Nalweyiso v Kalule and 3 Others (Civil Suit No. 419 of 2016) [2023] UGHCLD 78 (29 March 2023)

#### THE REPUBLIC OF UGANDA

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

### CwIL SIrrT NO. 419 0F 2016

5 SAFII{A NALWEYISO PLAINTIFF

#### VERSUS

I. MOSES TALULE

### 2. ABBAS KABOG'O

- 3. KAST'LE LUKENGE ISIIAKA - 4, ABBAS MUXASA KAWAASE. DEFENDANTS

#### Before: Ladu Justice Alexandrd. Nkonoe Ruqo.dga

#### 15

### JI'DGMENT (EXPARTEI

### Introductlon:

The plaintiff, Ms Safina Nalweyiso Mukasa filed this suit, seeking orders against the defendants jointly and severally that the sale on the suit land comprised in Kgaddondo Block 383 plot No. 5356 ot Kltende, Xauoto Wrrklso dlstrlct valued at approximately tlgx 2SO,OOOTOOO/-- to the 2nd-4rh defendants was null and void; an order for recovery of the suit land and houses thereon; an order of compensation of the destroyed renta,l units on the suit property; general damages; a permanent injunction against the defendants from further trespass onto the suit property; costs of the suit among others.

<sup>25</sup> The lst, 2"d and 4th defendants filed WSDs but none of them turned up in court during the trial. The matter therefore proceeded exparte.

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### Analusls of the evldence

By virtue of sectlon lol (1) oJ Evldence Act, Cap. 6, whoever desires court to give judgment to any legal right or tiability depending on the existence of any facts he/she asserts must prove that those facts exist.(George Wllllam Kakom,a

#### 5 <sup>o</sup>Attorfleg General [2O7O] HCB 7 at page 78).

The burden of proof lies therefore with the plaintiff who has the duty to furnish evidence whose level of probity is such that a reasonable man, might hold more probable the conclusion which the plaintiff contend, on a balance of probabilities. (sebutlba as CooPeratlue Bank Ltd. [1982] HCB 13O; Oketha as Attonteg General Glutl Sult No. OO69 oJ 2OO4.

It is well established law that a cause of action in fraud must be specifically pleaded, particulars thereof provided and the claim proved, to a level higher standard than a balance of probabilities required in an ordinary suit. (See clso; T'fu Lukuago us Scmrulr{ Mudde Ktzza & Another C-lnll Appeal No. 73 ot 1996 (SC); (Kampala Bottlets Ltd. Vs Dannanlaco (U) Ltd (supra)).

A party faced with pleadings founded in fraud would then know the specific elements of fraud that it needs to rebut or disprove in its defence. See: Fam Intentatilonal Ltd & Another as. Mohamed Hamlrd El-Fatlh C'ttldl Appeal No. 76 oJ 1993 (sc).

- The term fraud has been defined to imply an act of dishonesty. (Kampala Botilers Ltd, as. Dalrzranlaco (U) Ltd SCCA IVo. 2 of 1992.); 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 her or to surrender a legal right. 20 - ln F. I. K Zaabue vs Orient Bank o;nd 5 others SCCA IVo. 4 oJ 2OO2) it was defrned as a false representation of a matter of fact, whether by words or by conduct, by false or misleading a,llegations or by concealment of that which deceives and is intended to deceive alother so that he/she shall act upon it to his legal injury. 25

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It is anything calculated to deceive, whether by a single act of combination or by suppression of truth or suggestion of what is false, whether it is by direct falsehood or innuendo by speech or silence, word of mouth or look or gesture.

## 7) Whether Halli Moses Kalule. the 7.t defendant was fraudulent:

The allegations of fraud raised against the l"t defendant were that he had fraudulently and illegally purchased the suit property well knowing that it was matrimonial home with the plaintiff staying therein with their children who were eventually evicted.

Secondly, that after court had ordered him to release the suit property to the plaintiff, his action of mortgaging the suit property to Abaasi Kabogo, the 2nd defendant who threw the plaintiff out of the suit property, yet fully aware that there was an earlier judgment releasing the suit property amounted to fraud. 10

Thirdly, that both the 1st and 2"d defendants had fraudulently obtained court orders from the Execution division of the High Court without disclosing that judgment declaring the sale null and void had been entered in favour of the plaintiff. 15

In his written statement of defence, the I "t defendant represented by M/s M. Muglmba & Co. Adttocortes however denied any involvement in any fraud or occasioning any loss to the plaintiff.

