Sserunkuma Isaac and Another v Muyingo Eliyazali and Another (Civil Suit 317 of 2022) [2024] UGHC 1275 (29 April 2024)

# **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT LUWERO**

#### **HCT-17-LD-CS-0317-2022**

- **1. SSERUNKUMA ISAAC** - **2. KULUMBA STEVEN(ADMINISTRATOR OF THE ESTATE OF LATE ERASTO MATU)………………………………….. PLAINTIFFS V** - **1. MUYINGO ELIYAZALI** - **2. COMMISSIONER LAND REGISTRATION……. DEFENDANTS**

## **BEFORE LADY JUSTICE HENRIETTA WOLAYO JUDGMENT**

#### Introduction

1. By a plaint filed on 13.10.2022, the plaintiffs Serunkuma Isaac and Kulumba Steven sued the defendants Muyingo Eliyazali and another for fraudulent registration of the first defendant Muyingo Eliyazali on certificate of title for Bulemezi Block 491 Plot 3 land at Kanyogoga. The defendants did not file a defense in spite of effective service as demonstrated by two affidavits of service. The affidavit of Fiona Orikiriza sworn on 1.8.2023 shows she served the commissioner land registration the summons to file a defense on 1.8.2023. The affidavit of service of the same process server shows substituted service was effected on Muyingo Eliyazali through the Monitor Newspaper of 27.7.2023 at page 35.

2. Based on proof of service of summons on Muyingo, I made an order that the case proceeds ex parte against him. As for the Commissioner Land Registration, he was served with a hearing notice for 15.11.2023 as the affidavit of service of Aryatuha Philip shows. In the premises, hearing proceeded on 27.8.2024 in the absence of the defendants. Counsel was directed to file written submissions by 13.9.2024 but there has been no action.

## Background facts

- 3. The plaintiff claimed that the late Matu was the registered proprietor of land comprised in Bulemezi Block 491 Plot 3 at Kanyogoga while the plaintiffs are his grandchildren who sue in their capacity as holders of letters of administration to his estate granted by Luwero Chief Magistrate's Court on 8.11.2018 under **Administration Cause No. 336 of 2018.** On securing the grant, the plaintiffs claim that they settled on the land and sold part of the land to one Wycliff Mbareeba Kagina and other people who are all in possession. - **4.** Furthermore, on searching the land registry, they discovered that the land was transferred to one Muyingo Eliyazali the first defendant who claimed to be Matu's son. The land had been transferred vide instrument BUK 153679 on 28.10.2016 and on checking with the High Court Family Division, the grant could not be traced which had been issued under **Family Division Administration Cause No. 605 of 2015.** - 5. The plaintiffs pleaded the following particulars of fraud: - i. The first defendant Muyingo purported to be the son of late Matu. - ii. Fraudulently obtaining letters of administration in Administration Cause No. 605 of 2015. - iii. Using the said grant to transfer the suit land into his names. - iv. Obtaining a transfer without the duplicate certificate of title. - 6. No issues were framed for trial and neither did counsel for the plaintiffs file written submissions so I will frame the issues myself: - I. Whether the first defendant Muyingo fraudulently acquired registration as proprietor by fraud. - II. Remedies.

#### Burden of proof

7. In civil cases, the plaintiff has a legal burden to prove its case. **Section 101 of the Evidence Act Cap.8** stipulates that

> *'Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts, must prove that those facts exist'.*

#### 8. **Section 103 thereof** provides that

*'The burden of proof for proving any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by law that the proof of that fact shall lie on a particular person'*

9. In **Miller v Minister of Pensions[1947]2ALL ER** 372 at 373-374, Denning J when speaking on the degree of cogency of evidence required to discharge the burden of proof in civil cases had this to say: <sup>1</sup>

> *That degree is well settled. It must carry a reasonable degree of probability, but not as high as is required in a criminal case. If the evidence is such that the tribunal can say: 'we think it more probable than not, the burden is discharged but if the probabilities are equal, it is not'*

10. In **Bater v Bater [1951] 35 at 36-37**, Denning LJ had this to say on varying degrees of standards in civil cases.

*A civil court, when considering a charge of fraud, will naturally require for itself a higher degree of probability than that which it would require when asking if negligence is established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature, but still it does require a degree of probability which is commensurate with the occasion'.*

<sup>1</sup> Cross & Tapper on Evidence, eighth edition, Butterworths, London, Dublin, Edinburgh, (1995)

11. In summary, the burden of proof is on the plaintiff to prove his case while any party who alleges the existence of a fact has a burden to prove it. In all situations, the standard of proof is on a balance of probabilities except that where fraud is alleged, the standard of proof is higher than in ordinary cases.

# Issue No. 1: Whether the first defendant Muyingo fraudulently acquired registration as proprietor by fraud.

- 12. The two plaintiffs were the only witnesses in this case and their witness statements were admitted on record on 27.8.2024 when they took the stand. Serunkuma Isaac was PW1 while Kulumba Steven was PW2. Their witness statements repeat the averments in their plaint and therefore I shall go straight to evaluation of their evidence. - 13. The plaintiffs relied upon documentary and written evidence to prove their case. The certificate of title presented shows that Erasto Matu was registered as proprietor for Bulemezi Block 491 Plot 3 measuring 12.15 hectares under Instrument No. 92054 on 21.7.1950. No effort was made to obtain a certified copy from the land Registrar of Titles since this is a very old certificate. Nonetheless, the plaintiffs tendered a search of the certificate of title dated 23.7.2018 signed by Kankaka Robert Kizza for Commissioner Land Registration and it shows that the land is registered in the names of Muyingo Eliyazali on and administrator of the estate of Erasto Matu which grant was issued under Administration Cause No. 605 of 2015. The said Muyingo was registered as proprietor under Inst. No. Buk. 153679 on 28.10.2016. - 14. From the foregoing analysis, I am unable to accept the plaintiffs' case that the grant under which Muyingo was registered is forged or non-existent in the absence of written proof from the Registrar of the Family Division to this effect.

- 15. Furthermore, the plaintiff's evidence that they took possession of the suit land after they obtained a grant from the chief magistrate's court is a relevant fact except that it is meaningless in the absence of evidence that the registration of Muyingo was fraudulent. - 16. Section 59 of the Registration of Titles Act Cap. 240 provides that a certificate of title is conclusive evidence of title and under section 174 thereof, a registered proprietor is protected from ejectment except if the complainant has been deprived of land by fraud which the plaintiffs have failed to prove. I find instead that the first defendant Muyingo who is the registered proprietor is the rightful owner of the suit land comprised in Bulemezi Block 491 Plot 3 measuring 12.15 hectares. - 17. Having failed to prove their case to the required standard, the plaintiffs' suit is dismissed. The plaintiffs will bear their own costs of the suit.


Legal representation Tusasirwe & Co. Advocates for the plaintiffs.