Simon Kato Bugoba v Samuel Kigozi (HCT-00-CC-CS 543 of 2004) [2007] UGCommC 12 (5 February 2007)

{\rtf1\ansi\deff1\adeflang1025 {\fonttbl{\f0\froman\fprq2\fcharset0 DejaVu Sans;}{\f1\fnil\fprq0\fcharset0 Times{\*\falt Times New Roman};}{\f2\fnil\fprq0\fcharset0 Times{\*\falt Times New Roman};}{\f3\fswiss\fprq2\fcharset0 DejaVu Sans;}{\f4\fnil\fprq0\fcharset0 Times{\*\falt Times New Roman};}{\f5\fswiss\fprq0\fcharset0 Helvetica;}} {\colortbl;\red0\green0\blue0;\red128\green128\blue128;} {\stylesheet{\s1\rtlch\af3\afs24\lang255\ltrch\dbch\af3\langfe255\hich\fs24\lang7177\loch\fs24\lang7177\snext1 Normal;} {\s2\sb240\sa120\keepn\rtlch\af1\afs28\lang255\ltrch\dbch\af1\langfe255\hich\f5\fs28\lang7177\loch\f5\fs28\lang7177\sbasedon1\snext3 Heading;} {\s3\sa120\rtlch\af3\afs24\lang255\ltrch\dbch\af3\langfe255\hich\fs24\lang7177\loch\fs24\lang7177\sbasedon1\snext3 Body Text;} {\s4\sa120\rtlch\af3\afs24\lang255\ltrch\dbch\af3\langfe255\hich\fs24\lang7177\loch\fs24\lang7177\sbasedon3\snext4 List;} {\s5\sb120\sa120\rtlch\af3\afs24\lang255\ai\ltrch\dbch\af3\langfe255\hich\f2\fs24\lang7177\i\loch\f2\fs24\lang7177\i\sbasedon1\snext5 caption;} {\s6\rtlch\af3\afs24\lang255\ltrch\dbch\af3\langfe255\hich\fs24\lang7177\loch\fs24\lang7177\sbasedon1\snext6 Index;} {\s7\sb120\sa120\rtlch\af3\afs24\lang255\ai\ltrch\dbch\af3\langfe255\hich\fs24\lang7177\i\loch\fs24\lang7177\i\sbasedon1\snext7 caption;} {\s8\li567\ri567\lin567\rin567\fi0\sa283\rtlch\af3\afs24\lang255\ltrch\dbch\af3\langfe255\hich\fs24\lang7177\loch\fs24\lang7177\sbasedon1\snext8 Quotations;} } {\info{\creatim\yr2007\mo8\dy20\hr16\min12}{\revtim\yr1601\mo1\dy1\hr0\min0}{\printim\yr1601\mo1\dy1\hr0\min0}{\comment StarWriter}{\vern6800}}\deftab709 {\*\pgdsctbl {\pgdsc0\pgdscuse195\pgwsxn11905\pghsxn16837\marglsxn1134\margrsxn1134\margtsxn1134\margbsxn1134\pgdscnxt0 Standard;}} \paperh16837\paperw11905\margl1134\margr1134\margt1134\margb1134\sectd\sbknone\pgwsxn11905\pghsxn16837\marglsxn1134\margrsxn1134\margtsxn1134\margbsxn1134\ftnbj\ftnstart1\ftnrstcont\ftnnar\aenddoc\aftnrstcont\aftnstart1\aftnnrlc \pard\plain \ltrpar\s3\sa120\ql\rtlch\af3\afs24\lang255\ltrch\dbch\af3\langfe255\hich\fs24\lang7177\loch\fs24\lang7177 {\rtlch \ltrch\loch\f1\fs24\lang7177\i0\b0 Last Updated: 25 May 2007} \par \pard\plain \ltrpar\s3\sa120\ql\rtlch\af3\afs24\lang255\ltrch\dbch\af3\langfe255\hich\fs24\lang7177\loch\fs24\lang7177 \par \pard\plain \ltrpar\s3\sa120\ql\rtlch\af3\afs24\lang255\ltrch\dbch\af3\langfe255\hich\fs24\lang7177\loch\fs24\lang7177 {\rtlch \ltrch\loch\f1\fs24\lang7177\i0\b0 Simon Kato Bugoba V Samuel Kigozi -HCT-00-CC-CS-0543-2004 [2007] UGCommC 12 (6 February 2007)\line \line THE REPUBLIC OF UGANDA\line IN THE HIGH COURT OF UGANDA AT KAMPALA\line (COMMERCIAL COURT DIVISION)\line \line {\ltrch\hich\b\loch\b HCT-00-CC-CS-0543-2004}\line \line Simon Kato Bugoba Plaintiff\line Versus\line 1. Samuel K igozi\line 2. Muyanja Mbabali Defendant\line \line {\ltrch\hich\b\loch\b 6}{{\*\updnprop10000}\up8\ltrch\hich\b\loch\b th}{\ltrch\hich\b\loch\b February 2007}\line \line {\ul\ulc0\ltrch\hich\b\loch\b BEFORE: THE HONOURABLE MR. JUSTICE YOROKAMU BAMWINE}\line \line {\ul\ulc0\ltrch\hich\b\loch\b J U D G M E N T:}\line \line The plaintiff\'92s case against the defendants is that he borrowed Shs.26m from the 1{{\*\updnprop10000}\up8 st} defendant and as security therefore pledged l and comprised in Kyaggwe Block 110 Plots 1526 and 2282 at Seeta. Without giving to him notice of foreclosure, the 1{{\*\updnprop10000}\up8 st} defendant transferred the said land into his names. The 2{{\*\updnprop10000}\up8 nd} defendant bought the suit land from the 1{{\*\updnprop10000}\up8 st} defendant.