Mubiru v Kiwanuka (misc .cause. no.21 of 2008) [2009] UGHC 252 (10 July 2009)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA LAND DIVISION

# IN THE MATTER OF SECTIONS 166, 177 AND 188 OF THE RTA CAP 230

**AND**

### IN THE MATTER OF BUSIRO BLOCK 393 PLOT 56 LAND AT KITOVU-SSISSA **KITENDE**

# **MISCELLENEOUS CAUSE NO 21 OF 2008**

LEONARD MUBIRU) suing through ) 1. Justine Nambi His lawful Attorney ) Joyce Ndagire **COMPLEX STREET: CONTACT: CONTACT: CONTACT: CONTACT:**

#### **VERSUS**

**GEORGE WILLIAM KIWANUKA** ) (ADMINISTRATOR OF THE ESTATE ) OF THE LATE YAYERI KIVEFUMBIRO $\mathcal{L}$

**EXAMPLE RESPONDENT**

#### **BEFORE: HON. JUSTICE RUBBY AWERI OPIO**

#### **RULING**

#### **INTRODUCTION:**

This application was brought by notice of motion under the provisions of Section 166, 167 and 188 of the Registration of titles Act Cap 230 and Order 52 rules 1 and 3 of the Civil Procedure Rules SI 71-1 The application sought for orders that:

Avesting order issues for the transfer of 20 (twenty) acres of land on part of land comprised in Busiro Block 383 Plot 56 at Kitende to be vested in the $(1)$ Applicant.

Costs of this application be provided for. $(2)$

The grounds upon which this application was JUSTINE NAMBI, which were briefly that- C°ntained in the affldavit of

- (a) The Applicant is the administrator e estate ofthe late Emmanuel Mubiru. - (b) The Applicant granted a Special Power of **a «** Attorney to Justine Nambi and Joyce Namubiru, the donees herein. - (c) The late Emmanuel Mubiru was at first , v s at nrst a Kibanja holder (tenant by occupancy) ofthe disputed land. - (d) The late Emmanuel Mubiru thereafter purchased the registered mailo interest in the 20 acres ofland comprised in Busiro Block 383 Plot 56 at Kitende from the late Yayeri Kivefumbiro for a consideration of Ug. Shs.2,000,000/= (two million). - (e) The above said land transaction was duly witnessed. - (13 The late Emmanuel Mubiru and thereafter his estate has at all material times been in possession ofthe suit land. - (g) Both the late Emmanuel Mubiru and the late Yayeri Kivefumbiro passed away before they could sub-divide the land and effect a transfer for the 20 acres from the above said land. - (h) **, j** M ho roistered in the names of the estate of the late That the above land cannot be registerea Emmanuel Mubim because no transfer form can be traced and new ones cannot be procured on the account that the late Yayeri has since dted.

(i) r of iustice an order vesting the above said land be made in That in the interest ofjustice an 102

## **EVIDENCE**

In addition to Nambi's affidavit, the application was also grounded on statutory declarations by Daniel Galiwango, Peter Kiyingi and Kaliba Kilagga who declared that they were invited by the parties to witness the transaction in which Yayeri Kivefumbiro on 25th March 1985 received from Emmanuel Mubiru Shs.2,000,000/= (two million) as consideration for the sale of the suit land.

The Respondent opposed the application by way of affidavit dated and deponed on 26thMay 2008 and the following are its salient paragraphs:

"3. That I am the only child of the late Yayeri Kivefumbiro and I am the legal $\mathcal{L}$ administrator of her estate vide High Court Administration.

$4. \quad \ldots$

$5. \quad \ldots$

6. In reply to paragraph 1 and 2 of the Applicant's affidavit, I should like to state that my late mother aforesaid, until her death never informed me about any transaction she carried out on her land contained in Busiro Block 383 Plot 56 at Kitende with the late Emmanuel Mubiru.

