Nakiwu and 2 others v Musoke and 3 Other (Civil Suit No. 241 of 2012) [2023] UGHCLD 8 (16 January 2023)

Full Case Text

### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT KAMPALA

# (LAND DIVISION)

#### **CIVIL SUIT NO.241 OF 2012**

| | 1. NAKIWU ESTHER | | |----|-------------------------------|----------------------------------------------------| | | 2. ABSOLOM SEKABIRA) | | | | 3. KEFA KYAMBADDE | | | 10 | | VERSUS | | | 1. MUSOKE SULAIMAN) | | | | 2. KISAKYE RICHARD) | | | | 3. NAMIRIMU RUTH | | | | 4. MBAZIRA DICKSON) | | | 15 | | | | | | CONSOLIDATED WITH CIVIL SUIT NO.483 OF 2012 | | | | | | | 1. RUTH NAMIRIMU | | | | 2. MBAZIIRA DICKSON) | | | 20 | | VERSUS | | | 1. YOWASI MUKASA | | | | 2. ABSOLOM SEKABIRA) | | | | 3. KEFA KYAMBADDE | | | | 4. ESTHER NAKIWU | | | 25 | 5. SULAIMAN MUSOKE) | | | | 6. LIVINGSTONE LWANGA) | | | | | |

### **BEFORE: HON. MR. JUSTICE LAWRENCE TWEYANZE**

#### **JUDGMENT**

#### **Introduction** 30

$\mathsf{S}$

The Plaintiffs' claim against the Defendants as per the amended plaint filed on 4th November 2020 is premised on trespass to land and they bring this suit seeking a permanent injunction restraining the Defendants and their agents from trespassing

Jumikeh $\mathbf{1}$

upon as well as interrupting the Plaintiffs' use and enjoyment of the suit land; a declaration that the suit land rightfully formed part of the Estate of the late Musa Kanamwangi; a declaration that the Plaintiffs are the rightful owners of the suit [and; an order for vacation of a caveat lodged by the 3'd and 4th Defendants on the Certificates of title for the suit land; general and punitive damages as well as costs

# Plaintiffs' claim

of the suit.

- The Plaintiffs' claim as per the amended Plaint dated 0411112020 is that: the Plaintiffs are the registered proprietors of the suit land comprised in Kyaggwe Block 386 Plots 5, 12 and 13 land at Sai, Mukono District; the suit land was originally owned by the Plaintiffs' late lather late Musa Kanamwangi who died testate on 1410811984; the late Kanamwangi teft a wilt and codicil bequeathing the suit land amongst all his eight chitdren; each child took possession of their respective portions of the suit land and the ponion measuring 20 acres was left undistributed to form the family burial grounds; in 2007 the Plaintiffs discovered that the l " Defendant and Christopher Mukasa had falsely declared that the suit land belonged 10 15 - to their late brother Geresom Zziwa; that Sekabira Absolom, the 2nd Plaintiff discovered that his signature was forged when applying for the Letters of Administration for the Estate of the late Geresom Zziwa: after the discovery of the forgery, the late Sekabira reported the case of forgery against Mukasa Christopher and the l'' Defendant vide SD Ref:CRB 2836/08 at Jinja Road Police Station; in 2010 upon discovery ofthe fraud, the Plaintiffs flled an application against the 20 - fraudsters Christopher Mukasa and Sulaiman Musoke, the l'1 Defendant and an order was issued directing that the names of the Respondents be cancelled and the Plaintiffs' names be entered on the register as owners of Plots 12 and 13, the suit land; after confronting the 1'r Defendant and Christopher Mukasa, the pair willingly signed transfer forms and handed over the certificates of the title with the remaining - land to Yowasi Mukasa, the 2"d Plaintiff, the 3'd Plaintiff and the l't Plaintiff who were the surviving children of the late Musa Kanamwangi; the later then transferred the titles into their names; the PlaintifT discovered that two years after their father's death in 1986, their late brother Geresom Zziwa had fraudulently transferred the Certificate of title into his names without a duly transfer forms; the ?n'l -4th 30 - Defendants are claiming the suit land as children of the late Geresom Zziwa ; the 2nd Defendant has since contrived acts of trespass by purporting to fraudulently sell of a portion of the suit land to one Sentongo Joshua under the guise that the land 35

belonged to his late father Geresom Zziwa: the 3'd and 4 ' Defendants have also contrived acts oftrespass by lodging the caveat against the certificates of title for the suit land in the land office and have also interfered with and prevented the Plaintiffs from peacefully enjoying their suit land; the Plaintiffs assert that the suit land formed part of the Estate of their late father Musa Kanamwangi and the deceased

unequivocally distributed it to alt his children which they undisputedly took

### The Defendants' claim

possession of hence the suit.

