Musiimenta v Migisha and 4 Others (Civil Suit No. 078 of 2011) [2017] UGHC 122 (14 July 2017)

Full Case Text

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

# CIVIL SUIT NO. 078 OF 2011

| <table> AUDREY MUSIIMENTA PLAINTIFF</table> | | |----------------------------------------------|--| | VERSUS | | | 1. EMILY MIGISHA | | | 2. JOHN SSEKINDI | | | 3. JOHN JUNIOR SSEKINDI | | | 4. DR. DAVID KAGGWA | | | 5. THE COMMISSIONER LAND REGISTRATION | | | | |

### **JUDGMENT**

### BEFORE: HON. LADY JUSTICE EVA K. LUSWATA

The plaintiff brought this suit against the defendants jointly and severally for the recovery of land comprised in Kyadondo Block 221 Plot 772 (hereinafter referred to as the suit property), damages for trespass to land and for fraud, a permanent injunction, cancellation of title and costs of the suit.

It was the plaintiff's case that sometime in December 2002, she borrowed UGX 4,000,000/= from the 1st defendant (mother to the 2nd defendant and grandmother to 3rd defendant) to facilitate her travel to the USA with no memorandum evidencing the $\frac{20}{100}$ transaction. That as collateral for the aforesaid transaction, the plaintiff executed a blank instrument of transfer of the suit land in favor of the $1^{\ensuremath{\text{st}}}$ defendant and also relinquished custody of the duplicate certificate of title to her. That on 19/12/2003, the plaintiff acting on the instructions of the $1^\ensuremath{\text{st}}$ defendant paid back the loan with interest. The plaintiff then requested the 1st defendant to destroy the instrument of transfer and $\mathcal{L}$

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ubmit the duplicate certificate of title to the plaintiff's sister Grace Mubangizi but to no avail.

That unknown to the plaintiff, the lsl defendant fraudulently registered herself and the 3 defendant (the plaintiff's and 2nd defendant's son) on the title to the suit property. That during one of the plaintiff's visits to Uganda, she discovered an ongoing construction project on the suit property which she subsequently confirmed belonged to the 4th defendant. That the Is\* defendant informed the plaintiff that the suit property had been sold by the 2nd defendant (her son) without her knowledge which prompted the plaintiff to lodge a caveat on the suit property.

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The lstand 2nd defendants denied the plaintiff's claims and contended that the transfer **i o** in^rument was neither blank nor collateral but a sale transaction of the suit property by the plaintiff to the Is' defendant at a consideration. The Is' defendant also demf-'4 instructing the plaintiff to deposit money into the account of Peter Katende. They also claimed that the suit property was transferred into the names of the 1st and 2nd defendant and not the 3rd defendant who is a minor and that the 2nd defendant goes by the two names of John Lwalanda Sekindi and John Junior Ssekindi. The 4th defendant contended that he is a bonafide purchaser for value without notice of the allegations made by the plaintiff. The 3rd and 5th defendants did not defend the suit.

-Vo statements. Mubangizi) Arthur Murangira and William Byaruhanga appeared for the plaintiff and Paul Byaruhanga (RIP) and Edward Sekabanj appeared for the 1st and 2nd defendants. Richard , , " presented the 4l" defendant. The parties proceeded by way of witness Adubango repic The plaintiff presented two witnesses; PW1 (the plaintiff) and PW2 (Grace while' the defendants adduced evidence of three witnesses DW1 (Is'

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defendant), DW2 (2nd defendant) and DW3 (4th defendant). Both parties filed written submissions.

#### Issues:

- 1. Whether the transaction in December 2001 was between the plaintiff and the 1st defendant or between the plaintiff and both the 1st and 2nd defendants? - 2. Whether the transaction of December 2001 was one of money lending or sale and purchase of the suit property as between the plaintiff and 1st defendant or as between the plaintiff and both the $1^{st}$ and $2^{nd}$ defendants? - 3. Whether the said transaction between the plaintiff and Peter Katende Mukiibi is in respect of the suit property? - 4. Whether the transaction between the plaintiff and Peter Katende Mukiibi is binding on the 1st and 2nd defendant? - 5. Whether the registration of the transfer under instrument no. KLA 272457 on the suit property was obtained by fraud? - 6. Whether the registration of the transfer under instrument no. KLA 272457 conferred good title to the suit property upon the 1st and 3rd defendants or upon the $1^{st}$ and $2^{nd}$ defendants or any of them? - 7. Whether the $4^{th}$ defendant is a bonafide purchaser for value without notice of fraud. - 8. Whether the $4$ th defendant acquired any interest in the suit property from the $1st$ and $2nd$ defendants. - 9. Whether the plaintiff is entitled to the reliefs sought?

