Okui v Nsubuga and Another (Civil Suit 469 of 2023) [2024] UGHCLD 260 (16 October 2024)

Full Case Text

#### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

#### LAND DIVISION

# clvrl. suIT No. 469 0F 2023

5 PATRICK JAMES OKUI PLAINTIFF'

#### VERSUS

### 1. NSUBUGA SHARIF.

## 2. COMMISSIONER LAND REGISTRATION..........,,...,.... DEFENDANTS

# Defsfe: Lqdy Justice Alexandra Nkonge Rugadya

#### 10

#### JUDGMENT:

### Introduction:

The plaintiff, Patrick. Jamcs C)kui filcd this suit against thc Commissioner, Land Registration and Mr. Nsubuga Sharif, sceking a sevcral reliefs against them, including damagcs for the allcged trespass and fraud in respect of land

comprised tn Kgad.ond.o plot 352 block L95, land dt Kganja. (suit land). 15

### Backqround to the case:

The plaintiff, filed this suit as the only biological child and bcneficiary of the late He11en Etoori Mashaba who was rcgistcred owncr of the suit land. Following her demisc, thc plaintiff was nominatcd by the family as the administrator of his late mother's estate.

He embarked on the process of obtaining letters of administration for the estate. But before he couid complete the process, without his knowledge and consent, the 2nd defendant purported to make a transfcr of the suit property into the names of thc 1"t dcfcndant.

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As per affidavit of service fi1cd by Mr. Ainc Raymond, a lcgal assistant in the firm ol M/s Kirunda & Co. Aduocates, dcponed <>n 24th November, 2023 the summons were served by substitutcd scrvicc. A copy of the advert in the Daily Monitor new papers was also attachcd, by which thc 1"t dcfendant had been summoned to filc a dcfcncc.

A11 efforts prcviously made by the plaintiff through his counsel, M/s Klrunda & Co. Aduocates to trace the whereabouts of the 1"t dcfendant, initially by reaching out to Mr. Andrcw Wanyaka (who at the time was known to be his counsel); and later directly to the 1"t defendant himself, via mobile phone had failed to attract any response from him.

Paragraph 7 (2) of the Constitutlon (Integration oJ ICT) into the Adjudicdtion Processes Jor Courts of Judicature) (Practice Directions), 2079 provides Linat in preparing a case for tia\ the parties shall be specificallg encouroged.. .. to serue documents electronicallg through email, instant

messoging applications and any other uidely used communications seruice. 15

It has also becn hcld in a casc citcd by counscl that scrvicc through WhatsApp is effectivc servicc. (F.eJ: SBI Cards & Pagtnents Seruices hrt Ltd as Rohidas Jadhaa, High Court of Judicature at BonLbdU , Notice No. 7 748 oJ 2075 in Execution Application No. 7796 of 2015).

The 1"t defendant neither filed a written statement of defence nor in any other way responded to any of the messages sent to him via WhatsApp. He did not turn up in court to defend himself. 20

Much to his disadvantage, the 1st dcfcndant totally ignored the said efforts by this court and by the plaintiff to reach out to him and in so failing therefore

closed himself out of the trial. It is on that basis that this court to hear the matter in his absence. 25

The 2nd defendant on his part was also duly served, but after filing a defence never turned up in court for the hearing.

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### Preliminaru ob i e ctio n :

The plaintiff who was re prcscnted by M/s Kirunda and Co, Aduocates, submitted that thc writtcn statcmcnt of dcfcncc had becn filed out of time; and that the 2"d defendant never sought prior lcave of court as required by law to file his defence. He thcrcforc invitcd this court to it strike out.

Cilrng order 8 rule 7 (2) of the Cinil Procedure Rules he argued that the plaintiff had served the defcndant with summons to file his defence and that as stipulated by thc rulc, (and in abscnce of any other order to the contrary), the said defendant in that case had to file his defcnce within fifteen (15 ) days after service of summons.

The court in this case had issued summons to the 2nd defendant to file its defence on 6ft June, 2O23. Servicc was duly eflected onto the office of the 2"d defendant on 12th Junc,2023.

As per the order 8 rule 1(2) of the CPR, thc 2"d dcfcndant only had tp to 276 Jlune,2023 to file a defence , but instead fiied the same on 5ft September, 2023, over three months after the stipulated time, and without prior leave of court. 15

From thc court record, further cndcavours had bcen made by this court through the plaintiffs to involve the 2"d defendant in the proceedings of court.

