Oyat Otoo v Akongo and 2 others (HCT-02 - CV - CS- 0085 - 2007) [2010] UGHC 241 (26 November 2010)

Full Case Text

### **THE REPUBLIC OF UGANDA**

#### **IN HIGH COURT OF UGANDA HOLDEN AT GULU**

# **HCT-02 - CV - CS- 0085 - 2007**

**OYAT FRANCIS OTOO PLAINTIFF**

**VERSUS NASULA AKONGO FILDER AKONGO OMONA THE THIRD PARTY GULU DISTRICT LAND BOARdJ"**

### **BEFORE HONOURABLE JUSTICE REMMY KASULE**

## **JUDGMENT** *I* **O**

that he is the equitable owner of the land described as plot 27 Mama Cave close, Pece Division, Gulu Municipality. He also prayed for a permanent injunction and general damages. The plaintiff sued the first and second defendants jointly and /or severally for cancellation of a lease title/offer and a declaration as against the defendants

was added as a Third Party to the suit. Through a Third Party Notice application one Filda Akongo, Omona (Mrs) **/**

21.06.05 and 05.08.05. we-e executed. The-eafter plaintiff took occupation and use of the suit land. The plaintiff bought the suit land from the Third Party during the periocf Written agreements of purchase, exhibits P2 and P3,

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Soon, subsequent to the purchase, the first defendant, asserting that she was the lawful owner of the land, and not the third party, resisted the sale and sought the eviction of the plaintiff therefrom. Plaintiff refused to vacate. He maintained he had rightly acquired the land from the rightful owner, the Third Party.

lease the suit land. suit seeking the stated remedies. I he second defendant, as the statutory body vested with powers to conti al and allocate the suit land, refused the claims of the plaintiff and the Third Party, and acknowledged the first defendant as the owner and thus the one entitled .to Plaintiff and the Third party disagreed with the second defendant's decision. As a result of the disagreements the plaintiff instituted this

The issues for determination were agreed upon as follows:-

- 1. Whether tne plaintiff has a cause of action against th? second defendant. - 2. Whether or r t the plaintiff is entitled to the land comorised in plot 27, Mama Cave close, Pece Division Gulu, Municipality, Gulu District. - 3. Whether or not the suit land belongs to the first defendant. - 4. What are the remedies available to the parties.

- Q\_O EA514. As to the first issue, in law, a cause of action is established when the plaintiff shows entitlement to enjoy a right, that that right has been injured and the defendant is liable for the injury. See: AUTO-GARAGE-VS-MOTOKOV: (1971)

second defendant, on The evidence of PW1 (plaintiff) DWl(lst Defendant), DW2, (Senior Land ManaaAmpnr Ofi.cer of 2nd Defendant) and the pleadings Tiled in the suit as Management Ofi.cer of 2 well as the cross-examinatiomconducted by the Third party, establish that the being applied to, refused to register the respective \*

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interests of the plaintiff and those of the Third party in the suit land. Indeed, according to plaintiff, the second defendant advised him (plaintiff) to take the matter of his alleged interests in the suit land to a court of law for resolution as against the first and second defendants.

Further, the suit land, on the evidence availed, is leasable land and as such, by law, under the control of the second defendant. According to DW2, the second defendant registered the interests of the first defendant in the suit land and rejected to register those of the Third party and the plaintiff. By that decision, according to the plaintiff, the right of ownership he claims in the suit land was violated by the second defendant.

This court holds that the plaintiff, both by pleading and evidence, has shown that he had and still claims having a right of ownership in the suit land, that the same was illolated and the second defendant, amongst others, is one of the violators. Thus the plaintiff has a cause of action against the second defendant.

The second issue is whether or not the plaintiff is owner by purchase of the suit land.

