Mugabi v Attorney General and Another (Civil Suit 657 of 1999) [2023] UGHCLD 199 (29 June 2023)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA (LAND DIVISION) CIVIL SUIT NO.657 OF 1999

**EVARISTO MUGABI ------------------------------------**

#### **VERSUS**

#### 1. THE ATTORNEY GENERAL

2. INTERNATIONAL CREDIT BANK LTD-----------------------------RESPONDENTS

## BEFORE HON. LADY JUSTICE KANYANGE SUSAN **JUDGMENT**

The plaintiff' claim against the defendants is for general damages arising from the fraud and abuse of office perpetrated by the servants and or agents of the defendants in the course of their employment with them.

That the defendants are vicariously liable. Alternatively he prayed for $25m$ = being balance on purchase price together with interest.

He averred that in May 1997 he agreed to sell his property comprised in kibuga block 29 plot 111 to the $2^{nd}$ defendant at 40m/= and the purchase price was paid in November 1997.

The $2^{nd}$ defendant and its servants paid only 15m/= so he rescinded the agreement and refunded $17m/$ = which they refused to acknowledge receipt. They then fraudulently sold the suit property to Deo Maniraguha who mortgaged the property. They could not give title to him so they wrote for help to the Director of Criminal Investigation Department. DASP Joseph

Kolo o 'l '1 defendont servont onested him ond he wos threotened with prosecution ond broodcosting the cose unless he signed tronsfer documents for him to the 2no defendont. He signed the documents though duress os his son of 6 yeors wos still of school. The Executive Choirmon lodged the froudulent tronsfer in collusion with the Assislont Regislror ot the Kompolo Moilo office ond registered Deo Moniroguho.

The I't defendont in its written stotemeni of defence overred thot the ploinliff lowfully tronsocted in the suit lond by entering into o soles tronsoction with the 2nd defendont in Moy 1997. Ihe plointiff then withdrew his coveot on the lond on 30th November 1997 ond tronsfer to one Ntogondo wos mode on 30th December ,1997.

Thot the mortgoge to one Deo lrzloniroguho wos equolly effected qfter the voluntory withdrowol of the coveot. Further to this thot the police wos moved ond octed within the low. The lsr defendont ond its ogenls denied ony f roudulent octs.

### Represenlolion

Plointiff on Advocote represented himself while the Attorney Generol wos represented by M/s. Noboso Chority

#### Resolulion

#### lssues

- L Whether the plointiff voluntorily withdrew his coveol on the sui.t lond on 301h November 1997. - 2. Whether the plointiff voluntorily tronsferred ihe suit lond to Deo Moniroguho.

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- 3. Did the Ugondo Police CID officers oct lowfully in the circumstonces of this suit under Article 122 ol lhe Constitution. - 4. Whether the CID officers, servonts ond ogents ond Moilo office employees conspired to deprive the plointiff of the suit lond - 5. Whether the I't defendont's servonts ond or ogents committed the porticulors of froud olleged in the ploint. - 6. Whether the suit wos filed in bod foith with intention to defroud government - 7. Whot remedies ore ovoiloble to the successful porty

## lssue I Whelher the plointiff volunlorily wilhdrew his coveol on the suil lond on 30th November 1997.

S.139(l) of the Registrotion of Tiiles Act provides thot ony beneficiory or other person cloiming ony estote on interest on lond under the operotion of this Act moy lodge o coveot with the Registror. Forbidding the registrotion of ony person os tronsferee or proprietor of ond of ony instrument offecting thot estote.....or unless the coveotor consents in writing to the registrotion.

The plointiff submitted thot the coveot wos removed by the Registror of the Kompolo Moilo office ond it wos not removed by him. Thot this wos in collusion with the employees of lnternotionol Credit Bqnk ond the CB officers. Further to thot thot there is no withdrowol signed by the plointiff.


The lst defendqnt's counsel submitted thot plointiff voluntorily withdrew his coveot ond his withdrowol wos forworded by lnternotionol Credit Bonk to the Registror of Tiiles in o letter doted lOth July 1998.

