Nampinga v Lubega and 2 Others (Civil Suit No. 751 of 2018) [2023] UGHCLD 57 (10 March 2023)

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) CIVIL SUIT NO. 0751 OF 2018

NAMPINGA THERESA::::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF

#### VERSUS

### 1. LUBEGA GEORGE 2. SERUMA SIMON GUWATUDDE 3. NAKIRYA MARY:::::::::::::::::::::::::::::::::::::::::::::::::::DEFENDANTS

#### BEFORE: HON. JUSTICE BERNARD NAMANYA

#### JUDGMENT

#### Introduction:

- 1. The subject of the dispute is land comprised in Busiro Block 421 Plot 42 at Ziru measuring approximately 3.642 hectares (approximately 9 acres) adjacent to the Kampala – Entebbe Expressway. The land was formerly owned by the late Emmanuel Bamugye, who died in May 1999. Nakirya Mary, Mpinga Matia (deceased) and Guwatudde Simon inherited the land in their capacity as children of the late Emmanuel Bamugye. The late Mpinga Matia, the 2nd defendant (Guwatudde Simon) and the 3rd defendant (Nakirya Mary) are nephews and nieces of the plaintiff (Nampinga Theresa) respectively. - 2. In 2006, the plaintiff purchased land measuring 6 acres of the suit land from the late Mpinga Matia and the 2nd defendant (Simon Guwatudde) at a price of UGX 2.5 million per acre. She began to pay in instalments and by June 2012, the

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plaintiff had paid a sum of UGX 8,550,000 to the sellers leaving a balance of UGX 6,450,000.

- 3. Meanwhile, in 2009, Lubega George (the 1st defendant) purchased a parcel of land of the suit land measuring 9 acres from the 2nd defendant (Simon Guwatudde) and Nakirya Mary at a price of UGX 12 million (Exh. P5). The 1st defendant also purchased an additional 3 acres of the suit land from the late Mpinga Matia at UGX 7,500,000 (Exh. P6). On the 9th July 2013, the 1st defendant was entered as the registered proprietor of the suit land. - 4. In essence, both the plaintiff and the 1st defendant claim to have purchased the same parcel of land measuring 6 acres out of the suit land from the same sellers (the late Mpinga Matia and the Simon Guwatudde). - 5. A dispute then arose between the plaintiff and the 1st defendant as to who is the rightful owner of the land. The plaintiff brought this suit seeking to be declared the rightful owner of the land among other reliefs, and the 1st defendant counterclaimed seeking to be declared the rightful owner of the land.

# Representation:

6. At the hearing of the suit, the plaintiff was jointly represented by Mr. Asuman Nyonyintono and Mr. Allan James Mwigo while the defendants were represented jointly by Mr. Obed Mwebesa and Mr. Segamwenge Hudson. Both parties filed written submissions which I have considered.

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## The plaintiff's evidence:

- 7. The plaintiff produced 3 (three) witnesses to prove her case. PW1 (Janet Lubandi), PW2 (Muliika Michael) and PW3 (Charles Mazinga). - 8. The plaintiff adduced evidence of the following documents that were exhibited: - i) Exh. P1 Photocopy of certificate of title for Busiro Block 421 Plot 42; - ii) Exh. P2 Photocopy of the 1st acknowledgment of payment made by the plaintiff to Mpinga Matia; - iii) Exh. P3 Photocopies of the receipts; - iv) Exh. P4 Photocopies of the receipts; - v) Exh. P5 Photocopy of sale agreement between Mary Nakirya and Lubega George dated 25th November 2009; - vi) Exh. P6 Photocopy of sale agreement between Mpinga Matia and Lubega George dated 19th December 2011; - vii) Exh. P7 Photocopy of the search report.

## The defendants' evidence:

- 9. The defendants produced 3 (three) witnesses to prove their case: DW1 (Simon Guwatudde), DW2 (Nakirya Mary) and DW3 (Lubega George). - 10. The defendants adduced evidence of the following documents that were exhibited: - i) Exh. D1 Temporary injunction in Misc. Application No.145 of 201.

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ii) Exh. D2 – Report on opening of boundaries of Plot 42 Block 421 Busiro dated 21 March 2015.