Before I resolve the issues, it is imperative that I first address the preliminary points of law that were raised by counsel for the $1^{st}$ and $2^{nd}$ defendants in their submissions.

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Corporation Ltd Counsel submitted defence and the sui litem which is that the 3rd defendant was not served with summons to file a - suit progressed *exporte* against him without obtaining a guardian ad contrary to 0.9 rr 4 CPR and thereby any decree obtained without the appointment is a nullitv. In rhk mimcoi miiari nn the case of Credit Finance a nullity. In this, counsel relied on vs. Abdulla Karmali (1965) EA 545 where it was held that without a qualified guardian *ad litem,* a minor cannot become a party to a suit and any decree obtained exparte without such an appointment is a nullity.

#### The provisions of Order 9 rule 4 CPR are clear,

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*I o "Where no defence has been filed on or before the day fixed in the summons for o defendant who is an infant or a person of unsound mind, the plaintiff shall before further proceeding with the suit apply to the court for an order that some proper person be assigned guardian of the defendant by whom he or she may appear and defend the action. But no such order shall be made unless it appears upon the hearing of the application that the summons was duly served and that all the requirements as to notice of the application contained in rule 3(4) of Order XXXII of these Rules have been complied with unless the court at the hearing of the application shall dispense with any notice required thereby."*

rd defendant was not served summons and there was no proceed emanate from The plaintiff admitted that the 3 evidence that service of a notice to the minor or guardian as required in O. 32 rule 3(4) CPR was ever made. Since no evidence was adduced to confirm the 3rd defendant's inority an order for the appointment of a guardian *ad litem* could not be made by this regard, the present suit against the 3rd defendant who is a minor, could not appointment of a guardian ad litem and any decree that would a-nullity. Further, without proof of service upon that court. In without it woyld-'be

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particular defendant, dismiss the suit he is deemed to be unaware of this suit and I am under a duty to against the 3'd defendant under Order 5 rr. 2 & 3 CPR, which I do. Since legally never a party to the suit, the dismissal attracts no costs against plaintiff. he was

## Resolution of the issues: *£*

Counsel agreed on nine issues. The manner in which the evidence unfolded required that I deal with some issues as clusters. They will be handled as follows: 1, 2, 3 and 4 together, 5 and 6 together, 7 and 8 together and 9 separately

#### Issue one:-

- Whether the transaction in December 2001 was between the plaintiff and the 1st defendant or between the plaintiff and both the 1st and 2nd defendants? **k** - Whether the transaction of December 2001 was one of money lending or sale and purchase of the suit property as between the plaintiff and 1st defendant or as between the plaintiff and both the 1st and 2nd defendants?

It was definitely agreed by both parties that the transaction in December 2001 was between the plaintiff and the 1st defendant. What is at variance, would be the nature of the transaction, which requires resolving of the second issue.

defendants the court to believe that the transaction was merely a loan and entitled to receive her title back. The 1st and 2nd The *plaintiff wishes having repaid it, she was aver that it was an outright sale of the suit property*

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Section 101 (1) of the Evidence Act Cap 6 provides that; *"Whoever desires any court to Q J dgment os to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist "* In addition Section 102 of the same act also provides that; The *burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side."* The case of Sebuliba vs. Co-operative Bank Ltd [1982] HCB 129 considered the above sections where it was held that *the burden of proof in civil proceedings lies upon the person who alleges.* I would add that save for exceptions in the Evidence Act, the court is bound to make her decision on the evidence placed before her and nothing more.

defendant but could not recall the interest on the loan. That acting upon the instructions of the defendant, she paid back the loan with interest in the sum of 2,735 USD which she wired from the USA into the account of one Peter Katende, the 1st defendant's son. That evidence was not supported with any documentary evidence or evidence of a witness to the money lending transaction. The plaintiff averred in her evidence that she borrowed Shs.4,000,000/= from the 1st

Conversely, the evidence of the plaintiff was rebutted by the 1SI defendant who testified that she entered into a sale agreement with the plaintiff at a consideration of shs 6 000 000/= and the plaintiff executed a transfer form and handed over the certificate of title of the suit property to her. Defendant's counsel argued that although his client did not exhibit a sale agreement to prove the sale transaction, the execution of th transfer forms and handing over of the certificate of title to the 1st defendant by the plaintiff, implied a sale and not a loan transaction.

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The plaintiff produced documents showing that she had wired money to Peter Katende and these were marked as PID8 and PID9. The two documents were contested with the assertion that they were merely identification documents and not evidence. The defendants also argued that the plaintiff's evidence regarding the purpose for which she left the certificate of title with the 1st defendant, was markedly contradictory to her earlier averments in an affidavit she made on 16/3/2010 in support of a caveat.

