Mwebe & Another v Mutesasira & 3 Others (Civil Suit 54 of 2017) [2025] UGHC 34 (16 January 2025)

Full Case Text

#### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MPIGI CIVIL SUIT NO. 54 OF 2017 (Formerly HCCS No. 180 of 2011HC, Nakawa)

| 1. MWEBE ZEBEDE 2. SSEBUGUZI ROBERT | | |----------------------------------------|---------| | | | | (Administrators of the estate of | | | the late Bunnya Hannington) | | | | VERSUS | | 1 MITTESASIRA I WEKAMIJI A SSENGOORA | |

2. NYINDO DAVID

3. BAKER AKANTAMBIRA

4. REGISTRAR OF TITLES

#### ................ DEFENDANTS

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## BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK

#### Judgment

The original Plaintiff (Bunnya Hannington) brought this suit against the defendants jointly and severally for; a declaration that the plaintiff is the legal and lawful owner of land measuring 30 acres being part of the land comprised in $20$ Gomba Block 39 Plot 5 situate at Kanyogoga; a declaration that all the entries and transactions in respect of land comprised in Gomba Block 69 plot 5 from the names of Paulo Mutesasira to the $1^{st}$ and $2^{nd}$ defendants were illegal, fraudulent, in consequential, null and void; an order for cancellation of all entries on the certificate of title for land comprised in Gomba Block 69 Plot 5; an order directing 25 the $1^{st}$ and $2^{nd}$ defendants to surrender to the plaintiff the certificate of title for the part of the suit land measuring 30 acres together with signed transfer forms; a declaration that the $1^{st} - 3^{rd}$ defendants are trespassers on the suit land; a permanent injunction against the defendants jointly and severally and those claiming under them.

It was the plaintiff's (Bunnya Hannington's) case that in 1960, he purchased 30 acres out of land comprised in Gomba Block 69 Plot 5 from the 1st defendant's father the late Paulo Mutesasira and before his death, he had signed transfer forms in favour of the Bunya Hannington who took immediate vacant possession and he and his family utilized the 30 acres since then until the defendants illegally trespassed on the same in 2008 and started disturbing the plaintiff's quiet possession of the same that later led to the filing of this suit.

During the pendency of this suit, the original plaintiff passed on and was replaced with his legal representatives.

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The $1^{st}$ to $3^{rd}$ defendants on the other hand averred that $1^{st}$ defendant had been utilizing the entire suit land from way back in the 1970s to the exclusion of others and uninterrupted then sold it to the $2nd$ defendant in 2008 who also sold to the 3rd defendant who occupied the same until 2024 when unknown persons came and evicted him, stole his cattle and got him off the suit land.

The suit proceeded exparte against the 4th defendant who did not file any witness statement or trial bundle

## Representation:

Counsel Mubiru Shafik Musa appeared for the plaintiffs while Counsel Chris Kabuga appeared for the $1^{st}$ to $3^{rd}$ Defendants. Both sides filed written submissions.

## Issues for determination:

- 1. Whether the plaintiff has any valid claim in respect of the Suitland? - 2. Whether the 1st, 2nd and 3rd defendants' activities on the suit land are lawful? - 3. Whether the 1st defendant validly transacted on the suit land? - 4. Whether the 2nd and 3rd defendants are bonafide purchasers for value without notice? - 5. What remedies are available to the parties?

## Burden and standard of proof:

In civil matters, the burden of proof lies upon the person who alleges. Section 101 $20$ of the Evidence Act, provides that:

> "(1) 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.

> (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person".

Section 103 of the Evidence Act provides that; the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

Thus, the burden of proof in civil proceedings lies on the Plaintiff or claimant. The standard of proof is on a balance of probabilities.

In the case of Miller v. Minister of Pensions [1947]2 ALL E R 372, Lord Denning stated;

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"That the degree is well settled. It must carry a reasonable degree of probability" but not too 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 of proof is discharged but if the probabilities are equal, it is not".

- The law provides for the legal burden and evidential burden. And when a plaintiff $\mathsf{S}$ leads evidence establishing his/her claim, he/she is said to have executed the legal burden. The evidential burden then shifts to the defendant to rebut the plaintiff's claim. In this case the plaintiff has the legal burden to prove his case as against the defendants. - Resolution of issues: $10$

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# Issue 1: Whether the plaintiff has any valid claim in respect of the Suitland?