## Locus in quo visit:

- 11. On the 30th day of November 2022, I carried out a locus in quo visit to the suit land in the presence of both counsel for the plaintiff and defendant. - 12. The witnesses present included: Mulika Michael, Lubandi Janet and Mazinga Charles (for the plaintiff); and Lubega George, Nakirya Mary and Guwatudde Simon (for the defendants). - 13. Janet Lubandi and Lubega George were sworn in and gave evidence at the locus in quo visit. They were cross-examined by counsel for either party.

## Issues to be determined by the court:

- 14. The parties agreed on the following issues for court's determination: - i). Whether the 1st defendant fraudulently acquired land comprised in Busiro Block 421 Plot 42? - ii). Whether the plaintiff is the rightful owner of 6 acres of the land comprised Busiro Block 421 Plot 42? - iii). Whether the counterclaimant is entitled to the reliefs sought in the counter claim? - iv). What remedies are available to the parties?

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#### Preliminary points of law:

- 15. I wish to begin this discussion by addressing the points of law that were raised by counsel for the defendants. - 16. It was argued for the defendants that the transaction by which the plaintiff acquired the land is tainted with illegality to the extent that the sellers of the land did not have letters of administration when they purported to sell the land to the plaintiff. - 17. Exh. P1 (the certificate of title for the land comprised in Busiro Block 421 Plot 42) shows that in 2006 when the plaintiff purchased 6 acres of the land from late Mpinga Matia and Guwatudde Simon, it was still registered in the names of the late Emmanuel Bamugye. On the 2nd July 2012, the Administrator General was entered on the title deed as the administrator of the estate of the late Emmanuel Bamugye. On the 31st October 2012, the beneficiaries of the estate of the late Emmanuel Bamugye (Nakirya Mary, Mpinga Matia (deceased) & Guwatudde Simon), who were also children of the deceased, were entered on the title deed as registered proprietors. - 18. Although the late Mpinga Matia and Guwatudde Simon were not registered proprietors of the land comprised in Busiro Block 421 Plot 42 at the time that they agreed to sell 6 acres of the land to the plaintiff, they eventually became registered proprietors of the land in 2012 after distribution of the estate by the Administrator General. - 19. According to section 192 of the Succession Act (Cap 162) and some decided cases such as Joseph M. Nviri v. Palma Joan Olwoc & 2 Others, H. C. C. S No.

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926 of 1998, actions done by a would-be administrator prior to the grant of letters of administration are validated upon the grant being made. In my view, the transaction for the sale of land that the late Mpinga Matia and Guwatudde Simon entered into with the plaintiff in 2006 as beneficiaries of the estate of the late Emmanuel Bamugye was validated upon the said beneficiaries being entered on the land comprised in Busiro Block 421 Plot 42 as registered proprietors in 2012.

20. Besides, as beneficiaries of the estate of the late Emmanuel Bamugye, the late Mpinga Matia and Guwatudde Simon had an equitable interest in the land and therefore, had legal capacity to pass on that equitable interest to the plaintiff. In the case of Erina Lam Oto Omgom v Opoka Bosco and Anor (Civil Appeal 91 of 2019) [2020] UGHC 185, Justice Stephen Mubiru held that:

> "Prior to the distribution of the estate of a deceased person, a beneficiary's interest in the land can subsist only in equity."

- 21. The second point of law raised by counsel for the defendants is that an oral contract over the value of 25 currency points is barred by the Contracts Act (2010). - 22. With respect to counsel for the defendants, the transaction for the sale of the land took place in 2006 before the entry into force of the Contracts Act (2010). The Contracts Act (2010) is therefore, inapplicable to the transaction in issue. The Contract Act, 1963 (Cap 73) which was applicable to the transaction for the sale of the land in 2006 did not require that a contract with a value of the subject matter exceeding 25 currency points be in writing.

23. Therefore, my finding is that there was no illegality in the unwritten contract for sale of land that the late Mpinga Matia and Guwatudde Simon concluded with the plaintiff.

# Issue No.1: Whether the 1st defendant fraudulently acquired land comprised in Busiro Block 421 Plot 42? Issue No.2: Whether the plaintiff is the rightful owner of 6 acres of the land comprised in Busiro Block 421 Plot 42?

