Ndagire and 4 Others v Kavuma and Another (Civil Suit No. 684 of 2014) [2023] UGHCLD 13 (25 January 2023)

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

#### **LAND DIVISION**

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## **CIVIL SUIT NO. 684 OF 2014**

- 1. NDAGIRE IMMACULATE - 2. NABWAMI - 3. NALUNGA ANNET - 4. NAMAYANJA TEOPISTA - 5. SEKAJJA LAWULE ::::::::::::::::::::::::::::::::::::

### **VERSUS**

#### 1. KAVUMA PAUL.

KIMBUGWE JESSY :::::::::::::::::::::::::::::::::::

### **JUDGMENT**

#### 20 Introduction:

The plaintiffs filed this suit seeking the following prayers:

a). a declaration that the suit land comprised in Bulemezi **Block 3,38 Plots 78 and 79** (formerly) Plot 1 and situated at Kifunfugu, LC1 Mpedde Parish, Kasangombe Sub **County at Nakaseke District** (suit land) forms part of the estate of the late Noah Gitta.

b). a declaration that the transfer and or registration of the defendants on the suit land was fraudulently procured and or obtained and as therefore illegal, null and void.

c). an order for the cancellation of the registration of the defendants on the suit land comprised in **Bulemezi Block 338 Plot Nos 79 and 78** respectively.

d). An order for rectifying the Register in Bulemezi Block 338 Plot Nos. 79 and 78, to reinstate the former registered proprietor, Noah Gitta.

*e).* a declaration that the $2^{nd}$ defendant is a trespasser on the suit land.

*f).* an order for vacant possession against the $2^{nd}$ defendant.

1 Anhough

# Brtef facts:

5 The plaintiffs arc the children and dircct bcneficiaries under the estate of the late Noah Gitta who dicd intestate on 18(h February, 1982 teaving behind scveral children, some of whom are alivc and out of which only 10 wcrc still alivc.

It is not disputed that at the timc of his dcath Mr. Noah Gitta owncd scvcral propertics including thc land compriscd in Bulemezl Block 338 Plot 7 at Klfunfugu u{llage, Kasangombc subcounty in Narkasekc District, mcasuring approximatcly 6.05 hcctarcs (15 acrcs). Thc plaintiffs

claimed that thcy and other family members of thc latc Noah Gitta wcre using thc said land for cultivation as a homc and as burial grounds. 10

On 8rh Novcmbcr, 20l I howevcr, thc 1'r dcfcndant Kavuma l)aul causcd the transfer of the suit land into his namc purportcdly as an administrator of thc cstatc of thc late Noah Gitta, without thc knowlcdge and consent of othcr beneficiarics.

IIe subdivided and/or causcd subdivision of thc suit land into two plots 78 and 79 and purported to transfcr plot 78 into thc 2ud dcfcndant's namc and plot 79 into his name. 15

## Defend.ants' case:

The defcndants howcver denicd thc contcnts of the plaint, rcfuting thc plaintiffs' contention that they had valid intcrcst in the suit propcrty. Thcy filcd a joint countcrclaim contcnding that the plaintiffs wcrc allocatcd othcr arcas comprising the cstatc of thc latc Noah Gitta.

In Octobcr, 20l l, thc lst dcfcndant, Mr. Kavuma l)aul applicd for lettcrs of administration ofthc cstatc of Noah Gitta aftcr obtaining a ccrtificatc of no objcction on 13'h Scptcmbcr, 2011 and hc dcnicd thcreforc having obtaining thc lcttcrs of adminjstration through fraud as allcgcd.

The 2"d defcndant, Mr. Kimbugwe Jcssy claimcd to havc lawfully purchascd thc suit land comprised in Bulemezl Block 338, plot 78 at Kifunfugu from thc 1"r dcfendant and contended that he is as a bonafi.de purchascr for valuc without noticc of any fraud. 25

FIe refuted the claim that his registration as proprietor of thc suit land was not procured through fraud or any iltcgality. Thc defendant thereforc praycd that the ptaintiffs'suit be dismissed with costs.

ir

## **Representation:**

The plaintiffs were represented by *M/s Wameli & Co. Advocates*. The defendants by *M/s* Abubaker M. Kaweesa.

Issues.

$\mathsf{S}$ At the scheduling the following were the issues for court to determine:

> Whether the plaintiffs have lawful interest in the suit land? 1.

- 2. Whether the suit property forms part of the estate of the late Noah Gitta? - 3. Whether the defendants were fraudulently registered as proprietors in the suit land? - 4. Which of the parties is a trespasser on the suit land? - 15

5. Whether the plaintiffs have a caveatable interest on the suit land?

### 6. What remedies are available to the parties?

I will deal with issues No. 1, 2 and 4 jointly.

