Ssemwogerere v Kakumba and Another (Civil Suit 484 of 2015) [2023] UGHCLD 185 (6 July 2023)

Full Case Text

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

### **LAND DIVISION**

## **CIVIL SUIT NO. 484 OF 2015**

# GERALD M. SSEMWOGERERE :::::::::::::::::PLAINTIFF/ 1ST COUNTER DEFENDANT. **VERSUS**

# BONNY M. KAKUMBA:::::::::::::::::::::::::::::::::::: **COUNTERCLAIMANT**

# **CHRISTOPHER BWANIKA ::::::::::::::::2ND COUNTER –DEFENDANT**

## **BEFORE: HON: JUSTICE JOHN EUDES KEITIRIMA**

#### JUDGMENT

1. The Plaintiff's claim against the defendant is for the following:

- $\mathbf{i}$ That the defendant's claim over ownership of the suit land comprised in Leasehold Register Volume 3272 Folio 7, Plot 10 Kyadondo Block 273 land at Buziga Katuuso, Kampala measuring **approximately 0.154 hectares** is not only fraudulent, but also illegal null and void. - ii. A permanent injunction restraining the defendant or his employees, servants, agents, assignees, successors in title or his legal

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representativcs or other persons claiming through or under him from claiming, dealing or interfering with the suit property.

- iii. General and primitive damages for trespass to land. - iv. Interest at25oh from the date of filing the suit untilpayment in full. - v. Costs of the suit. - vi. Any other relief that this Court deems fit.

2. The facts constituting thc causc of action as stated in the Plaint are as follows:

- i. That on 6th Novcmbcr 2003, the Plaintiff entered in to a sales agreement for purchasc of the suit land from Christopher Bwanika hereinafter referred to as the "the 2nd counter defendant" who owned the same as Kibanja having bought it from one Margret Wamboga the then Administrator of the estale ol the late Engineer Michael Wamboga. - ii. That at the time of purchase, the land was owned under customary tenurc on Kabaka's land mcasuring approximatcly 0.40 acres and was being surveyed at the time and described as Plot 1472 Block 273 bordering the plot of I-Ienry Matovu on the Eastern side, Dr. Abdu Kasozi on the upper sidc, I{ajji Kasule on the lower side and Sekandi's Plot on the western side. - iii. That the vcndor, the 2nd counter defendant" had applied to the Buganda Land Board for a lcase vide BLB/I/5 of 31't January 1997 under

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general rcceipt No. 8728 of 3ll1l97 and covcnanted to authorize the lease to be issued in favour ofthe Plaintiff.

- lv. That on or around thc 21't Junc 2004, the 2nd counter dcfcndant wrote to the Secretary Land Iloard applying lor permission to transfer the lease offered to him into the names of the Plaintiff and further that he had no objection to a fresh lease offer or lease agreement being executed directly in thc names of the Plaintilf. - That on or about the 9th July 2004 to the 27th August 2004, a formal lease was executed on the suit prope(y and certificate of title was issued in the names of Christopher Bwanika for 49 years effective I't Junc 2004. - vl. That at the instancc ofthc Plaintiff; a scarch was conducted on the said land at the Buganda Land Board on or around the 29th June 2015 and a search report was issued inter alia stating that the file was opened on the 20th February 199'/ and there was a sale between the 2nd counter defendant and Wambuga Margret on the 6th December 1996 and also that the 2nd counter defendant sold the same to the Plaintiff on 6th Novembcr 2003. - vll. l'hat the defendant forcefully entered on to the land claiming ownership of the same and was in the process of constructing illegal structurcd on the suit land in order to fraudulently and illegally defeat the registercd and equitable interest ofthe Plaintiff. - vl u. The Plaintiffcontends that the defendant has never been in occupation

or posscssion of thc suit land and holds no intcrcst whatsoevcr in the # t\ o -. NL9 ?

suit land and is merely a trespasser for which the Plaintiff claims general and special damages.

ix. The Plaintiff contends that the defendant illegally and with intent to fraudulently defeat the Plaintiff s legal and equitable interest in the suit land is trespassing and hurriedly erecting illegal structures to the detriment and inconvenience of the Plaintiff for which he claims punitive damages.