- 24. I now turn to consider Issues No.1 & 2 which I shall do jointly. - 25. The determination of some of the issues in this case require the application of common law principles and doctrines of equity as set out by Section 14 (2) (b) of the Judicature Act (Cap 13), which provides that:

"(2) Subject to the Constitution and this Act, the jurisdiction of the High Court shall be exercised— (a) in conformity with the written law, including any law in force immediately before the commencement of this Act; (b) subject to any written law and in so far as the written law does

not extend or apply, in conformity with—

[…]

(i) the common law and the doctrines of equity […]"

(underlining is mine for emphasis)

See also the case of Francis Kiyaga v. Josephine Segujja & Wilbrod Birabwa, Court of Appeal of Uganda, Civil Appeal No. 76 of 2010.

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26. According to Megarry & Wade: The Law of Real Property, 9th Edition, Stuart Bridge, Elizabeth Cooke and Martin Dixon, Sweet & Maxwell, London, 2019 at paragraphs 14-051 to 14-061), upon conclusion of a contract for sale of land, the buyer acquires an equitable interest in the land which is enforceable against third parties. As Justice Stephen Mubiru held in the case of Erina Lam Oto Omgom (supra):

> "An equitable interest is valid against the entire world, except for the bona fide purchaser of a legal estate for value without notice actual, constructive or imputed. The onus is on the purchaser to establish himself as such; and it is a heavy burden to discharge." (underlining is mine for emphasis)

27. The seller of land is legally obliged to preserve the beneficial interest of the buyer until it is finally handed over to the buyer after full payment of the purchase price. It is irrelevant that the date of completion of the contract is at a future date. In the words of the authors of Megarry & Wade (supra):

> "[…] the purchaser becomes the owner in the eyes of equity from the date of contract."

28. The moment that a contract for sale of land was concluded between the plaintiff and the 2nd defendant and the late Mpinga Matia, there was created a relationship of trustee and beneficiary. Although the plaintiff was yet to complete payment of the purchase price and therefore, assume all the rights and entitlements to the land, the 2nd defendant and the late Mpinga Matia became trustees of the plaintiff. They could not be seen to engage in acts that were detrimental to the land that had already been sold to the plaintiff. They had a legal obligation to preserve the land. The attempt by the 2nd defendant and the

Page 8 of 23 late Mpinga Matia to sell the same parcel of land to the 1st defendant was a clear breach of the trustee-beneficiary relationship with the plaintiff created in equity. According to Megarry & Wade at paragraph 14-052 (supra):

"The vendor's principal obligation under this curious form of trust is to manage and preserve the property with the same care as is required of any other trustee. Equity imposes duties on the vendor to protect, pending completion, the interest which the purchaser acquired under the contract […] for example, a vendor was held liable when between contract and conveyance a trespasser removed a large quantity of surface soil from the land, for [which] with reasonable vigilance he should have observed and prevented the damage."

- 29. In the case before me, PW1 (Janet Lubandi) testified that in 2006, the plaintiff (Nampinga Theresa) purchased land measuring 6 acres of the land comprised in Busiro Block 421 Plot 42 Land at Ziru from the 2nd defendant and the late Mpinga Matia at a price of UGX 2.5 million per acre. She began to pay in instalments and by June 2012, the plaintiff had paid a sum of UGX 8,550,000 to the sellers. She further testified that as soon as she paid the first instalment, the plaintiff took possession of the land in 2007 and started farming seasonal and non-seasonal crops on the land. - 30. The plaintiff's evidence was corroborated by PW2 (Muliika Michael) and PW3 (Charles Mazinga). - 31. PW2 testified that:

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"[…] I know the plaintiff […] and [she] is in occupation of land that borders my land at Ziru."

32. PW3 testified that:

"That I have been seeing the plaintiff's workmen cultivate on the suit land since 2007 and everyone in the area knows that the land belongs to the plaintiff, Theresa Lubandi Nampinga."