\line \line At the scheduling conf erence, the parties agreed that the plaintiff borrowed from the 1{{\*\updnprop10000}\up8 st} defendant a sum of Shs.20,000,000- and pledged his land comprised in Kyaggwe Block 110 Plots 1526 and 2282 Land at Seeta. Parties executed an agreement for Shs.26m and as further security plaintiff deposited with 1{{\*\updnprop10000}\up8 st} defendant the certificates of title and duly signed transfer forms and a cheque in the sum of Shs.26m. When the cheque was presented for payment, it bounced. On 13/9/2002, the 1{{\*\updnprop10000}\up8 st} defendant transferred plot 1526 into his own na mes. On 30/9/2002 the 1{{\*\updnprop10000}\up8 st} defendant did like wise for plot 2282. On 17/2/2004, the land was transferred from the 1{{\*\updnprop10000}\up8 st} defendant to the 2{{\*\updnprop10000}\up8 nd} defendant and according to the transfer documents the consideration was Shs.20m. The plaintiff got an evaluation of th e property and at the time of the transfers the property was worth Shs.125m.\line \line Issues:\line 1. Whether the 1{{\*\updnprop10000}\up8 st} defendant was entitled to transfer the land into his own names.\line 2. Whether the 2{{\*\updnprop10000}\up8 nd} defendant was a bonafide purchaser.\line 3. Whether the plaintiff is enti tled to the remedies sought.\line \line Counsel:\line Mr. Ronald Ngobi for the plaintiff.\line Mr. Gideon Balinda for the 2{{\*\updnprop10000}\up8 nd} defendant.\line \line Before I delve into the issues for determination herein, I find it necessary to comment on two important aspects of this case. The first o ne is that the 1{{\*\updnprop10000}\up8 st} defendant did not participate in the proceedings. He is said to have disappeared after transferring the land to the 2{{\*\updnprop10000}\up8 nd} defendant. The second one is that the facts disclose issues of Land and commercial justice. In August 2004, the learn ed Registrar of this Court referred the case to the Civil Division of the High Court. On 28/10/2004, a Judge of the Civil Division sent it back to the Commercial Division after observing:} \par \pard\plain \ltrpar\s8\li567\ri567\lin567\rin567\fi0\sa283\ql\rtlch\af3\afs24\lang255\ltrch\dbch\af3\langfe255\hich\fs24\lang7177\loch\fs24\lang7177 {\rtlch \ltrch\loch\f1\fs24\lang7177\i0\b0 "I have reviewed the pleadings and facts and consider this to be a commercial transaction involving a hybrid mortgage dealing and the consequences thereof. As such it is a commercial dispute to be dealt with in that Court. I direct file to be sent there fo r disposal."} \par \pard\plain \ltrpar\s3\sa120\ql\rtlch\af3\afs24\lang255\ltrch\dbch\af3\langfe255\hich\fs24\lang7177\loch\fs24\lang7177 {\rtlch \ltrch\loch\f1\fs24\lang7177\i0\b0 I\'92m not sure that sending it back to the Commercial Division as if the Civil Division does not at all handle matters of Commercial financial nature was the best course to take in the circumstances of this case. Be that as it may, I will do the best I can.\line \line To appreciate what happened between the plaintiff and the 1{{\*\updnprop10000}\up8 st} defendant, I consider it necessary to reproduce the Loan Agreement between them. It goes as follows:} \par \pard\plain \ltrpar\s8\li567\ri567\lin567\rin567\fi0\sa283\ql\rtlch\af3\afs24\lang255\ltrch\dbch\af3\langfe255\hich\fs24\lang7177\loch\fs24\lang7177{\rtlch \ltrch\loch\f1\fs24\lang7177\i0\b0{\ul\ulc0 "MONEY LENDING AGREEMENT}}{\rtlch \ltrch\loch\f1\fs24\lang7177\i0\b0 \line This agreement coming this 8{{\*\updnprop10000}\up8 th} day of July 2002 between KIGOZI SAMUEL of P. O. Box 30220 Kampala ........... and Simon Kato Bugoba ..................................\line WITNESSETH AS FOLLOWS:-\line 1. The lender hereby lends to the borrowe r at the borrower\'92s own request who hereby receives the sum of Shs.26,000,000- to be paid back to the lender within a period of 30 days from the date of signing of this agreement.