Obongi and 2 Others v Atuhaire and 2 Others (717 of 2018; 718 of 2018; Civil Suit 716 of 2018) [2023] UGHCLD 159 (25 January 2023)

Full Case Text

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA **LAND DIVISION**

# CIVIL SUITS NO 716, 717 AND 718 OF 2018 AS CONSOLIDATED 1. OBONGI CHARLES

### 2. KASAATO POLLINE

### 3. MULASIBWA BRIAN;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;; **VERSUS**

### 1. ATUHAIRE MAUREEN

### 2. KAFEERO VINCENT

3. MUSISI GEORGE WILLIAM::::::::::::::::::::::::::::::::::

## **BEFORE: HON. MR. JUSTICE TADEO ASIIMWE JUDGEMENT**

The plaintiffs jointly and severally suit the defendant seeking for a declaration that they are respectively the rightful and lawful owners of the suit plots, that the actions of the 1st defendant are baseless, illegal and amount to trespass on the suit plots of land comprised in Busiro, an order that the name of the 1st defendant on the certificates of tittle on the suit property be cancelled and the same be replaced with the names of the plaintiff, an eviction order of the 1st defendant from the suit plots of land, a permanent injunction restraining the defendants, there servants, agents, employees, servants and or any other person claiming under them from claiming ownership and or trespassing on the suit plots, general damages, interest on general damages and costs.

The plaintiff's case is that they purchased the suit land comprised in plot 447,448 and 449 which were originally plot 16, 2 and 14 before opening of houndaries. That

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she purchased the said land from Hossana leal estate where in the 2nd defendant signed as a director also having also purchased the same from the 3'd defendant' That the 2nd defendant instead went ahead to sell the same land to the l't defendant who interfered with her quiet possession yet had tittle ofthe said plots transferred to her names

On the other hand, the 2'd and 3'd defendants did not file their written statements of defence and the case proceeded exparte against them'

The I't defendant's case is that she acquired the disputed land through purchase from the 2nd defendant and later on the 3'd defendant came up in picture as the real owner of the land and upon physical sub division, plotting on ground her plots became 477,488 and 449 for which transfer forms were signed in her favor and that at the time ofpurchase the land had not been plotted by lands'

The plaintiff s claim is that the transactions on the suit land were fraudulent and illegal intended to deprive her ofher legal and equitable interests in the suit land' The pa(iculars of fraud are as follows;-

- 1. Allocation of the suit plots of land by the 2nd defendant to the I't defendant when the 2nd defendant was in prison with full knowledge that the same were legally owned by the Plaintiffs. - 2. Allocation of the suit plot to the l't defendant when the 2nd defendant was in prison with full knowledge that the same were legally owned by the plaintiffs. - 3. Allocation of the suit plots by the 2nd defendant to the l't defendant well knowing that the plaintiffhad purchased the suit land and in actual physical possession of the same. - 4. Transferring the suit land in to the names of the l't defendant without carrying out due diligence to asceftain the actual owner of the suit plots of land on ground.

At scheduling the following issues were agreed for courts determination.

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- 1. Whether the plaintiffs have an interest in the suit land - 2. Whether the actions of the defendants on the suit land were unlawful and thus amounted to trespass there on. - 3. What remedies are available to the parties.

At the hearing the plaintiffs were represented by counsel HENRY ODAMA AND JULIAN NAKIRIJA while the defendant was represented by Counsel KAKEETO **DENIS**

The plaintiffs called evidence of 3 witnesses and the defendants called 1 witness Both counsel filed written final submissions which this court shall consider to determine this case.

#### **EVIDENCE**

In all civil matters, the plaintiff bears the burden to prove his/ her case on the balance of probabilities. The plaintiff in this case by virtue of section 101, 102 and 103 of the Evidence Act has the burden to prove all the facts alleged by him in the plaint; section 101 of the Evidence Act, provides that;

"Whoever desires any court to give Judgement as to any Legal right or Liability, dependent on the existence of facts which he or she asserts must prove that those facts exist".

In a bid to prove their respective cases, the plaintiff called 3witnesses and the defendant called one witness.