3. The Plaintiff lists the particulars of fraud on part of the defendant as follows;

- a) Dishonestly claiming the suit land without any documentation. - b) The defendant dishonestly representing himself as the owner of the suit land to the local authorities and thc public. - c) The defendant razing down the Plaintiff s crops and other properties. - d) The defendant prescnting and uttering false sales agreement of the suit land. - x. That this Court should infer that the impugned conduct of the defendant is motivated by no other purpose except to fraudulently defeat the legal and equitable intcrest of thc Plaintiff in the suit propcrty. - 4. The Plaintiff therefore seeks for remedies listed herein above.

5. The dclendant in his writtcn statemcnt of dclcnce and countcr claim states intcr alia;

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- That on 20th March 1992, Muganga James Kwaabwe sold the suit land to Mr. Bagonza IIcnry, Mr. Muganga James Kwaabwe bought the land lrom IIajji Muhammad Kasule Lubbobo. I - ll. That at all material times thereafter, Bagonza Henry physically possessed and fully utilized the suit land without resistance from any person or authority whatsoevcr. - llt. That on 13th of April 2006, Bagonzallenry sold the suit land to the defendant/countcr claimant for fifty-five million shillings (55,000,000/:) which was dully and fully paid. - tv. 'l'hat the defendant/counter claimant took physical possession of the suit land and sincc then continuously used the same without protestation from any person or authority for the last ten years and that he remains in possession thercof. - That the defendant/counter claimant discovered that some unscrupulous pcrsons claimed interest in his land and were trespassing on the same and hc only managed to stop them with the assislancc of thc area authorities and Police. l'ha1 in the order to protect his land, the defendant constructed a wall lence around the same. - vl. The defendant/counter claimant contends that at all material times he has bcen a lawl'ul occupant on thc suit land and the Plaintiff does not havc any intercst whatsocver in his land.

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- vll. Thc defcndant/countcr dcfendant lurther contends that thc Plaintiff has no legal interest in the suit land and any claims in respect thercof arc imaginary, fraudulent and therefore illcgal. - It was thc dcfcndant's contention that, cvcn if the plaintiff had any title to the land, which is denied, thc plaintiff acquiesced in the defendant's occupation of the suit land and is estopped from arguing otherwise. 'l'hat accordingly an action in trespass and ejection from the suit land against the defendant is misconceived. vul. - 'lhc defcndant prays that thc suit be dismissed with costs. lx. - x. Thc defendant raised a counter claim against the Plaintiff and Christopher Bwanika herein after referrcd to as the l't and 2nd countcr dcfendants respectively.

6. The counter claimant claims against the counter defendants jointly and severally is for;

- i. A declaration that the counter claimant is the lawful occupant on the suit land. - ii. Adeclaration that the counter claimant /defendant is the rightful owner of the suit land. - iii. Adeclaration that thc sccond counter defendant's certificatc ol title to the suit land is void for fraud and illegality. - iv. An order for cancellation ofthe 2nd counter defendant's certificate of title to the suit land.

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A pcrmancnt injunction rcstraining thc countcr defendants, their agents, officers, servants and /or any one from /under whom they claim from disturbing the counter claimant's quiet and peaccable enjoyment of the suit land.

Gencral damages for inconvenience and; vt.

Costs of the counter claim. vll.

7. l-he counter claimant avers that the certificatc of title registercd in the names of the second counter dcfendant is void for fraud and illegality.

8. The counter claimant lists the particulars of fraud and illegality as follows;

- a) 'l'he purported agreement of sale between the counter defendants describes thc land and subjcct mattcr thereol as Block 273 Plot 1472, which has no historical relationship with the land formerly known as Kyadondo Block 273 Plot 10 over which the ccrtificate of title was made. - b) That the land known as Kyadondo Block 273 Plot 10 over which the purported lease hold certificate oltitle was created did not exist at the time the title was purportedly created. - c) That Plot 10 previously measured 10143.61 acres and was subdivided into plots ll,l2,l3,l4,l5 and 16 leaving residue Plots l7 and 18 long beforc thc impugned certificale of title was created.

That none ofthe subdivided or residue plots belongs to any counter defendant.

