Ojede v Lutalo and 2 Others (Civil Suit No. 074 of 2007) [2012] UGHC 435 (16 February 2012)

# THE REPUBLIC OF UGANDA **IN THE HIGH COURT OF UGANDA HOLDEN AT GULU CIVIL SUIT NO. 074 OF 2007**

**OJEDE ABDALLAH BIN CONA PLAINTIFF**

**=VERSUS=**

**1. PHOEBE LUTALO**

**2. LIRA DISTRICT LAND BOARD**

3. **REGISTRAR OF TITLE** DEFENDANTS

#### **BEFORE HON. JUSTICE WILSON MASALU MUSENE**

#### **JUDGMENT**

The Plaintiff, Ojede Abdallah Bin Cona, Administrator of the ' /£> deceased Cona Bin Gulu (Estate) filed this case against Phoebe Lutalo, Lira District Land Board (2nd Defendant) and the Registrar of Titles (third Defendant).

known as LHRV7 FOLIO 21, Plot No. Municipality. The Plaintiff's clam against the Defendants is for recovery of land 5 BAZAAR ROAD, Lira

**<sup>5</sup>**------ *■.* 1 - **J**

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The Plaintiff also sought for cancellation of Title of the first Defendant, Phoebe Lutalo in respect of the said property, general damages and costs. The basis of the Plaintiff's claim was that the. disputed property belonged to his late father, Cona Bin Gulu as tohalf shares while the other half belonged to the Departed Asians by-—<05 the names of Dahyabhai Morarji and S. Patel Limited in equal shares. The Plaintiff claims half of the property known as Part B, which he states has been living thereon and renting it to various people and collecting rent.

and Kampala Land Offices. **/r** The 1st Defendant, Phoebe Lutalo, on the other hand, denies the Plaintiff's claims. Her case is that she was officially allocated the whole disputed premises (Plot 5, Bazaar Road) by Lira District Land Board, the 2nd Defendant. And that the application and allocation was after the relevant consultations and confirmation from Entebbe

### *At the scheduling conference, the following facts were agreed upon:-*

The suit land is Plot No.5 formerly Bazaar Road, but then Lira Avenue comprised in LRV 7 FOLIO 21, Lira District.

The initial lease for the property expired in 1973.

By 13.7.1999, the property was registered in the names of Dahyabhai Moraiji, Manibhai . S. Patel Ltd both owning half share, and Cona Bin Gulu, holding the remaining half share having been

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of a Certificate issued by the then Custodian Board with Repossession 2339 of the property on 27.12.1994. The first Defendant was issued with a Certificate of Title to the suit

property by the 2nd Defendant on 25.11.2005.

witnesses. The Agreed documents were as per the pleadings of each side and Before the case was heard, on 20.6.2008, Mr. Lloyd Ocorobiya for the Plaintiff withdrew the suit against the 3rd Defendant, the Registrar of Titles. So the hearing proceeded as between the Plaintiff, Ojede Abdallah Bin Cona against Phoebe Lutalo and Lira District Land Board.

**The following issues were framed for determination by this Court:-**

- 1. Whether the suit property was subjected to the provisions of the Expropriated Properties Act. - 2. Whether or not the 2nd Defendant acted correctly to grant <sup>&</sup>lt;—] ownership of the suit property to the 1st Defendant when the Plaintiff was in occupation and claimed ownership at the material time. - 3. Whether or not the Defendants acted fraudulently jointly and/or severally in their dealings with the suit property. - 4. What remedies are available to the parties.

This Court will now proceed to deal with the issues one by one.