PW1 Mulasibwa Bulambo Brian testified in this Honorable court and stated that on the 5th of July, 2013 he purchased one of the suit plots which was plot 16 and later after survey was marked as plot 447 from Hossana Real Estates and the 2nd defendant signed on his purchase agreement as a Director. That an agreement was executed after final payment and vacant possession granted to him. That the 2nd and the 3rd plaintiffs purchased the adjacent two plots that is plot 14 and plot 2 which later turned into plots 448 and 449 respectively. That as they waited patiently for transfer

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and procurement for the certificate of title for their respective plots, an unknown person who turned out to be the 1st defendant destroyed the fences of the plaintiffs claiming to have bought the 3 plots of land belonging to the plaintiffs and later turned out that he had obtained a certificate of title over the suit plots without the knowledge and consent of the plaintiffs.

PW2 Kasaato Pauline testified to this court that on the 27th of November, 2013 he executed an agreement for purchase of lands belonging to Hossana Real Fstates after paying the last instalment land comprised in block 456 identified as plot 2. That after execution of the agreement she was given vacant possession of the same plots and immediately begun utilizing the same plot.

That she continued utilizing her plot waiting for a certificate of title to no avail. That in 2017, an unknown person who later turned out to be the 1st defendant destroyed my fence claiming that she had bought the suit plots. The complaint was lodged at police and investigations done where we discovered that the 1st defendant had purchased the same plots and had procured a title in her names over the said plots. PW3 Obongi Charles testified in this Honorable court that on the 11th of May, 2013 he purchased a plot of land identified as plot 4 and later plot 449 from Hossana Real Estates. That he immediately begun occupying his land until 2017 when an unknown person who later turned to be the 1st defendant made a call to him claiming that he had trespassed on her land. That he and other 2 plaintiffs never received their certificates of title as promised by the defendant. Later they found out that the 1st defendant had procured title over the plots of land.

On the other hand, DW1 Moreen testified to this Honorable court that on the 31st day of March, 2014 he purchased the suit property from Hossana Real Estate who had bought the same from the 3rd defendant. That the 2nd defendant on behalf of Hossana Real Estates with the consent of the 3rd defendant passed on their registered

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interest to her and she took control and possession of the suit land. That she procured title over the said suit plots and bought the same as a bonafied purchaser for value without a notice and did not commit any fraud.

### **RESSOLUTION.**

# 1. Whether the plaintiffs have an interest in the suit land

On this issue counsel for the plaintiffs submitted that the plaintiffs purchased the suit land as per the evidence on record and enjoyed quiet possession until they were disturbed by the defendant. That the defendants were aware of the interests of the plaintiffs in the suit land but still went on to illegally and intentionally defeat the interests of the plaintiffs by transferring the certificates of tittle in the names of the 1st defendant who cannot be said to be an innocent party or a bonafide purchaser for value.

On the other hand, the defendants counsel submitted that the first plaintiff was bound by the default clauses in PEX1 and the only remedy is to seek a reimbursements. Further that the 2nd plaintiff was allocated different land on the 30 of March 2015 to plot 15 yet the defendant had bought earlier on the $31/03/2014$ .

Further that the 3rd plaintiff as per the evidence on record purchased land in block 456 and not 117.

From the evidence on record, it is not in dispute that the 3rd defendant was the original registered owner of the suit land and later sold it to hosanna real estates, accompany where the $2^{nd}$ defendant is the plaintiffs and the 1st defendants.

The 1st, 2nd and 3rd plaintiffs purchased the suit land from hosanna real estates as per PE1, PE9 and PE16 on 5/07/2013, 27/11/2013 and 11/05/2013 respectively. The 1st plaintiff purchased plot 16 now plot 447, the second plaintiff purchased plot 2 but later on the 30/03/2015 allocated plot 15 now plot 448 and the 3rd plaintiff acquired plot 4 now plot 449.

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To begin with, whereas one cannot pass better tittle than he owns, it is immaterial that the 2nd defendant dealt with the plaintiffs before he finished paying installments of his purchase.

The law on payment on installment in land was simplified in the case **SEMAKULA** AND ANOTHER VS SETIMBA CA NO.5 OF 2014. Where court held that in the sale of immovable property, upon payment of a deposit, property passes to the purchaser who acquires an equitable interest in the property and the vendor becomes a trustee who holds the property in trust for the purchaser.

Therefore I cannot be said that the 2nd defendant did not have a tittle to pass to the plaintiffs. Besides by the time the plaintiffs finished paying there instalments, the transaction between the third defendant and the 2nd defendant were equally complete and the 2nd defendant was free to validate his transactions concerning the suit land. Consequently the defendants' argument that defendant number two could not pass a better tittle to the plaintiffs is misconceived.

