right, the right has been violated and, the defendant is liable. The Plaintiff claims that the 1st Defendant obtained an interest in the estate of the late Ssajabi and registered herself on the certificate of title fraudulently. He seeks to recover this land.

To that end, the Plaintiff as a beneficiary of the estate had a right to enjoy/use the suit land which right he claims has been violated by the 1st Defendant. He therefore has a cause of action.

iii) The suit is time barred;

Counsel for the Defendant cites Section 5 of the Limitation Act which provides the limitation period for suits for recovery of land, to be twelve years, and Section 6 (2) to the effect that an action for recovery of a deceased person's land is deemed to have accrued on the date of his or her death.

Counsel for the Plaintiff submitted that the right of action accrued when the 1st Defendant was registered on the title to the suit land on the 6th day of October 2009.

## **Resolution of the Issues raised;**

I will resolve the issues concurrently as I can not address the question of bona fide purchaser without addressing fraud.

A *bona fide* purchaser is defined in Black's law Dictionary, 8th Edition, Page 1291 as;

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

Under section **181 of the Registration of Titles Act Cap 230**, title of a *bona fide* purchaser for value cannot be impeached on account of fraud since good title would have passed as long as he/she was not party to the fraud.

For a purchaser to successfully rely on the bonafide doctrine, he/she must prove that;

- *he holds a certificate of title* - *he purchased the property in good faith* - *he had no knowledge of the fraud* - *he purchased for valuable consideration* - *the vendors had apparent title* - *he purchased without notice of any fraud* - *he was not party to the fraud – see Hannington Njuki vs. William Nyanzi H. C. C. S NO. 434 /1996*

Counsel for the Plaintiff submitted that the 1st defendant bought and indeed entered possession of bibanja in 2003 and she registered on the title in 2009 and being a kibanja holder first then later registering herself on a title after 5 years excludes her from being a bona fide purchaser. The 1st Defendant bought from the late Nabatanzi whose title was tainted with fraud, she was much aware of the status of the land as evidenced by the several warnings both from the local council and the Plaintiff`s family. The property was not acquired in good faith as there was a caveat on the land at the time of the purchase and transfer. There was a local council verdict ordering the late Nabatanzi to refund the purchase consideration to the 1st defendant but the 1st defendant deliberately got herself registered on the title.

Counsel for the Defendant submitted that the mere fact that the Defendant had been registered for over 20years without anybody seeking the cancellation of her title negated all allegations of fraud. Lodging a caveat for 12 years with no action suggested that there was no justification for the caveat, and it was also withdrawn formally by application.

The Defendant adduced in evidence the sale agreement for the suit land which was exhibited as DEXh1. The agreement was executed in October 2008. She also adduced an application for withdrawal of caveat dated 21st June 2009. She stated in her evidence that she did not see the caveat at the time of the purchase, but later said that there was a caveat on the land she bought. She also stated that she did not know about the application for removal of caveat, but later said that the late Nabatanzi told her how she removed the caveat and that the lawyer is the one who drafted the application for removal of caveat. This contradicts with evidence of the Plaintiff that the late Nabatanzi died in December 2008 as per the short death certificate submitted in evidence and marked as PEXh12.

Her testimony is full of inconsistencies and contradictories which raise concerns as to the material facts of this matter. In *Uganda v Kavuma Ismail Criminal Session Cause No. 0819/2016* Justice Mubiru held that;

*"it is settled law that grave inconsistencies and contradictions unless satisfactorily explained will usually but not necessarily result in the evidence of the witness being rejected…the gravity of the contradiction will depend on the centrality of the matter it relates to in the determination of the key issues in the case. The question is whether or not the contradictory elements are material i.e. essential to the determination of the case."*

The Plaintiff relies on the existence of a caveat to aver that the 1st Defendant did not purchase the suit land in good faith and without notice for fraud.

A caveat protects the interest of the caveator and as long as it is on the title, no transaction can be made without consent of the caveator. In the instant case, an application for withdrawal of caveat has been tendered into evidence and the Plaintiff challenges its authenticity on grounds that the caveator was in prison at the time the application was lodged. The Defendant confirmed that she reported the Plaintiff and some of his relatives and they were arrested but that Yozefu (the caveator was not one of those who were arrested). There is no evidence on record to prove that the caveator was among the people that were arrested. It is the Plaintiff's word against the 1st Defendants. Neither one of them brought evidence to prove their claims.

Further, the caveat was removed/withdrawn on the 18th of August 2009 which is before the 1 st Defendant was registered on the title. Therefore, the allegation that there was a caveat on the land at the time of her registration on the title is false. I find that the claim that the 1 st Defendant was registered on the land subject to the caveat having no merit. A caveat on land gives constructive notice on encumbrances to the purchaser; however, a purchaser buys land subject to all encumbrances as per Section 64 of the RTA. This means that buying land that is caveated is not illegal, but the purchaser buys that land subject to the caveat.

The effect of a caveat is to protect the interest of a caveator and for as long as it is on the title, no changes can be effected on that title without notice to the caveator.