The evidence of DW1 and DW3 to the effect that on 12.08.92, the first defendant acquired by purchase the suit land and the huts that were thereon from one Philip Okeny is uncontroverted. According to DW1 she acquired the land for her children, including, the late Omona James Kercan, who subsequently became husband to the Third Party. Thus the Third party, Filda Omona Akongo, is a daughter in law of the first defendant. Before his death on 22.06.02, the late Omona James Kercan, together with, the Third party, as wife and their children, used to stay in Kampala, where the late

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Omona James Kercan worked with Uganda Posts and Telecommunications Corporation.

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From the period of acquisition of the suit land, the first defendant stayed on the said land with those of her children who were still schooling, while those others, like Omona James Kercan, who got married or established their respective homes elsewhere, stayed away from this land.-

her daughter in law, the Third party, now a widow, as well as the children of - |O her said late son, had had to move from Kampala to Gulu; and had no proper place to stay in while in Gulu. The first defendant thus invited the Third party and her children fathered by her stated deceased son to occupy the suit land and the house thereon. This piece of evidence was not denied by the Third. party in any way. After the death of Omona James Kercan, the first defendant moved away from the suit land and went to her village home at Ariaga. The first defendant did so because, after the death of her son Omona James Kercan, she saw that

The first defendant further testified that on acquiring the suit land, she, on 22.12.92, in writing to all her children, as per exhibit D3 (a) and (b) gave authority to regard the said land as a "footmark" of the family of Bazilio Olou of Palaro. Her children, boys and girls, were to unite and invest in the land; and that the authority over the land would be in the hands of the elder brother Omona James as well as that of Odcra Jimmy and the young boys at home.

On 18.04'.94, E.'lease offer of the suit land was granted to Omona James Kercan, as an individual, exhibit P5. On the basis of this lease offer, payment to the requisite authorities was made by Omona James Kercan for submission

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of a building plan form, water services connection, survey and registration fees and land premium: exhibits P8 and P10.

arose between the two remained the sole administrator of the estate of Omona James Kercan. This was on 22.12.04. Disagreements administrators and through Chief Magistrate's Court Gulu Civil Suit No. 172 of 2003, Odora Jimmy was removed After the death of Omona James Kercan, Letters of Administration of his estate were first granted jointly to the Third party and the brother of the deceased, Odora Jimmy. as administrator and the Third party

**- IO** party in the LC II Court, Tegwana Parish, Pece Division: Civil Suit No. 1 of 2005. The Third party, apparently though served with court process, did not attend the proceedings of this court and the court decided the case in her absence on 19.01.05. As sole administrator of the estate of the late Omona James Kercan, the Third party asserted that the late was the sole owner of the suit land. The first defendant d'd ncA agree with this; and she lodged a case against the Thi d

The LC II Court, on the basis of the evidence concerning the whole history of the acquisition of the land declared the first defendant to be the rightful owner of the suit land and that the Third party had no right over the same; exhibits D6 (?) and (b).

one had expired by the 02.05.97. The expiry was before the death of the late Omona James Kercan. The second defendant agreed and approved the The first defendant, armed with the judgment of the LC II Court, successfully applied to the second defendant for her to be registered as the owner of the suit land and to be granted a fresh lease offer, as the first

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the change of names, registration of the interest of the first defendant in the suit land and the offer of a fresh lease to her by the second defendant was brought to the attention of the Third party at the time the same were done. application at a meeting of 24/25th August, 2005. There is no evidence that

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From about 22.05.05 to 05.08.05 the Third party and the plaintiff were executing the purchase of the land by the plaintiff from the Third party; and soon thereafter the plaintiff took occupation and use of the land.-

According to plaintiff, before he paid the purchase price for the suit land, he ascertained from the records of the second defendant that the suit land had been the subject of the lease offer to Omona James Kercan and that the- -io Third party was the one administering the estate of the said Omona James Division, where the suit land is situate, as a witness to the agreement .of purchase: exhibits P2 and P3. Kercan. He also involved the chairman LC I, Layibi Central Sub-ward, Pece