Additionally the defendants counsel relied on the default clause in PEX1 invalidate the $1^{st}$ plaintiffs' interest in the suit land.

To begin with, one cannot rely on a default clause of an agreement he is not party to assert his or her rights. Secondly even in it were the second defendant to rely on it, it would still be absurd for reasons that at the time when the default clause fell due, he did not refund the money of the 1st plaintiff hence accepting, validating, or condoning the default. Therefore, he would not turn around to rely on the same default clause.

As regards the 2nd plaintiff, whereas the reallocation as per PE15 Took place on the 30/05/2016 after the defendant had purchased her interest, the evidence on record is that the 1st plaintiff was allocated plot 15 now plot 449 while the 1st defendant purchased plots 8 and 9 as per DEX1 AND DEX2. Further DEX4, 5 AND 6 are very clear that the 1st defendant had purchased plot 450,451 and 453 and in letters

dated30l05/2016, the 2nd defendant was requesting the 3'd defendant to release plots 450,45|and452tothel'ldefendant. ThesaidplotsweresubjectofDE6the memorandum of understanding the Irr2nd and 3,d defendant. However a subsequent letter was written on the 24th of December 2016 requesting the 3'd defendant to insteadreleasep|ots44T,44gand44Ssincetheearlieronehadbeenencumbered' Unfortunately, this letter was preceded by all transactions ofthe I't and 3'd plaintiff

and the reallocation ofplot 4 now 448 to the 2nd plaintiff'

Be that as it may, the common law doctrine of priority (priority of rights in land) comes in play. lt is also known as first in time -first in rights'

It was expounded in in a book titled principles of land law Mugambwa on page 60. That in situations where all rival claims are equitable, interests and equal in all respects, priority of times gives better equity'

In John katarikawe vs William katwiremu (1977) HjCB 187;-where there are competing equal interests, the first in time takes precedence'

Therefore having found that the interests ofthe plaintiffs preceded the interest ofthe 1't defendant, their interests take precedence'

Be that as it may it is in the interest ofjustice to rule out if the l't defendant was a bonafide purchaser for value as she pleaded'

The dehnitions cited ofa bonafide purchaser as per Bugoba versus Kigozi and M Mbabali; HCCS No.054 of 2004' is that;

,,lt refers to one without notice offraud and without intent to wrongly acquire title ".

### Also Black's Law Dictionary; 8th Edn page l29l states that;

,,A bonafide purchaser is one who buys something for value without notice of another claim to the property and whether the actual or constructive notice of another claim to the property andwhether actual or constructive notice of any defect inst the seller's title or one who was i or informality claims or equities aga good

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faith, pending valuable consideration for property without notice of prior adverse claims ".

In this cases, from the evidence on record, the 1't defendant was aware ofthe disputes of the suit land emanating from different claims of interest. Stemming from the evidence on record, by the time the 1't defendant was re allocated to plols 1447 ,2448 and 1449 in September 2016, the plaintiffs had already settled and started utilizing the suit land.

It goes without saying that constructively or actually knew that the plaintiffs were on the suit land. She therefore cannot assert that she was a bonafide purchaser for value.

Consequently issue one is answered in the positive, the plaintiffs have an interest in the suit land.

#### ISSUE TWO

Whether the actions of the defendants on the suit land were unlawful and thus amounted to tresPass there on.

This issue was divided in to two segment so as to deal with fraud and trespass.

I shall therefore deal with whether the defendant's actions on the suit land were fraudulent.

The Court in the case of Fredrick Zaabwe Vs Orient Bank & Others SCCA No, 4 of2006, definedfraud to mean the intentional perversion ofthe truth by a person for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or her or to suruender a legal right. It is afalse representation of a matter of fact whether by words or by conduct, by false or misleading allegations or concealment of that which deceives and it is intended to deceive another so that he or she shall act upon it to his or her legal iniury.

In Kamp held that; ala Bottlers Ltd vs Damanico (U) Ltd, SCCA No.2 of 2ri as

" fraud must be strictly proved, the burden being heavier than one on balance of probabilities generally applied in civil matters, it was further held that;

'The party must prove that the fraud was attributed to the transferee. It must be attributable either directly or by necessary implication, that is; the transferee must be guilty of some fraudulent act or must have known of such act by somebody else and taken advantage of such act."