It was submitted for the plaintiff that in his evidence he stated that he purchased 30 acres of the suit land on 1st October, 1960 from the late Paulo Mutesasira at a consideration of UGX 2,000/ $=$ and an agreement was made to that effect and witnessed by Yekoyada Kintu and Ssempa. That the vendor also signed transfer forms on the same day and upon purchase he took vacant possession of the land and used the same for farming uninterrupted until 2008 when the 2nd and 3rd defendants started laying false claims of the ownership over the same. That the plaintiff added that he lost his purchase agreement however, he tendered in court transfer forms.

Further, that PW2 Yekoyada Kintu testified to the fact that he knew the late Paulo Mutesasira and that he is aware of the ownership and interest of the late Hannington Bunnya in respect of land comprised in Gomba Block 69 Plot 5. And that he personally saw the agreement which was in respect of the 30 acres the plaintiff claims in this case.

Furthermore, that PW3 testified that on the O8th January, 2008 on behalf of the children of the late Mutesasira, he wrote a letter to all the local authorities that the land comprised in Gomba Block 69 Plot 5 was not for sale and that the 1st defendant had fraudulently secured Letters of Administration in regard to the estate of the late Paulo Mutesasira.

Counsel concluded that the plaintiff's evidence was so strong and there was no doubt that the late Bunnya Hannington purchased 30 acres from the late Paulo Mutesasira and took immediate occupation unchallenged until 2008.

Counsel for the $1^{st} - 3^{rd}$ defendants on the other hand submitted that the certificate of title for the suit land was first issued on the 19th April, 2007and in 1960, there 35 was no certificate of title therefore, the late Paulo Mutesasira could not transfer the

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land he did not have at the time. Additionally, that the witnesses PW3 and PW4 who were said to have witnessed the sale agreement, are not indicated on the transfer form nor did they sign the same.

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Further, that it was the evidence of PW1 that his father Bunnya Hannington stayed at Wasinde LC1 and that was where he was born and had no home anywhere else. $\overline{5}$ That from Wasinde LC1 to the suit land, it is about 20kms and that his father a one Bunnya Hannington has never had a home or residence on the suit land and that he had never met with Paulo Mutesasira. That PW3 who claims to be the son of Paulo Mutesasira wrote to the local authorities stating that the suit land was not

for sale but did not tender the said letter to court nor did he apply for Letters of 10 Administration for the estate of Paulo Mutesasira.

Furthermore, that this suit is barred by limitation under Section 5 of the Limitation Act for having been filed after 51 years from the time Bunya purchased the 30 acres of land and transfer forms were given to him nor was any reason advanced as to why he did not transfer the same into his name. That no disability was pleaded and as such the plaint should be rejected under the provisions of Order 7 Rule 11(d) of the Civil Procedure Rules.

It was also submitted for the $1^{st} - 3^{rd}$ defendants that it was the testimony of DW2 that there is no other Administrator to the estate of the late Paulo Mutesasira, nor was he ever served with the process of revocation of the letters of administration. Counsel concluded that the plaintiffs have no valid claim over the suit land.

It was submitted in rejoinder for the plaintiffs that whereas Paulo Mutesasira was not a registered proprietor of the suit land, he was still on the blue page on block 69 of Plot 5. And that it was agreed at purchase by Bunnya Hannington that he would embark on the registration process and that is why he was registered on the certificate of title in 2007 since he was the one reflected on the blue page.

Counsel added that the witnesses on the sale agreement did not have to also sign on the transfer form since it is not a requirement under the law and that the 1st defendant having acquired the Letters of Administration illegally, the same were challenged and they were revoked vide HCCS No. 205 of 2016.

Further, counsel submitted that the dispute at hand arose in 2007 as such the suit is not time barred and the issue of limitation does not arise in the instant case.

I have carefully considered the pleadings of both parties, their evidence and exhibits tendered in court, the law, authorities and submissions made in this regard. Counsel for the $1^{st}$ – $3^{rd}$ defendants submitted that this suit was time barred in contravention of the provisions of Section 5 of the Limitation Act. I however, disagree with this submission since the instant suit is about a dispute that arose in

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around 2008 when the defendants are said to have interrupted the plaintiff's use of the suit land. Thus, the issue of limitation does not come up in this case as the suit was properly instituted before this court within the required time frame as provided by the law.

$\overline{5}$ The plaintiffs in the instant case claim that the late Bunnya Hannington bought the suit land in 1960 from Paulo Mutesasira however, no sale agreement was tendered in court to prove purchase of the same. The plaintiff tendered in court a transfer form that is said to have been signed in his favour even though, the same was never effected and the vendor in this case the late Paulo Mutesasira only got to be registered on the certificate of title on 19/4/2007 long after his death. The late 10 Bunnya Hannington also never got to be registered as the registered proprietor of the suit land despite being given the transfer forms and no reason was advanced to this court as to why this was so since he purchased the suit land in 1960.