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- d) That in the purported agrcement of sale, thc acreage of land is indicated as 20 decimals. 'l'hat in the purporlcd previous sale purchase transaction, the suit land is indicatcd as mcasuring 50 decimals. That hence the said documents cannot purport to rcfer to the same piece of land (the suit land). - e) That the purported verification of ownership of the Kibanja by the second counter defendant to be issued with a leasehold certificate of title on the suit land states that it is located in Katuuso Local Council one and is dated 15th January 1997 yet atthat time the Local Council System was not in existcncc. - f) Procuring, preparation and issue of a certificate of titlc over the suit land with full knowledge that Bagonzal{enry was in effective physical occupation of the same and therefore unlawfully disregarding his lawful interests that the countcr claimant inherited in law. - g) Purporting that the land belonged to thc second countcr defendant whereas not. - viii. The counter claimant prays that a permanent injunction issues restraining thc counter- defcndants lrom disturbing his quiet possession of the suit land. - ix. The counter claimant further contends that he has been greatly inconvenicnced on account of the unlawful actions of the counter defendants for which they should be held liable in general damages.

9. The Counter claimant prays that the main suit should be dismissed with costs and Judgment be entered on the counter claim.

o r""19 lo T 10. In his reply to the written statement of defence /counter claim, the Plaintiff /1't counter defendant states inter alia;

- i. 'l'hat the written statemcnt of defencc is bad in law and amounts to approbation and reprobation seeking to benefit from parts ofthe facts in the matter while denying thc olhcrs. - ii. 'l'he I't Plaintiff /1't countcr dcfendant contends that he is a bonafide purchaser of the suit land for value without notice of any fraud whatsocver and has been in physical possession and occupation through care takcrs until thc day he was lorcefully evicted by the defendant/counterclaimant and his properties and crops destroyed in the process. - iii. The on the 6th November 2003, hc cntcred in to a sales agrecment for purchase of the suit land with the 2nd Countcr dclbndant who owned the suit land as Kibanjahaving bought it lrom a one Margret Wamboga the then administrator of the estate ol the late Engineer Michael Wamboga. - iv. That at the time of purchase the land was being owned as customary tenurc on Kabaka's land measuring approximately 0.40 acrcs and was being survcycd at the timc and described as Plot 1472 on Block 273 bordering the Plot of IJcnry Matovu on the eastern side, Haji L Kasule on the lower side and Sekandi's Plot on the westem side. - v. That thc vcndor had applied to Buganda Land Board for a lease vide BLB lll5 of 31't January 1997 undcr general receipt No. 8728 of

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3l ll 197 and covenanted to authorize lhe lease to be issued in favour of the Plaintiff.

- vl. That on or around 2l'1 June 2004 the 2nd Counter defendant wrote to the secretary Land Iloard applying for permission to transfer the lease offered to him in to the names of the Plaintiff and had no objection to a fresh lease offer or leasc agrecmcnt bcing executed directly in the names of the plaintiff. - vll. "l'hat on or about the 9th July 2004 to 27th August 2004, a formal lease was executed on the suit property and a certificate of title thereby issued in the namcs of thc 2nd counter defendant for forty nine years effective I't June 2004. - vlll. That at the instance of the Plaintiff a search was conducted on the suit land at Buganda Land tloard on or around thc 29th June 2015 and the search report was issued stating that the file was opened on 20th February 1997 and there was a salc bctween Christopher Bwanika and Wamboga Margaret on the 6tl'Deccmber 1996 and that the 2nd Counter defendant had sold thc samc to thc Plaintiff on 6'h November 2003. - lx 'l'hat the defendant forcefully entcred on to the suit land claiming ownership of the same and was in the process of constructing illegal structures in order to fraudulently and illegally defeat the registered and equitable interest of the Plaintiff in the same. - 12. In reply to the countcr claim thc 1't counter defendant states inter alia;

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- i. That the Counter claimant does not raise any lact or does not raise any fact or grievance against the l't counter def,endant at all in its plaint and there is nonc to rcply to. - ii. 'lhat on 6th Novembcr2003 the I't countcr defendant entered in to s sales agreement for the purchase of the suit land with the 2nd counter defendant who owned the suit land as Kibanja having bought from a one Margaret Wamboga the then administrator of the estate of the late engineer Michael Wamboga. - iii. 'l'hat at the time ol'purchase, the land was owned under customary tenure on Kabaka's land measuring approximately 0.40 acres and was being surveycd at thc timc and described as Plot 1412 on Block 273 bordering thc Plot ol Henry Matovu on thc eastern sidc, Dr. Abdu Kasozi on the upper side, Hajji Kasule on the lower eastern side and Sekandi's Plot on the western side.