\line 2. That the borrower guarantees as security for the repayment land and house s thereon comprised in Block 110 Plot 1526 and Block 110 Plot 2282 respectively, land at Seeta East Buganda Kyaggwe registered proprietor Simon Kato Bugoba and a post dated cheque No. 071747 of 26,000,000- (words) drawn on Nile Bank, Parliament Avenue Bran ch, Kampala and dated the 6{{\*\updnprop10000}\up8 th} day of August 2002.\line 3. The borrower has surrendered to the lender two duplicate certificates of titles for the above security and has signed transfer and consent forms in favour of the lender at the signing of this agreement.\line 4. That if the borrower defaults, the lender is free to apply for and transfer the property into his names and takeover ownership thereof and or sell it to recover his outstanding amount plus costs and other related charges.} \par \pard\plain \ltrpar\s8\li567\ri567\lin567\rin567\fi0\sa283\ql\rtlch\af3\afs24\lang255\ltrch\dbch\af3\langfe255\hich\fs24\lang7177\loch\fs24\lang7177 {\rtlch \ltrch\loch\f1\fs24\lang7177\i0\b0 In witness whereof the above parties have hereto set their respective Lands the month and year first above mentioned.} \par \pard\plain \ltrpar\s3\sa120\ql\rtlch\af3\afs24\lang255\ltrch\dbch\af3\langfe255\hich\fs24\lang7177\loch\fs24\lang7177 {\rtlch \ltrch\loch\f1\fs24\lang7177\i0\b0 \line Signed by the said ...........................\line KIGOZI SAMUEL LENDER\line \line Signed by the said ..............................\line SIMON KATO BUGOBA BORROWER\line \line All in the presence of ..........................\line EDISON RUYONDO ADVOCATE"\line \line Other witnesses included one Kiw anuka and one Mulindwa.\line \line In his testimony, the plaintiff narrated how in 2002 he was looking for someone to lend him money. Someone took him to the 1{{\*\updnprop10000}\up8 st} defendant. He lent him Shs.20m and they made an agreement to that effect, P. Exhibit. 1. The agreement t alks of Shs.26m. The difference was interest. He was to pay it back in a period on one month. He provided the aforementioned security and he was made to sign a transfer form, P. Exhibit. 111 but they did not date it. The transfer was in favour of Kigozi. T here were houses on the two properties. Each plot had 3. He admits that he failed to raise Kigozi\'92s money in time. On failing to pay, Kigozi went straight to the Land Office and transferred the two titles into his names. When he went to the Land Office one and half months later, he found that the transfer had already been effected. Kigozi did not notify him that he was going to transfer. On realizing that he had transferred, he put a caveat. But after the transfer, he, Kigozi, did not evict him from the lan d.\line \line It is his evidence further that on failing to raise the money, he contacted Kigozi and they agreed that he, the plaintiff, sells one plot with 3 houses on it. One broker called Mulindwa took him to Conference Centre where Mbabali\'92s offices were. Mbabal i offered Shs.40m. The plaintiff wanted Shs.100m. In the course of time, he had problems with Wembley people and went into hiding. By the time he came back, Mbabali had already bought the land.\line \line Learned counsel for the plaintiff has submitted that in view of the facts above, the relationship of the plaintiff and the 1{{\*\updnprop10000}\up8 st} defendant was that of an equitable mortgagor and mortgagee as no legal mortgage was executed by the parties. The law provides that an equitable mortgage of land may be made by the registered proprietor of his/her certificate of title with intent to create security thereon whether accompanied or not by a note or memorandum of deposit. Every equitable mortgage as aforesaid shall be deemed to create an interest inland. From the pleadings and evi dence of the plaintiff, I accept counsel\'92s argument that the plaintiff and the defendant duly satisfied the provisions of the law as to creation of an equitable mortgage. Was the 1{{\*\updnprop10000}\up8 st} defendant then entitled to transfer the land into his names?