Molly Kubakurungi and Others v Commissioner Land Registration and Others (HCT-17-LD-CS-0164-2022) [2024] UGHC 1265 (25 April 2024) | Land Title Cancellation | Esheria

Molly Kubakurungi and Others v Commissioner Land Registration and Others (HCT-17-LD-CS-0164-2022) [2024] UGHC 1265 (25 April 2024)

Full Case Text

### **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT LUWERO**

## **HCT-17-LD-CS-0164-2022**

## **(CONSOLIDATED FORMERLY LAND DIVISION CIVIL SUITS NOS. 970 OF 2018; 1047 OF 2018 AND 671 OF 2019)**

- **1. MOLLY KUBAKURUNGI** - **2. KASIKURA EDWARD** - **3. NUWAHORA GEORGE** - **4. NUWAGABA ENOS……( Administrators of late Fred Rufaha)** - **5. BUSINGYE FRED** - **6. NYABIJURA ANNET……(Administrators of the late Samwiri Bindeba)** - **7. NALWANGA MARGRET** - **8. KIKOMEKO CHARLES** - **9. SSEBALE FIONA JOSEPHINE** - **10. KIGEMUZI WILLIAM** - **11. BABIRYE JENNIFER (Administrator of the estate of late Mukalo Joseph)……………………………………. PLAINTIFFS**

**V**

- **1. COMMISSIONER LAND REGISTRATION** - **2. THE ATTORNEY GENERAL** - **3. SSEWAKIRYANGA JAMES** - **4. BUSULWA EDWARD** - **5. KAYONGO EMMANUEL( Administrator of the estate of late Male Daudi Butamanyangamba).……………………. DEFENDANTS**

# **BEFORE LADY JUSTICE HENRIETTA WOLAYO**

# **JUDGMENT**

Introduction

- 1. By a plaint filed on 30.11.2018 formerly Land Division Civil Suit No. 970 of 2018, the plaintiffs Molly Kubakurungi, Kasikura Edward, Nuwahora George, Nuwagaba Enos (*Administrators of the estate of late Fred Rufaha*); Busingye Fred, Nyabijura Annet (*Administrators of late Samwiri Bindeba*); Nalwanga Margret, Kikomeko Charles, Ssebale Fiona Josephine, Kigemuzi William, Babirye Jennifer (Administrators of late Mukalo Joseph) sued the defendants : Commissioner for Land Registration, Attorney General, Sewakiryanga James, Busulwa Edward, Kayongo Emmanuel, Nakamate Eva (*Administrators to the estate of late Daudi Butamanyangamba* ). - 2. Worthy of note is that the suit was by three distinct plaintiffs representing three distinct estates all claiming an interest in the suit land. For the sake of clarity, I will refer to the parties by the estates they represent.

*Formerly Civil Suit No. 970 of 2018 Administrators of the estate of Fred Rufaha V administrators of the estate of Daudi Butamanyangamba )*

3. The gist of this claim was the recovery of land comprised in Bulemezi Block 883 Plot 3 measuring 233.2 hectares land at Namatove which administrator to the estate of Fred Rufaha inherited from their late father but which was cancelled by the Commissioner Land Registration and reconstituted to read Bulemezi Block 882 Plot 1 and registered on 7.5.2018 to Sewakiyanga James, Busulwa David, Kayongo Emmanuel, and Nakamatte Eva all administrators of late Daudi Butamanyangamba .

*Formerly Civil Suit No. 671 of 2018 Estate of late Samwiri Bindeba and Estate of late Joseph Mukalo Civil Suit No. 1047 of 2018.*

- 4. It was not disputed that these two suits were consolidated with Civil Suit No. 970 of 2018 (estate of Fred Rufaha Plot 3(formerly Plot 1) for the reason that the causes of action arose from the Cancellation Order of the Commissioner Land Registration. These are Bulemezi Block 882 Plot 6; Block 882 Plot 5 and Block 882 Plot 4. These properties were previously registered to Kikomeko Charles and others, representatives of the estate of Mukalo Joseph; Margret Nalwangwa; and Busingye Fred and Njabijura Annet representatives of the estate of Samwiri Bindeba. - 5. The now third to sixth defendants in the consolidated suit (Sewakiyanga James, Busulwa David, and Kayongo Emmanuel, all administrators of late Daudi Butamanyangamba) denied these claims in their written statements of defense and averred that the Commissioner Land Registration (first defendant) lawfully cancelled the registration of the plaintiffs on the certificate of title. Furthermore, that the Limitation Act Cap.80 did not apply to them because they only learnt of the plaintiffs' fraud in 2015.