That at one time he was the registered owner of the suit land and had lawfully mortgaged his mailo interest which was eventually sold through a due process of court: vide Ctull Sult IVo. 166 of 2O74 brought against him by the 2"d defendant.

25 This court noted that the orders/decree, PExh 4 A }:ad been granted on 20th October, 2008 vide Naluealso Mukasq & Hait Ahmed. Mukasa as Hall Moses Kolule, Olrrl I Sult No. 732 o 2004 by the Chief Magistrate at Nakawa, in the terms below: f

- a) That the agreement of sale of the suit property / land and. its deuelopment at KalTansi is null and uoid and is herebg set aside; - b) That the defendant is stopped from trespassing on the lst ptainttffs matimonial home/ land; - c) That judgment in admission is entered in fauour of the defendant as against the 2"'t plaintiff in the counterclaim as follouts:

i) to refund Shs. 43'5OO'OOO/= to the defendant;

ii) to pdg interest of 24% per annum from the date of ludgment until pagment is made in full;

The lst defendant was a party in that suit. There is nothing to show from the court that the said were challenged, reviewed or discharged by any court. Subsequently, a summary suit, Clull Sult JVo. 766 of 2014 was filed by the 2no

defendant, Abaasi Kabogo against Haji Kalule, the 1"t defendant herein, claiming that Ka-lule had on 20th January, 2013 borrowed money from the him, amounting to Ugx 52,OOO,OOO/=. 15

It was a term in that agreement that the loan had to paid within one month and that should Kalule fail to pay Abaasi Kabogo (2"d defendant in this suit) would be free to sell his land comprised in Busdro Block 383 plot 5356.

In the decree extracted on 1 Ith August, 2014, Kalule who became the registered owner of the suit land as at 22nd August, 2OO8 shortly before the orders of 2008 were made upon failure to pay the loand and failure to file a defence was ordered by court to pay the sum of Ugx 52,OOO,OOO/=; etd costs to Abaasi Kabogo.

After the earlier court's declaration that this was matrimonial property, it was a foregone conclusion that court duly recognized the plaintifl's unregistered interest in the land which was a kibanja at the time. 25

Kalule therefore immediately ceased to have interest in that property and could not validly enter into any subsequent transaction relating to that land contravening the orders of court in the earlier suit.

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As a matter of fact the next action ought to have been the issuance by the competent court of consequential orders for the cancellation of the lst defendant's names from the title for the suit land, which however was never done.

Having been a party to that suit, Kalule had been fully aware of the plaintiffs rights accruing from the judgment before he entered into the loan agreement with the 2"d defendant; and that explains why he never filed a defence in the subsequent suit: Clull Suit IVo. 766 oJ 2014. 5

Once he had achieved his objective of recovering his money, secured through a purported loarr agreement with the 2"d defendant, with the matrimonial property as his security, he had nothing else to claim from the 4th defendant who stiil owed him some money. In short he had nothing to lose in that second suit. 10

Sectdon 39 of the Land Act, Cap. 227 forbids any sale, exchange, transfer, mortgage or lease of any family land, without spousal consent and makes any transaction null and void.

After the order of court was made on 20th October, 2OOa several other transactions which did not involve Nalweyiso, (plaintiffl had taken place. As noted earlier, Clrri I Sult No. 766 ot2O14 was filed by the 2"d defendant, Abaasi Kabogo against Haji Kalule who had no valid interest in the suit lard.

- The fact also that the 4th defendant did not challenge the said court proceedings or request to be joined as a party or in any proceeding challenge the decision of court under Ctull Satt No. 766 oJ 2014 was manifestation that he had either given away his matrimonial home; had no more interest; or colluded with the rest of the defendants to deny the plaintiff the fruits of her judgment. 20 - In the case of Fredrlck Zaabue as cited earlier, it is stated that fraud embraces all multifarious means which human ingenuity can devise and which are resorted to by one individual to get advantage over another by false suggestion 25

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or by suppression of truth and includes all surprise, trick cunning dissembling and any unfair way by which another is cheated.