The **- |£"** third party adduced no evidence to deny that there was a dispute between her and the first defendant as regards the ownership of the suit land. No evidence war also adduced by her to deny knowledge jf the existence-of the case against her before the LC II Court and that on 19.01.05 this Court had ruled the case by declaring the first defendant the rightful owner of the suit **-5. C** Court and before the Chief Magistrate's Court, Gulu, where the Third party's claim No. 014 of 2006 was dismissed on 15.06.07. land. Indeed the Third party contested the LC II Court decision in the LC III\*

It has been submitted for the plaintiff that the LC II Court, Tegwana Parish was not seized with jurisdiction to entertain the case of the first defendant again\*;\* the Third party relating to the suit land. In the considered

view of this court, this submission is not valid in law and in fact. The main complaint of the first defendant against the Third party before the LC II Court was that the Third party had wrongly converted the first defendant's suit land, which she bought for all her children, to be land solely owned by only the estate of the late Omona James Kercan, whose estate the Third party was administering.

Section 5 (1) (a) and (2) (b) of the first schedule part2 of the Executive Committees (Judicial Powers) Act, Cap.8 Laws of Uganda, 2000 Edition, vested in the LC Courts jurisdiction to try cases of conversion, damage to property and trespass, without any limitation as to pecuniary jurisdiction. This court is thus - IQ unable to agree with the submission that the LC II Court, Tegwana Parish, was not seized of jurisdiction to try the case of the first defendant against the third party in respect $\ddot{c}$ ; the suit land since the claim before it was one of possible conversion and trespass of and to the suit land.

On the evidence adduced court comes to the conclusion that the Third $-i\varsigma$ party proceeded to sell the suit land to the plaintiff, while aware that the first defendant claimed interests of owner in the said land, and also, while aware that the LC II Court, Tegwana Parish, had ruled that the suit land belonged to the first defendant, and had dismissed the Third party's assertion that the land solely belonged to her late husband, Omona James Kercan. In acting as she $-20$ did, the Third party acted fraudulently to the prejudice of both the plaintiff and the first defendant.

Court, on evaluating the whole evidence before it, however finds that the Third party was in occupation and use of the suit land at the invitation and with permission of the first defendant. The third party was in effect, at the

I C. will that this is a famo Come " the Citizensel Dated this material time of the plaintiff's purchase of the land, an agent, licencee and/or occupying and using the suit land had no powers to dispose of or alienate the said land, in any way whatsoever, to the prejudice of the interests of the first defendant. The first defendant ought to have done this immediately the Third party started claiming that the land was the sole property of the late Omona James Kercan and also when the LC II Court, Tegwana Parish pronounced its - *I&* decision on 19.03'95. representative of the first defendant to the other unknowing persons, like the • ! i plaintiff, who tooliinterest in purchasing the land. It was thus incumbent upon the first defendant to stop and to take steps to warn and notify such a people, like the plaintiff, that this Third party, Filda Akongo Omona (Mrs) who was

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There was no evidence from the first defendant that she passed the decision of the LC II Court to the LC I of the area where the suit land is situate with a request that the LC II judgment be respected by the Third party and indeed observed by the LC I Court by bringing it to the attention of unknowing parties, like the plaintiff.

There is also no evidence that the first defendant, did confront the third party with the LC II judgment and demanded of her, in the presence of the LC I officials and/or family/clan members and the neighbours to the land, **} •' ! '■ J. \** to comply with the LC II judgment.

the suit land to protect her interests in the land as against the Third party and also to warn off people, like the plaintiff, from expressing any interest in the suit land. No evidence was availed that the first defendant posted any one on

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The evidence before court is that even after the LC II judgment had been given, the first defendant left the third party in occupation and use of the suit land undisturbed, thus providing no notice of her interests in the suit land to parties like the plaintiff, whom the third party convinced that the suit land was solely that of her late husband, whose estate she was now administering. - S

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Court appreciates that the first defendant, soon after the judgment of the !. C II Court, proceeded to the second defendant and applied to record her interest in the suit land on the basis of the said court decision and also to have a fresh grant of a lease offer on 18.02.05. Court however finds that by failing to do something at the actual land the first defendant failed to fix notice of her interests in the suit land to other parties like the plaintiff.