## The law:

- 20 Trespass to land was defined in the case of **Dima Dominic Poro vs Inyan Godfrey & Apipik Martin Civil Appeal No. 0017 2016** where it was held that an action for tort of trespass to land is for possessory rights rather than proprietary right. It is the unlawful interference with possession of property; invasion of the interest in the exclusive possession of land and occurs when a person makes an unauthorized entry upon land and thereby interferes or portends to 25 interfere, with another person's lawful possession of that land.

Needless to say, a tort of trespass to land is committed, not against the land, but against the person who is in actual possession of the land. (See: Justine E. M Lutaaya vs Stirling Civil **Engineering Company Ltd. Civil Appeal No. 11 of 2002).** Such possession may be physical or constructive.

30 By virtue of **section 101 (1) of Evidence Act, Cap. 6,** whoever desires court to give judgment to any legal right or liability depending on the existence of any facts he/she asserts must prove

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that those facts exist. (George William Kakoma v Attorney General [2010] HCB 1 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

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$\bullet$

# the plaintiff contend, on a balance of probabilities. (Sebuliba vs Cooperative Bank Ltd. [1982] HCB 130; Oketha vs Attorney General Civil Suit No. 0069 of 2004.

In this instance, the plaintiffs averred that the $2<sup>nd</sup>$ defendant's coming upon the suit land and threatening to carry out activities thereon and threatening to evict the plaintiffs and/or beneficiaries amounted to trespass.

10 They had the burden to provide evidence that not only trespass had been committed but also that the transactions between the defendants were tainted with fraud, committed with the knowledge and consent, directly or indirectly by either or both of the defendants.

In their counterclaim the defendants denied the allegations levelled against them, arguing that from 2013 to date the $2<sup>nd</sup>$ defendant has been the registered owner of the land on **Bulemezi**

#### 15 Block 338 plot 78 at Kifunfugu.

That sometime in January, 2014 the plaintiffs had unlawfully entered upon the said land and cultivated on part thereof without his authority and that their continued activities on that land amounts to trespass.

They also referred to a caveat lodged by the 1<sup>st</sup> and 3<sup>rd</sup> plaintiffs together with Peter Wasswa 20 without any justification or lawful claim and sought general damages for such trespass and unlawful lodgment of the caveat; eviction order; a permanent injunction restraining the plaintiffs and their agents or servants from further trespassing on the suit land; removal of caveat; interest; and costs of the counterclaim.

## Analysis of the evidence:

- 25 The plaintiffs claimed that at the time of his death the late Noah Gitta owned several properties, including the suit land which was at the time comprised in **Bulemezi in Bulemezi Block 338**, plot 1 at Kifunfugu village, Kasangombe sub county in Nakaseke, measuring approximately 6.05 hectares (15 acres), which the plaintiffs and other beneficiaries have been using for cultivation, residential and also as a burial ground. - 30 They relied on the evidence of three (3) witnesses. Nalunga Annet $(Pw1)$ a daughter to the late Noah Gitta, who told court that she and other beneficiaries of the estate were entitled to have a

4 (Jakour

share in the suit land, which has the family burial ground and also used by her family for cultivation.

Kavuma Anslcm (Pu2), son of Emmanucl Kasirivu, onc of thc childrcn of the late Gitta, and therefore a grandson to thc latc Noah Citta. His father had died in 1981 . Pur2 claimed to have been on the land since 199O and a care taker, appointed by his paternal auntics and uncles some of whom howevcr wcre not rcsidcnt on that land. Hc confirmcd howevcr that some of his relativcs wcrc utilizing thc land for cultivation.

The 2nd dcfcndant according to him came to inspcct thc land and prcsentcd a title in his names, without explaining how hc had acquircd it. Pur2 furthcr claimcd to havc reported the matter to various authorities: thc Gombolola Land Committcc, thc [-cs, thc Land I)rotection Unit and the RDC. Ilowevcr that thc 1s dcfendant who was his patcrnal unclc and, Teddy Nagitta DrpI, his patcrnal auntie who tcstificd in support of thc 1.r dcfendant's case, did not rcside on that land.

According to thc witncss, fraud was committed when thc suit land was sold to the 2"d dcfendant without knowledge ofthc cntirc family, and yct part ofit constituted burial grounds. His cvidencc

was corroboratcd by that of his clder brother, Mr. Pctcr Wasswa Citta who gave evidence as Pur3. <sup>I</sup>Ie too denied the claim that thc properties of the dcceased had been distributed. 15

Thc defcndalts on thc othcr hand rclicd on thc cvidcncc of two witncsses: Dof, Tercza Nagitta aged 7O years, a sister to the 1"1 dcfendant, two of thc children of the deceased and the 2"d defendant as Du2.

