Ntumwa v Liao Qingling & Another (Civil Suit 735 of 2022) [2024] UGHCLD 220 (16 September 2024)

# **THE REPUBLIC OF UGANDA**

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

# **(LAND DIVISION)**

# **CIVIL SUIT NO.0735 OF 2022**

**NTUMWA DENNIS :::::::::::::::::::::::::::::::::::::::: PLAINTIFF**

# **VERSUS**

**1. LIAO QINGLING**

**2. COMMISSIONER LAND REGISTRATION: DEFENDANTS**

### **COUNTER CLAIM**

**LIAO QINGLING ::::::::::::::::::::::::::: COUNTER CLAIMANT**

## **VERSUS**

### **1. NTUMWA DENNIS**

**2. THE COMMISSIONER LAND REGISTRATION :::::::::: COUNTER DEFENDANTS**

# **BEFORE; HON LADY JUSTICE NALUZZE AISHA BATALA**

# **JUDGEMENT**

## *Introduction;*

1. The Plaintiff brought this suit against the defendants jointly and severally seeking the following remedies;

- i. General damages for trespass against the 1st Defendant. - ii. A permanent injunction restraining the Defendants, their agents, workers and/or anyone claiming under him from interfering with the Plaintiffs quiet enjoyment of the suit property or in any way dealing with the suit property and trespassing on it. - iii. An order of vacant possession against the 1st Defendant and persons claiming under him. - iv. An order for the removal of caveats lodged on the land by the Defendants. - v. Costs of the suit - vi. And any other reliefs as court may deem fit. - 2. The 1st Defendant through his Written Statement of Defence denied each and every allegation laid out in the Plaint and stated that he would raise a preliminary point of law that the Plaintiff's suit discloses no cause of action against the 1st defendant, it is misconceived, frivolous and vexatious and shall seek to have the same dismissed.

- 3. The 1st Defendant also instituted a counter-claim against the Plaintiff together with the Commissioner Land Registration for; - i. A declaration that the 1st Counter Defendant's actions of obtaining a special certificate of Title for Land comprised in LRV 1738 Folio 8 Plot 3 upper Naguru East Road and transferring the same into his name are fraudulent and illegal. - ii. An order directing the 2nd Counter Defendant to cancel the special Certificate of Title for the land comprised in LRV 1738 Folio 8 Plot 3 upper Naguru East Road. - iii. An order directing the 2nd Counter Defendant to cause the deregistration of the 1st Counter Defendant on the title for the land comprised in LRV 1738 Folio 8 Plot 3 upper Naguru East Road on the ground that he was fraudulently registered and reinstate the counter claimant as the registered proprietor. - iv. An order directing the 1st Counter Defendant to surrender the Special Certificate of Title of the land

comprised in LRV 1738 Folio 8 Plot 3 upper Naguru East Road to the 2nd Counter Defendant for cancellation.

- v. A permanent injunction against the 1st Counter Defendant prohibiting him from dealing whatsoever with land comprised in LRV 1738 Folio 8 Plot 3 upper Naguru East Road. - vi. Special damages, punitive and aggravated damages. - vii. Costs of the suit. - 4. The Counter Claimant further raised particulars of fraud which are; - i. The 1st Counter Defendant fraudulently applying for a special certificate of Title for the suit property. - ii. The 1st counter Defendant forging the counter claimant's signature on the Application for special certificate and statutory declaration. - iii. The police report dated 9th March 2022 attached to the statutory Declaration in support of the Application for special certificate of title is from Kampala Road Police station yet the case was allegedly reported at Wandegeya Police station.