The Defendants denied all the Plaintiffs allegations in their joint Written Statement of Defence filed on 1910112021 and even set up a Counter-claim against the Plaintiffs. It is their defence that: they are all children and beneficiaries to the Estate of the late Geresom Zziwa who died testate in 1993; at all material times, their late father was the sole registered proprietor of the suit land comprised in Kyaggwe Block 3 86 Plots 5, l2 and I 3 among other properties; upon his demise, the deceased left a witl clearly distributing his property and left custody of his properties and

certiflcates oftitle in the hands ofthe l" Defendant for execution in accordance with the will; in pursuance of the deceased's wishes, the Executors (Absolom Sekabira,

- 2'd Plaintifi Musoke Sulaiman, l't Defendant and Christopher Mukasa) obtained Letters of Administration vide Administration Cause No. 32712007 and started administering the deceased's Estate; in as much as some property was distributed in accordance with the deceased's will, the trustees particularly Absolom Sekabira, ?nd Plaintiff and Sulaiman Musoke, l " Defendant hatched fraudulent plans and or 20 - colluded and intermeddled in most of the deceased's Estate with intent to defraud the same contrary to the will and to the detriment of most of the beneficiaries; the 2''d Defendant had a right to sell his beneficial share and interest in his father's Estate; the registration of the Ptaintiffs on the certificates of title for land comprised in Kyagwe Block 386 Ptots 5,12 and 13 was fraudulent in as far as the same was 25 - bequeathed to the Defendants and other beneficiaries of the Estate of GeresomZziwa which the Plaintiffs were aware of; the Plaintiffs who are not the Administrators and or legal representatives of the Estate of the late Musa Kanamwangi have no locus standi to lay claim on the suit land which was not part of his Estate at the time of his death and the registration of the suit land into the Plaintiffs' individuat names was 30 - done illegally and or fraudulently; the ?nd-4th Defendants as the children and the beneficiaries of the Estate of their late father Geresom Zziwa are the rightful owners ofthe land and properties teft by the deceased as per his witl dated 2910911993. 35

#### Defendants' Counterclaim

5 In the Counter-claim, the Defendants seek for: a declaration that the Defendants are rightful beneficiaries of the disputed land comprised in Kyagwe Block 386 Plots 5, l2 and l3 situate at Sai which was illegally, unlawfully and fraudulently registered in the names of the Ptaintiffs, an order for cancellation of the Plaintiffs names from the named certificates of title, mesne profits, general damages plus costs of the suit.

- 10 It is their claim that: they are atl children/beneficiaries of the Estate of the late Geresom Zziwa; at all material times, their late father was the sole registered proprietor of the suit land comprised in Kyagwe Block 386 Plots 5, l2 and l3 among other properties; upon his demise, the deceased left a will clearly distributing his property and left custody of his properties and certificates of title in the hands ofthe - 15 1't Defendant for execution in accordance with the will; however, in as much as some property was distributed in accordance with the deceased's will, the trustees who included Sulaiman Musoke, l " Defendant and Absolom Sekabira, 2'd Plaintiff connived, hatched fraudulent plans and or colluded with the Plaintiffs/Counter-Defendants herein and intermeddled in most of the deceased's Estate with intent to - 20 defraud the same contrary to the will and to the detriment of most of the beneficiaries; the Counter-Defendant's actions and conduct are illegal, fraudulent and unlawful in as far as they constitute intermeddling in the Estate of the deceased; the Plaintiffs/Counter-Defendants have on several occasions fabricated cases against the Counter-Claimants and other beneficiaries to deter, intimidate and threaten them

25 from pursuing their interests and that of other Defendants; as a result of the threats, harassment and intimidation they have suffered great loss, inconvenience and grief to which they will seek general damages among others.

30 During the pendency of the two suits, some parties passed away and these are: Absolom Sekabira (2"d Plaintiff in C. S No.24 I /20 12 & 2nd Defendant in C. S No.483 of 2012), Musoke Sulaiman ( l " Defendant in C. S No.24l /2012 and 51h Defendant in C. S No.483 of 2012), Yowasi Mukasa (l't Defendant in C. S. No.483i2012) and Livingstone Lwanga (6'r'Defendant in C. S No.483/2012). Therefore, this case Civil Suit No.24ll2012 shall proceed only in respect of 2"d-3'd Plaintiffs/Counter-Def-endants 6nd ?nd-4th Det'endants/Counter-claimants. 35

## Representation

At the hearing of the suit, the Plaintiffs were represented by Counsel Stanley Kawalya while the Defendants were represented by Counsel Ambrose Tebyasa.