In reply to paragraph 3 and 4 of the Applicant's affidavit, I have seen and read copy of the agreement "annexture $B$ " purportedly signed by my said late mother selling 20 acres of land out of her land contained in Busiro Block 383 Plot 56 at Kitende to the late Emmanuel Mubiru and I challenge its genuinety. My late mother knew how to write and her specimen signature appears on the white page of her land kept by the Land Office at Kampala copy of which is attached hereto and marked "annexture $F$ " which highly differ from the one appearing on the alleged agreement purportedly signed by my late mother. Even if it is alleged that she thumb marked on the said agreement, I also dispute it as my late mother by the time of her death she was only 60 years she

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*could properly write and slgn documents. she never thumb marked her*

- *S Z^i " \°lleged 'ha'the said —\* >lagga the brother ofmy late mother who b also my uncle, on the Sat agreement annexe B. I have observed that his signature does not appear thereon as a witness, despite the fact that all the alleged other witnesses signed on the said agreement, secondly it would have been my late uncle Erasto Tomusange to witness the said agreement whom my late mother was more close to and whom she was staying with at the material time. I therefore conclude that the said agreement is a forgery, I shall invite court, to call the alleged -witnessesfor cross-examination.* - *9. That in reply to paragraph* 5 *of the Applicant's affidavit 1 should like to state that the alleged agreement was purportedly executed in the year 1985, both parties died in the year 1987, 2 years thereafter at least any step i.e. survey -would have been taken by the alleged purchaser and a transfer ■would have been signed by the vendor.* - *10. That in reply to paragraph 6 of the Applicant's affidavit, I should like to state that the late Emmanuel Mubiru had a small kibanja on my late mother's land where he used to growfoodfor hisfamily, and he was living at Kawoto-Kajansi and my late mother used to send me to him to collect busulu. Therefore he was not on the land by virtue of the alleged agreement.* - *11 in reply to paragraph* 7 *thereof, Ishould like to state that the estate left by ' my late mother is not part ofEmmanuel Mubiru's estate unt.1 th,s resolves this issue between us.*

*I OU*

- 12. In reply to paragraph 8 of the Applicant's affidavit; I should like to state that to date; I have not registered myself on my late mother's certificate of title though I have Letters of Administration, and the Applicant caveated the land without good cause or justification and I have never had any intention to sell off the whole land as alleged by the Applicant. - 13. That I have no problem to transfer the alleged 20 acres of land if the parties to this suit can produce genuine documents to prove that my late mother sold the alleged 20 acres of land to the late Emmanuel Mubiru, I have the obligation to honour whatever my mother left uncompleted. - 14. That in reply to paragraph 10 and 11 thereof, I should like to state that when I looked at the copy of the agreement purportedly executed by my late mother and other circumstances surrounding the execution of the said agreement, I concluded that the claimants only wanted to acquire the land through fraud, as aforesaid."

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In response to the above affidavit of the Respondent, Daniel Galiwango and Peter Kivingi swore affidavits in rejoinder. Daniel Galiwango deponed that he personally saw the late Yayeri Kivefumbiro receiving the consideration of Shs.2,000,000/= for 20 $\frac{1}{2}$ acres of land she sold to Emmanuel Mubiru after which she appended her thumb print on the agreement and that at the time of signing the agreement the late Yayeri was sick and she informed him that she needed the money for treatment. That the said land was surveyed by one J. B. Bukulu but the process could not be completed because the late Yayeri fell sick about the same time.

Peter Kiyingi on his part, also confirmed that in 1985 he was the chairman of the First Unit of the village Local Government of Kitovu village then called "MAYUMBA KUMI" whose duties included witnessing transactions as sale agreements. In the above capacity, he was invited by Yayeri and Emmanuel Mubiru to witness their sale agreement of 20 acres. He confirmed that he saw the seller Yayeri receiving the

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agreed consideration of Shs.2,000,000/= whereupon she chose to thumb print the agreement. Soon after the agreement, Emmanuel Mubiru took possession of the above land and started using it for subsistence agriculture and growing trees (eucalyptus trees which trees are still there on the land) and after his death his family continued in occupation. He concluded that at the time of making the agreement, Yayeri's brother Kabila Kilagga was present, and witnessed the transaction although he did not append his signature on the agreement.