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In the absence of a loan agreement or document with similar import, the decision of Justice Kiryabwire in Wakanyisa George David vs. Kavuya Ben & Others HCCS No. 560/2006 would be persuasive. Peter Katende in whose account was stated to be the conduit for the repayment was listed, but not called as a witness. He was a very vital witness who could have thrown some light on whether that credit was ever made into his account and for what purpose.

Plaintiff's counsel relying on the decision in Uganda Breweries Ltd Vs. Uganda Railways Corporation (2002)2 EA 634, persuaded court to admit PID8 and PID9 as evidence for their client. The general principle of law elucidated in the case of Situma vs. Regina (1953)20 EACA 310 is that "......there is a distinction between exhibits and articles marked for identification." The term "exhibit" should be confined to articles which have been formerly proved and admitted in evidence." In my view, the decision in Uganda Breweries Ltd (supra) is distinguishable to the facts here because the two impugned. documents were relied upon by the plaintiff only and specifically denied by the $1^{\rm st}$ defendant. Infact at the hearing, the court specifically admitted them for identification purposes only with a promise that certified copies would be availed in due course, which was not done. There was no assumption that they were admitted as exhibits and it would be wrong to admit them as such. It was careless for the plaintiff or her counsel

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ucing certified copies, for this being her alleged account, the required copies were attainable. Accordingly, PID8 and PID9 will not be relied on because they were never exhibited to be admitted in ev.dence. \*

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This court having rejected ID8 and ID9, there was nothing to show that money was paid through Katende Mukiibi's account. It may be proven that he is the 1" defendant's son, but that a,one cannot support the plaintiff's testimony and cannot bind either the I'1 or 2nd defendants

**/c I** recovery. That said, I do take judicial notice of the current notoriety of cases where those who lend money require borrowers to sign transfer forms as iron clad security of payment or

Throughout the trial, my attention was drawn to the transfer instrument (hereinafter referred to as the transfer) through which the plaintiff and 1st defendant transacted and upon which the lsl and 2nd defendants allegedly procured registration. Admittedly being a photocopy, it was only an identification document (PID5) and was never entered into evidence, in my view, another serious error by plaintiff's counsel. Nonetheless, much as PID8 and PID9 could not be treated as exhibits, the converse would apply to the transfer document. In this the exception to the general principle explained in the decision in Uganda Breweries Ltd. Vs. Uganda Railways Corporation (supra) would apply. It was stated (and I paraphrase) that where an identification document has been relied upon in the pleadings referred to during evidence and made part of the submission, there is an apparent assumption that it has been admitted in evidence.

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< In this case, the instrument was included in the scheduling notes as one of the plaintiff's documents and attached to her witness statement as ID6. It was likewise mentioned in paragraph 11 of the written statement of defence and during the trial, became the subject of much scrutiny, when evidence was led and during cross and re-examination. In my view, it was a very if not the most vital document that can assist the court to decide this matter fairly and effectively. I noted in fact that there was no deliberate submission by defence counsel to contest reliance on that document. Against that background, I choose to treat the transfer as an exhibit, which can be considered as part of the evidence in this case.

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It was the plaintiff's testimony that after she made payment through Katende, she requested the 1st defendant to destroy the instrument which she did not do and instead informed her that she had transferred the suit property into her names and the 3rd defendant, the plaintiff's minor son, for the latter's benefit. It was also testimony of PW2 that in 2003, the 1st defendant declined to hand over the title to her, promising to transmit it personally to the plaintiff. The 1st defendant denied both versions and stated that she purchased the suit property with the 2nd defendant and it is in consortium with the latter that she sold it to the 4th defendant. The 2nd defendant supported that evidence and specifically claimed to be the person "John Junir Sekindi" mentioned in the transfer. In fact, the identity of the 2nd defendant as purchaser was to become the core contention in this suit and to that extent, it has much bearing on resolving whether this was a loan transaction or outright sale of the suit property.