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The case for the Plaintiff, as correctly summarized by his Advocates, M/S Ocorobiya, Doii & Co. Advocates was that the suit property was purchased by his late father from Manihai S. Patel Limited, V2 of the Company's interest in the suit land on the 20.7.1971.

to his exhibit P8 dated Planning. Plaintiff's claim is in respect of only Part "B" of Plot NO.5, Bazaar • Road, Lira. *"Certificate Authorizing Repossession"* 27.12.1994 from the Ministry of Land, Housing and Physical Counsels for the Defendants submitted that the The Plaintiff's testimony was that in 1976, his father died and his grandfather, Abdallah Gulu obtained Letters of Administration to his son's Estate in 1988, exhibit P2. The Plaintiff also testifies that prior obtaining the said Letters of Administration, grandfather sought refugee in Sudan when President Idi Amin was over thrown in 1979. It was the Plaintiff's evidence that in 1992, his grandfather passed away. So the Plaintiff and his late brother, Ococ Bin Cona applied for Letters of Administration to their father's Estate exhibit P3. The Plaintiff also exhibited a document titled

This was confirmed by the Advocates for the Plaintiff in the Plaintiff's rejoinder.

For avoidance of doubt, it reads: *Defendant that the Plaintiff's claim is limited to only Part B of the suit property".* And whereas the Plaintiff's case is that the property, Part "B" was repossessed in 1994 under Certificate signed *"We concur with Counsel for 1st*

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happened thereafter. by Minister of Finance & Economic Planning (Exhibit P8), the question arising as far as the present conflict is concerned is what On record also is a letter signed by the Ag.. Executive Secretary of the Departed Asian's Property Custodian. Board, Mr. Wilson Mwereza dated 17.1.1995 stating that the property situated at Plot No.5, Bazaar Road, Lira - LRV7 Folio <sup>21</sup> was returned to Dahyabhai Morarji and Manibhai S. Patel limited as tenants in common and *¥2* to Cona Bin Gulu. (Exhibit P7).

During cross examination by Mr. Donge for the 1st Defendant, Mr. Abdallah Bin Cona testified that before filing this case, they applied for Extention of the lease in 2004 to the District Land Board. That the application was through the Chairman, District Land Board. *He was, however, not issued with a receipt and Court noted that the witness could not explain where he lodged the application, to whom and whether or not he paid any fees and whether he was issued with receipts.* As <sup>I</sup> shall shortly return to this point, in my view, this is where the problem of the Plaintiff, started.

*4/0* Even during the same cross-examination, the Plaintiff conceded that he did not know how the 1st Defendant, Phoebe Lutalo came to occupy pa\_rt of the premises and that 1st Defendant has never been Plaintiff's tenant.

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**ir** The case for the 1st Defendant, on the other hand was that she occupied part of the property in dispute right from 1990 when she was a tenant of the Custodian Board. And that when part of thehouse started collapsing from behind, she went to Entebbe to rectify the problem. And that she was told that since 1973, the building <■ was unfit for use and the lease had expired. Phoebe Lutalo was informed that the authority over the house had reverted to the District Land Board and that upon confirmation; she applied for the whole Plot 5 (Exhibit D6). The Application is dated 25.2.2005. Lira District Land Board gave her a lease offer of 5 years in respect of the Plot (exhibit D7). The lease offer in respect of Plot No.5, Lira, Avenue (exhibit D8) dated 13/9/2005 to the 1st Defendant was . tendered in Court without any objection from the Plaintiff and his Counsel. Phoebe Lutalo's testimony was that after getting a loan, she wanted to demolish the whole property on the whole Plot No. 5 - Obote Avenue and that Lira Municipality gave her permission to do so as per exhibit D9. And that this case arose when she was ready to demolish and commence reconstruction.

Whereas upto the point of issuing a *Certificate Authorizing Repossession* by the Minister in December, 1994 is not disputed, what is of paramount importance *is the Application for a special Certificate of Title and Registration of Plot No. 5, Lira Avenue, LRV7 Folio 21.* This was an Application by Ococ Bin Cona and Abdunur Bin Cona dated 18.1.1997 to the Commissioner for Land

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Registration, Kampala. They applied as surviving children (Sons) of the late Cona Bin Abdallah Gulu.

By letter dated 31st July, 1997, exhibit D2, Mr. Jonathan N. Tibisaasa, the Commissioner for Land Registration rejected the Application. Given the importance of exhibit D2, <sup>I</sup> shall reproduce the same.

Mr. Ococ Bin Cona

P. O. Box 377

Lira.

