Nagawa (as administratrix of the estate of the late ziyada namuli) v Luberenga (HCT-00-LD-CS 314 of 2011) [2023] UGHCLD 198 (29 June 2023)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA (LAND DTVISIONI

### HCT-OO-LD-CS- NO.314 0F 2011

NAGAWA THEOPISTA PLAINTIFF (ADMINISTRATIX OF THE ESTATE OF THE LATE ZIYADA NAMULI)

#### \/ERSUS

JOHN MARY LUBERENGA DEFENDANT

#### JUDGMENT

#### BDFORD HON. I. ADY JUSTICE KANYANGE SUSAN

The plaintiff's action is for

- i ) recovery of land situate atLweza Wakiso District formerly known as MRV 104 1 folio 16 and now known as Kyadondo Block 267 plots 106, 107. 108, 109, 382, ll7, 1.18, 122, 123, l4O, 74I, 142, 744, t45, 207,208,275, 432, 561 and 562 - ii) An order for the cancellation of all certificates of title in which the above described parcels of land are currently comprised. - iii) A declaration that the defendant is trespassing on the suit land - iv) A declaration that the plaintiff is entitled to vacant possession of the suit land - v) consequential order in respect of the above-mentioned parcels of land - vi) A permanent injunction restraining the defendants and all persons claiming under him from continuing to trespass onto the plaintiff's land or carrying out any activity thereon - vii) In respect of all those parcels of land that have already been sold,

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payment of the current market value of a-11 the parcels transferred to third parties

- viii) General damages for trespass and unlawful deprivation of property - ix) Mesne projects - x) General damages for inconvenience and - xi) Costs of the suit

The plaintiff averred that she is the administratix of the estatc of the late Ziyada Namuli who is the registered proprietor of the suit land since 16th March 1949 and has never sold to anyone and she has a duplicate certificate of title. That in 1984 she discovered the defendant had fraudulentiy procured a special certificate o[ title subdivided the land and transferred to third parties.

In his defence the defendant avcrred that the land was sold to him between 1975 and 1984 by trlizabeth Nalwegayo successor olZiyada Namuli who was in ownership and possession. That he was not privy to processing of the special certificate of title and he paid full purchase price and land was transferred into his names. Further to this that he has been in occupation since 1975 and is a bonafide and lau{ul occupant of the suit land.

#### Representation

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M/". Bbaale & Partners Advocates and Legd Consultants represented the plaintiff while M/s. Mator,Tr N. J & Co. Advocates represented the defendants.

#### Resolution

Issues agreed on by the parties were;

- i. Whether the plaintiff has a cause of action against the defendant - ii. whether the defendant is a bonafide purchaser for value and or a lawful occupant on the suit land - iii. Whether the defendant lawfully obtained registerable interest of the suit land - iv. Whether the defendant is a trespasser on the suit land - v. What remedies are available to the parties

#### Issue <sup>1</sup>

whether the plaintiff has a cause of action against the defendant under 07 rll (a) of the Civil Procedure Rules a plaint may be rejected by the court if it does not disclosc a cause of action. The court o[ appeal in Kapeka Coffee Works Ltd Versus Npart CACA No'3/2OO1 held that in determining whether a plaint disclose a callse of action, the court must look only at the plaint and its anncxtures if any and nowhere else.

In the case of Tororo cement co. Ltd Versus Frokina International Ltd civil Appeal No.2l2OO1- it was held that to prove a cause of action the plaint must show;

- a. That the plaintiff enjoyed a right - b. That the right has been violated - c. That the defendant is liable'

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Counsel for the plaintiff submitted that plaintiff an administratix of the estate of the late Ziyada Namuli enjoys a right of ownership of the suit land and defendant violated this by being fraudulently registered in the sarne.

While counsel for the defendant submitted that defendant got registered during lifetime of the late Namuli and no legal action was brought by the immediate successor. Further to this that plaintiff failed to show physical boundaries of suit land at locus visit and thus failed to show cause of action against the defendant.