However, before I embark on my evaluation, I am of the opinion that no evidence was put forward to support the fact that the 2nd defendant was in any way involved in the initial dealings regarding the suit property. The plaintiff testified and it was not rebutted

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e was away in the USA at the relevant time. There could be truth in that testimony use according to Exh DS, the 2nd defendant requested the Commissioner for Land Registration (hereinafter referred to as the Commissioner), to lift the caveat he had previously lodged on the suit property because he was 'now back' and needed the suit property to be developed. However, it was the testimony of the 2nd defendant that he procured registration not as **"John Lwalanda"** but as **"John Junior Sekinidi"** his *alios.* It is upon that testimony that I will commence my investigations.

defendants insisted that the second purchaser appearing in the transfer is the 2nd defendant, a male adult, the son of the Is' defendant and father of the Both the Is' and 2nd 3rd defendant. It was not a disputed fact that the 3rd defendant was a minor at the relevant time. The plaintiff strongly disagreed, arguing that the 2nd defendant has never used the name John Junior Sekindi, who is in fact their son.

identity of her son the 2 Sekindi and that her son goes by the same names. She then contradicted herself when he state in cross examination, and I quote. I noted much discrepancy in.the evidence of the 1st defendant with regard to the nd defendant. She testified that her grandson is John Junior

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*"He is my son and not the grandson who is junior. If I had meant it to be my grandson, I would have marked it "junior". It should not confuse the court that my grandson and my son have got similar names.* (Emphasis of this court).

Nevertheless, in the transfer, the second transferee is clearly **"John** Junior Sekindi".

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The 2nd defendant then stepped in during cross examination to confirm that he was the f th **r** of John Junior Sekindi and that he himself is Lwalanda John Sekindi and that his d ased father was "W. Sekindi". In response to queries by the court, he explained that

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mere lip testimony not backed by other evidence. ame John Junior Sekindi" arose because he was the only child in his family who shared the name Sekindi" with his father and, the "junior" as the younger Sekindi was coined to avoid confusing the two men He added that even his friends still call him by that name although his father was now deceased. He added that the "J" appearing for the 2nd transferee's father was a mistake or misnomer because his father's prefix initial is "W". This was a

consistently referred to himself as "John Lwalanda Sekindi", "Lwalanda John" or With respect, I was not in the least convinced by the testimony. Indeed all the documentary evidence admitted at the trial glaringly pointed to the contrary, and I will look at each piece of evidence chronologically. It is clear that the 2nd defendant "Lwalanda J." in vital documents regarding the suit land (see D. Exhibits 3, 4 and 5) it is only in the transfer that he signed as "John Sekindi" and even then, he proceeded to receive payments from the 4th defendant in D. Exh.4 as "Lwalanda J." It is only in the agreement that he referred to himself as John Junior Sekindi *alias* Lwalanda John and even then his signature corresponds to that of D Exhs. 3, 4 and 5.

defendant and his son do not share the same names **nd** defendant) and not the person referred to in the transfer. Now of what *£* the 2 In contrast, the plaintiff tendered without contest a birth certificate of her son John Junior Sekindi born in Chicago Illinois USA on 20/10/2000. This is the most credible identity, and in my view, the 2nd and it was the son (3rd defendant) (as the son of J. Sekindi the 2 nd defendant who was nificance would this be to the entire transaction between the plaintiff and 1st defendant and the discrepancy of whether it was a loan or outright sale?

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the plaintiff had no documentary proof of the alleged loan. Likewise, the l5t endant admitted that beyond the transfer, she had no other proof that she paid Shs. ,000 as the purchase price and that it would be *"her word against that of the plaintiff* in that regard. Although she insisted that she transacted with her son and not grandson, I have found that the evidence does not support that assertion. I believe she lied on that material aspect.

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The plaintiff s testimony is that the 1st defendant advised her that she transferred the suit property into the 3rd defendant's name becomes of much relevance here and when I weigh the odds, it is the more credible evidence since she admitted filling in parts of the transfer. She took the opportunity to include the 3rd defendant in the transfer and the 2nd defendant then signed as second transferee.

witness lies on a quoting Field's **Introduction** on *"the falsehood should be considered in weighing the evidence, and it may be so glaring tterly to destroy the confidence in the witness altogether ....*" In my considered view, f | ehoods of the 1st and 2nd defendants were so glaring and at the same time so ted to the earlier testimonies regarding the nature of the transaction. Having found that the Is1 defendant gave false testimony on this material aspect I would have no reason to believe her testimony on the equally important aspect that the transaction was **a** loan and in this, I am supposed by authority. The court in **Yuill vs. Yuill** (1945) **ALL** ER 189 advised that where a party tells a deliberate untruth on a material point, a Judge ought to attach importance to it. I have done so and weighed it against the evidence on the transaction as a whole. Justice Connel in **Khatijabai Jiwa** Hasham vs Zenab Chandi Nanji (1957) EA 38 followed **Yuill vs. Yuill (supra)** to hold that when a material point, his other evidence may be rejected. The same court the Law of Evidence at page 37 further advised that

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1 choose to believe honest person. for an the plaintiff who presented herself as the most consistent and The probability weighs in her favour that being in great need of money air ticket, she approached the 2nd defendant for a loan. She trusted her with a blank transfer form as security and the latter declined to return it to PW2 as requested and instead registered the transfer. I would conclude by holding that the transaction of December 2001 between the plaintiff and lsl defendant was one of money lending.