13. The rcst of the plcading in the l't defcndant's Counter claim were the same as what he had claimed in his plaint.

14. The 1't Counter defcndant contcnded that the counter claimant has never been in occupation or possession olthe suit prcmises and holds no interest whatsoever in the suit land and is a trespasscr for which the 1't counter defendant claims for gcncral and special damagcs.

15. The I't counter defcndant praycd that the counter claim should be dismissed with costs.

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16. in his written statement of defence to the counter claim the $2nd$ counter defendant states inter alia;

- i. That the land was originally owned by the estate of the late Engineer Michael Wamboga who was the chief mechanical Engineer of the defunct Coffee Marketing Board and was sold to the 2nd counter defendant as Kibanja by Margaret Wamboga in her capacity as administrator of the estate of the late engineer Michael Wamboga. - That the late Micheal Wamboga had purchased the Kibanja from a one $\ddot{i}$ . Mohammed Lubbobo Kasule in a sale agreement dated 31st October 1987. - That the land purchased by the $2^{nd}$ counter defendant which was iii. Kibanja on Kabaka's land at Katuuso Bunga hill was at all material times bordering Henry Matovu west wards, Dr. Kasozi on the upper side and Hajji Kasule and Sekandi on the eastern side and the 2nd Counter defendant took possession of the suit land and embarked on processing a tittle for it and used the suit land until he sold it to the 1st counter defendant to whom he handed over possession and it was not true that the counter –claimant or any person the counter claimant claims under ever had physical possession of the same. - That the $2^{nd}$ counter defendant having lawfully acquired the suit land, iv. obtained all the necessary authorization to process a lease and was offered a lease on 7th June 2004 from Buganda Land Board and eventually paid the premium and after which he was granted a 49-year lease on 5th July 2004.

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- Thal by sale agreement dated 6th November 2003 the 2nd Counter defendant sold all his interest in the suit land and by that time the 2nd countcr defcndant was still in thc proccss of obtaining a lease title for the suit land. - vl. That the suit land was still under survey and titling to the extent that it was initially indicatcd to thc 2nd countcr defendant by surveyors handling the proccss that it was described as plots 1472 and 472 during the process of surveying and mapping. - vll. That thc process ofsurvcying was carried out and superintended by a registered surveyor by the name of llatume trading as surveyed properties (tJ) limited and under the authority and supervision of Buganda Land Board and the dcpartment of surveys and mappings. - vlll. That after the survcy and mapping process was completed the suit land was titled and given a description of Block 273 Plot l0 as seen on the certificate of titlc. - lx That during the process of survey and titling , the land was reduced in acreage and the Plot shape changed on account ofa passage on public way/road creatcd bctween thc 2nd counter defendant's Kibanja and a neighbor's land on the westcrn side, the late Mzee Henry Matovu which the 2nd counter defcndant had initially objected to but later accepted through a mediation by the department of Surveys and Mappings and lluganda [,and Board as was reflectcd in the letter to the Sccretary of Buganda Land Board relerenced P-03-1208-01 of February 2004.

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- x. The 2nd Counter dcfcndant dcnies the allegations of fraud made against him by the counter claimant. - xi. That the office of Surveys and mapping after confirming the final demarcation and boundaries of the suit land, cancclled the deed prints for Plot 1472 on 19th December 2003 and prints for Plot 10 were issued. - xii. The 2nd counter dcfcndant contended that the certificate of title was obtained lawfully from Buganda Land Board and the office of the Registrar of Titles. - xiii. That the suit land was ncver lawfully acquired by the allegedBagonza Henry and never came into his physical possession or occupation. - xiv. That neither the counter claimant nor the said Bagonza IJenry nor Muganga Jamcs Kiwabwe have ever lawfully held, possessed and or occupied the suit land and the claim by the counter claimant is a calculated scheme to steal the I't counter defendant's land. - xv. The 2nd Counter defendant further contends that the counter claimant does not have any legal or equitable rights or interests whatsoever in the suit land and he has concocted his claim and is not entitled to any reliefs sought.