# Issues

The following issues were raised for Court's determination: -

l. Whether the Plaintffi are the rightful owners of the suit land.

- 2. llhether the Defendants are trespassers on the suit land. - 3. llhether the Plaintiffsfraudulently acquired the suit land - 4. l{hether the 3'd & 4'h Defendants rightfutly lodged a caveat on the suit land. - 5. lV'hat remedies are available to the parties? - Having reviewed the pleadings and evidence ofthe parties, I find it necessary to add a sixth issue. This arises by implication from the Ptaintiffs' amended plaint of 2020 and needs to be addressed in order to completely dispose ofthe controversy between the parties. This issue is added pursuant to O. I 5 r.5( I ) of the Civil Procedure Rules, and is: 20 - 25

# Issue No,6 Ll'hether the suit land forms part of the Estate of the lqte Musa Konamwingi

The Plaintiffs called three witness to prove their case against the Defendants. Kefa Kyambadde, the 3'd Plaintiff (PWl), Nakiwu Esther,, the l" Plaintiff (PW2) and Sentongo Joshua (PW3). The three witnesses were cross examined on their witness statements. 30

The Defendants on the other hand called three witness to defend the case. Mbazira Dickson, the 4th Defendant (DWl ), Namirimu Ruth, the 3'd Defendant (DW2) and Kisakye Richard, the 2nd Defendant (DW3). The three witnesses were cross examined on their witness statements. 35

In addition, Court summoned Mr. Wamala Ati, the Registrar of Titles, Mukono Zonal Oftice as a Court witness.

#### Locus in quo

Court visited locus and observed that: the Ptaintiffs (PWl ) and (PW2) have no developments on the suit land; Mbazira Dickson (DWl ) has a home, banana and coffee plantation on Plot l3; the Defendants have a house that belongs to their late father Geresom Zziwa, it is a very old house buitt in 1960s, all the Defendants were 10 bom from it and is occupied by the son of DW3; there is a burial ground belonging to all the relatives of the late Musa Kanamwangi; Plot l2 is used for digging by the Defendants; Plot 5 has sugarcane plantation of Namirimu Ruth (DW2); and the house of the late Kanamwangi on the suit land (Plot l3).

15 After the hearing, Court directed both Counsel to flle their written submissions, the detaits which are on Court record and I have considered them in my judgment.

#### Determination of issues

I will resolve the issues in the fbllowing order 6, l&3,2,4 and 5

# Issue 6: Whether the suit land forms part of the Estate of the late Musa Kanamwangi.

25 30 The unchallenged evidence of the 3'd Plaintiff (PW1) is that the original owner of the suit land was the late Musa Kanamwangi who acquired it in 1962. That the suit land then was comprised in Kyaggwe Block 386 Plot 4 measuring 54.2 acres. That the late Musa Kanamwangi left a will and codicil bequeathing the suit land amongst his children and also prescribing 20 acres to be left for burial grounds. That two years after Kanamwangi's death in I 986, one of his sons Geresom Zziwa fraudulently transferred the certificates of title for the suit land into his names without the knowledge of the Plaintiffs. That the Ptaintiffs discovered that the late Geresom Zziwa had fraudulently transferred the suit land into his names in 2008.

That upon the said discovery, the Ptaintiffs filed a suit in 2010 against the Executors of the will of Geresom Zziwa for cancellation of their names on the title and an order was issued by Justice Opio Aweri wherein Court ordered that the land title be transferred into their names as surviving children of the late Musa Kanamwangi. 35

PWI's evidence was corroborated by the evidence ol PW2 because their evidence in the witness statements was the same.

5 In cross-examination. PW2 informed Court that she knew of the transfer from her father to Geresom Zziwa but did not remember the date. That she knew that the transfer can be affected long after the deceased's death. That she did not remember whether the grant of letters of Administration to the Estate of the late Geresom Zziwa was returned to Nakawa Court. She confirmed that before the death of Ceresom Zziwain 1993, the titles for the suit land Kyagwe Block 386 Plots 5, 12 & 13 were 10

registered in his names. She further informed Court they did not take out a case to challenge his registration on the certificates for the suit land because they were ignorant of how to proceed. Regarding the Court Order in M. C No.267l2010, PW2 stated that she was not in Court so she could not explain more about it.

