Tibifumira v Tibifumira (CS NO. 294 OF 2019) [2022] UGHC 155 (20 May 2022)

CS NO.024 OF 2019 - TIBIFUMIRA PROSPER VS MAMARA ABIGAIL TIBIFUMIRA (JUDGEMENT)

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### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA [LAND DIVISION]

#### **CIVIL SUIT NO. 0294 OF 2019**

# TIBIFUMIRA PROSPER:::::::::::::::::::::::::::::::::::: **VERSUS**

## TIBIFUMIRA ABIGIL TIBIFUMIRA::::::::::::::::::::::::::::::::::::

#### BEFORE: HON. MR. JUSTICE HENRY I. KAWESA

#### JUDGMENT

$\sim$ $\frac{1}{2}$

The Plaintiff's suit against the Defendant is for;

- A permanent injunction, i) - An order lifting the caveat lodged by the Defendant ii) on the suit land comprised in Kyadondo Block No.206 Plot No.3678 land at Mpererwe, - General damages, iii)

cs No.024 oF 2019 - TIBIFUMIRA PROSPER VS MAMARA ABIGAIL TIBIFUMIRA oUDGEMENT)

- iv) Cancellation of the Defendant's name from the suit land, - v) Vacant possession, - vi) Declaration that the Plaintiff is the lawful olvner of the suit land and; - vii) Costs of the suit.

The particulars of claim are contained in paragraphs 3,4,5 and 6 of the plaint.

The Defendant; by his written statement of defense and counter claim, denied the above claim and set up a counter claim for the property in terms as set out in paragraphs 3,4,5 and 6 of the written statement of defense.

According to the Plaintiff/counter Defendant's submissions on record the issues for determination are;

- l. Who among the parties is the lawful owner of the suit land. - 2. Who the parties committed the acts of fraud.

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## 3. Remedies.

#### Ilesolution:

#### Issue No.1

The Plaintiff in this case has the burden to prove the case on the balance of probabilities just as the counterclaimant/Defendant bears the burden to prove the counterclaimant on a balance of probabilities. Who amone the parties is the lawful o\t'ner of the sit land.

The Plaintiff's evidence was led through PW1; Tibifumira Prosper and PW2; Tibifumira Abigail Tibifumira, alongside exhibits tendered and received as PEX1, PEX2, and PEX3. PWl said that he purchased the suit land and exhibited the sale agreement annexed as 'B', 'C' and'D' and received hem in Court as PEX2. That he used to send money to the Defendant who is his sister to purchase the suit land. That and caveated the same and caveated the same. He alleged instead the Defendant laid claim of ownership to the same

cs No.024 oF 2019 - TIBIFUMIRA PRosPER vs MAMARA ABIGAIL TIBIFUMIRA 0UDGEMENT)

fraud by the same. He alleged fraud by thc Defcndant because she fraudulently wrote her name as a purchaser of the suit land on the sale agreement dated October 26,2002 and that he breached the trust he had in her, whereby the her occupation of the suit land constitutes trespass to land.

In cross examination, he revealed that he was in Japan and came back in 2004. He also said that he instructed Justine Kabarungi; hls sister to buy the plot for him. He claims that she paid the installment physically to Luyombya Mariah' He stated further that he never stole the agreement, but it was given to her by Joselin and Gorret upon h-is return from abroad.

PW2; Namara Abigail Tibifumira stated that PWl is her husband and counter claimant/Defendant is her sister-inlaw. She further confirmed that PWl and PW2 (herself) are CS NO. O24 OF 2019 - TIBIFUMIRA PROSPER VS MAMARA ABICAIL TIBIIUMIRA OUDGEMENT)

the registered proprietors on the title, having been solely acquired by her husband.

In their defense, the main suit and proof of the counter claim, the evidence was through DWl; Tibifumira Gorret, said that she bought the suit Iand around 2001 under the sale agreement; DEX 1-3.

DW2; Mariah Luyombya, who said she is the one who sold to DWl.

DW3; Nakayi Joseph; said that her sister Mariah Luyombya lawfully sold the suit land to the Defendant/counter claimant.

There was evidence supplied by the defense vide DEXI - (PEX2), (Annex 'C'), DEX3 (photos), DEX4 (BZ -search certificate) and DEX5; (Certificate of Title).

I have gone through the submissions and my findings are as follows:

CS NO. O24 OF 2019 - TIRITUMIRA PROSPER VS MAMARA ABIGAIL TIBIFUMIRA UUDGEMENT)

- 1. It is a fact that the I']laintiff/counter Defendant and Defendant/counter claimant are brother and sister. - 2. There is also cvidence which is not rebutted to show that the Plaintiff (counter Defendant) was living in Canada at the time the purchase transaction occurred. - 3. Evidence shows that there was a sale of the suit property by the vendor to buycrs described in PEX2 as an agreement of sale of the plot and DEX3; Tibifumira P Gorret and in DEX3; as Tibifumira G and in DEX1 as Tibifumira P. Gorret. - 4. There is evidence that the buyer in PEX2 and PEX3 is the Plaintiff/counter Defendant, and the buyer in DEX1 is not the Defendant/counter claimant, but someone described as Tibifumira P. Gorret. - 5. There is no evidence to prove that the letter 'P' as a sales agreement, PEX2 and DEX1 was inserted by the Plaintiff and it is therefore unsafe to infer that it is that it is <sup>a</sup>

CS NO. O24 OF 2019 - TIBIFUMIRA PROSPER VS MAMARA ABICAII- TIBIFUMIRA UUDCEMENT) forged document; AS alleged in the later agreement' markcd as DEX2.