The defendants contended that in 1960 when the plaintiff alleged to have bought the suit land, there was no certificate of title. The plaintiff in this case tendered in 15 court a transfer form as already stated above which was signed by the late Paulo Mutesasira who himself was not a registered proprietor of the suit land. How then could Paulo Mutesasira transfer what he did not have not to mention that he got registered on the Certificate of title long after his death? Be that as it may a transfer

- form is not proof of purchase but rather an instrument used to transfer and effect $20$ registration of a proprietor of land. The late Paulo Mutesasira in this case was not a registered proprietor of the suit land as such he could not sign transfer forms for land which he had no legal interest in. - The 1st defendant in his evidence told court that he was never part of the proceedings that sought to have the letters of administration granted to him $25$ revoked nor has a new administrator ever been appointed. I have had the benefit of looking at the judgment that revoked the letters of administration as granted to the $1^{st}$ defendant and indeed there is no indication that the $1^{st}$ defendant was part of the said proceedings. - During the locus in quo visit the plaintiffs were not found in occupation of the suit 30 land and upon seeking clarity from the Local Area Chairperson he stated that he was possessed with knowledge of the fact that the 3rd defendant was the one occupying the suit land and not the plaintiff before he was also evicted from the same. - It is my finding that the late Paulo Mutesasira could not pass on interest in land 35 that he did not have. In 1960 when he allegedly sold to the plaintiff he was not a registered proprietor of the suit land which is not denied by the plaintiffs as such he could not effect a transfer for property he had no legal interest in. Thus, a person

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cannot pass title that he does not have. (See: Halling Manzoor v. Serwan Singh Baram, SCCA No. 9 of 2001). The plaintiff in my view has no valid claim in the suit land and this issue is hereby resolved in the negative.

Issue 2: Whether the $1^{st}$ , $2^{nd}$ and $3^{rd}$ defendants' activities on the suit land are lawful? $\mathsf{S}$

Counsel for the plaintiff submitted that it was the plaintiff's evidence supported by one of the sons of the late Paulo Mutesasira that the suit land belongs to the plaintiff having purchased it from his father. And that the defendants' occupation of the land was not consented to by the plaintiff and the defendants are there to frustrate him by refusing to grant him vacant possession.

Counsel for the $1^{st} - 3^{rd}$ defendants on the other hand submitted that it was the evidence of PW3 and PW4 that the late Bunya had no home on the suit land and had never utilized the same from the time he bought it. That it was also confirmed during the locus in quo visit that the plaintiffs prior to the 3rd defendant's purchase

- of the suit land were using the adjacent land but it was the 3rd defendant that had 15 been in use and occupation of the suit land since 2008 until January, 2024 which he was forcefully evicted from the suit land by unknown people. The forceful eviction was reported to Police. - Counsel added that the $1^{st}$ ~3rd defendants submitted that it was the testimony of PW3 and PW4 that the late Bunya had never occupied the suit land and during the 20 locus in quo visit it was confirmed that the $3rd$ had been in occupation of the suit land since 2008 until he was forcefully evicted and the matter was reported to police. That the 1st defendant as the administrator of the suit land sold his share to the $2^{nd}$ defendant who also later sold to the $3^{rd}$ defendant without any grudges or encumbrances. And they were using the land without any interference. $25$

Further, in regard to fraud it was submitted for the $1^{st}$ – $3^{rd}$ defendants that the $1^{st}$ defendant is a biological son of the late Paulo Mutesasira and the suit land was his share of his father's estate. And that the plaintiffs are not his relatives and nor are his relatives party to the suit. That while the plaintiffs state that the certificate of title was transferred on the same day, they do not state who was responsible for that action. Counsel added that if there was any fraud, the $2^{nd}$ defendant as the registered proprietor is not responsible and it is attributable to the Commissioner Land Registration and not the transferee being the $2^{nd}$ defendant.

Counsel for the plaintiffs in rejoinder submitted that the trespass was in regard to the 30 acres that were purchased by the late Bunnya and this trespass began in 35 2008 when the $1^{st} - 3^{rd}$ defendants destroyed the plaintiff's crops. Thus, the land was being occupied through cultivation from the moment of purchase. That the 1st

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defendant at the time of sale sold in his individual capacity and had no letters of administration at the time as such he fraudulently dealt with the suit land.

The plaintiff in this case in my view was unable to prove his claim in the suit land for failure to adduce evidence to support his purchase of the suit land as resolved above. The 1st defendant on the other hand contended that he sold the suit land as his share in the estate of his father even though there were no letters of administration for the estate at the time.