\line \line I have addr essed my mind to the above issue. The absence of the 1{{\*\updnprop10000}\up8 st} defendant both as a party and a witness has not made my work any easier. But as pointed out already, the loan agreement purported to grant power to the 1{{\*\updnprop10000}\up8 st} defendant to transfer the land into his own names and to this end the plaintiff signed transfer forms. During his testimony, the plaintiff said that he needed money urgently to grade some land, which he hoped to sell and pay off the loan. He also testified that the document was drawn by the 1{{\*\updnprop10000}\up8 st} def endant\'92s lawyers and that the acquisition of the loan was conditioned on the plaintiff\'92s signature on the loan agreement in the words it was couched. Mr. Ruyondo who drafted the agreement for the parties did not appear as a witness to challenge the plainti ff on that point. I\'92m inclined to the view espoused by counsel for the plaintiff that clause 4 of the agreement did not entitle the 1{{\*\updnprop10000}\up8 st} defendant to transfer the land into his names and gain ownership thereof. The lawyer who drafted the agreement on behalf of the parties ought to have been aware of the existence of S. 129 (2) of the Registration of Titles Act which clearly states that an equitable mortgage shall be deemed to create an interest in land. By implication, after creation of the equitable mortgag e the 1{{\*\updnprop10000}\up8 st} defendant had an interest in the land to the extent of the sum loaned to the plaintiff. Upon default by the plaintiff, the remedies open to the 1{{\*\updnprop10000}\up8 st} defendant were the ones set out in the Mortgage Act. He could appoint a receiver; take possession of the mortgaged land; and/or foreclose. He did not do any of the above. He did not follow any of the provisions of the law relating to realization of an equitable mortgage. It is immaterial that the plaintiff expressly gave power to the 1{{\*\updnprop10000}\up8 st} defendant to t ransfer the land into his names. I say so because an equitable mortgagor has an equitable right to redeem his property. Any provision in the mortgage purporting to oust that right would be invalid. The case cited to me by counsel{\ltrch\hich\i\loch\i , }{\ul\ulc0\ltrch\hich\i\b\loch\i\b Samuel \'96Vs- Jarrah Timber of Wood Paving Corporation [1904] A. C. 323,} is in my view relevant to the facts herein. In that case, Lord Lindley explained:} \par \pard\plain \ltrpar\s8\li567\ri567\lin567\rin567\fi0\sa283\ql\rtlch\af3\afs24\lang255\ltrch\dbch\af3\langfe255\hich\fs24\lang7177\loch\fs24\lang7177 {\rtlch \ltrch\loch\f1\fs24\lang7177\i0\b0 The doctrine "once a mortgage always a mortgage" means that no contract between a mortgagor and a mortgagee made at the time of the mortgage and as part of the transaction or in other words, as one of the terms of the loan, can be valid if it prevents the mortgagor from getting back his property on paying off what is due on his security. Any bargain which has that effect is invalid, and is inconsistent with the transaction being a mortgage.} \par \pard\plain \ltrpar\s3\sa120\ql\rtlch\af3\afs24\lang255\ltrch\dbch\af3\langfe255\hich\fs24\lang7177\loch\fs24\lang7177 {\rtlch \ltrch\loch\f1\fs24\lang7177\i0\b0 I agree. I would only add that the plaintiff had secured his land as a mortgage. He was entitled to redeem it on payment of the debt in full at any time even after expiry of the repayment date. The remedy available to Kigozi was not to go straight to the L and Office and transfer the land into his names but to apply to Court to exercise the powers available to a mortgagee.