- iv. The commissioner for oaths, who purportedly witnessed the said statutory declaration Muhumuza Jackson is nonexistent. - v. That the 1st Counter defendant forged the signature of the counter Claimant on the transfer dated 14th June 2022, the counter claimant was at the time in china. - vi. The Advocate Kiyimba Hassan who purportedly witnessed the counter claimant sign the transfer form is nonexistent. - vii. The counter claimant's passport copy used for the transfer had been phased out. - 5. The counter claimant further raised particulars of special damages in which he stated that the cost return air ticket from china to Uganda amounted to USD11.850(United States Dollars Eleven Thousand Eight Hundred Fifty) - 6. The 2nd Defendant that is Commissioner Land Registration filed his Written Statement of Defence to the Plaint. - 7. The Plaintiff filed a Reply to the 1st Defendants Written Statement of Defence and maintained his claims in the Plaint.

8. The 1st counter Defendant further filed a Reply to the Counter claim and denied all allegations of the Counter Claimant and further stated that the counter claim is frivolous, vexatious, and discloses no reasonable cause of action against the 1st Counter Defendant.

### *Representation;*

- 9. The defendant/counter claimant was represented by Counsel Elton Mugabi of M/S Mugabi Nanyondo & Co. Advocates whereas there was no representation from the counter defendants. - 10. The Counter claimant filed written submissions that have been relied on. Both counter Defendants did not file their submissions.1st counter Defendant was served through substituted service but did not appear for court proceedings. Only the Counter Claimant appeared for hearing and prayed to proceed ex-parte which order was granted by this court.

# *Issues for Determination;*

**1. Whether the 1st counter Defendant's actions of obtaining the special certificate of Title to the suit land**

**in the names of the counter claimant and the subsequent transfer into his names were tainted with fraud and illegality?**

# **2. Whether the Plaintiff by counter claim is entitled to the remedies sought?**

#### *Resolution and determination of Issues;*

### Counter Claimant's submissions

- 11. Counsel for the Counter claimant submitted that the 1st counter Defendant's actions of obtaining the special certificate of title for the suit property and the subsequent transfer into his name was fraudulent and illegal. - 12. Counsel cited the case of **Fredrick J. K Zaabwe v Orient Bank Ltd & Others Civil Appeal No.04/2006** which defined fraud to mean the intentional perversion of the truth for purposes of inducing another in reliance upon to part with some valuable thing belonging to him or to surrender a legal right. A false representation of a matter of fact whether by word or by conduct, by false or misleading allegations, or by concealments of that which

deceives and is intended to deceive another so that he shall act upon it to his legal injury..."

- 13. Counsel submitted that in the instant case, the 1st counter defendant had the intention to defraud the counter claimant of his legal right to the suit property. - 14. He further submitted that according to the witness statement of PW1, it was discovered that the 1st counter defendant fraudulently transferred the property into his name on 21st June 2022 after obtaining a special certificate of Title. At the time, the counter claimant was in china and did not sign the said transfer form. The Advocate Kiyimba Hassan purportedly said to have witnessed the counter claimant signing the transfer form is nonexistent.

### **Analysis by court;**

Before I proceed to determine this matter, I have taken cognizance of the fact that the counter claimant has cited provisions of the previous laws that have now been revised. I will cite and use sections of the current revised laws of Uganda without necessarily making reference to the previous provisions.

- 15. Section 76 of Registration of Titles Act states: "Any Certificate of Title, entry, removal of encumbrance, or cancellation, in the Register Book, procured or made by fraud, shall be void as against all parties or privies to the fraud." - 16. Fraud was defined in the case of **Fredrick J. K. Zaabwe Vs Orient Bank Ltd. Civil Appeal No. 4 of 2006 (Supreme Court)** which has been widely followed stated that fraud is "intentional perversion of the truth for purposes of inducing another in reliance upon to part with some valuable thing belonging to him or to surrender a legal right. A false representation of a matter of fact whether by word or by conduct, by false or misleading allegations, or by concealments of that which deceives and is intended to deceive another so that he shall act upon it to his legal injury." - 17. Anything calculated to deceive, whether by a single act or culmination, or by suppression of truth, or suggestion of what is false, whether it is by direct falsehood or the innuendo by speech or silence, word of mouth, or look or gesture, a generic term, embracing all multifarious means

 which human ingenuity can devise and which are resorted to by one individual to get advantage over another by false suggestions or by suppression of truth, and includes all surprise, trick, cunning, dissembling, and any unfair way by which another is cheated.

