Nakiwala v Bongole and 4 Others (Civil Suit No. 163 of 2013) [2014] UGHC 110 (19 November 2014)

Full Case Text

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT NAKAWA

# CIVIL SUIT NO.163 OF 2013

AGNES NAKIWALA PLAINTIFF

### VERSUS

1. BONGOLE GEOFFREY

2. BUYINGO SAM

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3. ALICE BONGOLE

4. BUZINDA JACOB alias DAVID

#### DEFENDANTS 5. LYDIA NAMUGANGA alias SHADIA

## Before: HON JUSTICE MR, WILSON MASALU MUSENE

### JUDGEMENT

The Plaintiff, Agnes Nakiwala filed the present suit against the defendants seeking for a temporary Injunction, vacant possession. General damages, Declaration that the Plaintiff is the lawful/rightful owner of the suit land, Mesne Profits, special damages, an order that the caveat lodged on the suit land be lifted and costs of the suit. The case for the plaintiff was that she is the registered proprietor of land comprised in Kyadondo Block No. 204 Plot No. 486 and 488 land at Kawempe. A photocopy of Certificate of title is attached as Annexture "A" and "B" respectively. The Plaintiff further contended that she acquired the suit land pursuant to a consent Judgment in Civil Suit No. 1168 of 1998. A copy of the Consent Judgment is attached as Annexture "C".

The plaintiff further stated that she took possession of her land and developed the some and she has since paid the utility bills in her names. She further contended that she put up tenants houses on her land and started collecting rent. That the Defendants who have no interest in the said land trespassed thereon in April, 2013 and started occupying the same and evicted the plaintiff's tenants. And **i**

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that the Defendants have also illegally constructed houses on the suit premises after the plaintiff demolishing the ones that were constructed by the plaintiff. The Defendants in their written. Statement of defence denied the plaintiff's claim and counterclaimed for an Order cancelling the plaintiff's title and reversion of the land to the Estate of the late Kimbowa, Permanent injunction, special damages, interest and costs of the suit.

At the scheduling conference, they agreed on some issues and these were:-

- 1. Whether the Plaintiff acquired the suit through Fraud. - 2. Whether the Defendants have interests in the suit land. - 3. Remedies available to the parties.

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On all issues, both M/S. Kajeke, Magulu & Co. Advocates for the plaintiff and M/S. Kirumira & Co. Advocates for the Defendants filed detailed submissions. I have had the opportunity of reading through the written submissions on both sides and the cases quoted. And for purposes of this Judgment, I shall summarize or deal with the pertinent points raised by either side.

# ISSUE NO. 1 WHETHER THE PLAINTIFF ACQUIRED THE SUIT LAND THROUGH FRAUD

Counsel for the plaintiff submitted that the plaintiff is the registered Proprietor of the suit land comprised in Kyadondo Block No. 204 Plot No. 486 and 488 land at Kawempe. The Plaintiff tendered before Court exhibit Pl and P2 respectively which are Certificates of Title in respect of the suit land. Counsel for the plaintiff further submitted that the plaintiff acquired the said land pursuant to exhibit DI, D2, and D3 which are pleadings and proceedings in civil Suit No. 1168 of 1998. And that she bought the reversionary interests in the suit land pursuant to the consent in Civil Suit No. 1168 of 1998.

Counsel for the plaintiff contended that the plaintiff built a house on the suit land and the builder was Senoga Benedict. She tendered before Court Exhibit P23 and P20 which was a list showing the money she paid to Senoga Benedict the builder. And at the locus in quo the plaintiff showed to court the houses she constructed on the suit land. The plaintiff contended that after acquiring the Certificates of Title she applied for change of the electricity Account into her names from those of Eric Kimbowa.

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Counsel for the plaintiff further submitted that the plaintiff borrowed money from Dan Kizingabulili and she used the same money to purchase the reversionary interest. The plaintiff tendered before Court the Will of her late mother Juliana Nagawa which was admitted as exhibit P9. The said Will, clearly indicated that the plaintiff bought the suit land. And the Late Nagawa in the said Will also confirmed that the main house and boys quarters on the suit land were built by the plaintiff.