- 6. There is evidence no evidence to show that the relatives of the l']laintiff/counter Defendant were living on the evidence. property by the time he came back from Canada as DW2's - 7. There is no evidence to show that the Plaintiff/counter claimant stole the agreement PEX2 (DEX4). - B. There is therefore a break in the explanations by the Defendant/counter claimant how the agreement/documents left her possession and ended up with Plaintiff. It is not viable to assume theft given the explanation by the Plaintiff that he was sending money to the Defendant/counter claimant and his sister (DW to buy and construct a house thereon for them. cs No.024 oF 2019 - TIBTFUMIRA PROSpER VS MAMARA ABIGAIL TIBIFUMIRA (JUDGEMENT)

I am therefore unable to find evidence of any fraudulent conduct by the Plaintiff. AII I find is that the Plaintiff (like is common with most Ugandans Iiving abroad) used to send money to the Defendant/counter claimant and other relatives to purchase him the facility. I believe his version because while he was truthful in explaining that the Defendant/counter claimant, is a biological sister.

The Defendant/counter claimant, avoided, thought this trial as in her evidence to reveal the relationship with the plaintiff. She described him in her evidence in chief and written statement of defense as'someone' (paragraph 5) and in paragraph 6 of the statement as; 'I discoveredthat a one; Prospey'. See also paragraph (3d) written statement of defense.

This is important because, compared with the Plaintiff's statement under paragraph 4 that the Defendant who rs 'my sister'and paragraph 3(c) of the plaint, the Plaintiff did fuII

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CS NO. O24 OF 2019 - TIBIFUMIRA PROSPER VS MAMARA ABIGAIL TIBIFUMIRA OUDGEMENT)

disclosure of this relationship. This is crucial in that it shows that this transaction began as a family dealing, but it got sour.

On the balance of probability, I find that the Plaintiff has proved that he is the lawful owner of this suit property, having shown how he purchased it through her sister, and even took steps to get it registered.

As a registered proprietor, he retains a better title than the Defendant, as no fraud has been proved against him. <sup>I</sup> therefore find this issue in favour of the Plaintiff.

# Issue No. I

Who of the parties committedlhe acts of fraud.

The standard of proof of fraud and its attendant ingredients were set forth in the case of F K Sable versus Orient Bank Ltd & Ors: SCA No.4/2OO6,

CS NO. O24 OF 2019 - TIBITIUMII{A PROSPER VS MAMARA ABIGAIL TIBIFUMIRA OUDGEMENT)

"Fraud was defined as an intentional pervasion of truth part with some valuable thing belonging to him or to surrender a legal right. A false representation of <sup>a</sup> matter of fact whether by wards or by conduct, 'by false misleading allegations...dishonesty, infidelity, faithfulnes s, p erfidy, unfairnes s, etc..' for the purpose of inducing anotheY in reliance upon it to or

The above discrepancies fit the facts of this case.

I have already found that the Plaintiff who lived in Canada sent money through the Defendant to purchase the property who, instead, turned around and claimed it, for herself. Her conduct is for all purposes dishonest and fraudulent. I did not find evidence to prove that the purchase agreement produced in Court having letter 'P' and a letter 'p'was forged. The evidence of the seller was discredited in cross examination. The evidence of DW2; Mariah Luyombya and CS NO. O24 OF 2019 - TIBIFUMIRA PROSPER VS MAMARA ABIGAIL TIBIFUMIRA (JUDGEMENT)

DW3; Nakayi collaborate DW1; Tibifumira Gorret, was grossly discredited during cross examination.

It transpired in Court that they were not being truthful. that the actions of the Defendant/counter claimant were fraudulent. The issue is found in favour of the Plaintiff/counter Defendant. Accordingly, the evidence on record supports the finding

#### Issue No. 3

### Remedies.

The Plaintiff's case having succeeded against the f)efendant, the Plaintiff is granted the following orders;

1. Relief of a permanent injunction. The Plaintiff as <sup>a</sup> title holder to the suit land should be allowed free access and utilization of the same.

CS NO. O24 OI:2019 - TIBIFUMIRA PROSPER VS MAMARA ABICAIL TIBIFUMIRA OUDCEMENT)

- 2. The cavcat lodgcd on thc suit propcrty should accordingly be lifted/vacated by the Registrar of Titles. - 3. The parties herein being close relatives, (Brother and sister) are advised by Court to mitigate their relationship by reconciling and forgiving each other so that they live together as such amicably. - 4. The damages accruing shall therefore be only nominal so as to avoid an escalation of conflict. - 5. This Court therefore declines to grant the amount of 70,000,000/- (seventy millions shillings only) AS damages. - 6. Court allows nominal damages of shillings 5,000,000/- (five million shillings only). - 7. The costs are allowed to the Plaintiff.

CS NO. O24 OF 2019 - TIBIFUMIRA PROSPDII, VS MAMARA ABIGAIL TIBIFUMIRA (JUDGEMENT)

B. The counter claim is not proved and it is dismissed with no order as to costs.

I so order.

JUDGE

Henry I. Kawesa f'l\*

20/s/2022

Right of appeal explained.

Henry I. Kawesa

### JUDGE

20/s/2022

CS NO. O24 OT 2019 - TIBIFUMIRA PROSPER VS MAMARA ABIGAIL TIBIFUMIRA OUDCEMENT)

### 20/s/2022

Robert Irumba for Defendant.

Defendant present.

Plaintiffs present.

Matter is for judgment.

Court

Judgment is delivered to the parties above.


Henry I. Kawesa

## JUDGE

20/05/2022