Not only did the transaction therefore offend sectlon 39 of the Land Act,

5 Cap.227 thus making it null and void, but it was an act in violation or contempt of the undischarged court orders made earlier in 2O08, thus making a mockery of the lower court's decision.

'Contempt of court'is defined as conduct that defies the authority or dignity of court. Civil contempt arises when there is disobedience to judgment, orders or other court process.

Thus any course of conduct which abuses and makes a mockery of the judicial process and which extends its pernicious influence beyond the parties to the action and alfects the interest of the public in the administration of justice amounts to contempt.

A party who walks through the justice door with a court order in his hands must be assured that the order wiil be obeyed by those to whom it is directed. (Uganda Super Lcague as Attorneg General Constltrttlonal Appllcatlon No. 73 of 2013.) 15

This is meant to deter parties from contempt and send strong messages that a court order should always be obeyed; and that there are consequences for disobedience of court orders. 20

It is also trite that a court of law never acts in vain and as such issues touching on the contempt take precedence over any other case of invocation of the jurisdiction of court: (WfUUJe Lodges Ltd us Countg Councll oJ Narok & Anor [2oo5] EA 344 (HcK)).

In all cases a party reserves that right to challenge an offending order and may in addition also apply to court for a stay of execution of that order pending its

review, variation or appeal. That option was readily available to the 1"t defendant but he never exercised it.

Without a stay order, any failure by the party intending to act against it would attract sarrctions against such party. The plaintiff therefore succeeded in proving

5 that the l"t defendant had acted fraudulently to deprive her of her interest in the suit land.

# 2. Whether lyb. Abaasl Kaboso, the 2"d de.fend<rltt uas fraudulent ln qrantlnq q, mortqdqe over the sult orooertu,

10 The particulars of fraud as pleaded in this suit were that the 1st and 2nd defendants actions intended to defeat the plaintifl's interest in her property, well knowing that that they were illegally dealing with the matrimonial property.

On his part, the 2nd defendant represented by M/s Nto,mblruekl Kandeebe & Co. Aduocates contended in his WSD that he ltled Cirdl Suit lVo. 166 ol 2014 to recover money lent to the 1"t defendant.

15 That the l"t defendant however failed to file a defence in that suit and court duly entered judgment against him wherein his interest was attached and sold to satisfy the decretal sum.

He therefore denied involvement with any eviction or fraud as his sole interest had been to recover his fruits of litigation, claiming that the plaintiff was unknown to him. He refuted any claims therefore that he had occasioned loss to her. He also denied collusion and connivance with the defendants.

As already noted above, the mortgage transaction between the 1"t and 2"d defendant was made in respect of lald which had been a subject of an earlier undischarged court order.

25 Evidence was adduced by the 2"d defendant to prove that he had obtained the suit land following the due process of court. PEx 5A is a warrant of attachment

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and sale of immovable property for land comprised in Euslro block 383 plot 5356 at Kltende, measuringO. OT4 hectares.

The order of sale exhibited as Ptxh 58 dated 24rH November, 2Ol4; PExh 5D a return of warrant in EMA No. 2342 oJ 2014, Such orders were however based on error, concealment and/or misrepresentation of facts.

The 2"d defendant did not turn up in court to defend himself against the allegations. The conclusion is therefore inevitable that he had constructive notice of the existence of the order and knowledge of the law which barred him from any further dealings with the family/matrimonial property.

- The mortgage transaction was made in disregard of the court order, the unregistered interests of the plaintiff and therefore void ab initio. Had, it been brought to the attention of and full disclosure made to court about the nature of the property that had been put up for sale, no court in its right frame of mind would have granted the prayers as sought and granted in that suit. 10 - ln Makula Internatlonal us IIls Emmlnence Cardlnal Nsubuga & Anor CA No. 4 of 7987 the principle was laid out clearly that once an illegality is detected or brought out to the attention of court, it overrides a.ll manner of pleadings, including admissions. 15

Thus all subsequent proceedings and ensuing orders made in execution of the orders granted in Clul I Sult iVo. 766 oJ 2O74 were in violation of the orders of court and therefore invalid. 20