The Cancellation Order of the Commissioner Land Registration( CLR) dated 16.3.2018 PEXH.15

6. The Cancellation Order of the CLR Opio Robert, cancelled the following entries :

- a. The entry of Busingye Fred and Nyabijura registered on 13.10.2013 - b. The entry of Mukalo Joseph on Plot 6 registered under instrument BUK 56865 on 6.2.2003 - c. The entry of Fred Rufaha under BUK 56795 of 20.1.2003; - d. Entry of Margret Nalwanga under Instrument BUK 90992 on 8.4.2010. - 7. The commissioner also cancelled certificates of title created and reinstated Plot 1 . He further reinstated the entry of Daudi Mutamanyangamba as the registered proprietor of Plot 1. These facts are self-evident and are not disputed. - 8. The following issues arising from the suit and written statement of defence were framed for trial: - a. Whether the third to sixth defendants estate of Mutamanyangamba) had locus to move the Commissioner Land Registration for cancellation of certificates of title for the suit land. - b. Whether the cancellation of the certificates of title on grounds of fraud was lawful. - c. Remedies - 9. By a counterclaim filed on 11.2.2019 in originally CS No. 1047 of 2018, the Counter claimants hereinafter referred to as the claimants) sued

the counter defendants ( hereinafter referred to as plaintiffs) for obtaining registration of land comprised in Block 882 Plots 2,3,4,5,6 (formerly Plot 1) Land at Namatovu) , by fraud.

- 10. The claimants pleaded the particulars of fraud in the following terms: - a. Conniving together to obtain as proprietors of the suit land well aware of the claimants' legal/beneficial interests. - b. Forging documents purportedly transferring the suit land from its original owner with the sole motive to deprive the claimants of the same. - c. Attempting to defraud the claimants of the suit land by lodging a false and fabricated cause of action in the present suit. - d. Falsely creating proxy third party rights in respect of the suit land pretending to have legal interests with intention to deprive the claimants' legal rights over the same. - e. Illegally occupying the suit land without the claimants' consent. - 11. In another counterclaim against the Attorney General filed on 7.1.2019, the claimants cited the following particulars of fraud: - a. Acquiring registration of the suit land based on irregular transfer forms - b. Acquiring registration of the suit land without paying consideration - c. Conniving with the then Registrarof titles to transfer land into his name - d. Claiming to have bought the suit land from late Daudi Mutamanyangamba whereas not.

- 12. The claimants sought compensatory damages against the Attorney General for the reason that Eriya Cegugwa Rujumwa Kaggwa is dead. Furthermore, they learnt of the wrongful dealings in the suit land in 2014 and then lodged a complaint with the Commissioner Land Registration. - 13. In addition to compensation, the claimants claimed for the following relief: - a. A permanent injunction against the counter defendants, their servants, relatives, agents restraining them from interfering with possession /occupation of the suit land by the counterclaimants. - b. A declaration that the first to third claimants are the legitimate owners of the suit land and got legally registered as proprietors. - c. An order dismissing the counter defendants claim against the first to fourth counter claimants. - d. An order for vacant possession - e. Damages - 14. In their reply to the claim filed on 19.2.21, the first to eleventh plaintiffs Molly Kabakuringi and ten others, denied the counter claim and averred that they are owners of the suit land which previously belonged to their fathers/predecessors in title Fred Rufaha and Mukalo Joseph who had transacted with Sepiriya Matovu and therefore have a claim of right on the suit land. They denied the allegations of fraud.

- 15. The following issues arising from the suit and written statement of defense were framed for trial: - a. Whether the third to sixth defendants estate of Mutamanyangamba) had locus to move the Commissioner Land registration for cancellation of certificates of title for the suit land. - b. Whether the cancellation of the certificates of title on grounds of fraud was lawful. - d. Remedies - 16. Both parties filed written submissions which I have carefully considered.