This court also notes that the purchase of the suit land by the 13' 20/2005 (A)(99). This was after the suit land had already been sold to the offer to the first defendant by the second defendant was handled on 24 August, 2005 according to the second defendant's minute GDLB (3) MIN: plaintiff by the third party on 21.06.05 and 05.08.05. The first defendant's application for lease extension and change of names in respect of the suit property, though dated 18.02.05 exhibit D5, does not show when the same - CQ was received by the second defendant. plaintiff from the third party was, according to the purchase agreements: exhibits P2 and P3, on/or about 21.06.05 and 05.08.05, whereas the lease **th \_25th**

There was also no credible evidence as to how the same was kept as interested a record by the second defendant, whether it was availed for perusal to qui.'^rs like the plaintiff. In the circumstances exhibit D5 cannot

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be taken as a conclusive notice to other parties, like the plaintiff, of the first defendant's'ihtersst in the suit land.

belonged to \*he 1!,ird party. found the records tallying with those that the third party had given to him as proof of ownership of the suit land. He involved the LCI of the area where the land is situate in the execution of the purchase agreement. He made inquiries from the available neighbours to the land. All these assured him the land - IQ inquiries about the ownership of the land from the land office, Gulu, where he - There was no fraud or sharp practice proved against the plaintiff in his acquisition of the suit land from the third party. He made reasonable

had expired, the plaintiff was entitled, given the fact that the third party was in actual possession, use and occupation of the suit land, to conclude that the suit land belonged to the third party.. While it is true that the lease offer showed to him by the Third party

This court saw the demeanour of the plaintiff. forward in his testimony and answered the questions put to him in an honest and sincere m anner. He was a witness of truth. He was straight

interests of the first defendant who had put the third party in control, use and ~ occupation of the suit land. It follows therefore, that the first defendant, and not the plaintiff, must suffer the adverse consequences of the fraudulent conduct of the third party in disposing of the suit land to the plaintiff. On reviewing all the evidence, court finds that the plaintiff was a bonafide purchaser for value of the suit land without any notice of the

The answer to the second issue is that the plaintiff, by reason of being a bona<!de purchaser for value without notice, from the third party to -

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whom the first defendant had entrusted the occupation, use and control of the suit land, is entitled to the suit land comprised in plot 27 Mama Cave close, Pece Division, Gulu Municipality, Gulu District.

The third issue: whether or not the suit land belongs to the first defendant is resolved by the answer to the second issue. The plaintiff, for reasons already stated, is now the owner of the suit land.

The fourth issue is what remedies are available to the parties.

The plaintiff, by reason of the way the first, second and third issues have been resolved is entitled to cancellation of the lease offer Ref. 43077 plot No. 27 Mama Cave Close-Gulu, Land at Pece Division- Gulu Municipality, from $-i\epsilon$ the names of Akongo Nusura Olak of P. O. Box 140 Guiu, the first defendant, (bearing the names of Nasula Akongo in the plaint), and to register the said offer into the names of the plaintiff Oyat Francis Otoo c/o P. O. Box 531. Gulu on the same terms and conditions as are contained in the lease offer reference 43077 of 16th September, 2005.

A permanent injunction is hereby issued restraining the first defendant, or those purporting to derive title from the first defendant from interfering with the plaintiff's quiet enjoyment, occupation and use of the suit land.

The second defendant as the statutory body vested with powers to $-2\mathfrak{D}$ make offers of leases is hereby directed to effect the cancellation of the said lease offer Ref No. 43077 Plot 27 Mama Cave Close-Gulu, from the names of Akongo Nusura Olak and to register the said lease offer into the names of the plaintiff as ordered herein above.

