Waswa and 2 Others v Luwalira and 2 Others (Civil Suit No. 116 of 2015) [2017] UGHCLD 370 (4 May 2017)

Full Case Text

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA LAND DIVISION CIVIL SUIT NO. 116 OF 2015**

**1 WASWAS1RAGI**

**PLAINTIFFS 2 MANISULU MUKASA**

**3 AFISA NAMUKASA**

## **VERSUS**

**1 TOM LUWALIRA**

**DEFENDANTS 2 VICTORIOUS EDUCATION SERVICE LTD**

**3 REGISTRAR OF TITLES**

*&*\) **BEFORE: HON. MR. JUSTICE GODFREY NAMUNDh.r** O«'S'BK \

## **JUDGEMENT**

1st and 2 *\* The Plaintiffs action is for cancellation of Title for the land;compcise'd'^/^ in Kibuga Block 4 Plot 355 registered in the 2nd Defendants name, an Order for eviction, general damages, mesne profits and costs of the *l* suit. The Plaintiffs' claim the said title was fraudulently issued to the nd Defendants by the 3rd Defendant.

zThe Plaintiffs allege they have been registered proprietors of the suit 1981, having bought the same from Hajati Hawa the administratrix of the estate of the late *land since Nampima, who was Asinansi Zamwanguya and* that they have never sold nor d transaction with any of the *Defendants.*

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...» \*\* vtf'*' /*

**1**

That in the year 2000, the 1st Defendant instituted Civil Suit No. 1523 of 2000 against one Hajati Hawa Nampima and 11 other Defendants. The 1 Defendant consented with Hajati Hawa Nampima that the suit land should be re-transferred in the names of the late Asinansi Namboga Zamwanguya.

land since there was an existing title for the land. The Plaintiffs further allege that by the time of the consent Decree in 2005? the suit land was not available for re-transfer into the names of Asinansi Zamwanguya since it had been transferred into the names of the Plaintiffs. That the first Defendant then fraudulently Defendant and created a fake title to the suit-2 0 colluded with the 3rd

**f nd** The said land was then transferred into the names of the 2 Defendant- who it is alleged had actual and constructive notice of the fraud. The particulars of fraud are laid out in paragraph 18 (a) - (K). That the actions by the Defendants were illegal and have caused the Plaintiffs anxiety, inconvenience and loss and damage.

Thezist Defendant filed a statement of Defence in which he denies the Plaintiffs' claims. He avers that the Plaintiffs have never been registered proprietors of the suit land and that they possess a forged Certificate of Title. Further, that at the time of the Decree in C/S r73/2000 the suit land was still registeredlolhe names of Asinansi Zamwanguya. \

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■"dME /

That the 3rd Defendant duly issued a Gazzette Notice before issue of the special Certificate of Title. That as the recognised proprietor of the suit land he had the right to sell his interest and this does not constitute fraud. He categorically denies any allegations of fraud in paragraph 18 of the Plaint.

The 2nd Defendant also filed their statement of Defence. The 2nd Defendant denies any knowledge of alleged collusion between the $\textbf{1}^{\text{st}}$ and $\textbf{3}^{\text{rd}}$ Defendants to create the alleged fake title and that neither was he privy nor party thereto. That the 2nd Defendant is the current registered proprietor, having purchased the same from Tom- $\mathcal{O}$ Luwalira the previous registered proprietor. This was after the 2nd Defendant had carried out a search at the land Registry and found it. in the names of the 1st Defendant. They deny the allegations of fraud. There was no caveat and no incumberance.

Finally that the $2^{nd}$ Defendant is in effective occupation, and deny - Lc any allegations of loss or inconvenience to the Plaintiffs. In rejoinder to the 2nd Defendants Defence, the Plaintiffs reiterate that the Plaintiff's title is still subsisting and there cannot be 2 existing titles $\mathfrak{g}$ to the same property. The 3rd Defendant did not file a statement of $-2D$ Defence.

In the joint scheduling Memorandum filed by the parties, the following issues were framed: CHRTIFIED TRIJE **ME UKIGIN**

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- 1 Whether the Certificate of Title in possession of the Plaintiffs is a genuine and valid Title in the circumstances. - 2 Whether the special Certificate in possession of the $2^{\rm nd}$ Defendants is a genuine and valid certificate in the circumstances. - 3 Whether the acquisition of the suit land by the $2^{nd}$ Defendant $\sim$ from the 1st Defendant was fraudulent. - 4 Whether the 2nd Defendant is a bonafide purchaser for value without Notice - 5 Remedies available to the parties.

The Plaintiffs relied on the witness statements of four witnesses, $\frac{1}{2}$ while the Defence produced 3 witnesses. PW1 Afisa Mukasa testified in her statement that the suit land was purchased by their father from Hajat Hawa Nampiima – the Administatrix of the estate of Zamwanguya Asinansi.