On 17ft Aprll,2024 the timclincs of court werc dispatchcd together with the plaintiff's trial bundle, witncss statements and lctter forwarding the draft JSM for service to the 2"d defendant. 20

These were acknowledged by the 2"4 defendant's officials. in addition, upon request, the draft scheduling memorandum was sent to thc 2"d defendant at a

given specific emaii address and despite their input in the JSM which had been incorporated thcrein, thc 2"d defendant officials rcfuscd to sign the document and also failed to turn up in court to defcnd itsclf. 25

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Timelines sct by statutcs arc mattcrs of substantive law and not mere technicalities and ought to bc strictly complicd with. (URA os Consolidated Properties Ltd. CACA JVo. 3. I of 2OOO),

The gencral rule thcrefore is that whcrc a dcfcndant does not file a defence or

5 fails to filc it within time as stipulated, hc or shc nccds to seek leave of court to file the defencc outsidc thc time : (rcf: Stop and See (Uganda) Ltd as Tropical Africa Bank Ltd, HCMA No. 333 of 2O1O).

Thus when the defence is filed outside the timelines as did happen in this case, the implication is that there is no defence on record. In light of the above

findings, llnc 2"d defendant's WSD is accordingly struck out as no prior leave was sought for and granted by this court to file it out of time which makes the defence therefore incurably defective. 10

Since the 2"d dcfcndant also by conduct declincd to do any other act in furtherance of the proceedings, the hearing against it proceeded exparte.

# 15 Issues,'

- 7) Whether 1.t defendant Jraudulentlg and lllegallg procured the transfer of land comprised in Kgadondo plot 352 block 795, land at KganJa (sutt land) lnto hts n(rmes. - 2) Whether 7d detendant trespassed on the land comprlsed ln Kgad.ondo plot 352, Block 795, land qt Kganja. - 3) Whether the 74 defendant mallclouslg damaged the plaintiffs propertg on land comprised in Kgadondo plot 352 block 795, land at Kganja. - 4) Whether the 2"d detendant breached her statutory dutg during the transactions relating to the transfer lnto the 7a deJendant's nanne oJ the land cornprised in Kgadondo plot 352 block 195, at Kganja

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# 5) Whether the ptaintiff is entitled to the rernedies sought.

#### Issues 7 and. 2:

These are to be considered jointly since they arise out of the same facts. I have carefully read the pleadings, the submissions as well as the numerous relevant authorities referred to by counsel for the plaintiff, for which he is greatly

commended.

Although I may not refcr to cach of thc authorities, I havc taken all into consideration in resolving this mattcr.

### The laut:

10 Sectto[ 7O7 oJ the Euldence Act provides that whoever desires any court to give judgment as to any lcgal right or liability dcpcndcnt on the existence of facts which he or she asscrts must prove that those facts exist and the burden of proof lies on that person.

15 Section IO3 further stipulates that thc burdcn of proof as to any particular fact lies on that pcrson who wishcs thc court to bclieve in its existence.

The plaintiff in the instant case had thc burden to prove not only that the suit land rightfully bclongcd to him as the sole beneficiary under the estate of his late mother, He11en Etoori Mushanga; that the suit was fraudulently transferred into thc names of the defcndant and that thc defendalt was a

trespasser on that land. 20

> The right to own propcrty is cnshrincd in the provisions ol Article 26 (2) of Constitution of the Republic of Uganda which guarantees the existence of that right for evcry pcrson to own propcrty cithcr individually or in association with others.

In Sheik Muhammed Luboua oerstts Kitara Enterprises Ltd C. A No.4 of 1.987, lhc trast African Court of Appcal notcd that in ordcr to provc the alleged trespass, it was incumbcnt on thc party to provc that thc disputed land 25

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belonged to him; that thc dcfendant had cntcrcd upon that land; and that thc entry was unlawful in that it was madc without his pcrmission; or that the defcndant had no claim or right or intcrcst in thc land. (Ref ako:.[LC. C. S llo. 118 of 2O12, Tagebuta Geo;fJreg and Anor Vs Kaginu Ngudde Mustafa; Justine E. M. N. Lutddgd Vs Sterling Cintl Engineertng Co, SCCA No. 77 of 2OO2).