The above is as far as the evidence in respect of this matter is concerned. In a nutshell, the applicant's case is that his late father, Emmanuel Mubiru, who was a tenant by occupancy (Kibanja holder) in respect of the suit land, entered into a sale agreement for a registrable interest for 20 (twenty) acres in the same land comprised in Busiro Block 393 Plot 56 with one Yayeri Kivefumbiro, the registered proprietor thereof. The late Mubiru Emmanuel thereafter continued to be in possession of the said land until his death. The said Yayeri also died before the above land was registered in Mubiru's name. After the death of Emmanuel Mubiru, Leonard Mubiru, the Applicant, was granted Letters of Administration for the deceased's estate. When the Applicant and the beneficiaries requested the Respondent to sign transfer and mutation forms he refused to comply alleging that he needed more concrete evidence about the purchase. Hence this application for a vesting order.

The contention of the Respondent on the other hand was that being the only child of the late Yayeri, he used to be in close contact with her and she used to tell him about all her affairs and that until her death his mother Yayeri never informed him about any transaction she carried out on her land contained in Busiro Block 383 Plot 56 at Kitende with the late Emmanuel Mubiru. The respondent however conceded that the late Emmanuel Mubiru had a small Kibanja on his late mother's land aforesaid where he used to grow food for his family.

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#### **The Law Applicable**

The law in regard to a vesting order Act states as follows: provided under Section 167 ofthe Registration

*f p ved to the satisfaction ofthe Registrar that land under this Act has been sold by the proprietor and the whole ofthe purchase money paid, and that the purchaser has or those claiming under the purchaser have entered and taken possession under the purchase, and that entry and possession have been acquiesced to by the vendor or his or her representatives, but that a transfer has never been executed by the vendor and cannot be obtained by reason that the vendor is dead or residing out of the jurisdiction or cannot be found, the Registrar may make a vesting order in the premises and may include in the order a direction for the payment of such an additional fee in respect of assurance of title as he or she may think fit, and the Registrar upon the payment ofthat additionalfee, ifany, shall effect the registration directed to be made by Section 166 in the case ofthe vesting orders mentioned there, and the effecting or the omission to effect that registration shall be attended by the same results as declared by Section 166 in respect of the vesting orders mentioned there. "*

The above section was ably interpreted by **ODOKI Ag. J** (as he then was) in the case of**Re IVAN MUTAKA [1980] HCB 27,** where it was held inter alia as follows:-

- *Before the court can make a vesting order, the following circumstances must be proved:-* - *(a) that there has been a sale ofland the title ofwhich is registered under the Act;* - *(b) that the whole ofthe purchaseprice has been paid;*

- *(C) that the purchaser (or those eln possession ofthe land- °r Aas taken* - *(d) 'bvt^ m'° P°SSeSSiOn by ,he 1™\*°™ has been acquiesced in by the vendor or his or her representatives;* - *(e) that a transfer has not been executed and cannot be obtained because,* - *(i) the vendor is dead, or* - *(ii) the vendor is residing out ofjurisdiction, or* - *(Hi) the vendor cannot be found.*

The above position of the law was recently confirmed by the Court of Appeal in the case of **AIDA NAJJEMBA V ESTHER MPAGI; Civil Appeal No.74 of 2005** (unreported):

See also: **Yoswa Kityo vs Eriya Kaddu [1982] HCB 58. Pontsiano Ssali v Gerald Kibirango [1992-93] HCB 216.**

### **ISSUES FOR DETERMINATION**

I I!

In light of the authorities cited above, the following issues have to be determined before this application can be granted:-

- (1) Whether Yayeri Kivefumbiro, the Registered proprietor sold the land in issue to Emmanuel Mubiru. - (2) Whether the whole ofthe purchase price was paid. - (3) Whether the purchaser or those claiming under him took possession of the disputed land.

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- (4) Whether the vendor or her ePresentatives acquiesced to the purchaser's taking - (5) Whether a transfer forms and mntor mutation form could not be obtained.