17. The 2nd counter dcfcndant prayed that the counter claim should be dismissed with costs.

18. I will resolve the issucs raised in the order the Plaintiff submitted on them.

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19. Issue one and two: Who is thc rightful owncr of thc land in disputc and whethcr the 2nd counter defendant lawfully acquired the suit land and obtaincd rcsistration of thc ccrtificatc of title in his names legally.

## 20. Plaintiff s cvidcncc and Submissions

'l'he Plaintiff tendcrcd in Court an agrccment datcd 6th Novcmber 2003 where he bought thc suit land which was at the time owned by customary tenure on Kabaka's land from the 2d counter defendant.

The Plaintiff testified that he was in possession of the suit land until the year 2015 when he was evicted by the defendant /counter claimant.

2l. The Plaintiff further stated that he made inquiries from the local council committee of the arca before he purchased the suit land and he was informed that the suit land bclongcd to the 2nd countcr defendant.

22. The Plaintiff also statcd that hc carried out a search at Buganda Land Board which confirmcd thc ownership olthc suit land to belong to the 2nd counter defendant.

23. In his submissions the Plaintiff cited the case of D&vid Sejjaka Namila versus Rebecca Musoke -S. C. C. A NO. l2 of 1985 whcrc it was held that a bonafide purchaser was one who purchascs in good faith and without notice of any fraud and that the onus was on thc defendant to establish the plea of bonafide Purchascr for value without notice.

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## 24. Defendant's evidence and submissions.

l'he defendant claimcd hc bought the suit land from a one BagonzaHenry. IIe stated that he establishcd that the suit land bclongcd 1o the said l)agonza Henry after inquiring lrom the area Chairperson the late David Mukasa.'fhat he also leamt that IIenry Bagonza purchased the suit land from Muganga James Kwaabwe on the 201h March 1992 andthat the said Bagonza provided him with a copy of the agreement of purchase.'Ihat the Chairperson of the area also provided him with a letter relating to a former dispute between Muganga James Kwaabwc and LIaji Muhammad Kasule Lubobbo dated 14th August 1989 to confirm that Muganga James Kwaabwe indeed purchased the suit land lrom Hajji Muhammad Kasule Lubobbo.

25. The defendant /Countcr Claimant also contended that Bagonza IIenry gave him copies of two rental receipts from Buganda Land Board wherein he was paying rent for the years 2003and 2005 and that he could not trace thc receipts for the previous ycars. 'Ihe dcfendant further contended that l)agonza IIenry was in physical posscssion of the suit land since 1992.

26. The defendant contended that he bought thc suit land from the said Bagonza for a considcralion of 55,600,000/- and the sale agreemcnt was witnessed by a onc Nlabazi Swally and Sendijja Gcresom and it was also witnessed by a one Georgc William Semakula who was a Parish Chief and the representativc ol'the Kabaka.

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lSlPage 21. The defendant claimed that after the execution of the agreement he started utilizing his Kibanja and stopped and compensated a one Kakooza Edward who was quarrying stoncs thcrc at as well as cultivating crops.

28. The defendant contended that since 2005 he had been utilizing the suit land without any disturbance.

29. The defendant fu(hcr contcndcd that belween 2013-2014 he went on a business trip to Mutukula and the employecs hc had left to continue working on the land left due to the lact that they were not paid that on his return in 2015 he found when the said I-Ienry Matovu had died and a one Bena Nakate Matovu informed him that someone had acquired a title to his Kibanja which shocked him.

30. The defendant stated that he laler got to know that it was the Plaintiff who claimed to have a title over the suit land and on various occasions they tried to resolvc the problem in vain.

31. The defendant contended that the Dcputy Rcsidcnt Commissioner for Makindye Division conducted a mediation session between him and the plaintiff and he concluded that the suit land belonged to him (defendant /counter claimant).

32. That he also investigatcd the authenticity of thc title and lound that there were many inconsistencies in the alleged agreements for the purchase of his land that led to the creation of the title.

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33. 'Ihat whereas thc purportcd agrccmcnl o[ salc betwccn thc counter delbndants described the suit land as Block 273 l>lot 1472 it had no historical relationship with thc land lormcrly known as Kyadondo lllock 273Plot l0 over which thc Ccrtificatc of 'l'itle was purportcdly madc.