Irespass to land occurs when a person directly enters upon land in possesslon of another without pcrmission and rcmains upon thc land, places or projects any object upon thc 1and. It is a possessory action where if remedies are to be awarded, the plaintiff is required to prove a possessory interest in 1and.

Such possession should be actual and this requires the plaintiff to demonstrate his/her exclusive posscssion and control of the 1and. An action for the tort of trespass to land is thcrcfore for cnforccmcnt of posscssory rights rather than proprietary rights. (Odeyk Alex & Anor as Gena 4 others: Ctnil Appeal No. 9

of 2017). 15

> As stated in Tagebwa GeolJreg and Anor us Kagimi. EICCS ivo, 77 oJ 2O72 quoting Ojuang us Wilson Bagonza. CACA No. 25 of 2OO2, for onc to claim intcrest in land hc/shc also must show that he/shc acquircd intcrest/tit1e from someone who prcviously hand intercst/ title thcreon.

Regarding fraud as another cause ofaction in this case, the term has been defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it, to part with somc valuable thing belonging to him or to surrender a legal right. 20

A false representation of a mattcr of fact, whether by words or by conduct, by false or mislcading allcgations or by conccalment of that which deccives and is intcndcd to deccivc anothcr, so that the othcr sha1l act upon it to his 1ega1 injury. /See: FJK Zaabue as Orient Bank & 5 Others SCCA .lVo. 4 of 2006 at page 28). 25

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Counsel for the plaintiff citcd the principle as highlightcd in the Supreme Court case of Kampala Bottlers Ltd as Do,ntanico (U) Ltd: SCCA JVo. 22 of 2O19 that fraud must be strictly provcd, the burdcn being heavier than one on the balance of probabilitics gcncrally applicd in civil matters.

- 5 The particulars of fraud as plcadcd in this case by thc plaintiff against the 1"t defendant were: - 1) that the 1"t dekndant acted fraudulently and illegallg in procuring the transfer of the suit land into his names; - 2) forging a lands sale agreement purportedly executed bg tlrc late Hellen Etooi Mashaba on 1Vh June, 2018, approximatelg 7 gears afier her death; - 3) unlaufully and fraudulently causing the transfer of the suit land into the 1"t dekndant\ names on 2"d March, 2023 uide Inst. No. KCCA-OO102254; - 4) holding out as the outner of the suit lond and purporting to sell the suit land to one Sali Bttlogi Deogratious; - 5) procuring the demolition of the tuto- storeged buitding on the suit land;

By virtue of the provisions of section 59 of the RTA, Cap. 24O, it is a general rule that save for fraud, posscssion of a certificate of title by a registered person is conclusivc cvidcncc of owncrship of thc land dcscribcd thcrein.

Thus read together with section 76 of the same Act any certificate of title, entry, removal of encumberance s, or canccliation in thc Register book, procurcd or madc by fraud is void as against all partics or privies to the fraud.

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As observed by court in KDLB & Anor as Babuegaka & others [2OO8l KALR 154 (S,CU) dt page I69, a ccrtificatc of titlc obtained by fraud cannot be said to have bccn obtaincd lawfuily; and such a certificate is dcfcasible and liable to be cancelled.

5 In the prescnt case it is not in dispute that there werc two separate titles which were created in the names of two different parties on two separate dates over the samc portion of land.

Separate entries were made by thc 2"a defcndant, onc on 2oft July, 2001 in the names of Ms. He1len Etoori Mashaba, and a second onc on 2"d March, 2023, in the names of the 1"t defendant. This was done without cancclling the previous one which had been crcated earlier in time .

Section 161 oJ the R?A gives this court powcr to direct the Commissioner, Land Registration to cancel any certificate of titlc, instrument or entry in the register relating to the land and substitutc the certificatc or entry as

circumstances of the casc would rcquirc. 15

On account of thc gravity of thc allcgation and its consequences, fraud must not only be spccifically plcadcd but also strictly proved. (JWR Kdzoora as M. L. S Rukubct SCCA JVo. 13 oJ 1992).