That the said land was registered in the names of the 3 Plaintiffs and $-15$ divided it into plots 267, 588 and 355 Block 4. That the said land has been used by the family since 1981 and that the $2^{nd}$ Defendant would have been alerted by the entries on the title handed to him by Tom Luwalira. She identified PEX 1 as the copy of the Title in their $-20$ names in respect of plot 355 Block 4 at Namirember.

On cross-examination, the witness stated she knew there was a lease which was about to expire but did not know to whom the land was She admitted that she w he. parties to suit leased.

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1523/2000 - but was never served with the Decree. Further that she was not a party to the Decree and was also not aware that Tom Luwalira had advertised for a special certificate of Title. Further that she has never been in occupation of the suit land and has never earned anything from it.

**I**

She on cross-examination by counsel for the 2nd Defendant stated that she has never taken her certificate of tile to the land office. She does not know how Victorious (2nd Defendant) acquired the land. On re-examination she stated she never attended court in respect of suit 1523/2000.

PW2 Waswa Siraji testified that their father bought 3 plots which he registered in the names of the Plaintiffs including the suit land namely Plots 267*,* 588 and 355 Block 4.

Plot 267 was occupied by Moses Gaanya, Plot 588 by Jafali Mugerwa while Plot 355 was occupied by KCC. Gaanya was evicted from Plot - 267 and the Plot together with plot 588 were sold to Victorious Education Services.

In 2000, Tom Nampiima entered into Luwalira the first Defendant sued Hajat Hawa and 4 others claiming that all the 3 plots were his. He a consent Judgement to the effect that:

**I**

Plots 588 and 267 Block 4 remain in the names oUhe-Ptatntiffs.. Who obtained title from Hajat Hawa Nampitaa. Cb^^^Xw

**D r-»**

Plot 355 should be transferred from the names of Hajjat Hawa Nampiima into the names of Asanansi Nambogga Zamwanguya if not transferred already to bonafide purchasers.

That the suit land (plot 355) had long been transferred into the names of the Plaintiffs in 1981 as bonafide purchasers for value without notice. That instead Tom Luwalira went ahead and fraudulently procured a second Title and transferred the land to the 2nd Defendant who is now Registered proprietor.

On cross examination, he stated that there was no agreement between the Plaintiffs and Hajjat Hawa Nampiima. He sold plots 267 $\frac{-10}{2}$ and 588 to the 2nd Defendant. He admitted that in suit 1523/2000, there was a consent that plot 355 if not yet sold should be reregistered in the names of Hajjat Hawa - Nampima and then Zamwanguya. That he has never used Plot 355 personally. That he was not aware of an advert for a special certificate. That it is his $-15$ sister PW1 who has been in possession of the Duplicate title. He also stated that he never lodged a caveat in respect of the land and that his sister never told him about a Gazzette Notice.

The statement of PW3 Manisur Mukasa is the same as that of PW2 both in wording and content. Cross-examination of the said witness $-20$ revealed that he knows very little about the issues regarding the suit land and only relies on information from his siblings. GRTIFIED TRUE INE ORIGINAL

**INVISION**

he evidence of PW4 Mwanye Nasur was in respect of the rental' value of the suit property. He knew nothing about the special Certificate of Title. The defence produced three witnesses who include Tom Luwalira DW1, Robert Nyombi DW2 and Yeri Ofwono DW3.

Zamwanguya if not transferred already to bonafide purchasers for value without Notice. DW1 Tom Luwalira testified that he was one of the Plaintiffs in C/S 1523/2000. The matter was concluded when the Plaintiffs entered a consent Judgment with the Defendants. The Decree provided that Kibuga Block 4 plot 355 be re-transferred from the names of the 1st Defendant into the names of the late Asinansi Nambogga -JO

I When he checked in the lands Registry, he found that the land was I still registered in the names of Asinansi Namboga. He was advised to apply for a special Certificate of Title since he did not know the-"^ I whereabouts of the duplicate Certificate which was originally issued | in respect of the suit land.

Page *7 of 181* He du|y advertised the Notice in the Uganda Gazettee. After the expiration of 30 days he was issued a special Certificate as the Administrator of the estate of Asinansi Nambogga together with | Yoswa Kyeswa as co-administrator. With the consent of the coadministrator he transferred the suiHand-~in.t.qjTis names and bsequently sold to the 2nd DefenddWf;K§jwKos^examination **SU '**

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**I**

that the witness revealed that Asinansi Nambogga was his grandmother and the title for plot 355 was in the names of the said Asinansi Nambogga Zawanguya.

According to the Consent Judgment, the land was re-registered in her names in 2009. That the estate was first Administered by the Administrator General, then Yokosofati Mukasa and Isaac Nsumba. He became administrator after they died. He said he had heard about C/S 350/1984 and denied knowledge of the contents thereof.