The eviction of the plaintiff and her young family that had left them homeless was attributed to the high handed actions of the 2"d defendant. It was in contempt of the existing orders held in rem, th,e violation of which this court

holds him liable. 25

## 3. Whether Mr. Kasule Lukenqe Ishak. the 3"d delendant os the reqlstered oroprleto r commltted fraud:

A party who does not enter appearance and file WSD is deemed to have admitted the allegations in the plaint /Smtth as Auto Electrlc Seruices Ltd (7951) 24

5 KLR22 X). Such admission is constructive. (See.' Asutna.n B Kluala uersus ChleJ Reglstrar of T'lttes HC MA NO. 706/2004 (2OO4) ,(ALR - pages 578 s19).

Thus where an interlocutory judgment is entered in favour of the plaintiff, the question of liability of the defendant is no longer in issue. What is in issue is the

assessment of the quantum of damages. IIqfi Asurnan Mutekanga us Equator Grouers (U) Ltd SCCA JVo. 07/1995. 10

A statement of searchasof 27tnApril,2017, PE,xh 6 indicates that the registered owner is currently the 3.d defendant, Mr. Lukenge Ishak Kasule. PExh 9 is a certificate of title for the suit land.

The certificate indicates that the 1"t defendant had acquired land on 22"4 August, 2008; and the next entry was made in the names of Ahmed Mukasa husband to the plaintiff, on 4th December 2014. The names of the 3'o defendant Lukenge had subsequently been entered on Sth may, 2016.

As the registered owner, the 3.d defendant is protected from ejection (sectlon 176 (c) of the RTA. Similarly, under secflon 59 of the same Act, the general principle is that a title is conclusive evidence of ownership. 20

In both instances however fraud attributed directly or indirectly to the registered owner provides the exception to the general rule. (ReJ to: Assets Cotnpany

Ltd. as Mere Rolhl & Others [1905] A. C. 176).

The 3.d defendant however did not file any defence to counter the allegations of fraud levelled against him by the plaintiff.

It is the finding by this court that similar principles governing the mortgage and sale of the matrimonial property as highlighted, equally applied to him as they did to the rest of the other defendants.

The land he bought was not available for sale. But secondly he could have been a *bona fide* purchaser for value without any notice of the fraud.

The term is defined in **Black's Law Dictionary 8<sup>th</sup> Edition at page 1271** to mean:

"One who buys something for value without notice of another's claim to the property and without actual or constructive notice of any defects in or infirmities, claims, or equities against the seller's title; one who has good faith paid valuable consideration without notice of prior adverse claims."

In the case of **Omar Salim Mukasa Vs Haji Muhammed & another CACA NO** 114 of 2003; it was held: "In equity constructive knowledge is deemed to constitute fraud."

It has to be noted that due diligence is a requirement of law under **Section 201** of the Registration of Titles Act Cap 230. Whether or not there was fraud and whether or not a party was a bonafide purchaser for value without notice the question that a court would poise is whether the defendant honestly intended to purchase the suit property and did not intend to acquire it wrongfully. (David Sejjaka Nalima vs Rebecca Musoke SCCA No. 12 of 1985).

Halsbury and Martin Modern Equity (Sweet and Maxwell) Ltd 1977, at page $27$ provides:

"Prior equitable interest in land can only be defeated by a bonafide purchaser for value without prior notice. Then the equities are equal and his estate prevails. If he took with notice, the position is otherwise, as the equities are not equal. If he does acquire a legal estate, then the first in time that is the prior equitable interest prevails as equitable interests rank in the order of creation."

It goes without saying that a person who purchases an estate which he knows to be in occupation of another person other than the vendor is not a *bona fide* 30

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purchaser for value without notice of the fraud, if he/she fails to make inquiries before such purchase is made.

Thus in Uganda Posts and. Telecornrnunlcatlons as Abrahann Klfuunba SCCA .l\Io, 36 ol 7995), such failure to make reasonable inquiries or ignorance or negligence was held to form particulars of the offence of fraud. These principles applicable to the 3rd defendant.

If the 3.d defendant had made sullicient inquiries he would have discovered that the plaintiff and her young family had been in occupation of the suit land for more than a decade, which should have put him on notice..