### 34. Decision of Court on issucs one and Two.

Scction 103 of the Evidencc Act Cap 6 provides thal"The burden of proof ato any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided hy the hw that the proof of that fact shall lie on any particular person."

35. There is no contcntion that thc suit land was formcrly Kibanja (customary land).

36. The Plaintiff/1't Counter defcndant adduced cvidence that he bought the suit land on 6th Novcmbcr 2003 from the 2nd Counler defendant. The agreement was tendercd in Court and marked as exhibit PE 1.

37. The suit land was later registcred in thc names of the 2nd counter dcfcndant, Christopher Bwanika who had applicd for a lcasc for thc same lrom lluganda Land Board bclorc he sold it to the Plaintiff /l'1 Counter defendant. The lease was cntered in to on 5th July 2004 and registered on the certificate of title on 2nd AugusL2004 vide instrument KI-A 262827 for 49 years.

38. The Plaintilf /l't Countcr defendant was given a search report by Buganda Land Board that described thc suit land as Kyadondo Block 273

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Plot 10 Buziga Katuuso which indicatcd that the owner was the 2'd Counter defendant.

39. The hle on the suit land had been opened on 20th February 1997 by Buganda Land Board and indicated that there had bcen an agrcement of sale on 6th December 1996 between the 2nd Countcr dclendant and a one Wambuga Margaret and the 2nd Counter defendant had sold the land to the Plaintiff /1'1 Counter defendant on 6th November 2003.

40. The search also indicated there were no rent arrcars as they had been duly paid. Thc search letter was tendered in Court and marked as exhibit PE4.

41. The defcndant /Counter Claimant relied on the agreement of sale of Kibanja (thc suit land) to him by l)agonza Ilenry. 'l'he agreement was tcndered in Courl and marked DIl5.

42. The defendant /Counter Claimant never adduced any evidencc from witnesses he purportedly bought the suit land from nor even their administrators.

43. It is evident that the suit land was transferred into the names of the 2nd Counter defendant as shown in Irxhibit PE3.

44. S.59 of the Rcgistration of Titles Act Cap 230 provides that "No certfficale of title issued upon an application to hring land under this Act shall be impeached or defeasible hy reuson or on account of any informality or irregularity in lhe application or in the proceedings previous to the registration of the certfficate, and every certijicute of title

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issued under this Act shttll he received in all Courts as evidence of the particulars set forth in the certiJicste snd of the entry of lhe certificate in the Register Book, and shall be conclusive evidence that the person named in the certificate us proprietor of or having uny estate or interest in or power to appoint or dispose of the land described in the certificate is seized or possessed ofthat eslate or interest or has that power."

45. I'he delcndant /countcr claimant relicd on thc agrccment he purportedly bought thc suit land as proof of owncrship olthc samc.

46. 5.34(3) of the Land Act Cap 227 (as amendcd) provides thaL"Prior to undertaking any transaction to which suhsection (1) refers, the tenant by occupancy sheill submit sn application in the prescribedform to the owner of the lund for his or her consent to the trunssction."

5.34(8) of the Land Act Cap 227 (as amended) provides lhat "No transaction to which this Section applies shall be vulid and effictive to pass any interest in land if it is undertuken without u consenl os provided for in this Section, and the recorder shall not make any entry on the record of uny such transaction in respect ofwhich there is no consent".

41. Il is evident that when the defcndant /counter claimant purportedly bought the Kibanja lrom a onc []agonza, thcre was no consenl from l]uganda Land Board which was acting on bchalf of thc Kabaka ol Iluganda and the registered Proprietor of thc I-and. Ilcncc thc transactions cntcrcd into bctween thc delendants /Countcr Claimant and thc said Bagonza was void ab initio

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48. The defendant /Countcr Claimant acknowlcdged during crossexamination that he was aware that thc suit land belonged to the Kabaka of Buganda who is rcprcscntcd by l3uganda l-and lloard. 'l'he dclendant /counter claimant acknowlcdged that hc did not obtain conscnt from Buganda Land Board. Thc defendant only statcd that the Muluka Chief signed on the sale agreement as a representative of Buganda Land Board.