The Defendants' evidence especially that of DW2 was that the late Geresom Zziwa was their father who died testate around the month of October 1993 and his will was read out to the family in December 1993 by a one Kakumirizi Vincent. That in the said witl their late father distributed out his property especially land to all his children and widows. his sister Nakiwu Esther. brothers Absolom Sekabira and Kefa Kyambadde-Plaintiff were present at the ceremony. That after the reading out of the will, the said Kakumirizi went out to ask if there was any person dissatisfied with the deceased's will and all the relatives including the Plaintiffs were contended with their fathers will. That the Executors distributed all the properties excluding Kyagwe

- Block 386 Plots 5, 12 and, 13 which required Letters of Administration, which Letters were acquired in 2008. That after obtaining the Letters of Administration, the Defendants demanded for their shares from the Executors but in vain. That when they decided to check in Mukono Lands office, they discovered that all the titles were already transferred into the names of the Plaintiffs and another person Yowasi 25 - Mukasa using a Court Order purportedly issued by the High Court Land Division. That when they confronted Sulaiman Musoke one of the Executors, he told them that the titles were forcefully taken from him by the Plaintiffs claiming that they were theirs. That when they inquired about the authenticity of the Court Order in M. C No.267l2010, they were informed by High Court Land Division that the suit was non-existent in the records. That upon perusing the files, they established that Plot 5 was transferred into the names of the Plaintiffs from the names of her late 30 35

father Geresom Zziwa when he was already dead. That for Plots 12 and 13 they established that they were transferred into the names of the Ptaintiffs from the names of the Administrators of their Father's Estate yet none of them is a child or a beneficiary to that land. That they (2nd - 4th Defendants) are biological children to the late Geresom Zziwa and entitled to his Estate land comprised in Kyagwe Block 386 Plots 5, l2 and 13.

DW2's evidence was corroborated by the evidence of DWI and DW3 which was to the effect that the suit land belonged to the Estate of their late father who died testate in 1993. That in his will he distributed the suit land to the Defendants and other beneficiaries. That without their consent, the Plaintiffs transferred the suit land into their names yet they were not beneficiaries of the Estate of their late father.

#### Court's Decision

In this case,what is not in dispute is that the suit land initially belonged to the late Musa Kanamwangi who died testate in 1984 and left the witl and its codicil dated 1963 and 1964 respectively.

There is no evidence on record to show that the Plaintiffs or any other person have the grant of probateiletters of Administration for the Estate of the late Musa Kanamwingi. 20

PWI and PW2 informed Court that they discovered that their late brother Geresom Zziwa had fraudulently transferred the suit land from her late father's names into his names in 2008. PW2 told Court that before the death of Geresom Zziwain 1993. the titles for the suit land Kyagwe Block 386 Plots 5, 12 & 13 were registered in his names. She further informed Court they did not take out a case to challenge his registration on the certificates for the suit land because they were ignorant of how to proceed. 30

This Court notes that in order to challenge the registration of the Executors of the will of the late Geresom Zziwaon Plots l2 & 13, the Ptaintiffs in 2010 purportedly filed Miscettaneous Cause No. 267 of 2010 against the two Executors for cancellation of their names from the title.

Accordingly, the High Court Land Division purportedly granted an order PEX5 directing the Commissioner Land Registration to cancel the names of the Executors or any other person registered as proprietor in respect of Plots 12 & 13. However, the authenticity of the Court Order PEX5 was challenged by the Defendants as being non-existent and the Land Division in a letter DEX6 categorically stated that Land Division did not have any record of Misc. Cause 267i2010.

The Plaintiffs availed no independent evidence to disprove DEX6 which to me watered down the evidential value of the alleged Court Order. To make matters worse. PW2 in her cross-examination about the said Order, told Court that she was not there in Court when it was issued and that she could not explain more about it.

Therefore, I find that the Court Order PEX5 was non-existent as confirmed by the High Court Land Division in DEX6. This clearly means that the registration of the late Geresom Zziwa has never been challenged by anybody including the Plaintiffs through a Court action and therefore the suit land remained part of his Estate. Even in this suit, the Plaintiffs are not challenging the registration of the late Geresom Zziwa on the titles tbr the suit land, but rather, their claim is for trespass to land. 15

20 To further conflrm that the alleged order was non-existent, the Ptaintills did not register it on the Certificate of titte tbr Plots 12 and 13 for purposes of their registration. They instead used a transfer from the Administrators of the Estate of the late Geresom Zziwa to register themselves on the Certificate of title. The fact that Plaintiffs got registered on the title without a Court order was confirmed by the 2s Court Witness, the Registrar of Titles of Mukono.