In John Katarikawe v William Katwiremu & Another, Civil Suit No 2 of 1973 (unreported) the High Court, while dealing with S.145 of the Act, said,

"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. In the absence of a statutory definition of fraud I would adopt the definition in a similar Kenyan Statute which defines fraud as "fraud shall on the part of a person obtaining registration include a proved knowledge of the existence of an unregistered interest on the part of some other person, whose interest he knowingly and wrongfully defeats by such registration." I take this view because I doubt whether the framers of the Act ever intended to encourage dishonest dealings in land such as manifest in this case."

A person procures registration to defeat an unregistered interest on the part of another person of which he is proved to have had knowledge."

In this case, I have already found that the 1st plaintiff was aware of the plaintiffs occupation of the suit land before September 2016 when she allowed to be allocated the plaintiffs plots which are different from what she purchased as per DEX1 AND DEX2.

She however went ahead to acquire tittle over the same land with the help of the defendants who clearly knew that the suit land had been sold to the plaintiffs. This was confirmed by exhibit no PE22 a report from police which confirmed that there

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weredisputesonthesuitlandbybetweenthepartiesandconfirmedtheplaintiffsas the rightful owners of the suit land'

In addition, as per evidence on record, the transfer forms ofthe said plots were signed infavorofthel,tdefendantin.z}l2waybeforeshepurchasedlandfromthesecond defendant and way before the suit property was allocated to her as she could not have obtained transfer forms before purchase. Evidence of the agreement DE1 shows that she purchased the suit land on 3110312014'

These actions were not only wrong but fraudulent'

## Whether the Defendant is a trespasser on the suit land:

Trespass to land was defined by E' Vetch in his book The East African Cases on the Law of Tort (l st Edition, 1972, Suet and Maxwell London at page 229), to mean' unauthorized entry on the person's soil with no right'

That trespass to land is actionable perse, that fi does not require proofofadditional factstoconstituteacauseofactionintrespasstoland,Itisanabsoluterightand any intederence or invasion in tort which is actionable'

Atortoftrespasstolandiscommittednotagainstthelandbutagainsttheperson who is in actual or constructive possession of the land'

For a tort of trespass to be sustained, an element of entry without permission of the owner must be Proved.

In the case of E. M. N Lutaya versus Stirling civil Engineering civil Appeal No.llof2012,whereitwasheldthattrespasstolandoccurswhenpeoplemake unauthorized entry upon the land and thereby interfere with another person's lawful possession ofthe land. The standard ofproofaccordingto Section 101, 102 and 103 of the Evidence Act, is that he who alleges a fact must prove it'

As already resolved in the lst and2nd issues above, the lawfully acquire a land title from hosanna real estates. 1st t not

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Secondly, the circumstances under which the Defendant got registered on the suit land were fraudulent.

Inconclusion'IfindsufficientevidenceprovingthatthePlaintiffsarethelawful owners of the suit land and did not authorize the I't Defendant to enter on it' The Defendant had no legal claim over the same, her interference with the suit land and breaking fences there in amounts to trespass'

Consequently, issue two is answered in the positive'

### 3. What remedies are available to the parties'

Inn there pleadings, the plaintiffs sought for the following remedies. v/hich I shall address one bY one.

- l.adeclarationthattheplaintiffsarerespectivelytherightfulandlawful owners of the suit Plots, - 2. A declaration that the actions of the lst defendant are baseless, illegal and amount to trespass on the suit plots. - 3. an order that the name ofthe lst defendant on the certificates oftittle on the suit propeny be cancelled and the same be replaced with the names of the plaintiff, - 4. an eviction order of the lst defendant from the suit plots ofland, - 5. a permanent injunction restraining the defendants, there servants, agents, employees, servants and or any other person claiming under them from claiming ownership and or trespassing on the suit plots, - 6. general damages, - 7. Interest on general damages and costs.

I shall deal with remedies l, 4, & 5 together and 3, 5, 6 separately'

laintiffs are respectively the righ l. A declaration that the P owners of the suit plots, I la dla u

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- 2. A declaration that the actions of the 1st defendant are baseless, illegal and amount to trespass on the suit plots. - 4. An eviction order of the 1st defendant from the suit plots of land, - 5. A permanent injunction restraining the defendants, there servants, agents, employees, servants and or any other person claiming under them from claiming ownership and or trespassing on the suit plots,

Having earlier found that the plaintiffs are the rightful owners of the suit land and that the actions of the defendants were fraudulent and amounted to trespass I so declare.