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Issue five and six:-

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- Whether the registration of the transfer under instrument no. KLA 272457 on the suit property was obtained by fraud? - Whether the registration of the transfer under instrument no. KLA 272457 conferred good title to the suit property upon the 1st and 3rd defendants or upon the 1st and 2nd defendants or any of them.

1st - 3rd defendants or the lsr against the 3 pronouncements against him, with regard to the matters raised in these two issues. It was the plaintiff's contention that the registration of the and 2nd defendants was procured through fraud, and thereby Instrument No. K'LA 272457 could not confer good title on any of them. I have already dismissed the claim. rd defendant for the reasons given. I thus prefer not to make any

I have held before in the decision of The Administrator General vs. Johnson Makumbi HCCS No 102/2006 (unreported) that fraud in land transactions has been the subject f considerable litigation in Uganda The result is a myriad of definitions of the term. I ' ^^r^nhrase the definition given by the Supreme Court in J. f. Zaabwe vs. choose to parapnraie

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Orient Bank & Others Edition) at page 660. Fraud Civil Appeal No. 4/2006 adopted from Black's Law Dictionary (6th It was stated that fraud implies some act of fraud or dishonesty can also be acts that are synonymous to bad faith, faithlessness, perfidy, unfairness, falsehood, deceit or anything calculated to deceive. It is always intentional and usually involves a breach of legal or equitable duty resulting into damage to another. Again, it must be specifically pleaded and strictly proved and a high burden of proof is expected of that party who raises it. See for example J. W. R Kazoora vs. M. LS. Rukuba SCCA 13/1992.

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Again, fraud will only impeach title if attributed to a registered proprietor. In Robert Luswaswe vs. Kasule & Anor (Civil Suit No. 1010/1983) (unreported) the following passage from the case of Assets Co., ltd vs. Mere Roihi & Ors (1905) AC 176 at 210 was cited with approval.

*"It appears to their lordships that the fraud which must be proved in order to invalidate the title of a registered purchaser for value whether he buys from a prior registered owner orfrom a person claiming under the Native Lands Act, must be brought to home . to the person whose registered title is impeached or to his agents. Fraud by persons from whom he claims does not affect him unless knowledge of it is brought home to him and to his agents." (Emphasis* of this court).

**5** was insisting plaintiff also purpose supposed to stated in her testimony that the 1 that she had spoken to the plaintiff and she had allowed her to keep it. The testified that she believed the defendant when she said that he had The plaintiff argued that the transfer of the suit property into the names of the 1st and 3rd defendants was effected without her consent. That the transfer forms and certificate, of title were surrendered to the 1st defendant as security for a loan and no other and therefore that, the moment the Ioan was settled, the transfer instrument be destroyed by the 1st defendant and the title handed to PW2. PW2 sc defendant refused to surrender the title deed

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transferred the suit property into the 3rd defendant's names to safeguard his future. She denied being the author of certain parts of the transfer instrument and argued that the 2nd defendant has always officially used the name John L. Ssekindi or John L. Ssekindi but never as "John Junior Ssekindi" and the transfer form revealed that the 3rd defendant as transferee is the son of the 2nd defendant.

As expected of her by law, the plaintiff gave the following as particulars of fraud against the $1^{st}$ defendant:

- (a) Refusal to hand back to the plaintiff the certificate of title and the blank instrument of transfer after the loan had been paid back. - (b) Processing her registration jointly with the 3rd defendant as the proprietors of the suit property on the strength of the aforesaid instrument of transfer in an attempt to deprive the plaintiff of her title to the property under guise that it was done in the interest of the $3^{d}$ defendant's future welfare whereas not. - (c) Conniving with the $2^{nd}$ defendant to sell the property to the $4^{th}$ defendant in an attempt to deprive the plaintiff of her title to the property.

And for the $2^{nd}$ defendant;

(a) Fraudulently engaging in the sale of the suit property to the 4th defendant well knowing that he had no right or authority whosever to dos o and only in an attempt to deprive the plaintiff of her title to the property.

The plaintiff's evidence was rebutted by the $1^{st}$ and $2^{nd}$ defendants who denied any participation in fraud. The 1st defendant testified that the plaintiff personally wrote her particulars on the transfer deed, attested it and it was witnessed by a person of her choice. The 1st defendant was then left to fill in a transferee of her choice. She also

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nor plaintiff has never instructed her to destroy the instrument of transfer o submit the title to PW2. That John Junior Sekindi named in the transfer deed and the certificate of title is not the plaintiff's son (3rd defendant) but the 2nd defendant.