Within the spirit of Sheik Muhamtned Lubowa uersus Kitdra Enterprises

Ltd C. A No.4 of 7987, Linc first question thcrcfore is to establish what interest the plaintiff had in the e statc of the dcccascd. 20

As pointed out in thc pleadings and submissions no lcltcrs of administration werc yet grantcd to him to administcr thc cstate. Counsel cited several authoritics, key amongst which was: (Israel Kabuta us Mdrtin Banoba

Musiga Civil Appeal No, 52 of 1995; Kiualabge Buule Ronald as SenJobe Benjannin CA No. 17 of 2021). 25

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The plaintiff, going by those authorities therefore had to satisfy court that he had interest in the estatc as a beneficiary and therefore the locus standi to file this suit in order to protect thc cstatc.

### Analusis of the etidence:

5 Thc plaintiff rclicd on thc cvidcncc of thrcc witncsscs

Put7, being, the plaintiff himsclf; Pur2, Moses Opito, a valuation surveyor; and Pnr3. Joseph Musanyrrsa, a resident of Kyanja and caretaker of thc suit 1and. Prrr3 as per his evidcnce in chief informed court that he met the late Helien Etoori Mashaba in 2003.

She requested for his assistance in managing thc suit land and engaged hrs services in several other tasks around the premiscs which according to him were later demolishcd by thc l"t defcndant. 10

The plaintiff who at times residcd in the house had been introduced to Pu3 by the deceased as her son. That following Etoori's death on 31"1 May, 2011, the plaintiff had requested him to continue with the tasks as entrusted to him by the deceased prior to her demise.

ProT in his unchallcnged evidence relicd on a number of documents as proof that he was thc biological son of the late Etoori. Also presented by him is a copy of the death ccrtificatc and additional documcnts which proved that his mother had died intestate on 31st May, 2011 leaving him as her only biological child; and sole bencficiary thcrcforc undcr hcr estatc (PExh 1(a)- 1(d)).

PExh 2, is a copy of the family resolution following a meeting held on 3rd June, 2O1l at Malera village in Bukedea county, Kumi district where it was agreed that the plaintiff was the only child of thc deceascd and upon which the family had conscntcd to his nomination as administrator of thc estate.

The above was sufficicnt evidencc to court that as a child of the deceased he was thereforc entitlcd to both administer the estate and obtain a share as a

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beneficiary of his late mother's cstate , even before letters of administration were granted to him by court.

As proof of ownership of the suit land, the plaintiff tendered in court, PExh 3, certificate of title. The entries on the title indicate clearly that the deceased became registercd owner of thc suit land on 20fi Ju1y, 20O1, having acquired the same from one Kajumba. Thereafter, no other entries had been made on that title; and indeed no encumberances rcgistercd thereon or any cancellation made.

Following her death, thc plaintiff as her biological son/beneficiary had kept the said certificate of titlc for the suit land in his custody. It is also clear from the evidence of PutS that the plaintiff occasionally re sided on the suit land with his late mother in the incomplete structure. 10

PExh 4 is a set of photographs of the storied structure which the deceased had put up on the land (as it appeared prior to the demolition). No other person claimed exclusive physical possession or ownership of the suit premises before or even after the death of the plaintiff's mother.

Upon demolition as illustrated by thc photographs exhibited in PExh 77, a complaint was lodged at the Police by the caretaker, PutS vide: SD REF. 18/06/03/2023, dated lOth March 2023.

The plaintiff's evidence was corroborated by that of Pur3, leading to the conclusion that without knowledge and consent of the plaintiff , the 1st defendant had forcefully entered on the land on 6e March, 2023. 20

It was the Pu3's evidence that on that day, during one of the routine checks he had found a group of people (some of whom he was not able to recognize), on the suit 1and. A tractor and trucks were packed on the land.

It was his further evidence that one land broker whom he knew as Sedu informed him that the land had been sold off by its owner, which claim the caretaker however refused to believe since he had not been informed about the sale by the plaintiff.

At that point, he had called the plaintiff to inquire about what was taking place. The plaintiff however denied having sold the suit land, upon which the

5 matter was immediately rcported to the Police where a case of trespass damage to property was recorded. It was also reported to the area chairman (Kyanja Central Zone), one Mawcjjc who confirmed the said occurrences during the locus visit.