- 33. According to DW3 (George Lubega), who is also the 1st defendant, in 2009 he purchased 9 acres of the land comprised in Busiro Block 421 Plot 42 Land at Ziru from the 2nd defendant (Simon Guwatudde) and the 3rd defendant (Nakirya Mary) at a price UGX 12,000,000 (Exh. P5). The 1st defendant purchased an additional 3 acres from the late Mpinga Matia at a price of UGX 7,500,000 (Exh. P6). - 34. From the evidence on record, part of the land that was purchased by 1st defendant measuring 6 acres had earlier on in 2006 been sold to the plaintiff. In short, both the plaintiff and the 1st defendant claim to have purchased the same parcel of land at different times from the same sellers, the plaintiff claims to have purchased the land in 2006 while the 1st defendant claims to have purchased the same land in 2009. - 35. DW 3 (Simon Guwatudde), testified that the plaintiff attempted to buy the land but failed. He claimed that this is the reason why no formal agreement with the plaintiff was concluded. He further claimed that the plaintiff resorted to paying small amounts of installments into his account without his approval and consent.

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- 36. PW1 (Janet Lubandi) testified that by June 2012, the plaintiff had paid a sum of UGX 8,550,000 out of the initial agreed sum of UGX 22.5 million (see Exh. P3(a) to P3(j) and P4(a) to P4(h). - 37. According to the plaintiff's written submissions, when Nakirya Mary opted out of the agreement, the plaintiff continued paying the late Mpinga Matia and Simon Guwatudde for their 6 acres of land. This means that after the Nakirya Mary opted out of the sale agreement, the plaintiff had to pay a total of UGX 15 million, out of which by June 2012, UGX 8,550,000 had been paid leaving a balance of UGX 6,450,000. - 38. The 2nd defendant did not rebut the plaintiff's evidence that by June 2012, UGX 8,550,000 had been paid. - 39. On the authority of Megarry & Wade (supra), the 2nd defendant and the late Mpinga Matia could not legally sell the same parcel of land to the 1st defendant in 2009 yet they had sold the same land to the plaintiff in 2006. According to Megarry & Wade (supra), the 2nd defendant and the late Mpinga Matia had a legal obligation to preserve the suit land until the plaintiff had completed payment of the purchase price as agreed between the two parties. In law, the 2nd defendant and the late Mpinga Matia could not pass good title in 6 acres of the suit land to the 1st defendant to the prejudice of the plaintiff's equitable interest in the land. - 40. DW3 (George Lubega) testified that he is the registered proprietor of the land comprised in Busiro Block 421 Plot 42 Land at Ziru. He relied on Exh. P1, a certificate of title for the land which shows that he was entered as the registered proprietor on the 9th July 2013.

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41. Under section 176 (c) of the Registration of Titles Act (Cap 230), a registered proprietor of land can be ejected on grounds of fraud. As to what amounts to fraud, in the case of Kampala District Land Board & Chemical Distributors v. National Housing and Construction Corporation, Civil Appeal No. 2 of 2004, the Supreme Court of Uganda (per Benjamin Odoki, CJ) held that:

> "It is now well settled that to procure registration of title in order to defeat an unregistered interest amounts to fraud."

42. Benjamin Odoki, CJ citing the case of John Katarikawe v. William Katweremu & Others (1977) H. C. B.187, further held that:

> "Although mere knowledge of unregistered interest cannot be imputed as fraud under the Act, it is my view that where such knowledge is accompanied by a wrongful intention to defeat such existing interest that would amount to fraud."

- 43. PW1 (Janet Lubandi) testified that the 1st defendant fraudulently procured registration as proprietor of the suit land to defeat her interest in the land. In paragraph 5(r) of the plaint, the plaintiff pleaded that the 1st defendant was fraudulent to the extent that he purported to buy the land yet he had constructive notice that the suit land was not available for sale. - 44. There is evidence on record to prove that prior to buying the suit land in 2009, the 1st defendant was informed that the suit land had already been sold to the plaintiff earlier in 2006 but he disregarded this information and went ahead with the purchase.

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45. On this point, the relevant part of the testimony of PW3 (Charles Mazinga), LC1 chairman of Ziru village is as follows:

> "10. That around the year 2012, the 1st defendant came to my home at night, at about 10:00pm with other men I did not know and it was the first time I was meeting the 1st defendant.