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occasion she informed her that the 2nd defendant had without her knowledge stolen the title and transfer and had the transfer registered. It is possible that in the first instance, the 1st defendant completed the transfer into her names and that of her grandson for the genuine purpose of protecting it. However, she subsequently hatched the idea of benefiting from it, and together with her son the 2nd defendant, they sold it off taking advantage of the fact that the 2nd defendant, shared some similar names with his son My findings in resolving the Is' and 2nd issue have largely addressed the 1st and 2nd defendants trickery and deception in procuring the transfer. More specifically, the lsr defendant lied when she denied that the transaction was a sale. She took advantage of the fact that the blank transfer was left in her custody, and knowing that the plaintiff was out of jurisdiction, completed the transfer in a manner through which she could defraud the plaintiff and enrich herself. The plaintiff testified that on the first occasion she requested for the title, the 1st defendant informed her that she had transferred into her names and that of the 3rd defendant for the latter's benefit. Yet on the second

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defendant completed the transfer. As instrument was i defendant. The 1 PW2 because This wave of deceit begun the day that the Is' pointed out by plaintiff's counsel, the 3rd defendant being a foreign minor, could not hold a mailo interest and this vital information was not disclosed to the Registrar of Titles Strictly speaking, and in line with Section 40 (4) of the Land Act, the transfer inherently invalid and could not pass title to both the 1st and 3rd 51 defendant then declined to return the title to the plaintiff through spe knew fully well that she had already fraudulently disposed of it.

![](0__page_15_Picture_3.jpeg) defendant being the partner / /2OO2, the 2 defendant aware that his infant son (then aged about 1 *Vi* years only) was away from Uganda, took advantage of the situation to impersonate him and then in consortium with the 15< defendant actively involved himself in registration of the transfer and subsequently sold of the suit property to the 4th defendant. According to the 4 defendant, before he paid the purchase price, he met the 2nd defendant who showed him around the suit property. The purchase price was paid to the 2nd defendant who as I have said, acknowledged it as 'Lwalanda J' and not 'John Junior Sekindi7 for he knew very well that he was not that 'other' person. The 2nd of the plaintiff and the 1st defendant's son, he is deemed to have been aware of the circumstances that the 1?' defendant had the title in her custody, or at least, should have taken trouble to inquire from the plaintiff whether the 1st defendant had powers to sell it. Since the 2nd defendant admitted signing the transfer, it is taken that he successfully impersonated his infant son (who was absent and too young to write) for only then could he participate in the transfer and subsequent sale of the suit property Even without expert evidence, the signature appearing in the transfer, markedly differed from the routine signature that the 2nd defendant used when lifting the caveat off the suit property (D. Exh. 5), to receive the purchase price (D. Exh. 4) and earlier on to entrust powers to the 1st defendant to represent him (D. Exh. 1).

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The attempts of nd defendants to convince the court that the 2nd defendant the 1st and 2' is "John Junior Sekindi" if not concerning very serious acts of fraud, would have been cOmjca| It was quite astounding to observe a full grown man unabashedly giving testimony that would directly dispossess and discredit his own son and it was even more astounding that he was conniving to do so with the 1st defendant, his own mother and the grandmother of the boy, John Junior Sekindi. Their actions were intentional, and the

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faithlessness, falsehood and perfidy is nearly incomprehensible and this court cannot under any circumstances condone it. Both defendants were actively nvolved in the fraud and it is directly visited on them. They cannot seek protection of this Court under Section 59 and 176 RTA and the fraud raised against each one of them was so glaring, well proved and can thereby impeach title under Section 177 RTA.

**f.** title on the minor "John Junior Sekincii." In summary to resolve these two issues I find that registration of the transfer under instrument No. KLA 272457 on the suit property was procured by fraud and that transfer did not confer good title to the suit property upon the 1st and 2nd defendants. I have held before that the 3rd defendant is technically not party to this suit. However, the issue of the transfer into his names is a question of law. A foreign minor cannot hold an interest in mailo. Thus to erase any benefit of doubt, the transfer did not confer good

> have title were fraud upon **3.0** processes. that the 5 minority or citizenship. No evidence was issued for the suit property. Indeed issuing two titles for the same property would be wrong, but without concrete evidence to that effect, the court cannot impute that office. In fact, that anomaly can be corrected through administrative The plaintiff in addition pleaded fraud against the 5th defendant in particular with regard to the manner with which registration of the suit property was procured. Although l found the transfer to have been invalid for the reasons given, it was not shown th defendant knew or ought to have been aware of the 3rd defendant's led to confirm that two different certificates of