Thc lst defendant at some point appeared at the ground with his team and requested Pur3 not to inform the plaintiff about the demolition. During that brief interaction with him, the 1"t defendant claimed that he had purchased the land from a certain woman, who as noted by the witncss was not the deceased. However, as soon as hc learnt that thc Police had been alerted, the 1st defendant disappeared, not to be scen again. 10

- The plaintiff's further cvidence was that one Sali Bwogi Deogratious who was also seen at the scene, had informed them in the presence of the Police that the 1"t defendant prcsenting himseif as the rcgistercd proprictor of the suit property had madc him an offer to se11 it to him, and in the process had also pulled out his phonc to show thc photograph ofthe 1st defendant. 15 - An unsigned statement of search dated 6ft March, 2023 PExh 5, reflected the names of the 1"t defendant as the registered proprietor of the suit land, as at 2"d March,2023, covering an area of 0.1010 hectarcs, the samc size and area as contained in the deceased's title . 20

PExh 5, is a letter dated 1Oft March, 2023 by which the divisional CID, Kira Road Police, took up the matter, and made a request to the 2.d defendant to present all transfer instruments, letters of administration, area schedule, among others. 25

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On 9n March, 2023, thc firm rcprcscnting thc plaintiff also carried out a search which confirmed that indeed the 1"t defendant's names were entered onto the title . (Re.,[' to PExh 7).

Evidence on record aiso revealed that the 1st defendant had purportedly entered into a sale agreemcnt on 17th. Junc, 2018, for the suit land, with him as the purchaser and thc dcccased purportedly as the vendor.

From thc contcnts thcreof, the land had purportcdly bccn sold to him at a purchase price of Ugx SO,OOO,OOO/=. Neither the LCs nor the plaintiff however appendcd thcir signaturcs as witncsscs to that agrccment.

The transfer (PExh 9l was purportedly also signed by the late Etoori five years later, on 28th February,2023. It is important to notc that by the time both the sale agrcemcnt and transfer werc madc, the latc Etoori had already passed on. PExh 70 is a copy of the caveat lodged on 96 March, 2023 by the plaintiff as a beneficiary under the estate. fPExh 1O). Tl:e affidavit in support confirmed the assertions made by both PurI and Pus as to how he came to learn about the defcndant's actions. 10 15

## In conclusion:

In response to thc lst and 2"d issucs, thc lst defendant relying on both a fake agreement and a transfcr allcgcd to have becn signcd by the deceased years after her death, fraudulcntly and illegally procured the transfer of the suit land into his names. He presentcd himself as the rcgistcrcd owner of the suit iand, purposing to disposc it off quickly to an unsuspecting party.

Fraud was thus also committed by the defcndants through the creation o1 another ccrtificate of titlc while the duplicate was sti1l in existence, and in the custody of the plaintiff who was thc solc bcncficiary under the estate of Etoori,

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and rightful owncr of thc suit propcrty

The certificate of title which was rcgistcred on 2"d March , 2023 over the same suit land in thc name s of the 1"t delendant was therefore fraudulently created by the 2"d defendant.

The plaintiff who was in exclusive possession of the suit land both during the life of his mother and after hcr demise , thercfore successfully proved to court that neither him nor his latc mothcr had sold thc suit land to the 1st defendant.

It was also clear that the lst defendant was never in physical possession of the suit land before attempting to disposc it off to a third party. His entry on the suit land was thereforc unlawful and unauthortzed. He was therefore a trespasser on the suit land.

As such, the transactions made by the dcfendants from the time when the purported sale was madc in 201i1 and transfcr by the 2"4 defendant into the 1"t defendant's names made on 2"d March , 2023 were all fraudulent.

They defendants' actions justify the plaintiffs praycr for cancellation of the title 15 fraudulently created in the 1st defendant's names.

# Issue No. 3: Whether the 7't defendant maliciouslu damaqed the plaintiffs prooertu on land comprised in Kuadondo plot 352. Block 795. land at Kaania.

20 Arising from the above unlawful and unauthorizcd acts by the defendants, the 1st defendant therefore not only committed trespass but also maliciously damaged the plaintiff's propcrty located on the suit property. This resulted in depriving the estate of the late Etoori (of which the plaintiff was the sole beneficiary), of its property.

The plaintiff presented proof of and extent of the demolition/debris in several photographs. (PExh 1l(a)-(h)). Thc cxtent of the damage was also confirmed at the locus visit whcrc the area was scen covered by the debris of the demolished structure.

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Par2 Moses Opito prcscntcd a valuation and Appraisal report, dated 196 February, 2024, ref . PExh 72. Hc tcstificd that thc suit land was suitable for residcntial purposcs and asscsscd its valuc as Ugx 25OTOOOTOOO/= with an estimated replacemcnt cost of Ugx 7 83,632,400/= (Ref. PExh 12).