- In Vlno Energg Uganda Ltd us Lgdla Klstttt CACA NO. 193 of 2O73, cowrt while laying emphasis on the need for thorough investigation rejected the argument that a certificate of title was enough to establish ownership where there was circumstantial evidence that should have put the defendant on notice, requiring him to go beyond the certificate of title. 10 - 15

## 4 actlons o Ahmed Mu the 4tn endant commltted fraud:

The 4th defendant, Hajji Ahmed Mukasa was represented by the ftrm of M/s Lubega & Co. Adrncates. It is not in dispute he is the husband to the plaintiff, and that he entered into a sale agreement with the 1st defendant, Hajji Moses Kalule by which the plaintifl's matrimonial home had been disposed of to the l"t defendant.

Pw2 the plaintiff his wife aged 50 years testified that she was mother of 5 children with her youngest at 16 years, at the time of the hearing. She had no job and was surviving on a small rental left to her by her parents.

Her evidence was that she had been staying with her husband who left them following the eviction from the suit land where they had lived for 11 years. 25

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Evidence to support her case was led by her son, Pur3 Lukyamu zi Jaffer aged 31 years and Pw4 Kakooza Aslam, aged 32 years, who confirmed that in 2016 they had been evicted from the suit premises.

5 Their mother had put up rentals to take care of the family and had been collecting Ugx 75O,OOO/= each month until they were evicted. Their father had put up main house, constituting 3 bedrooms, garage, and sitting room and dining room. He had started selling of portions of the land. That evidence of ownership and occupation was never discredited.

This court also noted that the trial court in Clutl Sult,lVo. 732 of 2OOa ro which he was also a party, had issued orders which were intended to protect the matrimonial property which he shared with the plaintiff. 10

The 4ttt defendant therefore betrayed the trust of his family when he connived with the 2nd defendant to deprive his family of the home, while also fully aware that his wife had constructed on the suit land renta-l units from which she was collecting rent for her children.

Such callous acts by her own husband amounted to fraud as they defeated the interests of the plaintiff, resulting in an eviction that affected not only the plaintiff but also their children, some of whom were still minors at the time.

The certifrcate of title on record in this case which was secured over the kibanja later indicates that after the 2008 orders were made, he had the title transferred into his names and in violation of the court order and without spousal consent, later sold the land to the 3.d defendant, Lukenge Ishak Kasule. 20

The entries on the title were respectively made on 4th December, 2014 and 5th May,2016: sufficient proof that fraud was perpetrated by him. In absence of any evidence or other explanation from the 1st defendant to believe otherwise, these were transactions made on the same kibanja at Kajjansi already declared by court as matrimonia-l property, and from which the plaintiff and her children were evicted.

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There is no doubt that the 4th defendant was part of and instrumental in the commission of the fraudulent transactions relating to this land, as he had knowledge of the plaintiffs interest as her matrimonial home. Not only had he been party to the 2008 suit but had also derived some benefit out of the suit when the land was returned to the family.

He later dealt with the land without the plaintiffs knowledge and consent. When he sought to evict her from the matrimonial home the plaintiff filed Clutl Sult No, 732 of 2OOa: Nalueglso Mukasa and Halfi ltukasa us HalJl Kalule, challenging the transaction at the Chief Magistrates' court, Nakawa.

- A party who fails to comply with a court order without proper explanation does so at his/her own peril. Whether unclear, null or irregular a party, it cannot afford or be permitted to disobey an order for as long as it remains undischarged. (see also: Attorneg General us Klruhura lllstt'lct I'ocal Gotnntment & 2 others HCMA No. 35 of 2072). 10 - Fraud is such grotesque monster that courts should hound wherever it rears its head and wherever it seeks to take cover behind any legislation. It unravels everything and vitiates all transactions. (Fam Intenr,atlonal Ltd and Ahmad Farah us Mohanned El Ftth [1994]KARL 3O7). 15

In Blshoryc,tes Motor Flnance as. Transport Brakes Ltd [1949] 7 KB 332, at pdge 336-7 it was held that;

'In the deaelopment of our ld.ut, turo prlnclples haue striven lor mdstery. Th,e frrst ls Jor the protectlon of propertg: no o^e co,,, glte better tltle tha,n he h,,nse\$ possesses. "

That legal principle was emphasized by the Supreme Court in Halllng Manzoor as, Seruan Slngh Baram, SCCA lVo.9 oJ 2OOl that a person cannot pass title that he does not have. 25

Under the above circumstances as highlighted, the 4th defendant not only acted in violation of the court order when he transferred jointly owned property without

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the consent of his wife but he besides also had no title to pass onto the 3'd defendant, who as established by this court was not a bona fide purchaser for valuable consideration of land.