> 11. That the 1st defendant told me that he had been directed to my home as the LC1 chairman of the area.

> 12. That the 1st defendant asked me about the suit land which is in occupation by the plaintiff and I accordingly informed him that the land he intends to buy was already bought and is in occupation by the plaintiff."

- 46. During the cross examination of PW3 (Charles Mazinga), this evidence was not rebutted. I find that this evidence is credible. The 1st defendant was informed that the land had already been purchased by the plaintiff but disregarded this information and went ahead to buy the same land. - 47. PW1 (Janet Lubandi) testified that she took possession of the suit land and commenced construction of a permanent building which was demolished by the 1st defendant and/or his agents. During the locus in quo visit to the suit land, I was shown what appeared to have been a foundation of a demolished building. Although DW3 (George Lubega) denied having demolished the permanent building erected by the plaintiff, claiming that the demolition was done by the plaintiff herself as scheme to take over the land, I find the evidence of the plaintiff to be more credible than that of the 1st defendant.

- 48. While DW3 (George Lubega) claimed in his testimony that he carried out due diligence on the land prior to purchase, during cross examination, DW3 failed to adduce evidence such as a search report or boundary opening report to confirm the due diligence that he carried out. - 49. Accordingly, it is my finding that at the time that the 1st defendant decided to buy 6 acres of the suit land (2009), he was aware that the plaintiff was already in possession of the land having purchased the same land in 2006. She had even started construction of a permanent building on the land. Secondly, the 1st defendant made inquiries with PW3 (Charles Mazinga), LC1 chairman of the Ziru village and was informed that the land he intended to buy had already been bought by the plaintiff. - 50. Notwithstanding these discoveries, the 1st defendant went ahead to buy the land. Thereafter, the 1st defendant moved swiftly and procured registration as proprietor on the 9th July 2013. The 1st defendant's actions were calculated to defeat the equitable interest of the plaintiff. In law, this amounts to fraud. - 51. I am fortified in this conclusion by the decision of the Supreme Court of Uganda (per Benjamin Odoki, CJ) in the case of Kampala District Land Board & Chemical Distributors (supra). - 52. Issues No.1 & 2 are answered in the affirmative.

# Issue No.3: Whether the counterclaimant is entitled to the reliefs sought in the counterclaim?

53. The 1st defendant claimed several reliefs in the counterclaim, including a claim for special damages of UGX 10 million and general damages of UGX 40 million. The reliefs were based on the assumption that the 1st defendant is the lawful owner of the 6 acres of the suit land. I have decided in Issues No.1 & 2 that the 1st defendant is not the lawful owner of 6 acres of the suit land having acquired it fraudulently. The 1st defendant is entitled to only 3 acres of the suit land that he purchased from Nakirya Mary.

## Issue No.4: What are the remedies available to the parties?

#### Declaration that the plaintiff is the lawful owner of 6 acres of the suit land

54. As Issues No.1&2 were answered in the affirmative, I declare that the plaintiff is the lawful owner of 6 (six) acres of the land comprised in Busiro Block 421 Plot 42 Land at Ziru.

### Declaration that the 1st defendant trespassed on the plaintiff's land

55. According to the Supreme Court of Uganda in the case of Justine E. M. N. Lutaya v. Stirling Civil Engineering Company Ltd, Civil Appeal No. 11 of 2002 (per Mulenga, J. SC) trespass to land occurs when a person makes an unauthorised entry upon the land. In the instant case, I have decided in Issues No.1&2 that the 1st defendant fraudulently acquired 6 acres of the suit land. The plaintiff adduced evidence that the 1st defendant entered the land and

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demolished structures erected by the plaintiff. The 2nd defendant and the late Mpinga Matia attempted to sell land that no longer belongs to them, which interferes with the plaintiff's interest in the land. I therefore, declare that the defendants trespassed on the plaintiff's land.

## Permanent injunction against the defendants

56. A permanent injunction is issued against the defendants, their assigns, successors in title or any other person deriving title from the defendants from dealing in the suit land or interfering with the interest of the plaintiff's ownership of 6 acres of the suit land.