It is the 1st Defendant's evidence that the caveat was withdrawn by the vendor (the late Nabatanzi) and an application for withdrawal of caveat by the caveator Yozefu Mukiibi, has been adduced into evidence. The Plaintiff`s claim that the caveat was withdrawn fraudulently is insufficient as he has not adduced evidence to support the same. *Section 101 of the Evidence Act* is to the effect that he who alleges must prove. The Plaintiff claims that the family agreed to have Yozefu obtain letters of administration and he lodged the caveat as an administrator although no grant of letters of administration has been adduced to show that he was ever an administrator to the estate. In fact, it is the Plaintiff`s own evidence that Yozefu died before obtaining letters of administration. The Plaintiff, in cross examination, stated that he does not know of the meeting held by the family to appoint Yozefu as administrator of the land. This is inconsistent with what was stated in paragraph 13 of his witness statement. It was also established during cross examination that most of his evidence was hearsay including stating that the suit land was left for the clan leaders to distribute, and that his late father directed that the suit land should not be sold. He stated in cross examination that his father died before the Plaintiff was born, therefore without evidence corroborating his evidence, his allegations remain unsubstantiated.

An application for withdraw of caveat is on record and no evidence has been adduced to prove that it was withdrawn fraudulently. The Plaintiff alleges that the caveator was in prison at the time but the 1st Defendant said that the caveator was not among the people arrested. I therefore find that the Plaintiff`s allegation that the caveat was withdrawn fraudulently unsubstantiated by evidence. For that reason, there was no fraud on the part of the 1st Defendant in withdrawing the caveat.

From the foregoing, I find no evidence to show that the 1st Defendant purchased the suit land in bad faith.

The Plaintiff submitted that the Defendant bought from the late Nabatanzi whose title was tainted with fraud on the basis that the grant of letters of administration was obtained fraudulently without consent of the family members. The Plaintiff has adduced letters of administration which were obtained in December 2018. He claims that the late Nabatanzi had also obtained a grant of letters of Administration but it was obtained fraudulently since she never had consent from the family members. He also stated that his father died in 1965 before the Plaintiff was born. The late Nabatanzi was registered on the title to the suit land in 1986 as administratrix and the Plaintiff stated that he learnt of her registration in 1987. The late Nabatanzi died in 2008 according to the Plaintiff and this was twenty-two years following the registration. This leaves this court wondering why the Plaintiff never challenged the letters of administration during the time that the late Nabatanzi was alive but proceeded to apply for, and obtain letters of administration in 2018 when Nabatanzi was

dead. All this was done without prior application for revocation of the initial grant which still stands unrevoked.

Counsel for the Plaintiff submitted that the Defendant knew that there were wrangles and still purchased the land. A letter from the local council was adduced in evidence and marked as PEXh5 addressed to the 1st Defendant instructing her to stop using the kibanja belonging to the estate of the late Ssajabi Temuteo (the Plaintiff`s late father). This kibanja however does not refer to the suit land and in fact the 1st Defendant had not yet purchased the suit land.

The late Mary Nabatanzi had obtained a grant of letters of Administration to the estate of the late Ssajabi Temuteo and this grant has never been revoked despite the Plaintiff and his family having knowledge of the same. The letters of administration granted to the late Nabatanzi therefore stand and remain unrevoked.

For that reason, the 1st Defendant acquired and holds good title, the title was obtained in good faith and with no notice of fraud since the grant of letters of administration obtained by Nabatanzi Mary was not challenged by the family for all the twenty-two years that the late Nabatanzi held them.

It should also be noted that the Plaintiff acknowledged that the late Nabatanzi had sold five Plots of land to the 1st Defendant which the Plaintiff does not object to as stated in paragraph 17 of his witness statement.

If someone is in possession and is sued for recovery of that possession, the Plaintiff must show that he or she has a better title. If the plaintiff does not succeed in proving title, the one in possession gets to keep the property, even if a third party has a better claim than either of them (**see** *Ocean Estates Ltd v. Pinder [1969] 2 AC 19***)** *(cited in Adrabo Stanley vs Madira Jimmy Civil Suit No. 24 of 2013).*

The Plaintiff in the instant case seeks to recover property that forms part of the estate of the late Ssajabi Temuteo and such recovery required the Plaintiff to prove that he has better title than the 1st Defendant. The Plaintiff`s claim stems from a grant of letters of administration which he claims were obtained fraudulently thereby challenging the transfer of land from the administrator to the 1st Defendant. The Plaintiff has failed to adduce evidence substantiating these allegations and the grant of letters has never been revoked by court.

As held above, the 1st Defendant purchased the suit property and holds apparent title which is conclusive of evidence of title as per *Section 59 of the Registration of Titles Act*. The Plaintiff has not adduced any evidence to show that the 1st Defendant caused the transfer fraudulently as his claims that the caveat on the land was fraudulently withdrawn are unsubstantiated. Therefore, I find that the 1st Defendant holds better title than the Plaintiff and considering the grounds laid out in *Hannington Njuki vs. William Nyanzi H. C. C. S NO. 434 /1996* (supra), the 1st Defendant is a bona fide purchaser for value.

In the result, I find that the 1st Defendant is a bona fide purchaser of the suit land and there was no fraud on her part as a transferee/purchaser of the suit land.

This suit therefore has no merits and is hereby dismissed. No order is made as to costs.

I so order.

Dated at Masaka this 10th day of February, 2021

## **Victoria Nakintu Nkwanga Katamba**

**Judge**