### **RESOLUTION** of **ISSUES:**

**ISSUE 1: Whether the registered proprietor sold the disputed land.**

In an effort to prove the above issue, the Applicant relied on her affidavit in support of the application and in particular paragraph 3 and 4 which state as follows:-

*3. That on the 25th March, 1985, the late Emmanuel Mubiru entered into an agreementfor the purchase ofland with the late Yayeri Kivefumbiro in which he was purchasing 20 acres ofland comprised in Busiro Block 383 Plot 56 at Kitende from the late Yayeri for a consideration ofUg. Shs,2,000,000/= (two million Shillings). Copies ofthe agreement and translation thereofattached as annextures "B" and "C" respectively.*

*4. That the said agreement was duly witnessed by Kaliba Kilagga, the brother ofthe late Yayeri Kivefumbiro, Peter Kiyingi, the then Mayumba Kumi (Local Council Representative) and a one Daniel Galiwango who were all invited by both the late Mubiru and the late Yayeri to witness the said agreement "*

The English translation ofthe said agreement is as below:

*101 9*

Kitovu-Busiro

25- March - 1985

## Land Sale Agreement

I Yayeri Kivefumbiro is selling Mr **m"k** n Kitovu at Block 383 Plot 56. ™anuel my land at comprised in

I have sold to him 20 acres, each acre is sold to him at Shs,100,000/= (one hundred thousand Shillings). He has paid to us all the money Shs.2,000,000/= (Two Million Shillings). I have allowed him to sub-divide it from the tributary that separates Mazzi from Kitovu.

Seller: Yayeri Kivefumbiro Buyer: E. Mubiru

#### Witnesses:

- Galiwango 1. - Kawuki 2. - Kiyingi Local Council Representative. 3.

After perusing the above agreement, I do find it self-explanatory that indeed there was sale of land involving Yayeri Kivefumbiro and Mubiru Emmanuel. The Respondent tried to question the authenticity of the above agreement alleging that it was forged basing his averment on the fact that the signature on the Sale Agreement differed from that ofhis late mother Yayeri.

However when one looks at Yayeri's signature on the Sale Agreement and that on the owner's Certificate oftitle casually, the two appear to be very similar as if they were written by the same person. The burden shifted on the Respondent to prove that it was

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not the vendor who had signed same. Unfortunately, the Respondent failed to come up with an expert witness or any other cogent evidence to show that his mother's signature was different from the one on the Sale Agreement.

In another argument, the Respondent doubted his mother's signature contending that there could not be a thumb print and signature at the same time. However, it is not a legal requirement that a person who knows how to write cannot thumb print at the same time. In fact doing both would create more authenticity than only signing the same. More importantly, the Applicant did establish his case as to the authenticity of the sale by adducing evidence of eye witnesses to the transaction. Peter Kiyingi in his affidavit stated that there was a sale of the disputed land between the late Yayeri Kivefumbiro and the late Emmanuel Mubiru. He deponed that at the material time he was the Mayumba Kumi Chairman of the area, the equivalent of the current Local Council Chairman. He stated that he was invited by the parties in his official capacity and witnessed the Sale Agreement and he indeed identified his signature that he appended on the agreement as one of the witnesses. He added that he personally saw the late Yayeri Kivefumbiro receiving Shs.2,000,000/ $=$ which was the entire purchase price consequent to which she appended her signature on the Sale Agreement. The above witness was an independent witness invited by both parties. His evidence was corroborated by the agreement on record. It should therefore be taken as the truth.

Another corroborative evidence was that of Daniel Galiwango which is contained in his affidavit dated 26th June 2008. Galiwango deponed inter alia, that he saw the late Yayeri Kivefumbiro receiving he consideration of Shs. 2 million for 20 acres of land she sold to Emmanuel Mubiru after which she thumb printed on the agreement. That at the time of signing the agreement the late Yayeri was sick and needed that money for her treatment, That it was because of that sickness that Yayeri thumb printed her signature. He stated that the land was surveyed by Mr. J. B. Bukulu: see annexture A and B in the affidavit.

