Naluyinda & 2 Others v Khauka & 2 Others (Civil Suit 501 of 2018) [2024] UGHC 242 (12 April 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MUKONO

### CIVIL SUIT NO. 501 OF 2018

### 1. NALUYINDA FLORENCE

#### 2. MUKETA HERBERT

3. OJAMBO THOMAS ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### 1. KHAUKA DENIS

2. LUTTAMAGUZI LIVINGSTONE

# 3. KINENE BENJAMIN MUKIIBI :::::::::: COUNTER DEFENDANTS

## **BEFORE: HONOURABLE JUSTICE DAVID MATOVU**

#### JUDGMENT

## Introduction

1. The 1<sup>st</sup> Counter defendant (Khauka Denis) filed Civil Suit No. 501 of 2018 in High Court of Uganda at Mukono against the counter claimants hereinabove seeking a declaration that he was the owner of the land at Kyaggwe Block 563 Plot 53 land at Lugala having purchased the same from the late Amon Livingstone Mukiibi but he was getting challenges to his title from the counter claimants.

- 2. The counter claimants in their written statement of defence filed on 12<sup>th</sup> November, 2018 raised a counter claim against the counter defendants contending that the suit land belonged to the estate of the late John Wycliff Lukato Sifuna who had a 49 year lease vide LRV 1262 Folio 16 over 202.9 hectares of land at Kyaggwe Block 563 Plots 14 and 15. - 3. The counter claimants contended that the counter defendants used a forged vesting order from the High Court in Jinja to claim an interest in the land and the counter claimants wanted a declaration that the suit land belonged to the estate of the late John Wycliff Lukato Sifuna.

## **Background facts**

- 4. The counter defendants claim their interest in the suit land through the late Mukiibi Amon Livingstone whose estate is administered by the $2^{nd}$ and $3^{rd}$ counter defendants vide Mukono High Court Administration Cause No. 221 of 2017. - 5. The $2^{nd}$ and $3^{rd}$ counter defendants transferred the land described as Kyaggwe Block 563 Plot 53 to the 1<sup>st</sup> counter defendants on 13<sup>th</sup> September, 2018 and this is why the $1<sup>st</sup>$ counter defendant was

surprised that the counter claimants claimed an interest in the land.

- 6. The counter claimants being the widow and children of the late John Wycliff Lukato Sifuna claim to be the owners of land at LRV 1262 Folio 16 Kyaggwe Block 563 Plots 14 and 15. - 7. The counter claimants contend that it was illegal for the late Amon Livingstone Mukiibi's children to sell the suit land to the 1<sup>st</sup> counter defendant because the said Amon Livingstone Mukiibi was only given the certificate of title for safe custody by the late John Wycliff Lukato Sifuna. - 8. On 12<sup>th</sup> August, 2019 the Commissioner Land Registration issued a notice of intention to effect changes in the register because the Court vesting order in Jinja High Court Miscellaneous Cause No. 55 of 2017 Amon Livingstone Mukiibi versus Commissioner **Land Registration** was forged and the land was to revert to the estate of the late John Wycliff Lukato Sifuna. - 9. Court issued a decree on 1<sup>st</sup> March, 2023 pursuant to a decision of Justice David Batema on 2<sup>nd</sup> August 2021 where Judgment was entered in favour of the counter claimants as owners of land at Kyaggwe Block 563 Plots 15 and 61.

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10. The counter claim remained pending and was heard on 12<sup>th</sup> May, 2023 by this Court and is pending Judgment.

# **Legal representation**

11. Counsel Machel Nyambok Omandi represented the counter claimants who were all in court on 12<sup>th</sup> May, 2023 and since the counter defendants were duly served with a hearing notice for the day but were absent court ordered the hearing to proceed exparte.

## **Issues for determination**

- 12. i) Who owns the suit land? - ii) What remedied are available to the parties?

## **Evidence of the Counter claimants**

- 13. Naluyinda Florence (PW1) in her witness statement filed on 3<sup>rd</sup> May, 2023 stated that she was the widow of the late John Wycliff Lukato Sifuna who was the registered proprietor of land at LRV 1262 Folio 16 Kyaggwe Block 563 plots 14 and 15 land at Lugala. - 14. That the late John Wycliff Lukato Sifuna being a UPC supporter went to exile and left his certificate of title with Amon Livingstone Mukibi for safe custody.

- That as at 20<sup>th</sup> July, 2017 the certificate of title to the suit land $15.$ was still in the names of John Wycliff Lukato Sifuna (See exhibit P4) and they lodged a caveat on the same. See exhibit P5. - 16. That in 2017 the counter defendants started trespassing on the suit land and they even forged a vesting order see exhibits P7 and P8. - Mukata Herbert (PW2) gave similar evidence to that of PW1. 17. - Similarly, Ojambo Isaac Thomas (PW3) gave the same evidence 18. as $(PW1)$ .

### Legal arguments by Counsel for the counter claimants.

19. Counsel for the counter claimants filed well reasoned written submissions on 16<sup>th</sup> June, 2023 and Court has relied upon them to decide this counter claim.

## **Decision of Court**

20. Court has carefully analysed the evidence of all the counter claimants and it is apparent that the 1<sup>st</sup> counter defendant participated in the forgery of a vesting order vide Jinja High Court Miscellaneous Cause No. 055 of 2017 and therefore whatever

actions he tried to execute relating to the suit land after this criminal conduct were fraudulent as well explained in the locus classicus case of Fredrick JK Zaabwe Versus Orient Bank Ltd & 5 Others SCCA No. 04 of 2006.

- 21. All three (3) counter defendants were well aware of the fraud in this case because the forged vesting order related to Amon Livingstone Mukiibi and therefore this Court cannot allow then to rely on the grant of letters of administration in Jinja High Court Administration Cause No. 221 of 2017 to cleanse their fraud. - 22. In the final result therefore, this Court finds that the counter defendants had no legitimate interest whatsoever in the land at LRV 1262 Folio 8 Kyaggwe Block 563 Plots 14 and 15 land at Lugala and as such none of the counter defendants can purport to pass on any interest in the suit land to any third parties. - 23. Courts finds that the land at LRV 1262 Folio 8 Kyaggwe Block 153 Plots 14 and 15 belongs to the estate of the late John Wycliff Lukato Sifuna and all titles that were issued in other 3<sup>rd</sup> parties names are to be cancelled and the suit land be registered in the names of the late John Wycliff Lukato Sifuna.

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- 24. Unfortunately, Court will not make any orders about general damages, mesne profits and costs because John Wycliff Lukato Sifuna died on 11<sup>th</sup> September, 1990 and Court has not seen any record of either a grant of probate or letters of administration and Court finds this gap rather suspicious and cannot grant such orders to the counter claimants. - 25. Let the administrators of the estate of the late John Wycliff Lukato Sifuna seek appropriate remedies upon registration as owners of the land in dispute.

$\ldots$ day of $\ldots$ $\Delta$ Dated this ..... $\ldots \ldots \ldots \ldots 2024.$

David Matovu

Judge