#### Burden of proof

#### 17. **Section 101 of the Evidence Act Cap. 6** stipulates 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'.*

18. In **Miller v Minister of Pensions[1947]2ALL ER** 372 at 373-374, Denning J when speaking on the degree of cogency of evidence required to discharge the burden of proof in civil cases had this to say:

> *That degree is well settled. It must carry a reasonable degree of probability, but not as high as is required in a criminal case. If the evidence is such that the tribunal can say: 'we think it more probable than not, the burden is discharged but if the probabilities are equal, it is not' .*

19. In **Bater v Bater [1951] 35 at 36-37**, Denning LJ had this to say on varying degrees of standards in civil cases.

*'…in civil cases, the case must be proved on a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject matter. A civil court, when considering a charge of fraud, will naturally require for itself a higher degree of probability than that which it would require when asking if negligence is established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature, but still it does require a degree of probability which is commensurate with the occasion'.*

#### Background facts

- 20. On 25.4.2022, the plaintiffs' witness statement of Kikomeko Charles PW1 was admitted as his evidence in chief before my brother Kawesa J. Kikomeko testified on behalf of the estate of late Mukalo Joseph. - 21. On 12.7.2022, the witness statements of Molly Kabakurungi PW2 was admitted. She testified on behalf of the estate of late Fred Rufaha. On the same date, the statement of Busingye Fred PW3 testified on behalf of the estate of late Bindeba Samwiri arising from Bulemezi Block 882 Plot 4 was admitted. He also testified for Nalwanga Margret registered proprietor for Plot 5 arising from the estate of late Mukalo Joseph). These plaintiffs were also affected by the order of the CLR dated 16.3.2018 cancelling their registrations on the respective plots.

### The plaintiffs' case

22. In brief, the case for the plaintiffs' was that they are administrators of the estate of late Fred Rufaha; late Samwiri Bindeba and late Mukalu Joseph respectively. The subject matter is formerly Bulemezi Block 882 Plot 1 land at Namatove. It was the statement of Kabakurungi that Rufaha purchased land from Sepirya Matovu for valuable consideration and took possession of it. That they had a home on the land and he was buried there. The administrators of Rufaha estate were entered on the register on 7.5.2015.

- 23. The plaintiffs' case was recorded by my brother Kawesa J. On 25.4.2022, the plaintiffs' exhibits were marked in the presence of all parties and Kikomeko PW1 was examined. On 12.7.2022, the witness statements of two witnesses were admitted in evidence with no crossexamination by the first and second defendant's lawyers who were in attendance. Babu Hakim appeared for Commissioner Land Registration (first defendant) and Ochelamu Emmanuel appeared for the Attorney General (second defendant). The two witnesses are: PW2 Molly Kabakurungi and PW3 Fred Busingye. The other defendants (estate of Butamanyangamba) were absent and so was their lawyer. - 24. The testimony of PW1 Kikomeko Charles who had earlier taken the stand on 24.5.2022 is that he is the son of late Mukalo Joseph who purchased approximately 630acres from Sepriya Matovu administrator of the estate of late Eriya Rujumwa Ceguga Kaggwa alias Eriya Katongole Kaggwa. Mukalo got registered on 16.2.2003 at Bukalasa Land Office vide instrument No. 56865. It was Kikomeko's case that Mukalo gave 200acres to Nalwanga Margret and he retained 430 acres comprised in Bulemezi Block 882 Plot 2 and 6 and that after his death,

Kikomeko and his siblings continued in occupation of the land after his father's death in 2013.

- 25. In 2014, he came across a letter from the Registrarof Titles Bukalasa dated 13.8.2014 (Pexh.2) threatening to cancel their registration at the behest of some of the defendants (administrators of late Butamanyangamba) on account of wrong entries in the register, i.e. Bulemezi Block 882 Plot 2 and 6. - 26. It was Kikomeko's testimony that Kaggwa had been registered proprietor since 1968 and Mukalo had purchased his land honestly from the administrator of Kaggwa, Sepiriya Matovu who was in physical possession. On 8.11.2018, some people came claiming to be brokers sent by the owners to inspect it and on searching the register at Bukalasa Land Office, he discovered that certificates of titles for Bulemezi Block 882 Plot 2 and 6 and for his neighbors Plots 3, 4, and 5 had been cancelled and all reconstituted as **Bulemezi Block 882 Plot 1** and registered in the names of Sewakiryanga James; Busulwa David; and Kayongo Emmanuel;(grandsons and daughters of late Daudi Male Butamanyangamba). - 27. According to Kabakurungi PW1, on 2.7.2015, the family received a letter from the Commissioner Land Registration (CLR) to attend a public hearing on 25.7.2015 which they did but the hearing did not take place. The hearing was to take place on 14.8.2015 but they were simply informed a decision would be communicated in two weeks.