The Plaintiff also tendered in this Court exhibit P4 which was a letter written by the late Juliana Nagawa authorising the Registrar of Titles to register the land in the names of the plaintiff and Eric Mukasa. This was corroborated by the evidence of PW2 Senoga Benedict, PW3 Ayub Sajjabi, PW4 Dr. John Ssemakula and PW5.

And when this Honourable Court visited the locus, the parties showed Court the Bibanjas which the said Eric Kimbowa distributed to his children and the said children sold them off. The plaintiff showed to court the shrine which she constructed on the suit land and the structures. None of the Defendants showed Court any building put up by the late Fred Bongole the father of the defendants on the suit land. The. plaintiff further pleaded fraudulent intentions against the Defendants and she stated the Defendants late father Fred Bongole got a separate kibanja and he sold it off and that the Defendants among others knew that their father never owned a registrable interest on the suit premises.

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In reply Counsel for the Defendants submitted that the plaintiff herself concedes that she acquired the suit land through a consent Judgment in Civil Suit NO. 1168 of 1998, that she even goes further in cross examination to own exhibit DI, D2 & D3 which are the pleadings and proceedings in the said land. And in exhibit D2 which is the written Statement of Defence, the plaintiff pleads in paragraph 9 that;

"The Defendants shall contend that the plaintiff is not entitled to his prayers for eviction without compensation since the Defendants are customary tenants and their predecessors in title were in occupation of the said lands prior to its acquisition by the plaintiff's Title".

That the plaintiff herein goes ahead to plead in the summary of evidence attached onto the defence as follows;

"the first and 2nd defendants are customary tenants having at various dates obtained their interest from the 3rd Defendant who is the widow of the late Kimbowa who lived on the suit land since 1930, the 2nd defendant is the daughter of the 3rd defendant and inherited her customary interest from the 3rd defendant..................... "

On the said defence is a power of Attorney issued by the plaintiff herein with her mother to Eric Mukasa where they stated that;

"We Namwandu Juliana Nagawa Kimbowa & Agnes Nakiwala the both of care of P. O. Box 10672 Kampala being the surviving beneficiaries and therefore proprietors of a customary tenement (Kibanja) situate in Kalule zone Kawempe.....................".

Counsel for the Defendants quoted the case of Uganda posts & Telecommunications vs. Abraham Kitimba *&* Another, SCCA NO. 36 of 1995, where it was held that a person who purchases an Estate which he knows to be in occupation of another other than a vendor is bound by the equities which the parties in such

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occupation may have in the land. It was therefore Defendant Counsel's submission that the Plaintiff acquired title to the suit land well aware of the interests of the late Eric Kimbowa.

I have reviewed the submission of both Counsel on this issue and looked at documentary evidence produced by the plaintiff especially the Certificate of Title. Section 59 of the Registration of Titles Act provides that a Certificate of Title shall be conclusive evidence of title and cannot be impeached on account of any infirmity or irregularity in the application or in the proceedings previous to the registration of Certificate. Therefore, it is not in doubt that the Plaintiff possesses a valid Certificate of Title.

Sections 64 & 176 of the Registrations to Titles Act permit the cancellation of Certificate of Title obtained by fraud and other grounds but not procedural irregularities leading to the issue of the Certificate of Title. Therefore, from the above provisions it can be ascertained that a Certificate of title cannot be cancelled on mere grounds of procedural irregularities or processes leading to its issue unless on account of exceptions provided for under provisions of Sections 176 and 64 of the Registration of Titles Act.

Counsel for the plaintiff further submitted that in the defendants pleadings, he mainly relied on fraud under paragraph 4(a) of their written statements of defence.

Sections 176 of the Registration to Titles Act provides that:-

"No action of ejectment or other action for the recovery of any land shall lie or be sustained against the person registered as proprietor under the provisions of this Act, except in any of the following cases.

The case of a person deprived of any land by fraud as against the person registered as proprietor of such land through fraud or as against a person deriving otherwise than as a transferee bonafide for value from or through a person so registered through fraud.

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In the case of Kampala Bottlers Limited Vs. Damanico Limited Supreme Court Civil Appeal No. 22 of 1992 Wambuzi C. J as he then was held that, it is a well established law that fraud means actual fraud or some act of dishonesty.