From the foregoing, it is my finding that at all times until the purported registration of the Plaintiffs on the Certificates of title for Kyagwe Block 386 Plots 5, l2 and l3 between 2008 and 201 l, the land formed part of the Estate of the late Geresom Zziwa. This is so because for over 20 years, nobody has ever challenged the deceased's registration on the suit land certificates of title. The fact that the Plaintiffs transferred the certificate of title for Plots 12 and 13 using a transfer from Administrators Geresom Zziwa is an indirect acknowledgement by the Plaintiffs that the suit land formed part of his Estate. If not, what stopped them from using the atleged Court order PEX5 to register themselves on the title for Plots l2 and l3? The

Plaintiffs have not offered any better explanation to the above question. For Plot 5, the Ptaintiffs purported to transfer it directly from the name of the late Geresom Zziwa into their names. which was illegal.

5 For avoidance ofdoubt, the land comprised in Kyagwe Block 386 Plots 5,12 and l3 does not form part of the Estate of the late Musa Kanamwingi. The suit land forms part of the Estate of the late Geresom Zziwa. Issue 6 is answered in the negative.

# Issue: I Whether the Plaintiffs are lawful owners of the suit land and lssue 3: Whether the Plaintiffs fraudulently acquired the suit land

## Plaintiffs' submissions

- With regard to the Plaintiffs' registration on Kyagwe Block 386 Plot 5, Counsel for the Plaintiffs did not specifically address this issue in his submissions. He did not guide Court on how the late Geresom Zziwa who died in 1993 transferred the title for Plot 5 into the Plaintiffs name and two others in 2008. What is clear from CWEXI is that the Plaintiffs got registered on the title without using a Court Order PEX5. According to CWl, the Plaintiffs used a direct transfer from Geresom Zziwa into 15 20 - their names

With regard to the Plaintiffs' acquisition and registration on Kyaggwe Block 386 Plots l2& 13, Counsel for Plaintitt's never addressed Court as to why the Plaintiffs acquired and got registered on the certificate ol title tbr Plots l2 and l3 using a transfer from the Administrators/Executors of the late Geresom Zziwa yel they were not children or beneficiaries to his Estate.

# Defendants' submissions

With regard to Kyagwe Block Ptot 5, Counsel for the Defendants submitted that the acquisition and registration of the Certit'icate of Title tbr Plot 5 were illegal and or fraudulent and that the entry of their names on the Certificate of Title ought to be cancelled because they were registered on the title fbr Kyagwe Block 386 Plot 5 on 3110712008 by a direct transfer from the names of Geresom Zziwa who had died over 10 years. Counsel firrther submitted that PW2 confirmed in her testimony

during cross examination that Geresom Zziwa never transferred the suit land into their names. She claimed that they got the transfer from the Administrators of the Estate yet the Administrators were not registered on the Certificate of Title for Plot 5.

With regard to Kyagwe Block 386 Plots 12 and 13, Counsel for the Defendants submitted that the Defendants led evidence to prove that the Plaintiffs had no interest in the suit land since they were not children or beneficiaries of the Estate of the late Geresom Zziwa. That this evidence was confirmed by PW2 who stated in her crossexamination that they (Plaintiffs) were not beneficiaries of the Estate of Geresom Zziwa and that the late Geresom Zziwa did not give the suit land to any of them in his witl.

Counsel for the Defendants submitted that for Plots l2 and l3 it is evident that on the Certificate of title CWEX2/PEXI that the transfer was effected by the Administrators of the Estate of the late Geresom Zziwa. That however, as stated in paragraphs 2-4,6-10 of DW2's witness statement and DEXI & DEX2, Geresom Zziwa died testate and distributed the suit land to his children, the Defendants. That PW2 conceded in cross-examination that none of the Plaintiffs was a child or beneficiary to the Estate of the late Geresom Zziwa and that he did not give the suit land to any of them. 15 20

Counsel also submitted that the entry of the proprietorship of the Plaintiffs on the certificate of title for Plots 12 and 13 reveal that the same was registered on l4/041201L That however as Court may have noted, when it visited locus in quo, one of the co-registered proprietors on plots 12 and 13 Yowasi Mukasa died on 28/0812009.

Counsel submitted in addition that the transfer of the land to the Plaintiffs who are/were not beneficiaries or children of the late Geresom Zziwa in total disregard of his wilt was both iltegat, fraudulent and contrary to the provisions of Section 74 of the Succession Act as amended. 30

### Court's decision

To prove the ownership of the suit land, the Plaintiffs adduced the evidence of Certificates of the Titte for Plots 5, l2 and l3 registered in their personal names as per PEXI.