## General damages

57. The plaintiff has been denied the use of the land for about 10 years. Ordinarily, the plaintiff would be entitled to general damages as compensation for the inconvenience that she has suffered. However, I also note that the plaintiff and the 2nd and 3rd defendants are biologically related. An award of general damages is likely to fuel further acrimony in the family. I therefore decline to make any award of general damages.

Cancellation of the 1st defendant's certificate of title for the land comprised in Busiro Block 421 Plot 42 Land at Ziru and the subsequent title deeds for the 61 plots mutated from the Plot 42

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58. Section 177 of the Registration of Titles Act (Cap 230) provides that: # "177. Powers of High Court to direct cancellation of certificate or entry in certain cases

Upon the recovery of any land, estate or interest by any proceeding from the person registered as proprietor thereof, the High Court may in any case in which the proceeding is not herein expressly barred, direct the registrar to cancel any certificate of title or instrument, or any entry or memorial in the Register Book relating to that land, estate or interest, and to substitute such certificate of title or entry as the circumstances of the case require; and the registrar shall give effect to that order."

59. In the case of Hilda Wilson Namusoke & 3 Others v. Owalla's Home Investment Trust (E. A) Ltd & Commissioner for Land Registration, Supreme Court Civil Appeal No. 15 of 2017 the Supreme Court of Uganda (per Prof. Tibatemwa-Ekirikubinza) held that:

> "Section 177 of the RTA vests powers in the High Court to direct the Commissioner to effect any order of cancellation of a certificate of title made by the High Court."

- 60. The plaintiff adduced sufficient evidence to prove that the 1st defendant fraudulently acquired a certificate of title for the land comprised in Block 421 Plot 42 land at Ziru. - 61. Pursuant to the provisions of section 177 of the Registration of Titles Act (Cap 230), I order the Commissioner for Land Registration to cancel the entry of Lubega George as the registered proprietor on the certificate of title for land

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comprised in Busiro Block 421 Plot 42 Land at Ziru and any subsequent mutations of Plot 42.

## Registration of the plaintiff as the registered proprietor of 6 acres of the suit land

- 62. According to the evidence on record, the agreed purchase price of 6 acres of the suit land purchased by the plaintiff was UGX 15 million, out of which by June 2012, UGX 8,550,000 had been paid leaving a balance of UGX 6,450,000. - 63. I declare that there is an outstanding balance of UGX 6,450,000 (Uganda shillings six million four hundred and fifty thousand) being the balance of the purchase price due to the estate of the late Mpinga Matia and Simon Guwatudde from the plaintiff. The sum of UGX 6,450,000 shall be paid in accordance with my further orders set out below. - 64. Subject to payment of the outstanding balance of the purchase price in accordance with the orders in this Judgment, pursuant to the provisions of section 177 of the Registration of Titles Act (Cap 230), I order the Commissioner for Land Registration to process a certificate of title for 6 acres out of the land comprised in Busiro Block 421 Plot 42 Land at Ziru in the name of Nampinga Theresa.

#### Costs of the suit

65. Considering that the plaintiff and the 2nd and 3rd defendants are biologically related; and further considering that I have granted some form of relief to the

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1 st defendant as explained below; and in the interest of promoting reconciliation between the parties as required by Article 126 (2) (d) of the Constitution of Uganda (1995) as amended, I order that each party shall bear its own costs.

#### Remedies not pleaded for by the parties

66. It is allowed by the law for this Court to grant remedies that are not specifically pleaded for by the parties. In the case of Sinba (K) Ltd & 4 Others v. Uganda Broadcasting Corporation, Civil Appeal No. 3 of 2014, the Supreme Court of Uganda (per Stella Arach, J. S. C) considered this point and held that:

> "It is clear from the above that there was no specific prayer for cancellation of the 5th Appellant's certificate in the application directly. The orders specifically sought for in the application were for cancellation, nullification and setting aside of the execution and the attachment and sale of the suit property. It is my finding, therefore, that the order of cancellation of the 5th Appellant's title was a consequential order which the two learned Justices rightfully gave as a direct consequence of their orders nullifying and setting aside not only the decree of the High Court and the Consent judgment on which it was based, but the execution and the sale of the suit property as well. In my view, and on the basis of their findings and orders which I shall address in details later on in this judgment, they could not leave the matter hanging. Further, the case of Odd Jobbs v. Mubia [1970] EA 476, is to the effect that a court can decide an un-pleaded matter if the parties have led evidence and addressed court on the matter in order to "arrive at a correct decision in the case and to finally determine the controversy between the parties."