The plointiff Evoristo Mugobi in his witness stotement testified thot he registered o coveot on his lond comprised in Kibugo Block 29 plot No.l11 Mulogo on the sth doy of August 1992. Ihol ii wos morked withdrown on 23'd December 1997 yet he did not withdrow it.

On thot some doy Deo Moniroguho wos registered os ihe owner of the suit property. Thot he lost his property becouse the Regislror removed his coveot froudulently without notice ond in collusion with servonts ond ogents of the 2nd defendont ond the CID heodquorters officiols. Thot ot CID heodquorters he wos forced to sign blonk tronsfer forms ofter being chorged with o folse cose of obtoining money by folse pretenses.

ln o letter doted 1Oth July 1998(PEXs) written by lnternotionol Credit Bonk Limiled to the Registror of Titles they enclosed different documenls including o coveot duly signed by Evoristo Mugobi.

The obove evidence shows thot the wilhdrowol of the coveot wos presented by internotionol credit Bonk. A copy of thot coveot wos not tendered in court to oscertoin wheiher it wos signed by plointiff or not. The onus loy on plointiff to prove thot it wos not his signoture on thot withdrowol letter ond he foiled to do so.

<sup>I</sup>therefore find thot since there is no controrily evidence, then he voluntorily withdrew the coveot.


# 2. Whelher the plointiff volunlorily lronsferred lhe suil lond lo Deo Moniroguho.

The plointiff testified thoi in Moy 1997 Thomos Koto expressed the desire to buy his property ot 40m/=. He poid 17ml= in instolments but fqiled to poy the full omount os ogreed by 30rh November 1997. Ihe plointiff rescinded the ogreement but they refused to occept his bonk droft of 17m/=.

Thot o folse report wos mode ot CID heodquorters thot he hod obtoined money by folse pretenses. He wos orrested ond forced to sign the tronsfer forms qnd lqter releosed on Police Bond. Thot he wos forced to sign os they threotened to broodcost it on news ond his son wos still of school.

ln his submissions the ploinliff submitted thot Stephen Ntogondo executed o ironsfer in fovour of Deo Moniroguho. Thot lodgment ond registrotion wos done simultqneously which is octuoted by froud ond obuse of office. ln reply the defendont submitted thot the plointiff tronsferred lond to Deo Moniroguho on 1il July 1998 ond it wos lodged on l3rh July'l 998. Thot consent tronsfer by the plointiff wos lodged of KCCA Finonce deportment on l01h July 1998. Thot there is no proof thot he wos forced to sign the tronsfer form.

The tronsfer form PEX4 indicotes thot the plointiff signed it on lsr July 1998 tronsferring the lond to Moniroguho. N. Deo ond filed ot Kompolo City Council Finonce section where fees were poid on 1Orh July 1998. The lond wos tronsferred in his nomes on l3ih July 1998, though the title indicotes eorlier error on 23-l 2-1997.


The plointiff does not deny tronsferring or signing the tronsfer forms thqt trqnsferred lond to Deo Moniroguho on I st July 199B. He soys it wos not voluntory os he hod been orrested over o crime of obtoining money by folse Pretense. The evidence indicotes he sold lond to Thomos Koto ond cloims he hod been poid only l7 million out of 40 million ond rescinded the ogreement but his droft wos not occepted.

Thomos Koto mqde comploint to police ond indeed ploiniiff wos orrested. Aport from evidence of plointiff I do not find ony other evidence thot plointiff wos forced to sign the tronsfer forms. The plointiff wos releosed thot doy ond he did not comploin onywhere. Neither did he toke ony step to reverse the tronsfer. He soys in his stotement he wos qrrested on 8['June <sup>1998</sup>ond when he reported for bqil extension, on l5th June ,l998, he wos detoined ond forced io sign the tronsfer forms. The tronsfer forms were lodged on I3th July l998. This wos olmost o month ofter he ollegedly signed. He thus hod omple time to report the motter but he did not do so.