Dar.l informed court that the 15 acres which formed part ofthc estate belonged to her mother Ann Maria Nakandi and hcr biological children, having rcccivcd thc samc from the late Gitta. 2 acres wcre left as burial ground. 20

It was not in disputc that Gitta dicd on 18rh Janua.ry, 1982 as pcr the death certificatc. It was also her cvidcnce that hcr mother, Nakandi was thc lcgal wifc but that shc had separated from Gitta about 5 to 8 years prior to his dcath; and that aftcr his dcmisc, shc only camc to thc suit land to attcnd his burial. At thc last funcral rites at which onc Lugolobi Constatine bccame the heir, cach of the four or so widows with her childrcn had bccn given property in their respective

areas of residence; and none of thcm had complained,

Nakandi passcd on in 1992, but as thc court rccord clcarly indicatcs, no letters of administration were grantcd for hcr cstatc or that of Nuwa Gitta hcr latc husband.

DraI also statcd that thc land in Kifunfugu was for thc childrcn ofAnna Maria Nakandi who was also mothcr to Kasirivu, thc fathcr of Pw7 o.nd Pw2. Out of thc two acrcs rcscrvcd for the burial

grounds Kasirivu himself had obtaincd an acre, while the othcr acre remained for the burial ground.

nccording to her thc rest of Lhc family had also obtaincd thcir rcspcctive shares. l.'urthermore th part of thc moncy from the procceds of thc salc of the 13 acrcs in 20 1 1 was uscd to treat the heir to the estate, Lugolobi who passed on in 2016.

Thc ls dcfendant, Mr. I)aulo Kavuma who was of advanccd agc did not attcnd any of the procccdings; and it was his sistcr's evidcncc that hc had bccn blind for the last 20 years.

Thc sccond witncss for thc dcfence was Mr. Kimbugrve Jcssy, thc 2"d defendant, (Du2) who told court that he had bought 13 acres of thc suit land on 24th August, 2011, after making a search and duc inquiries from thc LC1 chairman.

Ilowevcr that although when hc bought the land hc had not sccn thc titlc, he togethcr with the LC chairman had inspecled thc land which, (as confirmcd during thc locus in quo visit conductcd by this court), was separatcd by a road.

That during the inspcction they found a bush with some eucalyptus trecs and a home. The LC 15 chairman of the arca with whom they had carried out thc inspcction was not however called in as a witness.

The 2nd defcndant further claimed that when hc carried out the inspcction however he never saw thc burial grounds. IIe confirmcd as did this court during thc locus visit that that Prrz was residcnt in the upper part across of thc road, whcre the burial grounds were found,

- Itegarding thc salc transaction, it was his claim that thc l,t defendant was not totally blind as hc could at least use onc eyc, and had signcd the agrcemcnt. ln paragraph 1 and 2 of his statemcnt, hc told court that hc was assured that thc larld bclonged to the 1"t dcfendant and his siblings. This howcvcr contractcd thc statcmcnt by Irurl that the l"tdefcndant, her brother had been blind for close to 2O years. 20 - That thc scllcrs had assured him that thcir latc father had donatcd thc land to them togcther with thcir mothcr Anna Maria Nakandi. 1'hat nobody clsc had any claim or intcrcst in thc land and that it did not form part of the cstatc of thc latc Noah Gitta. That thc scllers had delivered to him the duplicate certificate of title lor Bulemeezl Block 338 plot 78 duly signcd in his namc. 25

DExh 7,lhe salc agrecmcnt dated 24rh August, 2011 indicates that thc parties in that agreement had acknowlcdgcd thc fact that Noah Gitta was thc registered owncr of 15 acres of land compriscd in thc ccrtificatc of titlc for land originally compriscd in IrRy I I53 Follo 7 ptot 7, Kvunfwgu, Nakasuteke. 30

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Irrom the contcnts of clause 3 of thc said purchase agrccmcnt, it was agrccd between the l"t dcfendant, his siblings and thc 2nd dcfendant that thc scllcrs would cause the administrators of thc estatc of the latc Noah Gitta to sign mutation and transfcr forms for thc buyer.

The sale was for l3 acrcs. lt excludcd the rcsidentiat house and burial grounds. The 2nd defendant, as thc buycr was required to survcy thc propcrty at his own expensc.

Whilc dcnying thc asscrtion that hc was a trcspasscr on thc land, hc had nothing to show that he had survcycd thc land prior to thc purchasc, as per his undcrtaking under thc agreemcnt.

Dur2 testificd in paragraph 5 of his statcment that aftcr buying 13 acrcs of land, the vendors delivcred to him thc dupticate ccrtilicate of titlc duly rcgistcrcd in his name. tle got his title even beforc the survey was madc.

# qgt4-slde rqtlo n bg -9 9!,t rt :

Sectlon 791 orthe Succession Act providcs that no right to any part ofthe property ofa person who has dicd intestatc shall be cstablishcd in any court ofjusticc, unlcss lcttcrs of administration have first bccn grantcd by a court of compctcnt jurisdiction.