#### **fa** *7 FOLIO 11. PLOT 5, BAZAAR ROAD, LIRA LEASE HOLD REGISTER, VOLUME* <sup>&</sup>lt;

"<sup>I</sup> refer to your application/letter, L/land/1/97 dated 18.1.1997 and regret to state that <sup>I</sup> can not entertain land dealings you have presented to this office for the following reasons:-

- **M** *"1. The original lease comprised in the above mentioned Certificate of Title expired on 31.8.73 and the Automatic extention of the lease for 2 years allowed under the Expropriated Properties Act, 1982 has also expired. Thus, it is not possible for me to record the Certificate Authorizing Repossession, No. 2339 of 27.12.1994". <sup>&</sup>lt; '* - *"2. There is no evidence to show that your late father bought Dahyabhai Morarji's Vs share in the Plot/property".* - *"3. You have not obtained letters of Administration in respect of yourfather's Estate, and the succession papers*

**<1-**.....

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# *obtained under Admin. Cause No. ML 8 of 1997 in the ChiefMagistrate's Court ofLira are not relevant".*

The conclusion of the above letter was advise to Ococ Bin Cona to apply for Letters of Administration and thereafter refer the matter to Lira District interim Land Board and apply to be allocated the whole c ( Plot /land.

It is not clear from the submissions of Counsel for the Plaintiff whether the above piece of advise to apply for the whole property on the basis the Certificate authorizing repossession was followed or not. And that was the correct cause of action to take because the law is very clear. Once a lease on land expires, the property reverts to the controlling authority, who in any case is not obliged to offer it to the same persons whose lease has expired.

In his submissions, Mr. Doii Patrick for the Plaintiff submitted that he Plaintiff were given a lease for 5 years from 1988 and it was to end in 2003. This was in reference to exhibit D3(a), which lease offer was cancelled due to some defects.

The submissions by Counsel for the Plaintiff that the Plaintiff was never informed by the Land Board that his lease had expired, and that if he did not renew the same, it would be offered to another person does not stand. He knew the lease had expired and applied but as noted on (exhibit D3(a)) the offer was cancelled. Counsel for

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### the Plaintiff quoted the case of *Kampala District land Board & George Mitala* Vs. *Venansio Babtueyaka, S. C. C. A 2/2007.*

However, in that case, fraud had been proved on the part of the person who had a registered Title to defeat the interests of those who had been there earlier.

a In the present case, the 1st Defendant during cross-examination by Mr. Ocorobiya stated that she did not know the Plaintiff as neighbour and was meeting him in Court. She further stated that she was advised to apply for the whole property, Plot 5 Obote Avenue as it had one title and not divided into A and B.

She concluded that in Part B, there would be one person today, and the following day a different person.

The blame therefore by the Plaintiff should be on the Commissioner for Land Registration or Registrar of Titles, who as noted earlier, in July 1997 rejected their Application for reasons stated. And the Plaintiff rightly sued the Registrar of Titles as 3rd Defendant, but on 20.6.2008 as the record bears, he withdrew the suit against the very Registrar of Titles.

In circumstances, <sup>I</sup> agree with Counsel for the 1st Defendant, (Phoebe Lutalo), that she was very vigilant and inquired about the status of the property in dispute from different authorities. This

Page 9 of 17 was as opposed to the Plaintiff who chose to wait to be told that once their lease expired in 2003, the same would be automatically renewed by the 2nd Defendant, Lira District Land Board. Equity helps the vigilant and not the docile.

DW2, John Alfred Odyek Ogwal, the then Chairman of Lira District -—05 Land Board, testified that the 1st Defendant, Phoebe Lutalo went to his office, seeking guidance about the status of the plot in dispute.

He testified that he found that the Title in respect of the property in dispute had expired in 1973 and had not been renewed. And that contrary to the advise of the Commissioner for Land Registration in a letter dated 31.7.1997, the Plaintiff did not contact Lira District Land Board immediately.

**■/r** In the mean time, DW2 testified that Lira District Land Board received the Application of Phoebe Lutalo on 16.3.2005. He added that the District Land Board considered the Application, and the Plot in dispute, Plot 5, Obote Avenue was offered to Phoebe Lutalo.