<sup>I</sup>thereby find thot he voluntorily signed lhe tronsfer forms

## 3 Did the Ugondo Police CID officers Act lowfully in the circumstonces of lhe suit under Article 212 of lhe Consullotion.

ln his submissions the plointiff submitted thot the CID officers were hired by lnternotionol Credit Bonk Monoging Director Thomos Koto to hoross him. Thot they got involved in o civil dispute ond forced him io sign o tronsfer form.

ln reply the I'1 defendont submitted thot the plointiff foiled to show how police horossed him ond he wos lowf ully orrested under Article 23(1 ) of the

 Constitution on suspicion thot he hod committed o crime. Thot the octions of its servonts or ogents were done lowfully.

Ihe prohibition of orbitrory deprivotion of liberty is recognized in Arlicle 9 of the Universol Declorolion of Humon rights( UDHR ). Everyone hos o right not to be orbitrorily detoined or imprisoned. Arlicle 23(l) of the Constitulion of the Republic of Ugondo 1?95 guorontees the right to liberly ond prohibits the deprivotion of personol liberty except in specified situotions. The right to liberty is thus not obsoluie like in enforcement of criminol lows. An orrest is one of the lowful methods of securing ottendonce of on occused person in court. S. 23 of lhe Police Acl outhorizes o police officer without o court order ond without o worront to qnest o person if he or she hos reosonoble couse to suspeci thqt the person hos committed or is obout to commil on orrestoble offence.

An orrestoble offence is one which on conviclion moy be punished by o term of imprisonment of one yeor or more or o fine of not less thon One hundred thousond shilling or both (S.1 of the Police Aci). ln the cose of Hon. Som Kuleeso versus Allorney Generol, Constilulion Pelition No.46 of 2011 it wos held thot the subject of the presevolion of personol liberty is so cruciol in the constitution thot ony derogotion from it where it hos to be done os o motter of unovoidoble necessity. The constitution ensures thot such derogotion is just temporory ond not indefinite.

The Plointiff testified thot he wos orrested on suspicion of obtoining money by folse Pretences. Indeed he odmitted thot he hod obtoined l7 million out of the purchose price of the lond in issue but he rescinded the ogreement ond wrote o bonk droft for 2nd defendqnt but they rejected it.

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The plaintiff thus a contract with 2nd defendant which he claims was breached.

Breach of contract was defined by Justice Obura in case of Ronald Kasibante versus Shell Uganda Ltd HCCS NO 542 of 2006 (2008)ULR 690. As the breaking of the obligation which a contract imposes which confers a right of action for damages on the injured party. It entitles him to treat the contract as discharged if the other party renounces the contract or makes performance impossible or substantially fails to perform his promise, the victim is left suing for damages, treating the contract as discharged or seeking discretionary remedy.

When plaintiff rescinded the contract and the 2<sup>nd</sup> defendant refused he did not bring any action against them. Instead the 2nd defendants agent reported matter to police for allegedly obtaining money by false pretence. Obtaining money by false Pretences is an offence under **S. 305 of the Penal** Code of Uganda. It arises where an individual obtains money from another person with intent to defraud.

The Police was thus justified in arresting him on suspicion of obtaining money by false Pretences after a complaint as he had received 17 million shillings and the complainant had not got his land. This was not purely a civil dispute only and the police was mandated to investigate the same.

I thereby find that the police acted lawfully in the circumstances.

## Issues 4 and 5

4- Whether the CID officer's servants and agents and Mailo office employees conspired to deprive the plaintiff of the suit land.


5- Whether lhe lst defendont's servonts ond or ogents committed the porliculors of froud olleged in the ploint.

The plointiff submitted thot the CID officers ond the Registror teomed up with the bonk's Thomos Koto. Thot they were government employees. Thot the CID officers orrested, imprisoned ond intimidoled the plointiff, ond forced him to sign o tronsfer form. The Registror occomplished the theft by moking froudulent entries on the suit lond ond using o tronsfer not signed by him. Thot they olso removed o coveot without giving him notice. Thol conspirocy wos inferred.