By virtue of sectlon 792 thareof,lcltcrs of administration cntitlc thc administrator to all rights belonging to the intestatc as cffcctually as if the administration has becn granted at the moment aftcr his/hcr death. 15

The parties in this casc do not deny that thc fact thc late Noah Gitta dicd intcstate. It is also not in dispute that a ccrtificate of no objcction was grantcd to the 1"' defcndant; that he went ahead to apply for the grant but thcre is nothing on record to prove that hc secured thc grant.

The plaintiffs relicd on a correspondcncc datcd 18rh l,'ebruary, 2013 addrcsscd to M/s MMAKS Aduocates. It rcfcrs to AC No. 854 oJ 2O7 7: E,stote oJ the lqte Noo.h Gltta. ln that lctter, thc Assistant Ilegistrar of l,'amily l)ivision, I lis Worship [)co Nzcyimana, had this to say;

<sup>A</sup>petition of letlers of administration to the qboue estale was filed on 2Vt October, 2O 1 1 bg one Paul Kau)ma (sonl A nolice of qpplication utas stgned on 3d Nouember, 20 <sup>1</sup>1 . To dale we haue not receiued ang adverl in respect of the matler qnd as such the matter is slilt pending in court.

No orarrt was euer i.s.sued ond therefore if (uru exi-sl.s it i-s nol in respecl of lhe menliotrcd op p lication. (e mp has i-s add ed)


As per clause 2(iii) of t}lc Salc agrccmcnt, thc 2ntr dcfcndant as thc buyer was lo pay Ugx 27,5OO,OOO/= on 25th Novcmbcr, 20l 1 on condition thc scllcrs shall havc registcrcd the land in the namcs of the administrator of thc estate.

5 In clause 3 thereof, thc sellers wcre to cause thc administrators of thc estatc to sign the transfer and mutation form. Thc title shows that by 8th Novcmbcr, 2011 the 1"r defendant was already rcgistered on thc title as administrator but whcn he signed thc agreement neither him nor his siblings signed the agrcemcnt as administrators of the estate.

No such letters of administration wcrc ever issued to the 1\*' dcfendant or to anyone else for that matter over the cstate of thc latc Nuwa Gitta. Thc 2"d dcfcndant did not provide any transfer form or mutation form signcd by thc administrator as pcr thc agrccment or any copy of the lettcrs of administration as his shicld bcforc committing thc funds.

From Durl's evidencc the l\*t dcfcndanl who had becn thc kcy signatory to the purchasc agrcement had bccn blind for the last 20 ycars. Onc wondcrs how hc could havc signed the agreemcnt or cvcn appreciate its contcnts as a blind man.

Also worth noting is the fact that the widow, Nakandi, had sincc passed on at thc time the agreement was signed. No lcttcrs of administration for her cstate werc however availed to court and indced among thc signatorics to thc agrccmcnt, nonc of thcm had signed as her Iegal representative/administrator of hcr cstatc. 15

Nakandi from Durl's evidcnce had in any casc long scparatcd from hcr husband at thc timc of his demise. Section 30 oJf the Succession Act, Cap. 162 makcs it clear that no spouse is to takc intcrest in an cstate of an intcstatc if at thc timc of thc death of thc intcstatc he/ shc was alrcady scparatcd from the intcstatc. That scction thcrcforc rulcs out possibility that thc widow still has intcrcst in thc cstatc of Noah Gitta-20

Thc certificate of titlc Annerf,ure B annexed to the plaint shows that the deceased, Noah Gitta bccamc thc first rcgistcred owner on 26rh. Junc 1952. On 8'h Novcmber, 2011, the 1\$ defcndant purportcdly becamc thc ncxt registcrcd owner, as the administrator of Gitta's cstatc, under Insln)ment No. l]UK 97385. It is not known as to how thc Lirnd officc could have rcgistcred him as administrator bcfore a valid grant was issucd to him. All that was in his possession was a ccrtificatc of no objection (CONO), which by itscu could not cntitle or authorizc him to deal with )5

thc cstate. Court's conclusion thcrcforc is that the rcgistration of the 1"t dcfcndant on thc titlc was bascd on misrcprcsentation. 30

Thc dcfcncc could not suslain the claim that thc suit propcrty was not part of thc estate aftcr the l"t defendant had got himself rcgistcrcd on thc title as administrator of thc cstatc and evcn

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gonc ahead to makc commitmcnts to thc 2nd dcfcndant, that thc family would provide mutation and transfcr forms signed by the administrator, as pcr clause 3 ofthe agreement.

Undcr those circumstanccs thc defcncc's argumcnt that sincc the plaintiffs did not adduce in court any lcttcrs of administration thcy had failcd to provc thal thc suit propcrty forms part of

5 thc cstatc of the latc Noah Gitta was not only a shot in thc wrong dircction but also self-defeating.

Irurthermorc, in thc pctition for thc lcttcr of administration attachcd onto the plaint which was filed on 27th Octobcr, 2O1L in paragraph 3 and 4 thcrcof, thc l"tdefcndant had indicated clearly that at the time of death, the deccased had left land on Buletaeezl Block Vol. 7753, Folto 7, mcasuring approximatc'ly I 5 acres.