DW2 further testified that the Lira Municipal Engineer recommended that the building be demolished. In the meantime, Phoebe Lutalo got a lease offer, (exhibit D8) and eventually got a Title to the property in dispute. He concluded that the property was granted to Phoebe Lutalo through normal procedures.

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During cross-examination by Counsel for the Plaintiff, Mr. John Alfred Odyek Ogwal testified that he gave out the whole property to Phoebe Lutalo on the basis of a letter dated 31.7.1997 from the Commissioner for Land Registration.

And in re-examination Mr. John Alfred Odyek concluded that when a lease expires, the District Land Board has authority to give it to any other person for development.

In the circumstances, in view of what I have outlined above, I find and hold that the 2nd Defendant, Lira District Land Board, acted properly and correctly to grant ownership of the whole disputed —*[* land/property to the 1st Defendant, Phoebe Lutalo was more vigilant and ready to develop the same as it had been recommended for demolition. The submission that the Plaintiff had legitimate expectations that their lease had expired in 2003 would be automatically renewed is rejected because the controlling authority or the District Land Board is Independent.

Under *Section 60 <sup>o</sup>fthe Land Act,* a District Land Board shall be independent and shall not be subject to the direction or control of any person or authority.

<sup>I</sup> now turn to the 3rd issue as to whether or not, the Defendants —*<2^* acted fraudulently jointly and/or severally in their dealings with the suit property. Fraud or fraudulent has been variously defined. In simple terms, fraudulent means being dishonest and/or acting

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illegally. In one of the earlier leading cases of *Lazarus Estates Ltd. Vs. Beasley (1956) <sup>1</sup> QB. 702,* it was stated that:-

*"No Court in this land will allow a person to keep and advantage which he has obtained by fraud. No Judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The Court is careful not to find fraud unless it is distinctly pleaded and proven, but once it is proved, it vitiates Judgments, contracts and all transactions whatsoever".*

**er**

## And in *Waimiha Saw Milling Co. Ltd* Vs. *Waione Timber Co. Ltd* r *(1962) AC. 101,*

It was held inter-alia that *"a person deprived of land by fraud may bring an action to recover the land against the person registered, as the proprietor ofthat land through fraud".*

According to Counsel for the Plaintiff, fraud could be established'—/ j from the way the 1st Defendant entered the premises and how she went to Entebbe to inquire about the status of the suit property when it started collapsing. He added that the 1st Defendant, being a neighbour of the Plaintiff, should have asked about the Plaintiff's interests before she applied for the whole premises. *~~LC)*

Page 12 of 17 Then Counsel for the Plaintiff submitted that DW2 was the brain behind th.e scam to defraud the Plaintiff as he presided over an institution that made it impossible for the Plaintiff to renew his

interest. Counsel further submitted that the circumstances under which the 1st Defendant came to be associated with the suit property were a suspect. He concluded that the acts of DW2, a servant of the 2nd Defendant, makes the 2nd Defendant vicariously liable for the fraud.

**Ah**

Counsel for the 1st Defendant on the other hand, submitted quoting the authority of *Kampala Bottlers Ltd* Vs. *Damanico (U) Ltd C. A 22 of 1992, where Justice Platt, J. S. C* as he then was, emphasized that fraud must be specifically pleaded. He refered to the Plaint in the present case where particulars of fraud against the 1st Defendant were:-

- a) The 1st Defendant was a tenant of the Plaintiff and therefore knows the Plaintiff's ownership over the suit property. - b) Acquiring a lease on the suit property well knowing that her landlord, the Plaintiff is the registered proprietor.

With all due respect to Counsel for the Plaintiff, it is clear from the evidence on record that the 1st Defendant was a tenant of the Departed Asians Property Custodian Board and not of the Plaintiff. This was even conceded by the Plaintiff during cross-examination and he restricted his claim to Part "B" of the property. -~

Secondly, it is also clear from the evidence on record that by the time the 1st Defendant applied for and consequently acquired a lease, whatever lease or interest of the Plaintiff in half of the

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**D.l I** *■: I* **is i !**

property had expired long ago. And as already noted, the Plaintiff was never a landlord of 1st Defendant.