5 Put2, f:urther statcd in his report that thc dcmolition compromised the building's structural integrity and therefore rccommcnded fu11 demolition. A sum of Ugx 442, 732, 4OO/= was claimed by the plaintiff as special damages.

Accordingly, and in rcsponsc to the 3'd issuc, this was clear cvidence that the 1"t defendant had maliciously damaged the plaintiff's property on the suit land.

# 10 Issue lvo. 4: Whether the 2nd defendant breached. her statLttof'u dutu durinq the tra,nsactions relatinq to the tro,.nsfer of the land co tnorised in Kyadondo plot 352 block 795, land at Kuania into the 7"t deleldq4 ndme,

15 Section 3(1) of the RTA cstablishcs the office of thc Rcgistrar of Titles. The law in general terms creates an obligation for thc office to fo1low the correct procedure before issuing land titles. The officc must also specifically protect the integrity of the registcr and ensure that no two entries or title s can be made in respect of the same parccl of 1and.

20 For a claim of this nature, liability arise s whcre thc statutory obligation or prohibition was imposed for the bcnefit or protection of a particular class of individuals and secondly whcre the law create s a public right and an individual member of the public suffe rs particular damagc.

Thus as obscrvcd in Arop Simon Peter us Atnuru District Local Gouernment CA No, 165 of 2OI-a [2079], a case cited by counsel, the 2"d de fendant owed the plaintiff duty to take rcasonablc stcps to cnsurc thc authenticity of the claim by vcrifying thc validity ol thc documcnts submitted for the transfer; and guard against fraudulcnt transactions bcforc cntrics arc made in the registry.

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The plaintiff's evidence on this issue just likc the rest, remained unrebutted since the 2"d defendant had filcd its defence out of time and therefore lacked a valid defence.

It is trite law that facts as adduced in cvidencc which are neither denied nor

5 rebutted are presumed to be admitted. Such facts arc taken to be unchallenged and truthful. (Tororo District Administration us Andalalapo Ltd [1994 KALR 126).

From the facts as hightighted earlier, the 2"d defendant illegally and fraudulently authorized a transfer of the suit land into the namcs of the 1st defendant before verifying the validity of the transfcr documents and before establishing the whereabouts of the duplicate certificatc of titlc which had been issued in 2001 in the names of thc dcceased.

The 2nd defendant therefore breachcd her statutory duty during the transactions relating to the transfer of the land comprised in Kgadondo plot

352 block 795, land at Kganjd into the 1"t defendant name, which resulted in dire consequences by which thc cstatc was unlawfully dcprived of its property. 15

#### Retnedies:.

Thc plaintiff sought thc following rcmcdics:

- 1. A declaration that the estate of the late Hellen Etooi is the lauful/ rtghtful owner of the land compised in plot 352, block 195 Kganja; - 2. A declaration that the 1"t defendant illegallA and fraudulentlg procured the transkr of the suit land to himself; - 3. A declaration that the 1,1 defendant is a tresposser on the suit land; - 4. An order directing the 2"d defendant to cancel the registration of the 1"t defendant on land / certifi"cate of title compised in plot 352,

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block 795 Kganja and haue the certificate of title rectified by substihtting and replacing the names of the 1.t defendant with those of the late Hellen Dtooi;

- 5. A permanent injunction to restrain the l.t dekndan| his agents, workmen or anAone acting on the 1.t defendant's instructions from interntpting/ interfeing uith plaintiff s use and enjogment of suit land; - 10 6. an order for quiet possession of the suit land; - 7. general damages for frespass to land; punitiue damages; exemplary damages; interest and costs.

### Damaoes:

## 15 General damaqes:

Its tritc 1aw that, that damagcs arc dircct and probable consequence of the act complained of, also notcd in thc case of Kannpala District Land Board and George Mitala us Venansio Banntoegana CA No. 2 of 2OO7.

Such may bc loss of profit, physical inconvenicncc, mcntal distress, pain and

20 suffcring, (See also Assit (U) as. Italio,n Asphault & Haulage & Anor HCCS No. 1297 of 1999 at page 5).

It is a settled position of thc 1aw that thc award of gcneral damages is in the discretion of court and is always as the law will presume to be the natural consequence of the de fcndant's act or omission.