A party relying on fraud must plead it and particularize it in the party's pleading. An allegation of fraud must be strictly proved on the part of the registered proprietor. The standard of proof does not go to the level of proof beyond reasonable doubt as is required ordinarily in criminal cases. The Case of Kazoora Vs. Rukuba SCCA No. 13 of 1992 is in point. In the instant case the plaintiff has stated how she acquired the suit land through the court process vide Civil Suit No. 1168 of 1998. She also borrowed the money for purchase of the suit land and she got a letter from her mother authorizing the registrar of titles to transfer the suit land into the names of the plaintiff.

The Will of the Late Juliana Nagawa exhibit P9 clearly shows that the late Nagawa Juliana recognized the plaintiff as the lawful owner of the said land. The plaintiff even went ahead and constructed houses on the suit land during the life time of her mother Juliana Nagawa. The Defendants on the other hand concealed from this court the fact that their father the late Fred Bongole acquired a kibanja outside the suit property and he indeed sold it off before his demise evidence given on that locus by the defendants.

The Defendants also assert a non existing registrable interest in the suit land by their late father. None of the Defendants ever told this Court' that the late Bongole Fred constructed a house on the suit land. The Defendants in their pleadings at the locus do accuse the plaintiff of having committed fraud in acquiring the suit land.

The plaintiff denies the said allegations of fraud. The Defendants in their counterclaim do allege that the plaintiff/Defendants to the claim registered the suit land in her names yet well aware it was family land and that the defendant to the counterclaim waited for

the death of her mother Juliana Nagawa to assert her fraudulent claims. However, the Certificates of title, Pl and P2 do not indicate that the late Eric Kimbowa was a registered Proprietor. The registered proprietor before the plaintiff was fatmabai Abdul Hamid Mohammed Hirjias Administrator of the Estate of Abdul Hamid Hirji (deceased). Neither Eric Kimbowa nor Fred Bongole (all deceased) are reflected on the title as previous registered proprietors. I wish to add and stress that in H. C. C. S No. 1168 of 1998 before Honourable Justice J. P. M Tabaro, as he then were not in picture.

It was Fatmabai Abdul Hamid and 2 others, the then registered proprietor, who sued Lt. Col. Eric Mukasa, Juliana Kimbowa Nagawa and the plaintiff now, Agnes Nakiwala who are sued in respect of the very land in dispute now. And the consent Judgment before Justice Tabaro is very clear, that the Defendants, Lt. Col. Eric. Mukasa, Juliana Nagawa Kimbowa and Agnes Nakiwala shall buy from the plaintiff the free hold interest in respect of Plots No.484,485,486 *& 488 on Kyadondo* Block 204 Free hold Register volume 59 Folio 20 at the price of Ug. Shs, 4,000,000/= (Four Million shilling only), on 15th day of July, 1999. The plaintiffs were ordered by the Court to sign the requisite transfers and hand over the Certificates of title to the defendants. And the Defendants were Lt. Co. Eric Mukasa, Juliana Nagawa Kimbowa and Agnes Nakiwala. So having acquired a registrable interest on the suit land through court process, and there was no appeal against that Judgment before Justice Tabaro, then the plaintiff now cannot be said to have acquired the Certificate of Title fraudulently. What about the other parcel of land which was acquired by Lt. Col. Eric Mukasa on which he has a permanent structure next to the land in dispute? Why have the defendants chosen to invade the portion of Agnes Nakiwlala and leave that of Lt. Col. Eric Mukasa who also acquired Certificate of Title through the same process following the court order.

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Where were the defendants in 1998 when Mukasa Juliana Nagawa and Nakiwala were jointly sued by the Indians who were the then registered proprietors. As a matter of fact, if the Defendants were on the land in dispute by then, they should have applied to be joined as parties to Civil Suit No. 1168 of 1998. Supposing the Indians, who were registered Proprietors had won and evicted Lt. Col. Eric Mukasa, Juliana Nagawa Kimbowa and Agnes Nakiwala, where would the defendants trespass. The Defendants, having failed to be added as parties to H. C. C. S No. 1168 of 1998. Slept on their rights if any. And they cannot now take Advantage of the struggle by Agnes Nakiwala, her mother and Lt. Col. Eric Mukasa, who secured a Consent Judgment and paid Ug. Shs. 4,000,000/= in 1999, which was by no means was a lot of money then, to purport now in the counterclaim that they want her out of the land when she has a Certificate of Title acquired through Court process. Why then have they chosen their aunt and left out Lt. Col. Eric Mukasa's portion when he was jointly sued with Agnes Nakiwala.