So without going any further, this Court finds and holds that the alleged particulars of fraud as against the 1st Defendant, Phoebe Lutalo, were false and baseless. As Counsel for the 1st Defendant—OS correctly submitted, she came to occupy part of the disputed premises when it was vacant and paid rent to the Custodian Board. That piece of evidence was never challenged.

And during cross-examination by Counsel for the Plaintiff, she told Court that she talked to the other person occupying Part "B" and <sup>c</sup> that the person is now dead. She reiterated that the person was not the Plaintiff, and that the Plaintiff has never been physically on the premises.

As regards the 2nd Defendant, Lira District Land Board, the evidence on record is that they took over the property in dispute from the Custodian Board, and as the lease had expired and it reverted to the controlling authority. That was by operation of the law. Whoever had interest, including the Plaintiff had to apply to the controlling authority, Lira District Land Board. Efforts by the Plaintiff and his family members to renew the lease were futile and — M as submitted by Counsel for the 1st Defendant, the 2nd Defendant acted upon records on file.

*1^)* **?** - a tr.io ' r <sup>&</sup>lt;

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And in the circumstances, this Court is inclined to accept the submissions of Counsel for the 1st Defendant that the application for lease should have been on a competitive basis but the Plaintiff applied when or after the 1st Defendant had applied. It is also on . record that Ococ Bin Cona who applied did not even pay for his *'~~O* J application. On page 14 of the Proceedings, during crossexamination by Mr. Donge for the 1st Defendant, the Plaintiff stated that he was not issued with a receipt. And Court noted that witness could not explain where he lodged the application, to whom and whether or not he was issued with any receipts. —

**<sup>I</sup>** *s* And the submissions of alleged fraud by DW2 as to make 2nd Defendant, Lira District Land Board vicariously liable can not be upheld by this Court. This is because DW2 as Chairman does not constitute Lira District Land Board. There are other members with whom they decide together. In the absence of any evidence that-— DW2 as a Chairman was a dictator on decisions of Board, then the argument of vicarious liability is rejected.

In the premises, this Court finds and holds that no fraud has been proved against the Defendants jointly and/or severally.

On the remedies available, submissions of Counsel for the <sup>1</sup>st —90 Defendant are that the dispute has caused her a lot of inconveniences, mental Anguish and has interfered with her development plans and so prayed for general damages. So he

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V J. Z4"/4 *<sup>I</sup>* J ' <■

prayed for general damages of Shs. 200,000,000/ <sup>=</sup> , eviction order against the Plaintiff and costs.

On the matter or issue of general damages, this Court is of the most considered view that in cases of Land Justice and development % such as this one, there has to be a spirit of give and take. Much as the Plaintiff has failed to prove his claim against the Defendants on the balance of probabilities, to the extend that he withdrew the case against the 3rd Defendant (Registrar of Titles), when the 3rd Defendant wrote rejecting his application (Exhibit D2(a)). The Court ' will not award general damages as a gesture of reconciliation. —

Otherwise in view of what has been outlined above, the Plaintiff's suit is hereby dismissed and the 1st Defendant is to go ahead with the demolition and re-construction or re-development of the disputed premises, the whole of Plot 5, now Obote Avenue, Lira Municipality. This is because she holds a Certificate of Title in respect thereof and which Certificate of Title is conclusive evidence of ownership/proprietorship as provided under Section 59 of the Registration of Titles Act. The 1st Defendant is also awarded the costs of the suit.

• •**Vx**• • **WIM Musene**

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**I**

16.2.2012

Parties present.

Mr. Ocorobiya for Plaintiff present.

Mr. Donge for 1st Defendant present.

2nd Defendant absent.

Ochan - Court Clerk present.

W. M Musene Judge

Court: to ---- Judgment read out in open Court. Right- of Appeal Court of Appeal explained to Plaintiff.

J 1

*Wj. Wl* Musene Judge

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