The plaintiff in this suit brought action against the defendant in her capacity as a legal administratix of the late Ziyada Namuli. She claimed that the defendant violated her right of ownership by fraudulently transferring the land into his narnes and selling off portions.

I find that she enjoyed a right over the land (para (4) of plaint) and since it was sold off by the defendant (para 4(d) than that right was violated. Whether defendant did so fraudulently or not and whether he is liable as per para (5) these are triable issues which this court will look at in resolving other issues.

I thereby find that there is a cause of action against the delendant

# Issues II and III

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II- Whether the defendant is a bonafide purchaser for value and or a lawful occupant on the suit land.

# III- Whether the defendant lawfully obtained registerable interest of the suit land.

The defendant John Mary Luberenga was registered on the title of land at Lweza comprised in Block No.262 plot No.7 which has since been subdivided in many plots, on the 2Oth February 1984. Before him the registered proprietor was Ziyada Namuli registered on 16th March 1949.

S. 59 of the Registration of Titles Act is to the effect that a registered proprietor of land is protected and his title is indefeasible except in cases of fraud. See case of Katarikawe Versus John Katuramu & Anor L977 HCS 187. For a title of a bonafide purchaser for value to be impeached there must be fraud of the transferee and the transferor.

In the case of Fredrick Zaabwe Versus Orient Bank & others SCCA No.4 of 20O6 fraud was defined to mean the intentional perversion of the truth by a person for the purpose of inducing another in reliance upon it to part with some va-luable thing belonging to him or her or to surrender a legal right. It is a fa-lse representation of a matter of fact whether by words or by conduct, by false or misleading allegations or concealment of that which deceives and it is intended to deceive another so that he or she shall act upon it to his or her legal injury.

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In Kampala Bottlers Ltd Versus Damanico (Ul Ltd SCCA No.22 of L992 it was held that fraud must be strictly proved, the burden being heavier than one on balance of probabilities generally applied in Civii matters. It was further held that the party must prove that the fraud was attributed to the transferee. It must be attributable either directly or by necessary implication that is, the transferee must be guitty of some fraudulent act or must have known of such act by somebody else and taken advantage of such act.

PWl - Teopista Nagawa testified that she is the administratrix of the estate of the late Ziyada Namuli since 10th February 2011. That the said Namuli died in 1959 and left the land in issuc to her father thc late Dimintileo Balyejjusa in her will. Her father made her the heir of Ziyada in 1990 and gave her the land. He later told her he had found out in 1,994 that the land had been transferrcd into the names of Luberenga the defendant yet he also had his title. The defendant had title also and claimed to have brought from their aunt Nalweyago trlizabeth who was staying at Buwanda Mawokota.

The matter was reported to police and court but her father died in 1999. She got letters of administration and proceeded with the case. That the defendant wanted to buy the land but they refused' She said she has certificate of title.

PW2- Musoke Joseph testified that plaintiff was heir of Ziyada and that land was given to their father Balyejjusa to look after it until he gets heir.

That she entrusted it to their a.unt Zabeti Nalweyago to look a{ter until one time he found someone had built on it. Nalweyago brought defendant and said she had only lent him to dig. He was shown original land title by their father, wanted to buy but their father refused.

PW3 An uncle to plaintiff said that defendant fraudulently encroached on the land which was for their aunt Ziyada Namuli and they were surprised that he had a title.

In his evidence the defendant John Mary Luberenga averred that he is the owner of the land and purchased the same lrom Nalwegayo trlizabeth between 1975 and 1984 and was given a special certificate of title. That he did not participate in getting that title but it was found out that it had been applied for by the late Ziyada Namuli in 1983. Further to this that he has been in occupation since 1975.

DW2 John Baptist Mulyanga a son to Nalweyago Elizabeth testified that his mother sold land to the defendant in the 1970s and he used to pick the money from him to take to the mother. That after payment he took possession and built thcreon.

k Counsel for the defendant submitted that he is a bonafide occupant while counsel for the plaintiff submitted he is not bonafide occupant and that he obtained certificate of title through fraud.