\line I would answer the first issue in the negative and I do so.\line \line As to whether the 2{{\*\updnprop10000}\up8 nd} defendant was a bonafide purchaser, I have already sta ted that according to the plaintiff, on failing to raise the 1{{\*\updnprop10000}\up8 st} defendant\'92s money, he contacted Kigozi and they agreed that he, the plaintiff, sells one plot with 3 houses on it. From the plaintiff\'92s own evidence, therefore, he intended to sell one of the plots to pay off Kigozi. He claims that one Mulindwa took him to Conference Centre and introduced him to the 2{{\*\updnprop10000}\up8 nd} defendant who went and inspected the houses. He claims that Mbabali wanted to buy both. I take the \'91both\'92 in his testimony to refer to the plo ts. He asked for Shs.100m but Mbabali offered Shs.40m. They failed to agree and in the process of looking for other buyers, he had problems with Wembley people and went into hiding. The 2{{\*\updnprop10000}\up8 nd} defendant denied knowledge of the plaintiff prior to the purchase by him of the suit property. Mulindwa who would have thrown more light on the matter did not appear as a witness. He was said to be ill.\line \line I have considered the plaintiff\'92s evidence that on learning about the transfer to Kigozi he went to the Land Office an d lodged a caveat to stop any further deals on the land until his dispute with Kigozi was resolved. There is ample evidence that he did so. A person with no more interest in the land would not have done so. He testified that he was not notified about the r emoval of the caveats. The second defendant has produced a notice to him to remove a caveat, D. Exhibit. V, but there is nothing on it to show that the plaintiff ever received it. From the evidence, however, upon the caveats being removed, the 2{{\*\updnprop10000}\up8 nd} defendan t became the registered owner of both plots. The plaintiff is not happy about it. He claims that he lost property worth Shs.125m for a mere Shs.40m paid by the 2{{\*\updnprop10000}\up8 nd} defendant to Kigozi and yet he could have obtained a buyer and paid the proceeds to Kigozi. I noted the demeanour of the plaintiff as he testified. I was of the view that he was a truthful witness for his side. I accept his evidence that upon failing to pay, himself and Kigozi agreed that one plot be sold so that Kigozi is paid his Shs.26m. I als o accept the plaintiff\'92s evidence that the 2{{\*\updnprop10000}\up8 nd} defendant was contacted as a potential buyer and he showed interest in the property. However, because of the problem he had with Wembley people, and because of the gap in the figures, the plaintiff did not com plete the deal with the 2{{\*\updnprop10000}\up8 nd} defendant. It would appear to me that Kigozi took advantage of the plaintiff\'92s absence not only to conclude the deal with the 2{{\*\updnprop10000}\up8 nd} defendant but also to pay himself Shs.40m instead of the Shs.26m the plaintiff owed him. From the above evidence, I reject the 2{{\*\updnprop10000}\up8 nd} defendant\'92s evidence that he did not know the plaintiff prior to purchasing the suit property. I also accept the plaintiff\'92s evidence that while the property he had wanted sold comprised one plot, No. 1526, the 2{{\*\updnprop10000}\up8 nd} defendan t ended up buying Plot No. 2282 as well. In law, a bonafide purchaser is one without notice of fraud and without intent to wrongfully acquire. A bona fide purchaser acquires good title irrespective of the vendor\'92s defective title. From the evidence present ed to Court, the 2{{\*\updnprop10000}\up8 nd} defendant knew or had cause to know that Kigozi was not the right person to sell the land in view of the plaintiff\'92s interest in it. He did in my view act dishonestly towards the plaintiff. He took undue advantage of the plaintiff\'92s ab sence after he had had problems with Wembley people.