This contradicted thc defcndants' claim thcrefore that thc land did not constitute part of the estate or the claim madc that it was land gifted to only the widow, Ann Maria Nakandi and her children. 10

ln HarrLson us WeIIs (1966) 3 All E. R 524 the court of Appeal obscrved that the rule of cstoppcls is foundcd on thc wcll-known principle that onc cannot approbatc and rcprobate. The principlc is applicablc in this casc.

It is also to bc notcd that thc total number of children bcgot by thc dcceased was not in contention. I lowevcr in his pctition, thc 1s dcfcndant had listcd onty 5 family members as children ofthc decr:ased, outof thc lolalof 22 childrcn, 10 of whom wcrc still alivc.

- The defendants' evidence also failcd to show when, how much land, and how the land had been gifted to thc siblings who wcrc listcd under the sale agrccment, that is, whether it was documcntcd by way of a dccd or in the form of vcrbal instructions. Thc known principle is that in equity a gift is only completc as soon as thc donor has donc cvcrything that a donor has to do within his control and ncccssary for him to complctc thc title. 20 - Thc law as such docs not recognizc a verbal gift of land. Such donation is characterized by a dced. In dctcrmining whcthcr thc dcccased crcatcd a gift interviuos in rcspcct of the disputed Iand, court has to asccrtain thc intcntion of thc donor and thcn whcthcr formal rcquirements of thc method of disposition which he attcmplcd makc havc bccn satisficd. (Ivassozi and a'nor us Ka.lule HCCA 2012/5). 25

Thc evidence ofsuch donation to thc childrcn ofNakandi was in this case conspicuously missing. It lcft court wondcring as to how many childrcn left by Nakandi and entitlcd as allcged, to the donation; how many of thcm wcrc dcccascd; whcthcr or not they all had knowledge and 30

<sup>9</sup> U)'I"'8 consented; or whether or not cach of them had been rcprcscntcd when the estate was being disposed of to the 2n,1 defendant.

In abscncc of any proof to think differently, thc plaintiffs' claim was bclievablc thcreforc, that they wcrc not awarc of thc l\*t dcfcndant's bid to obtain lettcrs; and that the 2"d dcfendant and Regina Nalunga, Nalunga Agnes, Constantino Lugolobi and Teddu Naggita who disposed of the suit land to thc 2nd defcndant as pcr thc salc agrecmcnt . DExhI, did so without knowlcdge and consent of plaintiffs arld thc rest of thc bcneficiarics.

Thc defcncc whose duty it was to provc thc asscrtion prcscntcd nothing to court to sustain thcir claim that indecd Noah Citta had gifted thc Iand to Nakandi and hcr childrcn.

It was the argumcnt by counsel for the dcfendants that sincc the Dpl was oldcr, than her nieces and ncphcws she was more conversant with thc dctails of ownership of the suit land and thercfore morc credible. DurI's cvidcncc on thc donations howevcr lacked the relevant backing sincc thc <sup>I</sup>"r dcfcndant himsclf was not ablc to tcstify. 10

With all due rcspcct thcreforc, thc asscrtion made that the plaintiffs had becn given their share out of the estatc (cven if it wcre the truth); or that thc procccds werc used to providc medical treatmcnt for the hcir, could not justify or redeem any acts of fraud committed by the 1" dcfendant. 15

During locus court establishcd that Ansclm Kavuma, thc care takcr was on part ofthe land and rcaring somc goats. Across thc road was an old housc, bclonging to the deceased. Ilehind werc the home wcre thc l3 acres which thc 2n0 dcfendant claims to havc bought. Thc 2nd defcndant was not in physical possession.

In rcsponse to issues No. 7, 2 cnd 4 thcreforc, thc plaintiffs havc a law.ful interest in the suit land which constitutes part of thc cstate of thc latc Noah Gitta; and wcre not, could not havc bcen trespasscrs on thc land which was yct to bc distributcd.

In responsc to issue lvo. 5, sincc thcy had intercst in thc cstatc of thc late Gitta, it gocs without saying that they also have a cavcatable intcrest in that cstate. 25

# Issue 3.' Whether the defendo.'rts utere fiaw lentbl reqlstered as proprletors of the slrlt lo.nd.

# Anolgsis oJ the law:

It is a well establishcd law that a causc of aclion in fraud as in this instancc must be spccifically plcaded, particulars thcrcof providcd and thc claim provcd at a lcvcl higher than on the ba.lancc 30

<sup>10</sup> (J."J'"t

of probabilities. (See Tifu Lukwago vs Samwiri Mudde Kizza & Another Civil Appeal No. 13 of 1996 (SC).

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 International Ltd & Another vs.

$\mathsf{S}$ Mohamed Hamird El-Fatih Civil Appeal No. 16 of 1993 (SC).