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- 67. The 1st defendant testified that he purchased 6 acres of the suit land from Nakirya Mary and Simon Guwatudde at a price of UGX 12,000,000 which he paid. Nakirya Mary and Simon Guwatudde gave evidence in this court and confirmed that they indeed received the sum of UGX 12,000,000. - 68. Since I have decided that the plaintiff (Nampinga Theresa) is the lawful owner of the 6 acres of the suit land, I cannot leave the 1st defendant (Lubega George) without any remedy or "hanging" as was held in the case of Sinba (K) Ltd (supra). There is also the pending issue of the sum of UGX 6,450,000 which was the balance due from the plaintiff. - 69. My final orders in this case are intended to finally determine the controversy between the parties, and to avoid further acrimony amongst the parties, some of whom are biologically related.

### Final Orders of Court

- 70. In the final result, I enter Judgment with the following declarations and orders: - 1) The plaintiff (Nampinga Theresa) is the lawful owner of 6 (six) acres of the land comprised in Busiro Block 421 Plot 42 Land at Ziru; - 2) The 1st defendant (Lubega George) is the lawful owner of 3 acres of the land that he purchased from Nakirya Mary comprised in Busiro Block 421 Plot 42 Land at Ziru;

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- 3) An order directing the Commissioner for Land Registration to cancel the entry of Lubega George as the registered proprietor on the certificate of title for land comprised in Busiro Block 421 Plot 42 Land at Ziru and any subsequent mutations of Plot 42; - 4) An order directing the Commissioner for Land Registration to process a certificate of title for 6 acres out of the land comprised in Busiro Block 421 Plot 42 Land at Ziru in the name of the plaintiff (Nampinga Theresa); - 5) An order directing the Commissioner for Land Registration to process a certificate of title for 3 acres out of the land comprised in Busiro Block 421 Plot 42 Land at Ziru in the name of the 1st defendant (Lubega George); - 6) The sum of UGX 6,450,000 due from the plaintiff to the estate of the late Mpinga Matia and Simon Guwatudde shall be paid directly to the 1 st defendant (Lubega George); - 7) The estate of the late Mpinga Matia is ordered to refund UGX 1,050,000 (Uganda shillings one million fifty thousand) to the 1st defendant (Lubega George). - 8) Simon Guwatudde is ordered to refund UGX 6,000,000 (Uganda shillings six million) to the 1st defendant (Lubega George). - 9) The total sum to be received by the 1st defendant (Lubega George) shall be UGX 13,500,000 (Uganda shillings thirteen million five hundred

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thousand only) which is the amount of the purchase price that the 1st defendant (Lubega George) paid to the late Mpinga Matia and Simon Guwatudde.

- 10) The defendants are trespassers on the 6 (six) acres of the land comprised in Busiro Block 421 Plot 42 Land at Ziru owned by the plaintiff (Nampinga Theresa); - 11) A permanent injunction is issued against the defendants, their assigns, successors in title or any other person deriving title from the defendants from dealing in the plaintiff's land or interfering with her interest in the land; - 12) Each party shall bear its own costs.

I SO ORDER.

BERNARD NAMANYA

JUDGE 10th March 2023

### 10 March 2023 at 8.30am.

| Mwigo Allan James | Counsel for the plaintiff | |--------------------------------------|----------------------------------| | Natukunda Jackline holding brief for | Counsel for the defendants | | Obed Mwebesa | | | Janet Lubandi | Lawful Attorney of the plaintiff | | Lubega George | st defendant<br>1 | | Esther Nakawungu | Court Clerk |

#### Allan James Mwigo:

The matter is for Judgment. We are ready to receive the Judgment.

### Court:

Judgment delivered in open chambers.

BERNARD NAMANYA JUDGE 10th March 2023