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third party was aware of the interests of the first defendant in the suit land. M v>i Fit-. *■■* t *\*.t* As regards the first defendant and the third party, this court notes with regret, that though the first defendant was represented by legal counsel throughout the trial, no attempt at all was made to amend the pleadings so that the first defendant would claim to recover whatever the third party obtained from the plaintiff through the sale of the suit land when the said

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This court is however enjoined by Article 126 of the Constitution to exercise judicial power in conformity with law and with the values, norms and justice without undue regard to technicalities. aspirat:ons the-oeople. In adjudicating cases, this court ir obliged to award adequate compensation to victims of wrongs and to administer substantive —

In this case the third party, in total disregard, of the interests of the first defendant in the suit land proceeded to sell the same to the plaintiff at a agreements: exhibits P2 and P3. total sale price of shs. 15,500,000/= as is evidenced by the purchase - IS

For this court to let the third party to keep the whole of this money would amount to enabling the third party to enrich herself from her own wrong of selling the suit land when she well knew and was well aware-of the and in the exercise of its inherent powers, finds it appropriate that the money defendant. obtained by the third party be shared between the estate of theJate James Omona Kercan, whose estate the third party is administering and the first interests of the first defendant in the said land. Therefore this court, the absence of pleadings on the part of the first defendant notwithstanding, .in ■'(2P order to administer substantive justice without undue regard to technicalities,

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1. A declaration is hereby issued that the plaintiff acquired by purchase, as a bonafide purchaser for value without notice, the land comprised in plot No. 27 Mama Cave close- Gulu, land at Pece Division, Gulu Municipality.

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- 2. names ofAkongo Nusura Olak of P. O. Box 140 Gulu, and to register the said lease offer into the names of the plaintiff: OYAT FRANCIS OTOO c/o P. O. An order is hereby issued cancelling the lease offer Ref. 43077' Plot No. 27 Mama Cave close- Gulu, land at Pece Division, Gulu Municipality from the Box 531 Gulu, on the same terms and conditions as are contained in the lease offer Ref: 43077 of 16th September, 2005. - **3.** A permanent injunction is hereby issued restraining the first defendant, or |C> those purporting to derive title to the suit land from the first defendant, from interfering with the plaintiff's quiet enjoyment, occupation and use of the suit land. - **4.** Cave close- Gulu from the names of Akongo Nusura Olak and to register the said lease offer into the names of the plaintiff as ordered in number two (2) herein above. The second defendant, the Gulu District Land Board, is hereby directed to effect the cancellation of the said lease offer Ref: 43077 plot No. 27 Mar ia — l-S - 5. It is ordered that the purchase price sum of shs. 15,500,000/= (fifteen million and five hundred thousand) paid by the plaintiff to the third-partyfor the suit land be divided as follows:- - Shs. 5,000,000/= (five million only) to be retained by the third party Fi!:'a A'ongo Omona for and on behdf of the -.state of the late Omona James Kercan.

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ii. Shs. 10,500,000/= (ten million five hundred thousand only) be paid immediate on delivery of this judgment, by the third party (Filda said suit land. Akongo Omona) to the first defendant: Akong Nusura Olak, also known as NASULA AKONGO, being the compensation for and/or value of the interests the said first defendant had, as owner, in the

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iii. The shs. 10,500,000/= (Ten million five hundred thousand only) shall carry interest at the court rate as from the date of its payment to the party to the first defendant. third party on 21.06.2005 till payment of the same in full by the third

As to costs, it is the holding of this court that the third party is responsible for this litigation. Accordingly it is ordered that the third party, Filda AKongo Omona, pays the costs of the suit to the plaintiff, as well as to the first and second defendants.

Remmy Kasule Judge 26.11.2010 **•' A** : ; U a tS-.ie 7 I

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