Particulars of fraud as pleaded in this case are:

- 1) The $1^{st}$ defendant purporting to transfer the suit and into his names as administrator of the estate whereas he was not; - 10 2) The $1<sup>st</sup>$ defendant purporting and attempting to obtain letter of administration through misrepresentation and decet in order to procure registration on the suit land: - 3) The $1<sup>st</sup>$ defendant purporting to transfer the suit land into his names with the intention of defeating the interests of the plaintiffs and other beneficiaries in the estate of the late Noah Gitta; - 4) The $1^{st}$ defendant purporting to sell and/or transfer part of the suit land to the $2<sup>nd</sup>$ defendant without the knowledge and condsent of the plaintiffs and other beneficiaries and with the intention of defeating their interests.

The acts of fraud raised against the $2^{nd}$ defendant were:

- 1) The $2^{nd}$ defendant purporting to purchase and/or obtain registration on part of the suit land well knowing that the same formed part of the estate of the late Noah Gitta and that the beneficiaries had not consented to the transfer; - 25 - 2) The $2^{nd}$ defendant purporting to purchase and transfer into his names part of the suit land well knowing or having cause to know that the $1<sup>st</sup>$ defendant had fraudulently and illegally caused the same to be transferred into his name; - 30 3) The $2^{nd}$ defendant deliberately refusing and/or neglecting or failing to conduct due diligence search and inquiry about the title of the $1^{st}$ defendant before purporting to purchase and transfer part of the suit land into his name, whereby he would have established that the same had been acquired fraudulently and illegally;


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4) The $2<sup>nd</sup>$ defendant purporting to purchase and transfer into his name part of the suit land in total disregard of the plaintiffs' and other benreficiaeries' interests therein:

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No.s 79 and 78.

5) The $2^{nd}$ defendant purporting to purchase and/or transfer part of the suit land into his name with the intention of defeating the interests of the plaintiffs and other beneficiaries of the estate of the late Noah Gitta.

**Issue No. 3** is answered in part, this court having found that the registration of the 1<sup>st</sup> defendant 10 had been fraudulent. The registration was made with the sole objective of defeating the interests of the rest of the beneficiaries under the estate.

Regarding the $2^{nd}$ defendant, and in relation to *clause* 8 of the purchase agreement, the $2^{nd}$ defendant, **Dw2's** argument was that the sellers had assured him that the property was free of any encumbrances or third party claims whatsoever, be it possessory or otherwise.

15 However that to date he is unable to utilize the land. He had dealt with the 1<sup>st</sup> defendant who assured him that this was their land; and that they were in the process of obtaining letters of administration.

It was also submitted by his counsel that $Dw2$ had complied with the conditions set out in the purchase agreement namely, the land sold and bought excluded the burial grounds and the residential house. That if any fraud was committed (which was denied), no fraud can be

attributed to him since he is a *bonafide* purchaser for value without notice of any adverse claim.

When asked about the search at the land office his reply was that it was his lawyer who went to the office. It is also clear from the facts as presented that the $2<sup>nd</sup>$ defendant never carried out the survey.

25 He also admitted that he did not participate in the process leading to registration of the duplicate certificate of title in his name, also claiming that the plaintiffs did not exhibit in court either photocopies of the said certificate of title or certified copies from the Land Office.

Secondly, they did not call the Registrar of Titles as a witness to discredit the process of registration of the defendants on the suit land as being illegal, null and void. In the absence of such proof, it was not therefore necessary to rectify the register in **Bulemezi Block 338 Plot**

The term *fraud* has been defined to imply an act of dishonesty. **(Kampala Bottlers Ltd. vs.)** Damaniaco (U) Ltd SCCA No. 2 of 1992.); an intentional perversion of truth for the purpose of

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inducing another in rcliance upon it to paft with some valuablc thing belonging to him or her or to surrender a legal right.

ln F. I. K Zaobwe vs Orlent Ba.nk o,nd 5 others SCCA IVo. 4 ol 2OO2) it was dcfincd as a falsc reprcsentation of a mattcr of fact, whcthcr by words or by conduct, by false or misleading allcgations or by conccalmcnt of that which deccivcs and is intendcd to deccivc anothcr so that hc/shc shall act upon it to his lcgal injury.

Undcr sectlon 59 ol the Reglstrqtlon oJ Titles Act, Cap. 23O /d?lfl, thc gencral principle is that a ccrtificatc of titlc is conclusivc cvidcncc of owncrship. Savc whcrc fraud is provcd, il is also an absolute bar and cstoppcl to an action of cjcctmcnt or rccovcry of any land. lRefer to: section 176 ol the Reglstratlon of Tltles Act, Cqp 23O (RTA) o'nd sectlon 64 (1) RfAt,

In thc dcvelopmcnt of our law, two principlcs havc strivcn for mastcry. Thc first is for thc protection of propcrty: no onc can givc bcttcr titlc than hc himsclf posscsscs (Blshopgqtes Motor F'l'Iance vs. Transport Brakes Ltd. [19491 1 KB 332, @t pqge 336-7). That principlc was emphasizcd by the Suprcmc Court in H@llln,g hlo.nzoor vs. Serwo,n Slngh Bara n4 SCCA JVo.9 ol 2OO7 lhal a pcrson cannot pass titlc that hc does not havc.