In the premises, the plaintiffs action against the defendants therefore succeeds.

5 Remedles:

The plaintiffs prayers include:

a) a declaration that the sale on the suit land comprised in Kgad.dondo Block 383 plot JVo. 5356 at Klte de, Kauoto Wo'klso dtstrlct ualued at approimatelA Ugx 25O,OOO,OOO/= to the 2nd-4th defendants was null and uoid;

- b) an order for recouery of the suil land and houses thereon; - c) an order of compensation of the destroVed. rental units on the suit properlg; - d) general damages; - el a pemanent injunction against the dekndant from funher trespass onto the suit propertV;

f) costs of the suit.

The plaintiff relied on the evidence of Putl Ms Nanyunja Janet, arr employee of M/ s Peak Portners Ltd, a company dealing with property valuing which conducted a valuation of the properties destroyed during the eviction.

The unchallenged valuation report presented by her gave an assessment of the house including the rentals as Ugx TSOTOOOTOOO/=, which this court would consider a fair amount.

## General dannaqes.

General damages are awarded at the discretion of court. Counsel cited the case of Uganda Comlnerc{al Bank Vs Klgozl (2OO2)l EA 3O5, by which court guided that the consideration for an award of damages should be mainly the

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value of the subject matter, the economic inconvenience that a party has been put through and the nature and extent of the breach or injury.

This court takes into consideration the disturbance, mental anguish and inconvenience suffered by the plaintiff in trying to recover the ownership of the

land from various parties. 5

> The property kept changing hands/ownership without the plaintiff's knowledge, consent or participation. The fraudulent actions were targeted at depriving her the benefit of her interest, rightly accrued under a valid uncharged order.

Court also bears in mind the fact that fraud was perpetuated by her own husband, the 4<sup>th</sup> defendant, Ahmed Mukasa in connivance and in collusion with 10 the rest of the defendants. He and the 1<sup>st</sup> defendant bear a fair share of the liability.

On account of their actions, the plaintiff and her family were rendered homeless. Accordingly, an award of $Ugx$ 100,000,000/= would be justified as general damages.

In the premises the following orders are issued:

- a) a declaration issues that all transactions made in contravention of the orders $\alpha$ made in Civil Suit No. 132 of 2008 relating to the land now comprised in Busiro Block 383 plot 5356, which was the subject of that suit, were invalid. - 20

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- b) Accordingly, an award of Ugx 150,000,000/= is granted as compensation for the destroyed rental units on the suit property which shall be payable by the $3<sup>rd</sup>$ and $4<sup>th</sup>$ defendants; - c) general damages Ugx 100,000,000/= awarded to the plaintiff 30% of which shall be paid by the $1^{st}$ defendant; 50% by the $4^{th}$ defendant; and the balance equally between the $2^{nd}$ and $3^{rd}$ defendants; - d) a permanent injunction issues against the defendants from further trespass onto the suit property;

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- e) Interest payable in respect to orders b) and c) above, payable at a rate of 15% p.a, from date of delivery of this judgment until payment is made in full. - $f$ ) costs of the suit. - Under **section 177 of the RTA** court has powers, upon recovery of land from a $\mathsf{S}$ registered proprietor under any proceedings, to direct as I now hereby do, the cancellation of the certificate of title for the land comprised in **Kyaddondo** Block 383 plot No. 5356 at Kitende, Kawoto Wakiso district from the names of the $3<sup>rd</sup>$ defendant and to enter the same into the names of the plaintiff.

10 I so order.

Alexandra Nkonge Rugadua

Judge

29<sup>th</sup> March, 2023

Delivered by earl<br>Delivered Objective<br>Japanese<br>Japanese<br>Japanese<br>Japanese