S. 29(2)(a) of the Land Act defines a bonafide occupant to mean a person who before coming in force of thc Constitution of 1995 had occupied and utilized or developed any land unchallenged by the registered owner or agent of the registered owner for twelvc ycars or more. See Civil Appeal No.82 of 2OL2 Isaaya Kalya & 2 others Versus Moses Macekenyu IKagobya and Kampala District Land Board & Anor Versus Venansu Babweyaka & 3 Others SCCA N. O2 of 2OO7.

The evidence on record shows that the defendant first occupied land from 1975 until 1984 when he was registered on the title. Hc used to buy different plots of land. Before 1984 the land was still registered in the narnes of Ziyadi Namuli. He bought from Na,lwegayo who he admitted in his cross examination told him the land title was with his brother. He also said he nevcr went to the land officc when purchasing the land. He indeed said he knew land was previously owned by Namuli Ziyadi and Nalwegayo was immediate successor.

I find that the defendant bought the land without verifying who was the registered proprietor at that time and he knew Nalwegayo was not the registered proprietor since she told him that title was with the brother. Plaintiff testified that her father who had title found out in


1994 that it had been transferred to another person. Defendant's occupation on the land was thus more tinan 12 years before coming into force of 1995 constitution and it was not challenged by the registered owner.

But his registration of 1984 does not fall within the ambit ot 529(2\ a) of the land Act. The title tendered in by plaintiff is comprised in volume 1O4 1 folio 16 land at kyadondo Lweza measuring 4 acres' It was dated march 1949 and registered in the names of Ziyadt Namuli. While that of the defendant is comprised in kyadondo Block 267 land atLweza. It shows it was originally 4 acres but has been subdivided into different plots and original owner was Ziyadi Namuli. The title tendered in by the ptaintiff was the duplicate title, while one for defendant is a special certificate of title Issued on 15rh November 1983. There should not be two titles on the same piece of land. The duplicate title in narnes of Zayid Namuli came first. Defendant claims he had no hand in issuance of Special certificate of title.

I find that though application for special certificate of title was applied for by Ziyadi Namuli. It was fraudulently done. By 1983 the said Zayadi Namuli had already died. She died in l959. Defendant does not show how the said title was transferred in his names from Namuli. Who then transferred the title in his names? Nalwegayo whom he dealt with never got aly letters of administration and neither was she registered on the land. She was a mere caretaker of the land. The failure by the defendalt to make reasonable inquires

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or due diligence yet he claimed Nalwegayo had told him brother had the title, amounted to fraud in the circumstances. Land is valuable and all buyers are expected to make exhaustive invcstigations about both the land and the seller. see case no 391 of 2O1O Elizabeth Nanteza Nabeta versus Dr Anthony K

The defendant fraudulently registered his interest in the suit land and never carried out any due diligence.

Therefore he is a bonafide occupant on the suit land but he obtained registrable interest on the suit land fraudulently.

### Issue IV- Whether the defendant is a trespasser on the suit land.

Trespass to land in the case of Onega Obel & Anor Versus The Attorney General & Anor HCC 006 of 2O18 was said to consist of the following unjustifiable acts:

- a. trntering upon the land in possession of another - b. Remaining upon such land

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c. Placing any materia,l object upon it

See also Sheik Muhammed Lubowa Versus Kitara Enterprises Ltd CACA No.4 of L9a7. Also in the case of E. M. N Lutaya Versus Stirling Civil Engineering Civil Appeal No.1L of 2OL7 it was held that trespass to land occurs when people makc unauthorizcd cntry upon the land and thereby interfere with anothcr person's lawful possession of the land.

Needless to say the tort of trespass is committed not against the land but the person who is in actual or constructive possession of the land. At common law the cardinal rule is that only a pcrson in possession of the land has capacity to sue in trespass. In the case of Moyo District Farm Ltd Versus Theun 1973 EA 114 (115) it was hetd that a person holding a certificate of title has by virtue of that title legal possession and can sue in trespass.