Be that as it may, an order of eviction and permanent injunction doth issue against the defendants and their agents.

# 3. An order that the name of the 1st defendant on the certificates of tittle on the suit property be cancelled and the same be replaced with the names of the plaintiff

Under Section 59 Registration of Titles Act possession of a certificate of title by a registered person is conclusive evidence of ownership of the land described therein. Further, under Section 176 (c) of the Registration of Titles Act, a registered proprietor of land is protected against an action for ejectment except on ground of fraud. (See Kampala Bottlers versus Damanico (U) Ltd, S. C. Civil Appeal No. 22 of 1992 and H. R. Patel versus B. K. Patel [1992 - 1993] HCB 137). Therefore, the Plaintiff can only be impeached on grounds of illegality or fraud, attributable to the transferee.

In this case court has already found that the actions of the defendants in procuring tittle in the names if the $1^{st}$ defendant were fraudulent.

Section 177 of the Registration of titles Act empowers this Court to direct the cancellation of the Certificate of title or any entries thereof which have been fraudulently or unlawfully obtained in the present case' I do hereby order the cancellation of the I't Defendant, ATUHAIRE MAUREEN on all the Certificates of title in respect of the suit land, and instead, the same be registered in the names of the plaintiffs according to their respective plots specificaliy plot 447'448 and 449 respectivelY'.

#### 6. General damages'

Inthiscase,althoughtheplaintiffspleadeddamages'theydidnotsubmitonthemin their submissions,

However, trespass in all its forms is actionable per se, i.e., there is no need for the plaintiff to prove that he or she has sustained actual damage' That no damage must be shown before an action will lie is an important hallmark of trespass to land contrasted with other torts. But without proof of actual Ioss or damage, courts usually award nominal damages. Damages for torts actionable per se are said to be "at large"' that is to say the court, taking all the relevant circumstances into account, will reach an intuitive assessment of the loss which it considers the plaintiff has sustained' The award of general damages is in the Discretion of court in respect of what law presumes to be the natural and probable consequence of the defendant's act or omission (see James Fredrick Nsubuga v. Attorney Generalo H.c. civil Suit No. 13of 1993 and Erukana Kuwe v. Isaac Patrick Matovu and another, H. C. Civil Suit No.

#### 177 of2O03).

In an action of trespass if proved by the plaintiff, he or she is entitled to recover damages even though he or she has not suffered actual loss. Ifthe trespass has caused the plaintiff actual damage, the plaintiff is entitled to receive such an amount as will compensate him or her for his or her loss.

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Inthiscaseitwasthetestimonyoftheplaintiffsthattheirfenceswereputdownby the 1rt defendant. They went ahead to leport a case of criminal trespass and malicious damage which were proved by PEX22 a poiice report on the dispute between the partles.

I shall therefore ward the plaintiffs damages of ugx 15'000'000/: as general damagesagainstthel,tdefendant'Iamsatisfiedthattheplaintiffshaveprovedand are entitled to damages'

## 7. Costs.

Section 27 of the civil procedure act is to the effect that costs follow the event' Therefore the plaintiffs having succeeded on all issues, they are entitled to costs against all the defendants.

In conclusion this suit succeeds with the following orders'

- 1, A declaration that the plaintiffs are respectively the rightful and lawful owners of the suit Plots, - 2. A declaration that the actions ofthe 1st defendant are fraudulent, illegal and amount to trespass on the 3 suit plots' - 3. An order directing the registrar oftittles to cancel the certificates oftittle on the suit property in the names of the 1't defendant and the same be replaced with the names of the Plaintiffs. - 4. A permanent injunction restraining the defendants, their servants, agents, employees, servants and or any other person claiming under them from claiming ownership and or trespassing on the suit plots is hereby issued. - 5. General damages of ugx 15,000,000/: is awarded to the plaintiffs against the 1't defendant.

6. Costs of this suit are awarded to the plaintiffs against a ts I the defen

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**TADEO ASIIMWE** $\boldsymbol{JU D G E}$ 25/01/2023