### According to Section 59 of the Registration of Titles Act Cap 230

"No certificate of title issued upon an application to bring land under this Act shall be impeached or defeasible by reason or on account of any informality or irregularity in the application or in the proceedings previous to the registration of the certificate, and every certificate of title issued under this Act shall be received in all Courts as evidence of particulars setforth in the certificate and of entry of the certificate in the register book, and shall be conclusive evidence that the person named in the certificate as the proprietor of or having any Estate or interest in or power to appoint or dispose of the land described in the certificate is seized or possessed of that Estate or interest or has tha! power".

However, the provisions of Section 59 of the Act reproduced above is fettered by the provision of Section 176 of the Registration of Titles Act, the relevant part whereof is as follows: -

" 176 Registered proprietor protected against ejecment except in certain cases 20

No action of ejectment or other actionfor the recovery ofany land shall lie or be sustained against the person registered as proprietor under this Act, except in any of the following cases-

(a) .

2s (b)..

(c) the case of a person deprived of any land by fraud as against the person registered as proprietor of that land through fraud or against a person deriving otherwise than as a transferee bona fide for value from or through a person so registered through fraud "

30 ln the case of Haji Numani Akulamusa Vs Friends Estates Limited C. A. C. A No.l04 of 2018 Court cited with approval the case ol Hariprasad Ramabai Patel

Vs Babubhai Kalidas Patel H. C. C. S No.98l of 1990 where Karokora J (as he then was) stated as follows:

"A certificate of title is conclttsive evidence of ovnership of the suit property. No submission or oral eyidence can be called to wry the certificate oJ'title unless .fraud, lack of consideration or illegality is proved".

Also in the case of Kampala Bottlers Ltd Vs Damanico (U) Ltd SCCA No.22 of 1992, Wambuzi CJ cited with approval, the holding by Odoki J as he then was in Robert Lusweswe Vs Kasule & Anor H. C. C. S No.l0l0 of 1983 on the effect of fraud in land acquisition. He stated that for the plea of fraud to succeed,

"....... Jraud must be attributable to the transferee. I must add here that it must be attributable either directly or by necessary implication. By this I mean the transferee must be guilty of some fraudulent act or must haye known such act by somebody else and taken advantage ofsuch act". 10

In the instant case, the registration of the Plaintiffs on the suit land Certificates of Title as registered owners was challenged by the Defendants on ground of fraud and or illegality. In their Counter-claim, the Counterclaimants/Defendants particularized fiaud as follows:- 15

## "Porliculars oflraud

- (i) Using their position of elders in the clan to unlm,fully enter upon the late Geresom Zziwa's certificates with intent to defraud. - (ii) Conniving, intimidating and or hoodwinking some of the Administrators of the late Geresom Zziwa's Estate purposely to defraud the suit property. - 25

- (iii) Obtaining registration of the suit land into their names when they are not part of the beneficiaries of the Estate of Geresom Zziwa. - (iv) Fabricating an order of Court and or using a non-existent Court order to obtain registration on Certificate of Titlefor Kyagwe Block 386 Plots l2 and 13. - (v) Obtaining registration to the suit land comprised in Kyaggt e Block 386 Plot 5from the names of Geresom Z:iwa in 2008 when he was long deceased into their names without any transfer instrument from the deceased person.

- (vi) Betraying and using their fiduciary position to intermeddle into the Estate of the late Geresom Z:iwa to the detriment of the beneficiaries. - (vii) The Plaintilfs/ Counter-Defendants obtaining registration of the suit land into their personal names and laying claims to the same as beneficiaries of the Estate of the late Musa Kanamwangi when it was not part of his Estate and wilhout any grant to any of them in respect of Musa Kanamwangi's Estate."

#### Plaintiffs' acquisition and registration on Kyagwe Block 386 Plot 5

I have perused the Certificate of Title for Plot 5 CWEXI and observe that before the Plaintiffs' registration. the registered proprietor was the late Geresom Zziwa and, by 2008 he was long dead. The Registrar of titles CW informed Court that the Ptaintiffs got registered on the title for Plot 5 on 3110712008 under Instrument Number MKO957 42 and that it was a transfer from the late Geresom Zziwa. CWI further informed Court that the transfer was not by a Court Order but by an ordinary transfer. PW2 also confirmed in her cross examination that Zziwa never transferred the suit land into their names. That they got the transfer tiom the Administrators of the Estate of the late Geresom Zziwa. I also note that the Administrators of the Estate of the late Geresom Zziwa were never registered on the title for Plot 5 as alleged by PW2 in her evidence.