In her evidence the plaintiff administratix of the estate of the late Ziyada testified that defendant built on land and subdivided it and sold to different people. At locus in quo visit court found indeed defendant had a house on the said land and there were also many structures of different people. It's thus true defendant entered on to the land of the registered proprietor Ziyad Namuli remained on land and built thereon and even sold to other peopie. But like I have found before, the registered proprietor or administrator did not challenge his occupation for more than 12 years before coming into force of the constitution.

I thereby find that he is not a trespasser but bonafide occupant.

## v) What remedies are available to the partiesl Recovery of land.

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i)The plaintiff prayed for recovery of land situate at Lweza Wakiso District formerly known as MRV 104 folio 16 now known as

Kyadondo Block 267 plots 106, 1O7, 108,1O9, 382, ll7, 118, 122, 123, 140, 14l, 142, 144, 145,207,208, 175,432,561 and 562. ii)ln respect of all those parcels of land that have already been transferred to third parties by the defendant an order for payment of the current market value of a,ll the parcels transferred to third parties

When court visited the locus in quo aimost all the land was occupied by other people who are not parties to this suit. In the case of Mushabe Apollo versus Mutumba Ismael and another MA 08 OF 2OL9. II was held by Sekaana J, that court is enjoined to apply rules o[ fairness and not to condemn a person unheard.

I won't therefore order recovery of land occupied by third parties and I also won't order payment of the current market va-lue of parcels transferred to third parties as they were not heard.

Further to this, I a-lso found the defendant was in occupation for more than 12 years unchallenged by land owner so I won't order recovery of land in his possession.

#### Cancellation of title.

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Plaintiff prayed for an order for cancellation of a,11 certificates of title in the various aforementioned plots in which they are currently comprised.

Under S.177 of the Registration of titles Act, upon recovery of land, estate or interest by any proceedings from the person registered as proprietor thereof the high court may in any case, in which proceedings is not herein expressed bared direct the registrar to cancel any certificate of title.

Since I have found that he obtained registration of land in his names fraudulently and sold to third parties. I order cancellation of titles that are still in defendant's narnes. I won't order canceilation of land in names of third parties as they were not heard.

#### General damages.

General damages are awarded as recompense. This position was accurately put by Earl Jowitt in British Transport Commission Versus Gourley (1956) HC 185, 197 thus "the broad general principle which should govern the assessment of damages in cases such as this is that the tribunal should award the injured party such sums of money as will put him in the same position as he would havc been if he had not sustained the injuries.""Needless to say 'injury' and loss are used interchangeable in cases of tort.

An award of general damages is the discretion of court in respcct of what law presumes to be the natural and probable consequence of the defendant's act or omission. See case of Fredrick Nsubuga Versus Attorney General HC Civil Suit No.13 of 1199 and Erukana Knive Versus Isaac Patrick Matovu & Anor HC Civil Suit No.177 of 2OO3.

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Counsel for the plaintiff submitted that the defendant has used the land for a longtime and greatly inconvenienced the plaintiff and lead prayed for general damages loss. He amounting to to Ushs.200,000,000/ $=$ .

Counsel for the defendant submitted that the plaintiff is not entitled to any prayers sought.

The evidence shows he bought land from a caretaker and fraudulently registered it in his names and sold off most of it. This greatly inconvenienced the plaintiff and led to loss. In the circumstances. I find that the plaintiff has proved the shs $200,000,000$ prayed for as damages.

The plaintiff is also awarded costs of the suit.

In conclusion the plaintiffs claim is partly proved with the following orders.

a) The Registrar of titles is directed to cancel the title that is in the names of the defendant.

b) The plaintiff is awarded general damages of shs 200,000,000 million.

c) The plaintiff is awarded costs of the suit.

# DATED AT KAMPALA THIS-29 DAY OF Sune 2023 ----------<del>"/*yt-*-------------</del> **KANYANGE SUSAN AG JUDGE LAND DIVISION**