The lstdefendont submitted thot there wos no connivonce or conspirocy omong the I't defendont's officiols.

ln his ploint the plointiff listed the porticulors of froud os,

- o) The lst defendont's servonts ond or ogents trumped up criminol chorges ogoinst the plointiff, orrested him ond detoined him ot CID heodquorters on 05-06- l 998 to focilitote froud by the 2nd defendont. - b) They threotened the plointiff with prosecution on fromed up folse chorges of obtoining money by folse pretence. - c) They forced intimidoied the plointiff to sign blonk tronsfer documents which they lendered to the plointiff of CID heodquorters. - d) They ossisted the servonts ond or ogents of the 2nd defendonts to defroud the plointiff's property

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- e) They refused to entertoin the plointiff's comploint ogoinst fno defendont. - f) They involved themselves in o civil dispute, criminolized ii in order to defroud the plointiff. - g) The government voluers deportment ossisted the 2nd defendont to defroud Ugondo Revenue Authority. - h) Ihey foiled to interview Deo Moniroguho on how he ocquired the suit property from Stephen Ntogondo ond the plointiff. - i) They foiled to do onything to stop the 2nd defendont from defrouding the plointiff. - j) The Kompolo moilo office officiols collided ond ossisted the 2nd defendont to defroud the plointiff of the suit property on 23-12-1997 ond 13-07-1998.

ln the cose of Kompolo Bolllers Lld versus Dominico Ltd SCCA No.22 of 1992. Hon. Wombuzi stoted thot it is well estoblished thot froud meons octuol froud or some oct of dishonesty. The Triol Judge in thot cose relied on the cose of Woimiho Sow Milling Co. Ltd versus Woione Timber Co. Ltd 'l 926 Act 101 of pg 106 quoling Lord Buchmoster thot froud implies some oct of dishonesty. While in cose of Dovid Sejjoko versus Rebecco Musoke civil oppeol No.l2 of ,l988 it wos held thot froud must be ottributoble to the tronsferee either directly or by necessory implicotion.

<sup>I</sup>found in the previous issue thot it wos lowful for CID officers 1o orrest plointiff os there wos o criminol cose ollegedly committed of obtoining money by

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folse Pretence ond it wos not purely o civil dispute. There wos o comploint by Thomos Koto os plointiff testified thot led to his orrest. Plointiff odmitted signing the Tronsfer forms ond they ore the ones the Registror bosed on io tronsfer the lond. No evidence hos been led to prove there wos ony connivonce between the officiols in CID ond the lond Registry oport from plointiff stoting it.

Ithereby find no conspirocy or froud committed by the officers of ihe I't defendont.

Since I hove resolved the previous issues ogoinst the plointiff. There is no need io discuss the 61h issue on intention to defroud government.

## Remedies.

The plointiff proyed for generol domoges for wrongful orrest, ond oggrovoted ond punitive domoges to punish the l'1 defendont's servonts or ogenis. He olso proyed for reinstoting him os the Registered proprietor on suit lond, generol domoges ond mesne profits, plus interest ond cost.

According to the Eosl Africon Coses on Low of Torl by E Veitch (I972) Edition ol poge 78, on employer is in generol lioble for the Acts of his employees or ogents while in the course of the employer's business or within the scope of employment. This liobility orises whether the octs ore for the benefit of the employer or for the benefit of the ogent.

ln the doctrine of Vicorious Liobllity, o person, himself blomeless, is held lioble for onolher person's conduct." See cose of Okupo versus Atlorney Generol ond 'l 3 Ors MC no l4 of 2005 (20'l 8) UGHCCD ,l0. The Judge in

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that case held that, an employer is liable for acts of his/ her employees done in the scope of the employee's duty.

The court has a duty to give compensatory relief where there is infringement of a fundamental right. In the case of D. K. Basu versus State of West Bengal 1997AIR SC 610.it was held that to repair the wrong done and give judicial redress for legal injury is a compulsion of judicial conscience.

I have found that the acts of the 1<sup>st</sup> defendant's servants where lawful and there was no fraud or connivance

The plaintiff is therefore not entitled to any of the remedies sought.

In conclusion I find the plaintiff has failed to prove his case on a balance of probabilities. Plaintiff's case is hereby dismissed with costs to the 1<sup>st</sup> defendant.

DATED AT KAMPALA THIS --------29<sup>th</sup> 2023

**KANYANGE SUSAN**

AG JUDGE LAND DIVISION.