Lastly Kaliba Kilagga the vendor's brother also confirmed that he was present to witness the transaction although he never signed the Sale Agreement. He declared that he saw his own sister receiving the 2 million Shillings from the late Mubiru. The mere fact that Kilagga did not sign the Sale Agreement does not disqualify him from being one of the people who was present and who witnessed the transaction. Since Kilagga was a brother to the vendor, I do not see any motive for him to tell lies against his own sister. It is therefore my conclusion that the Applicant has adduced sufficient evidence to prove that there was a sale of land comprised in Busiro block 383 Plot 56 between the late Yayeri and Emmanuel Mubiru. The 1st issue is accordingly resolved in favour of the Applicant.

# Issue No.2: Whether the whole of the purchase price was paid;

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The evidence of Peter Kiyingi and Daniel Galiwango was to the effect that they saw and witnessed the late Yayeri Kivefumbiro receiving all the purchase price consequent to which she signed and thumb printed the Sale Agreement. Kilagga who was the vendor's brother also declared that he was present and witnessed her sister Yayeri receiving Shs. 2 million from Emmanuel Mubiru for sale of her land. The above pieces of evidence were not rebutted by the Respondent, apart from alleging that the vendor's signature were not authentic. The burden was on him to prove the said allegation of lack of authenticity, which he failed to do. In the premises and on the evidence available, I find that the whole of the purchase price was paid.

# Issue No.3: Whether the purchaser or those claiming under him took possession of the disputed land;

The evidence of possession is contained in paragraph 6 and 7 of Ntambi's affidavit where he stated that ever since the said purchase, the family of the late Emmanuel Mubiru took possession of the said 20 acres of land which they have been using for subsistence agriculture, among others. He stated that the late Mubiru in his will bequeathed the said 20 acres of land to them, land comprised in Busiro block 383 Plot 56 at Kitende.

Peter Kiyingi in his evidence confirmed u nhrmed the above possession where he stated:-

*he agreement vas signed [EmmuelUub](EmmuelUub.ru).ru ,hepurchaser toQk P°™ofthe above land and slmed ufm an growtng oftrees (eucalyptus trees which are stiU there on the land) and after his death hisfamily continued in occupation. "*

It is trite law that to establish possession of land, it is not necessary for a claimant to take some active step in relation to the land such as enclosing the land or cultivating it, however, the type of conduct which indicates possession varies with the type of land. Possession means only slightest amount of possession: See **NH &CC v Kampala District Land Board and Chemical Distributors Court of Appeal Civil Appeal No. 43 of 2002** (unreported).

In the instant case, possession was signified by subsistence agriculture and the growing of eucalyptus trees which are still on the land. The conduct of growing permanent trees on land signifies ultimate possession of land by the purchaser. Moreover after the death of the purchaser, his family continued in occupation. The above evidence was not rebutted by the Respondent. I therefore find that the purchaser and those claiming under him did take immediate possession ofthe land in dispute.

**Issue No.4: Whether the vendor or her representatives acquiesced to the purchaser's being in possession.**

This issue clearly flows from the issues argued above. After the purchase ofthe land, the purchaser took possession ofthe land by cultivating subsistence crops thereon and planting permanent trees as well. There is no evidence whatsoever to show that the vendor or her representatives ever objected to the said possession by the purchaser or his agents. It is therefore my conclusion that the vendor or her representatives did acquiesce to the purchaser's possession. Otherwise they would have objected to the

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purchaser's possession by either warning the purchaser or removing their permanent $c$ rops on the land.

Issue No.5: Whether the transfer forms and mutation forms could not be obtained and whether the Applicant is entitled to the relief prayed for;

It is clear from the a foregoing that there was sale of land between the late Yayeri Kivefumbiro and the late Emmanuel Mubiru in which the full purchase price was paid. The said purchaser took possession of the said property without any objection from the vendor or her agents. Unfortunately both the vendor and the purchaser died before mutation forms and transfer forms could be obtained. Because of the above circumstances I find that the Applicant has satisfied the requirements for the grant of orders for vesting the property in the Applicants. The application is accordingly granted. I order particles to bear own costs. $\frac{1}{2}$

HON. JUSTICE RUBBY AWERI OPIO **JUDGE**

$10/7/2009.$

10/7/2009

Zombwe for the Respondent.

Richard Lugambwa holding brief for Sempala for the Applicant.

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