49. In the scarch reporl dated 29th June 2015 which was tendered in Court as exhibit PE4 it was acknowledgcd by the customer service manager Buganda Land Board that the suit land comprised in Kyaddondo Block 273 PIot 10 Buziga Katuuso had been sold to thc I'laintiff /1'1 Counter dclcndant by the 2nd counter defendant.'l'his in cllect was proolthat Buganda I-and Eloard had consented to the said sell between the 2'd counter defendant and the I't counter defendant/Plaintiff hcnce a report in thc said search to that effect. The search report had also corroborated the 2nd counler defcndant's evidence that hc had purchased the suit land from Wambuga Margaret on 6th Decembcr 1996.

50. Basing on the said evidence, I find that the plaintilfl l't counter defendant is the rightful owner of thc land in dispute.

51. I also find that the sccond counter dcfcndant lawfully acquired the suit land and obtained registralion of thc ccrtificatc of the title in his names legally. The allegations of fraud on part ofthe 2nd counterclaimant as alleged by the counter claimant had no basis as the 2'd countcr defendant legally

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purchased the suit land and lcgally sold it to thc Plaintiffll't counter defcndant.

#### 52. Issuc 3: - Whcthcr thc counter claimant's acts arc fraudulcnt.

I have already held that the purpoflcd salc agreement ol the suit land betwccn the defendanl/ counterclaimant was void for lack of consent from the land lord who was thc Kabaka of lluganda. lhis was in violation of Scction 34 (9) of thc land Act Cap 227 (as amcnded) which invalidates transactions of that nature.

53. It was held in the casc of Fredrick J. K Zaahwe versus Orient Bank Ltd S. C. C. A No. 4 of 2006 that fraud is dcfined as "the intentional perversion of the truth for purposes of inducing another in reliunce upon to that with some vslucrble thing belonging to him or her or the surrender a legal right. It is t false representation of a matter of fact whether by word or by conduct, by false or misleuding allegutions or hy conceslments oJ'that which deceives ancl is intended to deceive tnother so that he or she shall act upon it to his or her legal injury. Anything calculated to deceive whether by a single uct or culmination or hy suppression of truth, or suggestion of whut is fulse, whether it is by direct fulsehood or the innuendo by special or evidence, would of mouth, or look or geslure - a generic term, evidencing all multiforious means which human ingenuity can devise und which ure resorted to by one individuul to get udvontoge over snother byfalse suggestions or by suppression oftrulh und includes

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## all surprise, tricks, cunning, dissemhling, and any unfair way by which rynother is cheuted."

53. For the plaintiffto succeed in a claim offraud, he or she has to show that the acts of the defendant were dishonest, a wilful perversion of truth, a total misreprescntation of the truth and they dcprived the plaintiff of his or her legalright.

54. In this case the dcfcndant/ counterclaimant's agreement he relied on to prove ownership of thc suit land was void ab initio as it lacked the consent of the registered owner as rcquired by law.

55. I'he dcfendant's/counterclaimant acts to provc ownership relying on a void agreement was on act of fraud as it concealed the truth and was aimed at disposscssing the plaintiffll't counter defendant of his land.

### 56. Issue 4: - Remedies.

Judgment is entered for thc plaintitf and thc counter dcltndants with the following declarations/ordcrs :

- (i) The plaintit't7l't countcr dcfcndant is the rightful owner of the suit land compriscd in lcascd hold llegistcr volume 3272 folio 7, plot 10, Kyadondo Block 273 land at Buziga Katuuso, Kampala. - (ii) Thc dcfcndant/counterclaimant trespassed on thc suit land.

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- (iii) A pcrmancnt injunction is hercby issued rctraining the defendant/counterclaimant liom claiming dcaling or in any way intcrl'cring with thc suit propcrty. - (iv) Thc plaintiff/1't counter defcndant will bc awarded general damages of onc hundrcd million shillings (100,000,000/-) as gcneral damages lbr trcspass. - (v) The dcfcndant/countcrclaimant will pay intcrest on thc gcneral damages at thc rate of l0o/o per annum from thc date of the causc of action until paymcnt in full. - (vi) Thc plaintilT will bc awardcd the costs of this suit. - (vii) The counterclaim will bc dismissed with costs to the counter defcndants.

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# Hon. Justice John Eudes Keitirima 06/07/2023