# 25 Punitive and exemplaru damages:

The 1st defendant in this casc was faultcd for engaging in multiple fraudulent acts which dcprived thc plaintiff of his right to the property in the suit land; while the 2"d defendant failcd to verify the correctne ss of the information given

16 Irt"'d

to him by the $1^{st}$ defendant before registration. It was also faulted for its failure to explain how two seemingly valid titles could subsist concurrently.

Punitive and exemplary damages are an exception to the rule that damages are to compensate the injured person. These are awarded to punish, deter, express

outrage of court at the defendant's egregious, highhanded, malicious vindictive $\mathsf{S}$ oppressive and/or malicious conduct. **(Ahmed El Termewy vs Hassan Awdi**) and others HCCS No. 95 of 2012).

The law does not provide any particular formula, but the award ought to be a deterrent to such further misconduct; and would squarely lie within the discretion of court.

Failure by the $2^{nd}$ defendant in this case to safeguard and maintain the integrity of the land register amounted to breach of trust, which warranted the grant of punitive damages against it.

Similarly, the highhandedness displayed by the 1st defendant in destroying property that never belonged to him merits the award of punitive/exemplary 15 damages against him.

## Special damages:

In general terms, the object of an award of damages is to give the plaintiff compensation for the damage, loss or injury he or she has suffered. **(See:**

#### Fredrick Nsubuga Vs Attorney General S. C. C. A. No. 8 of 1999). 20

Therefore, in the circumstances of the quantum of damages courts are mainly guided by the value of the subject matter, the economic inconvenience that the party was put through at the instance of the opposite party and the nature and event of the breach.

A plaintiff who suffers damage due to the wrongful act of the defendant must 25 be put in the position he or she would have been in had he or she not suffered the wrong.

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He or she ought to lead evidence or give an indication what damages should be awarded on inquiry as the quantum. (Ongom vs. AG (1979) HCB 267, cited by court in Kamugira vs National Housing & Construction Co. Civil Suit No. 127 of 2009).

- The plaintiff in this instance informed told court that each month he spends $\mathsf{S}$ *Ugx* 700,000/= in rent and other utilities; and sought a total of $Ugx$ **9,100,000/=** which when added to the *Ugx 433, 632, 400/=* made a total of **Ugx 442,732,400/=,** assessed as the special damages, to be awarded against the defendants jointly and severally. - In absence of any evidence to challenge those figures, this court is therefore 10 inclined to grant the prayers sought, in the terms below:

# 1. A declaration issues that the estate of the late Hellen Etoori under which the plaintiff is the sole beneficiary, is the lawful/rightful owner of the land comprised in plot 352, block 195 Kyanja;

- 2. A declaration issues that the defendants acted in connivance to illegally and fraudulently procure the transfer of the suit land into the names of the $1st$ defendant, thus depriving the plaintiff of his beneficial interest under the estate; - 3. Accordingly the $1^{st}$ defendant is a trespasser on the suit land; and an order issues therefore directing the $2^{nd}$ defendant to cancel the registration of the $1$ st defendant on land /certificate of title comprised in plot 352, block 195 Kyanja and have the register and certificate of title rectified by substituting and replacing the names of the $1$ st defendant with those of the late Hellen Etoori Mashanga; - 4. A permanent injunction issues to restrain the $1$ st defendant, his agents, workmen or anyone acting on the $1st$ defendant's

Owhody

instructions from interrupting/interfering with plaintiff's use and enjoyment of suit land;

- 5. an order issues for quiet possession of the suit land to be enjoyed by the plaintiff; - 6. A compound figure of Ugx $442,732,400/$ = is to be paid to the plaintiff jointly by the defendants as special damages, in respect of the estate of the late Hellen Etoori Mushanga; - 7. A sum of $Ugx$ 80,000,000/- to be jointly paid to the plaintiff by the defendants as punitive damages; - 8. General damages of Ugx 50,000,000/= to be paid by the $1^{st}$ defendant; - 9. Interest of 12 $%$ p.a, to be paid by the defendants in respect to orders 6,7, and 8 above, from the date of delivery of this judgment, till payment is made in full.

$\mathsf{S}$

10. Costs awarded against the defendants

Alexandra Nkonge Rugadya

25 Judge

16th October, 2024

Delived by email Unbag (16/10/2024