Subsequently a decision was made by the CLR dated 16.3.2018 cancelling their registration on **Bulemezi Block Plot 3**.

- 28. The gist of the evidence of Fred Busingye Fred PW1 is that himself and Nyabijura Annet(sixth plaintiff) are administrators of the estate of late Bindeba Samuel, while Nalwanga Margret (third plaintiff) is the registered proprietor of Bulemezi Block 882 Plot 5 . Busingye and Njabijura are registered proprietors of **Bulemezi Block 882 Plot 4.** According to Busingye, registration was wrongly cancelled by the Cancellation Order of the CLR dated 16.3.2018. - 29. None of the witnesses were cross-examined by defence counsel in attendance and even when defence counsel appeared before me, there was no prayer for recall of these witnesses to be cross – examined. - 30. When the case was called on 7.2.2023, counsel Kandeebe informed me that the counter defendants Kikomeko Charles and others had closed their case, but more importantly, they had entered a partial consent judgment with the Commissioner Land Registration and the Attorney General but that they would not bring it for me to endorse until after the defendants/counter claimants had concluded their case. In other words, the Commissioner Land Registration conceded that his order cancelling plaintiffs' certificates of title was erroneous and agreed to reinstate them.

31. As the suit against the estate of Butamanyangamba remained live because the third, fourth, fifth defendants (Sewakiryango James; Busulwa Edward; Kayongo Emmauel) and as these had raised a counterclaim, the case was adjourned for hearing of the suit against them and the counterclaim.

Three issues were framed for trial on the main suit and counterclaim

- 1) Whether the third to sixth defendants had locus to move the CLR to cancel titles - 2) Whether the cancellation of title on grounds of fraud was lawful - 3) Remedies. - **32.** On 17.10.2023, hearing on the remaining suit and counter claim commenced. Claimant witness No. 1 Kayongo Emmanuel's witness statement was admitted as his evidence in chief. Kayongo described himself and the other claimants as grandchildren of late Daudi Butamanyangamba and also as sons and daughter of late Robert Nsereko both of whom died intestate. It was the claimant's case that the late Butamanyangamba was the registered proprietor of the suit land comprised in Mailo Register Volume (MRV) 310, Folio 5 now described as Bulemezi **Block 882 Plot 1 at Namatove Estate measuring approx. 173 hectares.** - 33. According to Kayongo, after Butamanyangamba died in 1956, a one Eriya Ceguga Rujumwa Kaggwa unlawfully caused the transfer of the suit land into his names on the white page on 20.9.1968.

- 34. It was further Kayongo's evidence that prior to his death, Butamanyangamba had informed the Registrarof titles that he never sold Kaggwa his land and denied signing a transfer form. In this regard, Kayongo relied on correspondence in the land registry file which I have seen. These are the same letters the CLR relied upon to cancel the certificate of titles for the three sets of plaintiffs. The correspondences are cited extensively by the CLR in his decision to cancel the certificate of title. The decision is attached to the witness statement of Moses Sekitto which was admitted as Claimant's exhibit No. 11. - 35. An examination of these letters is necessary to establish if indeed the counter claimants have a good case.

*Letter addressed to the Registrarof titles Entebbe by the Land Officer Buganda Lukiko dated 26.1.1939*

36. This letter was reproduced by the CLR in full and I will do the same. Suffice it to say that reliance on these old correspondences is within the law because **Section 73 of the Evidence Act Cap.6** defines documents forming the acts or records of the acts of official bodies and tribunals as public documents. These documents (e.g, the decision of the CLR)) may be proved by the records of the department, certified by the heads of those departments. Having relied upon the old letters, they are brought within the operation of section 73 of the Evidence Act as forming records of the CLR.