In ordcr for a party to claim intcrest in thc land, his titlc ought to bc dcrived from someone who had a recognized right and tiile on land. lGodfreg OJutang Vs. Wllson Bagonza CA No. 25 of 20O2).

20 It is tritc law that that fraud that vitiatcs a land titlc of a rcgistcrcd proprietor must be attributablc to thc transfcrcc and that fraud of a transfcror not known to thc transfcrec cannot vitiatc the titlc. (See: Wqntbuzl C. J, Ko',71palo Bottlers as Da.,[.q,.nlco (q LfD, SCCA No. 27 of 2072).

Thc 2"d defendant in this case claimcd to have becn a bona fide purchaser for valuable consideration of land. Such party would dcrivc protection under sectlon 787 ol the RTA. It is also tritc law that a pcrson who purchascs an estatc which hc/shc knows to bc in occupation of anothcr pcrson othcr than thc vcndor is nol a bona fide purchaser for value without notice of the fraud if he/she fails to makc inquirics bcforc such purchase is madc.

'l'hc tcrm is dcfincd in Black's La.w Dlctlon.ary th Edltlon qt pq.ge 7277 to mcan

"One uho bugs somethlng Jor value uithout notice of another's clqim to the propertg and wlthout o,ctua.l or constructive 'trotice of d.ng d.eJects lrt or lnJirmltles, claLlms, or equlties o,goinst the seller's title; one who has good Jaith paid ualuable conslderatlon ulth,out notice oJ prlor ad.verse clq.ims,"

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The said transactions arc guidcd by thc basic rulc is nemo dal quod habet, thal the transferor cannot pass a bettcr titlc than what hc himself posscsscs, savc of course whcre therc is clear demonstration of good faith.

5 As carlier observed, the 1"t defendant fraudulently obtained his title when he registered himself thcreon as administrator of the estate of the latc Noah Gitta, whereas not. The 2"d defendant could not thereforc claim to have purchased l3 acres of land from a pcrson who had no valid authority, and without a valid titlc.

The act ofduc diligencc requircs a prospective buycr to carry out physical inspection on the land in a bid to obtain first-hand information from thc occupants, ncighbors and LCs about the land he intcnds to buy. 10

Land transactions today arc bascd on four kcy clemcnts: caution, prccision, paticncc and prudencc. Thc opcning of boundarics bccomcs incvitablc so as to ascertain that what is on the ground is rcflectcd on the titlc, as an act of duc diligcncc. It is not thcrefore cnough for the intending buycr to stop at inspccting thc land with thc chairman; or visiting the land office and signing an agrccment, as thc 2nd defcndant did in this casc.

Thc ccrtificate of titlc, salc agrecment and lcttcrs of administration/ probate, will or gift deed {if any), and othcrs which pa-rtics may nccd to rely on must be vcrificd, to ascertain their authenticity, failing which thc plca of a bonafide purchaser for value becomes inapplicablc. A party who so fails is dccmcd to havc had constructive knowlcdgc of such fraud.

ln Ugando. Posts q.nd TeleconnnunLcrrtions us Abrqhq.m Kltrttn,ba SCCA IVo. 36 of 1995), such failurc to makc rcasonablc inquiries or ignorancc or ncgligcncc fails to mcct thc neccssary critcria for good faith; and constitutcs fraud.

As declarcd in thc casc of Otnc/ So.l,,n Muko.sa Vs Eqfi lrllhannrned. & another CACA IIO 7 74 ol 2OO3, in equity constructive knowlcdgc is dccmcd to constitutc fraud. Whethcr or not there was fraud thereforc and whcthcr or not a party was a bonafide purchaser for value without noticc, the question that a court would poisc is whethcr thc dcfendant honcstly intcnded to purchase thc suit property and did not intcnd to acquire it wrongfully. (Daold S,ello,krr Nallmr: us Rebeccq. Mwsoke SCCA No. 12 oJ 19afl. 25

ln aliBnmcnt with thc abovc principlcs, if the 2\*t dcfendant in thc prcscnt casc had taken thc trouble to carry out prior thorough investigations and consultations, hc would havc noted in the first placc, that the cstatc of thc latc Gitta was ncvcr distributcd; and that had varied intcrests 30

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and hence unresolved disputes. The 1<sup>st</sup> defendant who purported to administer it was therefore intermeddling with the estate, in violation of section 268 of the Succession Act.

While at the *locus*, **Dw2** stated that prior to the purchase, he inspected the land in the company of *Pw2*, the caretaker of the land and a grandson of Noah Gitta and the LC1 Chairman. *Pw2* however denied the claims by the $2<sup>nd</sup>$ defendant. The LC 1 did not endorse the agreement; and none of those he mentioned were called in as his witnesses in court.