Issue four:-

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- bonafide purchaser for value without notice of fraud. Whether the 4th defendant is a - defendant acquired any interest in the suit property from the 1st and 2nd defendants. Whether the 4th

**1** 1998 KALR 383 at page 383 following David Sejjaka Nalima Vs Rebecca Musoke CA No. 12/85 (unreported). John Bagayire vs Ausi Matovu (Court of Appeal Civil Appeal No. 7/1996) reported in The claim against the 4th defendant was for trespass. It is claimed he entered the suit property by himself and others and caused developments thereon on the strength of an unlawful purchase. Conversely, he raised the defence of bona fide purchaser for value without notice of any alleged fraud by the plaintiff. Thereby, it would be incumbent upon him to prove that he purchased without notice. See for example the decision in Sir

> Going by the above mentioned authorities, a purchaser who relies on the bona fide doctrine has to prove the following: -

1. He/She holds a certificate of title

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- 2. He/She purchased the property for valuable consideration - 3. He/She had no knowledge of the fraud - 4. He/She was not party to the fraud - 5 He/She purchased without notice of fraud.

defendant. That she then property to the 4 proceeded who was not The plaintiff testified that the 1st defendant informed her that she had sold the suit ,th defendant under coercion of the 2nd to lodge a caveat on it to stop the illegal construction by the 4lh defendant yet registered on the title. In cross examination she stated that in 2008

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when the 4th defendant bought the suit property, there was a caveat by the 2nd dant and she does not know from whom the 4th defendant bought the land.

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defendant admitted to have received in full. no title. The process of his In my view, it was well explained why the 4,h defendant had transfer was interrupted by this suit. It was not contested that he purchased for valuable consideration and the agreement of sale which was admitted as Exhibit D2, indicated a purchase price of Shs.19,700,000 that the 2nd

**3** It is the bona fides of his purchase that was contested. It was contended in particular **J** I C his true identity. that the 4th defendant was in trespass for he entered the suit property and remained there on the strength of an unlawful purchase from the 1st and 2nd defendants. Plaintiff's counsel argued that after knowing that the 2nd defendant was presenting himself as a vendor with an "alias" identity, the 4th defendant should have done more to inquire into

> In purchase Matovu *(supra)* is instructive assumed name, concerning his true identity. I do agree that courts now enjoin purchasers of real estate to take extra care and caution (beyond for example that which would be required in of chattels). The passage from the decision of Sir John Bagaire vs. Ausi both his pleadings and evidence, the 4th defendant testified that he was introduced to a one "John Lwalanda Sekindi Junior" who revealed that he uses different sets of names at different times. As pointed out by plaintiff's counsel use of an "alias" by the 2nd defendant in the sale agreement, which is defined to be an alternate or even false or should have alerted the 4th defendant to make further inquiries

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"It must be noted that lands are not vegetables which are brought from unknown sellers. Lands are very valuable properties and buyers are expected to make thorough investigations not only of the land but also of the owner before purchase."

The 4th defendant claimed to have made a search on the land. He must have noted that 'John Junior Sekindi' was a co-owner of the land. However, the person who lifted the caveat and received the payments for the suit land in Exh. D5 and D6 was Lwalanda John and Lwalanda J respectively. This should have aroused his suspicions especially when that vendor informed him at the outset that he used multiple names and yet the vital name of 'John Junior Sekindi' was not being used at all in other equally important transactions. He should have at the outset or before completing payments sought the 2nd defendant's formal identification documents like a passport which could have told more of this man who turned out to be a fraudster. He did not even try to find out why the $2nd$ defendant had lodged a caveat on the suit property in the first place.

In my view, his curiosity may have been aroused, but he was negligent or, worse, he did not want to inquire more into the 2nd defendant's identity for fear that he may discover the truth and thus jeopardize a sale that he was much interested in. That behavior has previously been termed as fraudulent (See for example David Sejjaka Nalima vs. Rebecca Musoke (supra) and the fraud of the $1^{st}$ and $2^{nd}$ defendants is attributed to him as the immediate purchaser. I would conclude that the $4^{th}$ defendant under suchcircumstances is not a bona fide purchaser for value without notice of fraud. He did not acquire any interest in the suit land from the $1^{st}$ and $2^{nd}$ defendants that can be protected at law.

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The plaintiff contended that it was not denied that the 4th defendant developedt he land with a storied structure. I do agree with the submissions of plaintiff's counsel that the $4^{th}$ defendant's entry on to the suit property was the result of a series of fraudulent acts by the 1st and 2nd defendants that he knew or ought to have had knowledge of. His entry was unauthorized and interferes with the plaintiff's constructive possession of the land and going by the authority of Justine Lutaya vs. Sterling Civil Engineering Company Ltd SCCA No. 11/2002, he is deemed to be in trespass of the suit property. The plaintiffs would be entitled to general damages thereby.