- 37. The said letter of the Land Officer of the Buganda Lukiiko was reproduced in the decision of the CLR dated 18.3.2018. The gist of this letter is that the Land officer was informing the then Registrarof titles that Butamanyangamba had told him he had refused to sign a transfer instrument in favour of Kaggwa on the grounds he had never sold the said Kaggwa any land. - 38. It seems that by an earlier agreement dated 13.4.1937 which was annexed to a caveat under instrument No. 42506, Butamanyangamba had agreed to sell land to Kaggwa at 20058/. - 39. A transfer in terms of the said agreement was signed by the Minister on 27.5.1957 in which Kaggwa was given 1701.50 hectares. - 40. On 14.7.1965, Robert Nsereko complained to the judge at Mengo Buganda that his father Butamanyangamba had wanted to borrow 20,000/ from Kaggwa but the said Kaggwa asked for an agreement to enable him borrow from a friend and in 1937, an the agreement was made in which Butamanyangamba sold Kaggwa 2.5 square miles. - 41. After receiving the agreement and a photo from Butamanyangamba, Kaggwa claimed Butamanyangamba had sold him the land. - **42.** Even before this dispute in Mengo in 1965, it seemed there was an earlier suit by Nsereko in 1959 on the same subject under reference Mengo **Principal Court Civil Case No. 1 /59, Robert Nsereko v**

## **Eriya Kaggwa in respect of Mailo register Vol.310 Folio 5, F. C 20048.**

- 43. Kayongo relied upon these correspondences to prove that Kaggwa was illegally registered onto the suit land on 20.9.1968 and on 7.8.2001, Sepiriya Kaggwa administrator of Kaggwa's estate got registered as proprietor of the suit land. - 44. From the foregoing analysis, it is evident that there was a disagreement between Butamanyangamba and Kaggwa on whether Kaggwa had actually bought land or he had just lent Butamanyangamba money and the land was simply a collateral. This dispute subsisted and was overtaken on 27.5.1957 when the Minister authorized the transfer of land to Kaggwa. In other words, the dispute which by then had not reached the courts, was administratively resolved. - 45. It reached the court at Mengo in 1959 going by the reference to Civil Suit No. 1 of 1959 Nsereko v Kaggwa. The outcome of this suit was not disclosed by the claimants witness but by a letter dated 17.9.1968(Pexh. in 8th to 11th trial bundle), the chief magistrate Mengo wrote to the Ag. Ass. Registrarof titles under reference **Civil Suit No. 146 of 1965 Robert Nsereko v Erisa Kagwa** that the principal court of Mengo had dismissed the suit and the plaintiff ordered to file the same in the High Court of Uganda.

- 46. Having found that the then Minister validated the agreement between Kaggwa and Butamanyangamba as a sale agreement and authorized the transfer of land from Butamanyangamba to Kaggwa on 27.5.1957, and in the absence of any court judgment impeaching the sale agreement, Kaggwa acquired a legal title thereafter. - 47. On the basis of the above correspondences, the CLR cancelled the registration of the administrators of late Rufaha; late Samwiri Bindeba; late Mukalo Joseph Molly Kabarungi and other administrators of the estate of Rufaha and returned Plot 1 from which all the certificates arose, into the hands of the administrators of Butamanyangamba, the current claimants, in 2018.

## *Other evidence relied upon by the claimants*

- 48. Particulars of fraud cited by the claimants by their counterclaim filed on 7.1.2019, are as follows: - a. Acquiring registration of the suit land based on irregular transfer forms. - b. Acquiring registration of the suit land without paying consideration. - c. Conniving with the then Registrarof titles to transfer land into his name. - d. Claiming to have bought the suit land from late Daudi Butamanyangamba whereas not. - 49. As I discuss these forms, I shall pronounce myself on **MA. No. HCT-17-LD-MA-0357-2023,** wherein the counter claimants, Sewakiryanga James and three others sought leave to amend their written statement of defense and counterclaim.

*Transfer to Mukalo Joseph(Counter Claimants' trial bundle)*

- *50.* I note that the claimants/applicants sought to introduce another cause of action against the estate of Mukalo Joseph whom they allege bought 25 hectares but that on the ground, he has 254.6 hectares. - *51.* It is indeed a fact that the transfer form is for 25.9 hectares from Sepiriya Matovu to Mukalo at a consideration of 1,000,000/ and valued at 3,500,000/ by the government valuer for purposes of stamp duty on 29.1.2003. The claimants now seek leave to introduce another claim against Mukalo's successors in title for having got free land in excess of the 25 hectares. This is evidently a new cause of action against this estate. In this regard , I agree with the principle pronounced in **Lubowa Gyaviira & Ors v Makerere University, HCMA No.471 of 2009** where it was held that;

*"A court will not exercise its discretion to allow an amendment which constitutes a distinctive cause of action for another or change by means of amendment, the subject matter of the suit."*

52. Secondly, the claimants sought to re-introduce transfer forms between Matovu and Rufaha but this form was already in their trial bundle and it will be canvassed in this judgment. For these two reasons, the application to amend the counter claim is dismissed.