- 18. PW1 for the counter claim led her evidence to the effect that the 1st counter defendant Ntumwa Dennis applied for and obtained a special certificate of title in the names of Mr. LIAO Qingling and went ahead and transferred it into his names. - 19. This whole process was done at the time when Mr. Liao was in China because he left in 2018. The title was processed in 2022 and transferred in June 2022 to himself since Ntumwa was not known to Mr. Liao. - 20. In 2022 July after completing the transfer, Ntumwa issued a notice to the caretakers who were in the premises to vacate the property and the caretakers forwarded it to their boss who was in China at the time. - 21. The particulars and series of fraud as alleged by the counter claimant as follows; a) The 1st counter defendant fraudulently applying for a special certificate of title for the

suit property. b) The 1st counter defendant forging the claimant's signature on the Application for a special certificate and statutory declaration, c) The police report dated 9th March attached to the statutory declaration in support of the Application for a special certificate of title is from Kampala police station yet the case was allegedly reported to Wandegeya police station, d) The commissioner for oaths who purportedly witnessed the statutory declaration Muhumuza Jackson is nonexistent, e) The 1st counter defendant forging the signature of the counter Claimant on the transfer form dated 14th June 2022. The counter claimant was at the time in China, f) The Advocate Kiyimba Hassan who purportedly witnessed the counter claimant sign the transfer form is nonexistent. g) The counter claimant's passport copy used for the transfer had been phased out.

22. The counter claimant's evidence is to the effect that the 1st counter defendant fraudulently applied for a special certificate of title of the suit land. According to P7 and P9, which letters are from the Chief Registrar, the commissioner for oaths and the Advocate who witnessed

on the Application for special certificate and statutory declaration are non-existent which means that these were forged.

- 23. Furthermore, at the time of the Application for special certificate of title, the counter claimant was in china. - 24. The circumstances under which the 1st counter Defendant got registered on the special certificate of title were dishonest and a wilful perversion of the truth that aimed at depriving the counter claimant of his suit property. - 25. As submitted by counsel for the counter claimant, it is evident that the special certificate of Title was acquired fraudulently and hence it was an illegal transaction.

**Issue 2;** Whether the counter claimant is entitled to the Remedies sought.

- 26. Having resolved the 1st issue in the affirmative, the counter claimant is entitled to the declarations sought. - 27. An order directing the 2nd counter Defendant to cancel the special certificate of title of land comprised in LRV1738 Folio 8 Plot 3 Upper Naguru East Road and an order directing the 2nd counter defendant to cause the de-

registration of the 1st counter Defendant on the title for the land comprised in LRV 1738 Folio 8 Plot 3 upper Naguru East Road on the ground that it was fraudulently registered and reinstate the counter claimant as the registered proprietor of the suit land.

- 28. An order directing the 1st counter defendant to surrender the special certificate of title of land comprised in LRV 1738 Folio 8 Plot 3 upper Naguru East Road to the 2nd counter Defendant for cancellation. - 29. Section. 76 of the Registration of Titles Act states: "Any Certificate of Title, entry, removal of encumbrance, or cancellation, in the Register Book, procured or made by fraud, shall be void as against all parties or privies to the fraud." - 30. The 1st counter defendant procured the special certificate of title to the suit land fraudulently and therefore it is ordered that; - i) The 2nd counter Defendant cancels the special certificate of title of land comprised I LRV1738 Folio 8 Plot 3 upper Naguru East Road that was fraudulently obtained by the 1st counter defendant.