The accepted principle is that general damages are discretionary in nature. They have been explained to be such as the law would presume to be the natural or probable consequence of the act complained of on account of the fact that they are its immediate, direct or proximate result. They are meant to restore the injured party in his/her former position had they not suffered the wrong. See for example Dr. Dennis Lwamafa vs. AG HCCS No. 79/83 and Stroms vs. Huchinson (1905) AC 515. I see no law permitting such an award where fraud has been proved. However, the plaintiff can still claim compensation against the 1st and 2nd defendants under Section 178 RTA.

The plaintiff lost her land to persons that she knew and ought to have trusted. They turned out to be fraudsters who breached that trust and sold her land to a third party. They collectively deprived her of the suit property for a period now spanning 15 years. I agree that she must have suffered serious emotional stress and anguish in addition to great cost in prosecuting this case while commuting from abroad. An award commensurate to such damage would be appropriate.

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*I* In summary, Judgment is entered for the plaintiff and against the Is', 2'd, 4"' and 5,h defendants as follows:

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- 1. The 4 defendant is declared to be in trespass on the suit property comprised in Kyadondo Block 221 Plot 772, Nalya. - 2. The 4th defendant shall pay general damages to the plaintiff in the sum of Shs.30,000,000/=.

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- 3. The 4,h defendant shall within 14 days of this Judgment, vacate the suit property failing which, he will be liable for eviction by the plaintiff. - defendants and 4rh 4. A permanent injunction doth issue against the 1st, 2nd collectively restraining them from trespassing onto the suit property. This particular order to apply to the 4th defendant at the expiration of the 14 days. - 5. An order directing the 5th defendant to cancel the names of Emily Migyisha and John Junior Sekindi from the register anij reinslate,that of the p.laiolilL------ - 6. An order of general damages against the 1st and 2nd defendants in the sum of Shs.100,000,000/=. - 7. Costs of the suit to be met by the 1st, 2nd and 4th defendants.

I SO order. ATA JUD. **1** 06/07/2017 **fl £05** EVA K. LU / ; **f i** /' 1 " ----------*-* I

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA LAND DIVISION CIVIL SUIT NO.78 OF 2011

## AUDREY MUSIIMENTA ::::::::::::::::::::::::::::::::::::

## **VERSUS**

1. EMILY MIGYISHA

2. JOHN SEKINDI

3. JOHN JUNIOR SEKINDI

4. DR. DAVID KAGGWA

5. COMMISSIONER LAND REGISTRATION ::::::::::::::::::::::::::::::::::::

## DECREE

This suit coming up for final disposal this 14th day of July 2017 before HER LORDSHIP HON. LADY JUSTICE EVA K. LUSWATA, in the presence of Mr. Paul Rutisya Counsel for the Plaintiff, in the presence of the 4th Defendant and in the absence of the 1st, 2nd, 3rd, and 5th Defendants and their respective Counsel, IT IS HEREBY ORDERED and DECREED that judgment be and is hereby entered for the Plaintiff against the $1^{\text{st}}$ , $2^{\text{nd}}$ , $4^{\text{th}}$ and $5^{\text{th}}$ Defendants as follows:

- 1. The $4^{\text{th}}$ Defendant is declared to be in trespass on the suit property comprised in Kyadendo Block 221 Plot 772, Nalva. - 2. The 4th Defendant shall pay general damages to the Plaintiff in the sum of USHs. 30,000,000 $=$ - 3. The 4th Defendant shall within 14 days of this judgment, vacate the suit property failure of which he will be liable for eviction by the Plaintiff. - 4. A permanent injunction doth issue against the 1", 2nd and 4th Defendants collectively restraining them from trespassing onto the suit property. This particular order is to apply to the $4th$ Defendant at the expiration of the 14 days. - 5. An order directing the 5th Defendant to cancel the names of Emily Migyisha and John Junior Sekindi from the Register and re-instate that of the Plaintiff. - 6. An order of general damages against the $1^{\circ}$ and $2^{\circ}$ Defendants in the sum of UShs.100,000,000 = $\frac{1}{2}$

7. Costs of the suit to be met by the $1^{\text{st}}$ , $2^{\text{nd}}$ and $4^{\text{th}}$ Defendants. $/\iota$ , GIVEN under my Hand and Seal of this Honorable Court this day of 2017. DEPUTY REGISTRAR TIES TO THE OF THE ORIGINAL Extracted by: M/s Kasirye, Byaruhanga & Co., Advocates & Solicitors. Plot 33, Clement Hill Road, P. O. Box 10946. Kampala.

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