\line \line His dishonesty is further reflected in his subsequent acts. Whereas he claims that he inspected the suit property and found there houses with tenants in them, DW3 Okolong Charles who valued the property for purposes of stamp duty and testified that he inspected the suit property in the company of the 2{{\*\updnprop10000}\up8 nd} defendant said that the property shown to him had incomplete houses at window level. DW3\'92s evidence is clearly in sharp contrast with that of the 2{{\*\updnprop10000}\up8 nd} de fendant on the question of developments on the land. Learned counsel for the plaintiff has submitted that in view of the evidence of the plaintiff, DW1 Kyeyune Mbabali and DW2 Muyanja Mbabali regarding the description of the suit property, it is clear that DW3 Okolong was shown different property. I accept that submission. It appears to me that it is not only DW3 Okolong who was shown different property but one Bwiragura as well. The irreconcilable evidence of DW2 and DW3 on the issue of developments on the suit property leads one to no other conclusion but that the two were not talking about the same property. In my view, the 2{{\*\updnprop10000}\up8 nd} defendant\'92s act of showing different property to the valuers smirks of dishonesty. I would answer the 2{{\*\updnprop10000}\up8 nd} issue in the negative a nd I do so.\line \line I now turn to the issue of reliefs.\line \line The plaintiff\'92s head prayers, are for declarations that the transfers of the land into the names of the 1{{\*\updnprop10000}\up8 st} defendant were illegal and orders that they be cancelled. \line \line The big problem lies here. It is the p laintiff\'92s own evidence that upon failing to pay Kigozi in time, they agreed that one Plot be sold off. I have already accepted this piece of evidence in favour of the plaintiff. I have also already accepted the evidence that the person contacted by the pl aintiff and Kigozi for purposes of buying that one Plot was the 2{{\*\updnprop10000}\up8 nd} defendant. They did not pursue the matter to completion due to the stated supervening event of the Wembley people causing the plaintiff to go into hiding.\line \line From the evidence, the second de fendant paid Shs.40m for the two Plots but took the valuers to land whose developments thereon were in the region of Shs.26m. I accept the plaintiff\'92s evidence that the land in dispute comprises six houses, three on each certificate of title. However, in t he application for transfer, the defendants indicated the land as undeveloped. The 2{{\*\updnprop10000}\up8 nd} defendant sought to shift the blame for this to his lawyers. I\'92m unable to accept that. The lawyers must have acted on his instructions. He has been shown to have after all personally taken the valuers to Seeta where he showed them different land. He cannot attribute that to his lawyers as well. After all, the principal who does something through his agent must be deemed to have done it himself. Court is of the opinion th at all this was done to conceal from the valuers the fair market value of the suit property, a fact that cannot be over looked completely. I have addressed my mind to all the above, including the fact that the interests of justice require that litigation b etween the same parties ought to indeed come to an end, particularly so after the disappearance of the 1{{\*\updnprop10000}\up8 st} defendant on