## *Transfer forms*

53. These forms are contained in the claimants trial bundle and were marked collectively claimants exhibit No. 6, are transfer of land forms for Bulemezi Block 882 Plot 3 from Sepirya Matovu to Fred Ruhafa 233.2 hectares for a consideration of 3,000,000/. The government valuer assigned the said 3,000,000/ as the value of the land for purposes of stamp duty on 16.1.2003. The second form is an application for consent to transfer the said land.

- 54. On the submission by counsel for the defendant that Rufaha got 233 hectares without paying consideration and that therefore this is fraud, this position is not tenable because the parties ( Sepriya Matovu and agreed to 3,000,000/ as consideration for the land. Counsel for the defendant submitted that once an illegality is discovered, it cannot be condoned by court. This value of 3,000,000/ was endorsed by the government Valuer because it was upon the said value that Stamp duty was assessed. Therefore, the question of illegality cannot arise. - 55. Counsel also submitted that while the consent to transfer form for Rufaha had 25 hectares, the title had 250 hectares and that therefore, this was an illegality. Unfortunately, counsel for the counter claimants did not cross –examine the plaintiffs' witnesses and moreover, the transfer form indicates 233 hectares were transferred to Rufaha. What is material is the transfer form and not the consent to transfer. Either way, the claimants lost locus to challenge the registration of Kaggwa and later Sepiriya by efluxtion of time. - 56. Counsel for the counter claimants submitted that the counter claimants became aware of the fraud in 2014 when time under the Limitation Act Cap. 80 started running. The legal position is that time begins running for a claim in fraud when the said fraud is discovered

which actually happened in 1959 when Nsereko commenced a suit in the Buganda Kingdom court in Mengo. It is not the time when the current claimants discovered the fraud that is material but rather the time their predecessors discovered the fraud.

- 57. Although **Section 5 of the Limitation Act** bars recovery of land beyond twelve years after the cause of action arose, **Section 25(a)** thereof postpones the operation of Section 5 to the time the fraud is discovered. The fraud having been discovered in 1959 by Nsereko, paternal uncle to Counter claimant witness No.1 Kayongo Emmanuel, time began running then. I am in agreement with the submissions of counsel for the plaintiff in this regard. - 58. More importantly, Section 25(d) thereof protects purchasers for valuable consideration who had no knowledge of the fraud or who did not have reason to believe that any fraud had been committed. The counter claimants adduced no evidence to prove that the predecessors of the current plaintiffs had knowledge of the alleged fraud committed by Eriya Kaggwa from whom Sepiriya Matovu derived title and who in turn sold to the plaintiffs' predecessors Fred Rufaha and Mukalo Joseph. - 59. Evidence on record shows that Nsereko son of Mutamanyangamba litigated the said transfer in court whose outcome Kayongo Emmanuel claims got lost. The said litigation commenced in 1959, after the Minister from Buganda Government administratively effected the transfer of land to Eriya in 1957. In the premises, as the claimants are

caught by Section 5 of the Limitation Act, and as the alleged cause of action in fraud was extinguished by effluxion of time, i.e (62) sixty two years since the alleged fraud was discovered by Nsereko, the claimants cannot bring it up now. Furthermore, the plaintiffs are bona fide purchasers for value without notice of any fraud.

- 60. In this regard, I am in agreement with submissions of counsel for the plaintiffs that the cause of action in fraud arose in 1957 and therefore the counter claim fails on account of **Section 5 of the Limitation Act Cap. 80** and also because the plaintiffs are bona fide purchasers for value without notice of any fraud. - 61. The effect of this analysis is that the first issue on locus is answered in the following terms: the counter defendants (third to fifth) did not have locus to move the CLR to cancel certificates of title, because they were time barred by Section 5 of the Limitation Act. Evidently, the Limitation Act Cap. 80 applies to the CLR who sits in a quasi-judicial capacity just as it applies to the Courts.