To allege now that Agnes Nakiwala acquired Title fraudulently would be accusing the court in H. C. C. S No. 1168 of 1998, that it also acted fraudulently when it resolved the case between the then Registered Proprietor and Agnes Nakiwala, Lt. Col. Eric Mukasa and Juliana Nagawa Kimbowa by consent. This Court will not encourage such allegations in view of the clear Judgment of the court in H. C. C. S NO. 1168 of 1998 which is on record. And it is my humble view that court litigation process must come to an end. The current defendants, who sat back as the plaintiff Agnes Nakiwala & 2 others were struggling in H. C. C. S No. 1168 of 1998 cannot now pounce on her with a counter claim after her success in 1998, when they slept on their rights at the time. They waited for her to challenge the Indians who were registered proprietors and then want to take her stake, leaving out that of Lt. Co. Eric Mukasa. That is not going to be allowed by this court as courts of law cannot entertain unendless

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land disputes over the same piece of land from time to time, and moreover against registered Proprietors.

I find and hold that the plaintiff, having acquired the suit land through court process, cannot be said to have acquired the same fraudulently. The first issue is resolved in the negative.

I now turn to the 2nd issue as to whether the defendants have interest in the suit land. Counsel for the plaintiff's submissions were that the defendants never produced any letters of administration to the estate of Eric Kimbowa or Fred Bongole and ' did not convince court that Fred Bongole had registrable interest on . that land. Counsel for the Defendant on the other hand submitted that under the rules of intestacy, the defendants being children of the late Fred Bongole who was a son of Eric Kimbowa were beneficiaries and needed not have letters of administration to protect their interests.

Counsel for the defendants further submitted that the defendants were born on the same land and have lived there since and that the late Fred Bongole was confirmed as heir of the late Eric Kimbowa which was conclusive evidence of defendant's interest in the suit land. In my view, that issue has more or less been resolved by the ' first issue. By virtue of the fact that Fatmabai Abdu Hamid & 2 others sued Lt. Col. Eric Mukasa, Juliana Nagawa and Agnes Nakiwala in H. C. C. S No. 1168 of 1998 meant that they were the ones who were physically on the land in dispute. If the defendants now were there, they would have been added or if they were left out, as I have already stated, they should have applied to be joined as parties. They did not do so. And in view of the superior claim of Certificate of Title, being born on the disputed land is not a guarantee that the defendants were entitled to the same, particularly in the absence of letters of Administration.

Section 191 of the Succession Act, which was even quoted by Counsel for the defendant in his written submissions provides:-

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S.191. except as here in after provided, but subject to section 4 of the Administrator General's Act, no right to any part of the property of a person who has died intestate shall be established in any court of Justice, unless letters of Administration have been granted by a court of competent jurisdiction".

So, where were the letters of Administration to the estate of the late Fred Bongole or Eric Kimbowa by the Defendants? None. One must; go to equity with clean hands. Whereas they challenge Agnes Nakiwala as not having Letters of Administration, they also had none. During the locus in quo, the parties, particularly the defendants showed this court many parcels of land already developed with permanent structures which were sold to other people by the children of late Eric Kimbowa. This court found no way of incorporating such parcels of land in the present dispute as the current owners were not parties to the present case. In the premises, I agree with the submission of counsel for the plaintiff that the defendants have no interest on the suit land in view of the Certificate of Title of the plaintiff which is conclusive evidence of ownership under the law.

On the remedies available, having found and held that the plaintiff is the lawful registered Proprietor of the land in dispute, then the counter-claim by the Defendants fails and the same is hereby dismissed. The plaintiff is entitled to vacant possession, a permanent injunction restraining the Defendants from committing further acts of trespass. I also do hereby order that the caveat lodged on the land in dispute by the defendants be vacated. Finally, I exercise this Court's discretion to Order that each party meets their own costs.

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Signed by: I **10 /y** JoNMASALU musene JUDGE

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