What is clear as per CWEXI, which is a Certificate of Title fbr Plot 5 is that the Plaintiffs got registered on the title without using a Coun Order. According to CWl,

the Plaintiffs used a direct transfer from the late Geresom Zziwa into their names. The question that begs an answer is how did Geresom Zziwa who died in 1993 sisn a direct transfer form for plot 5 in lavour of the Plaintiffs and two others in 2008? There is no evidence from the Plaintiffs regarding how the deceased person executed a transfer form in their favour. 25

Without the evidence to the contrary, I find that the Ptaintiffs registration on Kyagwe Block 386 Plot 5 was tainted with illegalities and fraudulent which this Honourable Court cannot sanction. It was held in the case of Makula International Ltd Vs. His Emminence Cardinal Nsubuga & Anor. (1982) HCB ll, that an illegaliq'once brotrght to the attention of Cotrrt cannot be alloy,ed to stand. Such an illegality

o't,errides all questions of pleadings incltrding an)) admissions made. The import of the case law to this case is that once an illegaliy' is discovered and is brought to

Court's attention then whatever actions which were accruing therefrom collapse along with it. No one can be allowed to benefit from the fruits o/ an illegality.

Having found that the Plaintiffs' registration on Plot 5 was tainted with iltegatities s and fraudulent, an order is issued directing the Commissioner Land Registration to cancel the names of Nakiwu Esther. Yowasi Mukasa. Absolom Sekabira and Kefa Kyambadde from the titte of Kyagwe Block 386 Plot 5 at Sai and re-instate the names of Geresom Zziwa as a registered proprietor.

#### Plaintiffs' acquisition and registration on Kyagwe Block 386 Plots l2 &13 10

With regard to Kyagwe Block 386 Plots l2 and 13 (PEXI), I note that before the Plaintiffs got registered on it. the same was registered in the names of the Administrators of the Estate of the late Geresom Zziwa. I have already held in issue 6 that the suit land formed part of the Estate of the late Geresom Zziwa for reasons afbrementioned. This therefore means that anybody to acquire any interest in the suit land (Plots l2 and l3) must follow Succession Law.

It is not in dispute that the late Geresom Zziwa died testate leaving a will which bequeathed the suit land among other properties to his beneficiaries and the will was admitted in evidence as DEXI. The said will was confirmed by the High Court vide Administration Cause No.32712007. I have not found any Court Order challenging the witl and probate/Letters of Administration for the Estate of the late Geresom Zziwa. According to the translated version of the will, the suit land was among others was bequeathed to Kisakye Richard, the 2"d Defendant, Mbaziira Dickson, the 4'r' Delendant and his siblings. 20 25

The Ptaintiffs who are not the children and or beneficiaries according to the late Geresom's will have not adduced evidence of how they acquired the interest in the suit land Plots l2 and 13. There is no evidence that the Defendants as beneficiaries ofthe Estate ofthe Ceresom Zziwa consented to the transfer of Plots l2 and l3 since the same was bequeathed to them in the will. 30

A wilt is the last testamentary disposition of the wishes of a deceased person. Under Section 7 4 of the Succession Act Cap I 62, the intention of the testator is not to be set aside because it cannot take effect to f'ull extent but effect is to be given to it as 35

# f'ar as possible. See: Paulo Kaweesa Vs The Administrator General & 3 Others H. C. C. S No.9l8 of 1993.

5 In the instant case, the intention ofthe testator was that the suit land should be given to the Defendants among others. This intention as reflected in the deceased's will has never been set aside by anybody including the Plaintiffs. As such, any transaction on the suit land required the consent of the Defendants as beneficial owners of the suit land. Therefbre. in the absence of evidence to the contrary, I find that the transfer from the Administrators to the Plaintiffs was unlawful and or fraudulent contrary to Section 74 ofthe Succession Act as submitted by Counsel for the Defendants. 10

An order therefore is issued directing the Commissioner Land Registration to cancel the names of the Plaintiffs and any other persons from the Certificate of title for Kyagwe Block 386 Plot I 2 and 13 and reinstate the names of Geresom Zziwa as a registered proprietor. 15

Issuel is answered in the negative while issue 3 is answered in the affirmative.