Lastly, I agree with the precedent of the Hon. Justice Dr. Flavian Zeija in **Prince Kalemera H. Kamera and another (administrators of the estate of H. R. H Sir Daudi Chwa II) V The Kabaka of Buganda and others (Civil Suit No. 537 of 2017) [2020] UGHCLD 16 (28.9.2020**) that fraud should not be used as a reason for grandsons to try to recover land of their long deceased grandparents. In fraud cases, the standard of proof of fraud is much higher than the ordinary standard in civil cases and the same has not been met by the claimants.

- 62. As for the claim that the plaintiffs claimed to have bought land from Butamanyangamba, the plaintiffs made no such claim. It is evident they bought land from Sepiriya Matovu administrator of the estate of late Kaggwa who had been lawfully registered as proprietor by order of the Minister in 1957 whose son Sepriya Matovu then sold to Rafaha Fred. Mukalo also bought from Sepriya Matovu. Therefore, the Commissioner Land Registration erred when he cancelled the registration of the counter defendants/plaintiffs registration on 16.3.2018. - 63. In the premises, the counter claim has failed and it is dismissed with costs to the counter defendants/plaintiffs.

Regarding the plaintiffs suit against the defendants (Molly Kabakurungi and others V Sewakiryanga James and others), they succeed on the basis that they discharged their burden of proof. Through their unchallenged witnesses and documentary evidence they proved on a balance of probabilities that the third to fifth defendants got registered as proprietors through the Cancellation Order of the CLR which was without legal basis.

64. As submitted by counsel for the plaintiffs, **Section 91 of the Land Act Cap. 227** does not confer on the CLR powers to cancel certificates based on fraud. In his Cancellation Order, the CLR specifically found fraud as a basis for cancelling the plaintiffs' certificates. This was ultra vires the powers of the CLR and was therefore illegal. The second issue on fraud is answered in the following terms: the cancellation of the plaintiffs' certificates of title on the suit land was without legal basis and therefore illegal and unlawful and is hereby set aside.

## Remedies

- 65. The plaintiffs are bona fide purchasers for value without notice of any fraud. - 66. The registration of the defendants on Bulemezi Block 882 Plot 1 shall be cancelled and the registration of the plaintiffs on Bulemezi Block 882 Plots 2, 3,4,5,6 respectively is restored. - 67. The defendants (Sewakiryanga James; Busulwa Edwara; Kayongo Emmanuel) shall pay the eleven plaintiffs costs of this suit severally and jointly.

## Orders

- a. The plaintiffs' suit succeeds. - b. The third to fifth defendants' registration as proprietors of Bulemezi Block 882 Plot 1 through the Cancellation order of the CLR dated 16.3.2018 was without legal basis. - c. The Cancellation Order dated 16.3.2018 is hereby set aside and consequently, the defendants' special certificate of title, Bulemezi Block 882 Plot 1 is hereby cancelled.

- d. The registration of the plaintiffs on Bulemezi Block 882 Plots 2, 3,4,5,6 respectively is restored. - e. The Commissioner Land Registration is directed to put into effect the said orders on receipt of the decree. - f. The counter claim fails. - g. An injunction shall issue restraining the defendants/counter claimants from making any further claims on the suit land and from interfering with the quiet possession of the plaintiffs. - h. The defendants/counterclaimants (Sewakiryanga James; Busulwa Edwara; Kayongo Emmanuel) shall pay the eleven plaintiffs costs of this suit and the counter claim severally and jointly. - i. The partial consent judgment between the plaintiffs with the Attorney General and Commissioner Land Registration, should be presented to me for endorsement. - j. Parties will extract a partial decree arising from the consent judgment and a final decree arising from the suit and counter claim between the eleven plaintiffs and the third to fifth defendants.

## **DATED AT LUWERO THIS 25TH DAY OF APRIL 2024. \_\_\_\_\_\_\_\_\_\_\_ LADY JUSTICE HENRIETTA WOLAYO**

Legal representation

Verus Advocates; Mushanga & Associates; Ntambirweki, Kandeebe & Co. Advocates for the counter defendants.

Kira Advocates & legal Consultants for the claimants.