- ii) The 2nd counter Defendant de-registers the 1st counter defendant on the title LRV1738 Folio 8 Plot 3 upper Naguru East Road whose registration was acquired fraudulently. - iii) The 1st counter defendant surrenders the Special certificate of title to the 2nd counter Defendant for land comprised in LRV1738 Folio 8 plot 3 Upper Naguru East Road for cancellation. - iv) A permanent injunction against the Counter Defendant prohibiting him from dealing with the land comprised in LRV1738 Folio 8 Plot 3 upper Naguru East Road. Since this Court has established that the 1st counter defendant fraudulently obtained a special certificate of title in respect to the suit land, an injunction is issued stopping him from interfering or doing any act on the suit land. - 31. **Aggravated/punitive damages**; Punitive or aggravated damages are awarded not merely to compensate the injured party but rather to punish the party whose actions and conduct were outrageous.

- 32. Punitive or exemplary damages may be awarded not merely to compensate the plaintiff but to punish the defendant and mark the outrageous nature of his conduct. - *33.* I am of the view that the court should not be concerned with the conduct of the defendant per se but with the effect which that conduct had on the plaintiff's feelings and pride. *(see; Daniel Oboth v The New Vision Printing and Publishing Corporation SC Civil Appeal No. 12 of 1990)* - *34.* Since the 1st counter defendant's actions of fraud were intended to deprive the counter claimant of his suit property in a very strange way and out of total disregard of a land owner's rights, this court awards aggravated/punitive damages of 5,000,000/= (five Million Uganda Shillings). - *35.* **Special damages;** These are specifically proved by the aggrieved party. In the instant case, the counter claimant has proved that he suffered a loss of USD 11,850 (United States Dollars Eleven Thousand Eight Hundred Fifty) to travel to Uganda from China to attend court hearings in respect to the suit. Court therefore orders the 1st counter

defendant to pay the counter claimant a total of USD 11,850 as special damages

- *36.* **General damages;** These are awarded at the discretion of court and the purpose is to restore the aggrieved person to the position they would have been in had the breach or wrong not occurred. - *37.* Counsel submitted that the counter claimant suffered loss was direct, immediate and aproximate consequence of the 1st counter defendant's deliberate acts. It is therefore ordered that the 1st counter defendant pays the Counter claimant general damages of UGX 10,000,000 (Ten Million Uganda Shillings) - *38.* Interest at court rate of 10% on punitive and general damages from the date of this judgment till payment in full. - *39.* Costs to the suit. These are provided for under section 27(2) of the Civil Procedure Act. The counter claimant as the successful party is entitled to costs of the suit.

In the premises, judgment is entered for the counter-claimant with the followings orders;

i) The 1st counter defendant surrenders the Special certificate of title to the 2nd counter Defendant for

land comprised in LRV1738 Folio 8 plot 3 Upper Naguru East Road for cancellation.

- ii) The 2nd counter Defendant cancels the special certificate of title of land comprised I LRV1738 Folio 8 Plot 3 upper Naguru East Road that was fraudulently obtained by the 1st counter defendant - iii) The 2nd counter Defendant de-registers the 1st counter defendant on the title LRV1738 Folio 8 Plot 3 upper Naguru East Road whose registration was acquired fraudulently. - iv) A permanent injunction against the Counter Defendant prohibiting him from dealing with the land comprised in LRV1738 Folio 8 Plot 3 upper Naguru East Road. Since this Court has established that the 1st counter defendant fraudulently obtained a special certificate of title in respect to the suit land, an injunction is issued stopping him from interfering or doing any act on the suit land - v) An award of Ughs 5,000,000 (five million Uganda shillings) as punitive damages to the counter claimant.

- vi) An award of USD 11,850 (United States Dollars Eleven Thousand Eight Hundred Fifty) as special damages to the counter claimant. - vii) An award of Ughs 10,000,000(Ten million Ugandan shillings) as general damages awarded to the counter claimant - viii) Interest rate of 10% on punitive and general damages from the date of this judgement until payment in full. - ix) Costs of the suit awarded to the counter claimant.

## **I SO ORDER**

## **NALUZZE AISHA BATALA**

## **Ag. JUDGE.**

*Delivered on the 16th of September 2024 electronically*

*via ECCMIS*