In light of the above I find that the acts by the defendants on the suit land are lawful. This issue is hereby resolved in the affirmative.

Issues $3$ and $4$ : $10$

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Whether the 1st defendant validly transacted on the suit land?

Whether the 2nd and 3rd defendants are bonafide purchasers for value without notice?

- Counsel for the plaintiff submitted that the 1st defendant did not have authority to sell to the $2^{nd}$ and $3^{rd}$ defendants since the letters of administration he had were 15 revoked in 2016 for fraud. That at the time of the transaction the 1st defendant sold to the $2^{nd}$ defendant in his own capacity and not an administrator. That he sold without the consent of the other beneficiaries. That the transaction took place on the 1st March, 2007 and the Letters of Administration were granted on the 10th - May, 2007. Counsel noted that the $1^{st}$ and $2^{nd}$ defendants got registered on the $20$ certificate of title on the same day in a space of two minutes which is an indication of fraud. And that the 3rd defendant at the time of purchase, the land had not yet been registered on the certificate of title. As such, the 2nd and 3rd defendants cannot succeed on a defence of bonafide purchaser for value without notice since before purchase they all had notice of the fraud surrounding the transaction and all $25$ - participated to defeat the plaintiff's interest.

Counsel for the $1^{st} - 3^{rd}$ defendants on the other hand submitted that it was the $2^{nd}$ defendant's evidence that he was a neighbor to the suit land and was desirous of purchasing the same which he did with no protest from the relatives of the 1st defendant at the time who knew about the transaction. That at the time the $2nd$ defendant bought the suit land there were no encumbrances, and that there was nothing to suggest that the land was being used nor was the same registered.

Furthermore, that it was the testimony of DW1 that at the time he bought the suit land he did not even know the 1st defendant and did not conduct any transaction with him. That he was only introduced to the $2^{nd}$ defendant who was registered on the certificate of title and was willing to sell the land. That the land was free of any

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encumbrances so he went ahead and paid. Thus, he had no notice of fraud and is a bona fide purchaser for value.

Fraud denotes actual fraud or some act of dishonesty as per the case of **Kampala** Bottlers Ltd v. Domanico (U) Ltd SCCA No.22 of 1992.

In the case of Zabwe Fredrick v. Orient Bank & Others SCCA No. 4 of $\overline{5}$ 2006. According to that case fraud constitutes:

> "An intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which deceives and is intended to deceive another so that he shall act upon it to his legal injury."

In the instant case while the plaintiffs claim that the acts of the 1st defendant were fraudulent because he did have letters of administration at the time he sold the suit land to the $2^{nd}$ defendant he Stated on the other hand that he sold what was his share from his deceased father's estate.

In the case of Dr. Diana Kanzira v. Herbert Natukunda Rwanchwende and another, Civil Appeal No. 81 of 2020, it was observed that:

"Where a family has decided to apportion and allot each member a part of envisaged that the whole estate, it is the beneficiary, aware of their rights and interests, may deal with the land as he or she wishes. However, the high-handed methods by which the late Eric Rwanchende's estate is borders on illegality. The legal proposition for the above assertion is as laid down in Volume 48, Halsbury's Laws of England, 4th edition, Butterworth, London, 1984, page $349 - 350$ thus:

"[Paragraph] 626: Power of alienation. A beneficiary under a trust possesses the same power of alienation or disposition with respect to his equitable estate or interest under the trust as a legal owner has over his legal estate or interest in the property, and he can exercise it by similar instruments and with similar formalities".

It was the evidence of $2^{nd}$ defendant that before purchase he did his due diligence and confirmed through Yekoyada Kintu that the land belonged to the 1st defendant and when their father died, their uncle Ssalongo Lubowa together with Thomas Mutesasira distributed the estate and everyone got their share. Hence, the 1st defendant selling his share to the $2^{nd}$ defendant on $1/3/2007$ . That when he bought the land, he bought it jointly with John Byamukama, who eventually sold

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off his interest to him. And in 2008 he in turn sold to the 3rd defendant who however, was unable to effect the transfer because of the impending caveats.

It is therefore my finding that from the evidence of the 1st defendant as corroborated by the $2^{nd}$ defendant that the 1st defendant sold his share of his late father's property since the estate of his father had already been distributed amongst all the beneficiaries even though there were no letters of administration at the time.