pocketing the sale proceeds. I have considered the fact that the plaintiff had personally accepted to sell off Plot 1526 and personally looked for the buyers. He failed to get a buyer that would give him what he wanted. In my view, it matters less, all factors considered, that the eventual buyer was the 2{{\*\updnprop10000}\up8 nd} defendant. The plaintiff himself sought his involvement. Subject to what I\'92m about to say in respect of Plot 2282, am of the considered view that the commercial justice of the case requires that the plaintiff\'92s interest in Plot 1526 be foreclosed in the 1{{\*\updnprop10000}\up8 st} defendant\'92s favour for the loan amount from him to clothe him with power to trans fer it to the 2{{\*\updnprop10000}\up8 nd} defendant. For this reason, I have seen found no sufficient cause to interfere with the 2{{\*\updnprop10000}\up8 nd} defendant\'92s title in respect of that Plot. I would therefore confirm the transfer in the 2{{\*\updnprop10000}\up8 nd} defendant\'92s favour together with the rent proceeds re alised there from since 2004 to-date in full and final settlement of the plaintiff\'92s indebtedness to Kigozi in respect of the loan amount and interest to-date. I do so.\line \line As for Plot 2282, Court considers the falsification of the amounts paid by the 2{{\*\updnprop10000}\up8 nd} def endant to the 1{{\*\updnprop10000}\up8 st} defendant, and the 2{{\*\updnprop10000}\up8 nd} defendant\'92s act of showing the valuers different property to impute knowledge on the part of the 2{{\*\updnprop10000}\up8 nd} defendant that the combined value of the two Plots far exceeded the loan amount and/or the Shs.40m paid by the 2{{\*\updnprop10000}\up8 nd} defendant to the first defendant. The transfer to the 2{{\*\updnprop10000}\up8 nd} defendant in respect of this Plot cannot therefore be upheld. I take cognizance of the fact that it is on Plot 2282 that the plaintiff\'92s family resides. The wife appears not to have been consulted before the mortgaging of he matrimonial holding. The evidence of the plaintiff and that of the 2{{\*\updnprop10000}\up8 nd} defendant is inconclusive on this point, information that she filed a suit in Jinja Court notwithstanding. For the reasons stated above, I\'92m inclined to canc el the transfer in the 2{{\*\updnprop10000}\up8 nd} defendant\'92s favour in respect of Plot 2282 and restore it to the plaintiff. I do so. He shall be at liberty to seek restoration of his name in the Register Book as by law established.\line \line The above two orders do in my view dispose o f prayers (c) and (d), in the plaint and (a) and (b), in the defendant\'92s counterclaim. Prayer (c) in the counter claim is allowed in as far as it relates to Plot 1526. Prayers (d) and (e) in the counterclaim are disallowed.\line \line The plaintiff has prayed for ge neral damages and costs. Given the role played by each in the entire saga, especially the plaintiff\'92s ill-advised signing of the transfer forms in favour of the 1{{\*\updnprop10000}\up8 st} defendant as if the loan was a matter of life or death; and the 2{{\*\updnprop10000}\up8 nd} defendant\'92s afore said dishonest acts, I do not consider this case to be a proper one for the award of general damages and/or costs to either party. There will be no order as to general damages and each party shall bear its own costs. I order so. \line \line Yorokamu Bamwine\line {\ltrch\hich\b\loch\b J U D G E}\line {\ltrch\hich\b\loch\b Ord er:} This judgment shall be delivered on my behalf by the Registrar of this Court on the due date.\line Yorokamu Bamwine\line {\ltrch\hich\b\loch\b J U D G E}\line 6/2/2007} \par \pard\plain \ltrpar\s1\ql\rtlch\af3\afs24\lang255\ltrch\dbch\af3\langfe255\hich\fs24\lang7177\loch\fs24\lang7177 \par }