Section 35 (8) of the Land Act, Cap. 227 is clear. It implies that even where a change of ownership of title is acknowledged, whether by sale, grant and succession or otherwise this would not in any way affect the existing lawful interests or *bona fide* occupant. The new owner is obliged to respect the existing interests.

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In Vivo Energy Uganda Ltd vs Lydia Kisitu CACA NO. 193 of 2013, court while laying emphasis on the need for thorough investigation declared that there was sufficient circumstantial evidence to establish fraud against a defendant.

Court also rejected the argument (as I also now hereby do), that a certificate of title was not 15 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.

Fraud is such grotesque monster that courts should hound it wherever it rears its head and wherever it seeks to take cover behind any legislation. It unravels everything and vitiates all transactions. (Fam International Ltd and Ahmad Farah vs Mohamed El Fith [1994]KARL 307).

In conclusion therefore, the evidence above demonstrates that the 2<sup>nd</sup> defendant fraudulently acquired the title for the suit land. It is also important for court to point out that the issue that each widow having earlier obtained their respective and fair share out of the estate and taken possession therefore would have been ironed out if the 1st defendant or other member of the family had duly taken out the letters of administration and distributed the estate, taking into account what each beneficiary has already acquired.

#### What remedies are available?

### General damages:

The law is that the claim for general damages must be proved. General damages are those that 30 the law presumes to arise from direct, natural or probable consequences of the act complained of by the victim.

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These follow the ordinary course or relate to all other terms of damages whether pecuniary or none pecuniary, future loss as well as damages for paid loss and suffering. See; Uganda Commercial Bank Vs Deo Kigozi [2002] EA 293.

Black's Law Dictionary 9th Edn at page 445 defines damages as the sum of money which a $\mathsf{S}$ person wronged is entitled to receive from the wrong doer as compensation for the wrong. It is trite law that damages are the direct probable consequence off the act complained of. Ref: Storms versus Hutchison (1905) AC 515.

In the case of Assist (U) Ltd. versus Italian Asphalt and Haulage & Anor, HCCS No. 1291 of 1999 at 35 it was held that the consequences could be loss of profit, physical, inconvenience, *mental distress, pain and suffering'.*

It is the defendants' claim in this case that the plaintiffs did not prove that they have suffered any loss; and indeed while at the locus, part of the suit land was found to be bushy, and not properly in use.

Be that as it may, the inconvenience, betrayal of trust and expenses of an expensive trial (since 15 2014) suffered by the beneficiaries were partly attributable to the 1<sup>st</sup> defendant and partly to the $2<sup>nd</sup>$ defendant 2014. This justifies an award of general damages of *Ugx* **20,000,000/=** against the two defendants.

## Cancellation of the title:

The plaintiffs prayed for cancellation of registration of the defendants on the suit land comprised 20 in certificate of title for Bulemezi Block 338 Plot Nos. 79 and 78.

Under **section 177 of the RTA** where there is recovery of land court may direct the office of the Registrar of titles as I now hereby do, to cancel the title fraudulently issued and this relates to both plots 78 and 79 land situated at Kifunfugu, LC1 Mpedde Parish, Kasangombe Sub **County at Nakaseke District,** the ownership of which shall revert into the names of the late

25 Noah Gitta.

Accordingly, the plaintiffs' action succeeds and orders below granted:

a). the suit land comprised in Bulemezi Block 3,38 Plots 78 and 79 (formerly) Plot 1 land situated at Kifunfugu, LC1 Mpedde Parish, Kasangombe Sub County at Nakaseke District (suit land) forms part of the estate of the late Noah Gitta;

b) the transfer and or registration of the defendants on the suit land was fraudulently procured and as therefore illegal, null and void.

$\left(\left(\frac{1}{2}\right)^{1/2}\right)^{1/2}$

c) the names of the names of Noah Gitta or his duly appointed administrator shall be reinstated on the title of the suit land, comprised in Bulemezi Block 338 Plot Nos 79 and 78;

d). the $2^{nd}$ defendant is a trespasser on the suit land;

e) a permanent injunction issues against the defendants and their agents to restrain them *from dealing with the suit land;*

*f)* the $2^{nd}$ defendant is entitled to a full recovery of the purchase money irregularly paid by him and received and refundable by the $1<sup>st</sup>$ defendant and others who endorsed the invalid *sale agreement;*

f) general damages of $Ugx$ 20,000,000/= awarded to the plaintiffs, payable by the defendants jointly, with interest of 15%, accruing from the date of delivering this judgment *till payment is made in full;*

*g) the counterclaim is dismissed.*

Costs to the plaintiffs.

I so order.

Alexandra Nkonge Rugadu

**Judge**

25<sup>th</sup> January, 2023

Delivered by encul<br>25/1/2023<br>Andrey

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