#### Issue 2: Whether the Defendants are trespassers on the suit land. 20

The law on trespass to land was clearly stated in the case ofJustine E. M. N Lutaaya Vs Stirling Civil Engineering Company SCCA No.ll OI2002 as follows:-

"Trespass to land occurs when a person makes unauthori:ed entry upon the land and thereby interferes or portends to interfere, with another person's lawful possession of that land. Needless to say, the tort of trespass to land is committed, not against the land, but against the person who is in actual or constructiye possession of the land. At common law, the cardinal rule is that only a person in possession of the land has capacity to sue in trespass. " 25

To prove trespass, the Court in the case of Sheik H Mohamed Lubowa Vs Kitaka Enterprises Civil Appeal No.4 Of 1987 (SC) held that; 30

"lt is incumbent on the Appellant to prove that the disputed land belonged to him. That the Respondent entered upon that land and entry ytas ttnlawful in that it was made without permission or that the Respondent had no claim or interest in the 3s land. "

In the instant case as per the holding in Lutaya's case, the only person to sue for trespass is a person who is in possession of the suit land. The Plaintiffs led no evidence to prove that they were in possession of the suit land before they filed the

- 5 suit. Apart from being registered on the certificates of title for the suit land which registration is being challenged by the Defendants in their written Statement of Defence and Counterclaim, the Plaintiffs have never been in possession of the suit land. By the time the Plaintiffs got registered on the Certificates of title for the suit land, the Defendants and other children of the Estate of the late Geresom Zziwawere - already in occupation of the suit land. 10

Even when Court visited the locus in quo, it observed that the Plaintiffs have never been in possession ofthe suit land neither do they have any development on the land. On the contrary, Court observed that the Defendants who are children and beneficiaries in the Estate of the late Ceresom Zziwa are in possession of the suit land. There is a house of the late Geresom Zziwa on Plot l3 which was built in I 960s and the same is being utilized by the beneficiaries of his Estate, Namirimu Ruth, the 3'd Defendant (daughter of the late Gersom Zziwa) has a sugar cane plantation on Plot 5

On this issue. having held in issue 6 that the suit land belonged to the Estate of the late Geresom Zziwa, it follows therefore that they are not trespassers on the same. A person cannot be a trespasser on his/her own property. For avoidance ofdoubt, the suit land belongs to the Estate of the late Geresom Zziwa. Issue 2 is answered in the negative.

# lssue 4: Whether the 3"r& ,lth Defendants rightfully lodged a caveat on the suit la nd.

Section 139 ofthe Registration ofTitles Act Cap 230 provides that any beneficiary claiming an interest in the land may lodge a caveat with the Registrar of Titles forbidding the registration of any person as a transferee or proprietor of any instrument aff'ecting the interest until after the notice of the intended registration is given to the caveator. 30

For a caveat to be valid. the caveator must have a protectable interest legal or equitable to be protected by a caveat otherwise the caveat would be invalid. See: the case of Simon Kataabu Vs Richard Simbwa A& Anor H. C. M. C No. l2l o12020

- 5 It is not in dispute that the 3'd and 4'h Defendants are children and beneficiaries of the Estate of the late Geresom Zziwa and having held that the suit land belongs to his Estate, it follows theretbre that the 3'd and 4rh Defendants rightfully lodged a caveat as beneficiaries to the Estate of the late Geresom Zziwa to protect their beneficial interests. Issue 4 is answered in the affirmative. - 10

### Issue 5: What remedies are available to the parties.

With regard to remedies, I find that the Ptaintiffs have failed to prove the case against the Defendants. The Plaintiffs suit is dismissed with no orders as to costs because these are close relatives.

The Defendants/Counter-Claimants have Plaintiffs/Counter-Defendants and judgment following terms: proved their case in the Counterclaim against the is entered in

- (a)A declaration is made that the suit land comprised in Kyagwe Block 386 Plots 5, l2 and l3 forms part of the Estate of the late Geresom Zziwa. - (b) A declaration is made that the Plaintif fs/Counter-Def-endants' acquisition and registration on the certificates of title fbr Kyaggwe Block 386 Plots 5, l2 and l3 was procured illegally and or fraudulently. - (c) An order is issued directing the Commissioner Land Registration to cancel the names of the Plaintiffs/Counter-Defendants and any other person from the Certificates of Title tbr Kyaggwe Block 386 Plots 5, l2 and l3 and reinstate the name of Geresom Zziwa. - (d) An order is issued against the Ptaintifl's/Counter-Defbndants to give vacant possession to the Defendants/Counter-Claimants.

(e) An order of eviction is issued against the Plaintif'fs/Counter-Defendants, their agents and anyone claiming under them liom the suit land.

l,l

- (f) A permanent injunction is granted restraining the Plaintiff's/Counter-Defendants and their agents from interfering with/ dealing in the suit land. - (g)The Prayer for general damages and interest on general damages are denied because they were not proved. - (h)The prayer for mesne profits is denied because they were not proved. - 10 (i) No order is made as to costs.

Dated at Kampala this I 6'r' day of January 2023.

RENCE TWEYANZE JUDGE t610t/2023