The plaintiffs in this case also argued that the transactions by the defendants were illegal since the letters of administration were revoked by court. In the case of Nurdin Katende v. Yunus Kabugo and 4 others, Civil Suit No. 364 of 2012, it was held that:

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"It is now settled law that a grant of letters of administration remains valid until revoked even where it is later established that the grant had been obtained by fraud, for so long as it remains in peration, it is taken to represent the estate of the deceased. (Anecho Haruna Musa v. Twalib Noah & 2 Others, HCCS No. 0009 of 2008)".

The letters of administration in this case were revoked on the 24th October, 2019 and this was after the 3rd defendant had purchased the suit land.

The $2^{nd}$ defendant then sold to the $3^{rd}$ defendant on the 31/7/2008. The $3^{rd}$ defendant in his evidence stated that he bought land from the 31st July, 2008 from

the $2nd$ defendant altogether measuring 120 acres comprised in Gomba Bock 69 $20$ Plot 4, 5, and 6. And an agreement was executed to that effect. That before buying he made inquiries from the land office, where he confirmed that the land was free of any encumbrances and also visited the land physically and talked to the neighbours to the same. That while inspecting the land, he found it with no occupants apart from a one Kamya who was a squatter and was using a portion of $25$ about 5 acres. Further, that the $2^{nd}$ defendant brought to him some elders in the area who included Yekoyada Kintu, who convinced him that the suit land had no had disputes. And upon purchase he started utilizing the land and made developments there on undisturbed until 2010 when the $2nd$ defendant informed him that he had be sued by the plaintiff whereof he applied to be added as a party 30 to the suit.

During cross examination he stated that before buying the land he searched at the land registry to verify the owner of the suit land and also asked the neighbours. That he started paying for the suit land when the $2^{nd}$ defendant was the registered proprietor of the suit land. And he did not know the 1st defendant.

The purchase by the $3rd$ defendant was executed when the letters of administration had already been obtained by the 1st defendant. And at the time he purchased the

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caveat as lodged by Kalimiro John and the plaintiff had not yet been entered on the certificate of title on which the $2nd$ defendant was the registered proprietor as evidence by DEX5.

The $2^{nd}$ and $3^{rd}$ defendants claim to be bonafide purchasers and according to the case of Daniel Sempa Mbabali v. W. K Kiiza and others, (1985) HCB, a bonafide $\mathsf{S}$ purchaser is defined as one who buys in good faith, honesty, without fraud, collusion or participation in wrong doing.

The $2^{nd}$ and $3^{rd}$ defendants according to their evidence show that they conducted their due diligence before buying the suit land and this was also corroborated by

PW3 Yekoyada Kintu who during cross examination stated that the 2nd defendant $10$ came to him over the suit land and also stated that Paulo Mutesasira himself had not gone to the land nor did Bunnya Hannington use it.

I find that the acts of the $1^{st}$ defendant in this case were valid and the $2^{nd}$ and $3^{rd}$ defendants are bonafide purchasers for value without notice of fraud in this case. Issues 3 and 4 are hereby resolved in the affirmative.

## Issue 5: remedies available to the parties.

The plaintiff prayed for vacant possession, mesne profits of UGX 50,000,000/ $=$ due to the $2nd$ and $3rd$ defendants' illegal occupation of the suit land, general damages of UGX 50,000,000/ $=$ at an interest of 10% per month and costs of the suit.

Counsel for the $1^{st} - 3^{rd}$ defendants on the other hand prayed that the suit be dismissed with costs and general damages be awarded against the plaintiffs with interest. And, that the 4th defendant be directed to remove the caveat off the suit land so that the $3rd$ defendant is registered as the owner of the suit land.

25 The plaintiffs in this case have not proved their case as against the defendants on a balance of probabilities, they are therefore not entitled to the remedies prayed for. While the $1^{st} - 3^{rd}$ defendants prayed for general damages, I find no justification to award the same. I therefore decline to award to the said defendants general damages since there was no loss or inconvenience proved as occasioned by the plaintiffs to the defendants. 30

The $3^{rd}$ defendant prayed that the 4th defendant be ordered to vacate the caveat on the suit land so that he can be registered as the owner of the suit land.

Having found that the 3rd defendant conducted his due diligence in purchasing the suit land and the 1st defendant legally sold to the 2nd defendant, who intron sold to the $3rd$ defendant; there is no reason why the caveat should remain. It is hereby

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ordered that the caveat on the suit land be vacated and the 3rd defendant registered as the owner of the suit land.

Judgment is hereby entered in favour of the $1^{st} - 3^{rd}$ defendants. Costs are awarded against the plaintiffs. I so order.

Right of appeal explained. $\mathsf{S}$

OYUKO ANTHONY OJOK

**JUDGE**

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