**I**

Defendant as administrator of the estate. On re-examination he anybody. stated that the letters of Administration in his names were issued on 28/3/1997. Further, that the consent Judgment has never been varied or set aside. Finally that his grant of Letters of Administration for the estate of Asinansi Zamwanguya were never contested by r-XT He further stated that he transferred the suit property into his names when his co-administrator died and he sold to the 2nd-/*O*

on the DW2 Robert Nyombi the Ag . Commissioner land Registration testified that he handled the issuance of a special certificate of Title basis of the documentation available in their records. The Duplicate certificate had been lost as was the original white page. A -2Z) ptte Note was issued and nobody came forward to contest the application for special certificate^ **\$4^** ' DATE z J

**^7**

**. ON** Page 8 of 18 V.

**I**

On cross-examination he stated that the Duplicate copy of the certificate in possession of the plaintiffs looks genuine and is not a forgery. However, he stated that by the time he issued the special certificate, what was on record was that Asinansi Nambogga Zamwanguya was the registered proprietor of the suit land. -5

DW3 Yeri Apollo Ofwono the Managing Director of Victorious Education Services also made a witness statement. He stated that he was directly involved in the acquisition of the suit property comprised in Kibunga Block 4 Plot 355 (suit property).

He obtained from the 1st Defendant a photocopy of the Certificate of $-I^{D}$ Title (the special certificate). He concluded a search at the land office and confirmed that the particulars thereof corresponded with those on the white page. There was no encumbrance, caveat and the 1st Defendant was in charge, control and possession and none of the Plaintiffs was on the land or ever claimed interest in the suitproperty.

The witness then proceeded with the purchase, and the $1^{st}$ defendant surrendered all the relevant transfer documents for purposes of enabling the $2^{nd}$ Defendant have the land transferred into its names. The witness avers that the suit land was acquired $-2D$ from the $1st$ Defendant for valuable consideration. It was not within the knowledge of the 2nd Defendant, the alleged interest of the **CRIGINAL** Plaintiffs.

Page 9 of 18 The 2nd Defendant was also not privy to the allegations of fraudulent acquisition levelled against the 1st Defendant as the title at that time was in the names of the $1^{st}$ Defendant as registered owner. On crossexamination, the witness stated that there was a search report showing that the Title belonged to Tom Luwalira and there was no S encumbrance. The $2^{nd}$ Defendant had been renting the same premises from an organization known as the Moslem League - who had an arrangement with Tom Luwalira who had the title. That the witness only came to know about the adverse claims this year. The 2nd defendant had earlier bought Plots 267 land 588 from a lawyer. - $1D$ The witness confirmed that the $2^{nd}$ Defendant is a bonafide purchaser for value without notice.

## **Resolution of Issues**

Before considering the issues, there are salient matters that seem to have been ignored or not addressed by the parties. $-15$

Firstly, it is a fact that there was a consent Judgment in C/S 1523/2000 in which the 1st Defendant, Hajat Hawa Nampiima and $\frac{1}{2}$ the 3 Plaintiffs in the instant case were directly involved. There is no explanation as to why the said consent Judgment was never challenged by way of Review under Section 82 of the Civil Procedure - 20 Act. It is my considered view that the instant case is in a way aimed at undoing a subsisting Judgment of a competent court of law. **TUF IRE URIGINAL**

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econdly, it is a fact that the Plaintiffs are in possession of a duplicate certificate of title which the Ag. Commissioner Land Registration in his evidence thought was a genuine document.

**1**

There are however no recordsin the land Registry pertaining to this particular certificate. It appears even the white page on record is substitute and does not reflect anything about the Title in the plaintiffs' possession.

**Issue 1 and 2**

**I**

- **1. Whether the Certificate of Title in possession of the Plaintiffs is a genuine and valid Certificate of Title in the Circumstances?** —/ *O* - **Circumstances? Defendant is a 2. Whether the special certificate of Title in the possession of the 2nd Defendant is a genuine and valid Certificate in the**

lost or Further, the certificate. Certificate can destroyed It has been submitted for the Plaintiffs that their Title PEX 1 in respect of Block 4 Plot 355 is genuine - having been confirmed so by -AT the Ag. Registrar land Registration Mr. Robert Nyombi. Regarding that in the possession of the 2nd Defendant. It is submitted that under **Section 70** of the **Registration of Titles Act,** a special only be made when the Duplicate Certificate of Title is or becomes so obliterated as to be useless.-Xc> said certificate of title should mirror the original C ERTIFIF D T R L> */* Of- f hir UHiGiNAL

\.....date

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t the special Certificate doesn't in any way mirror the information on the original Certificate of Title. The said certificate bears the names of Asinansi Zamwanguya as first owner as of 24/2/2009, yet the said Asinansi was not reflected on the original Certificate issued on 25/9/1981 with Hajat Hawa Nampiima as the 1st registered-3' proprietor.

**I**

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It is submitted that the Gazette Notice was issued in 2008 and was disowned by DW2 Mr. Robert Nyombi. The record does not however reflect the above submission.

**i**

**I**

For the 1st Defendant, it is submitted that section 37 of the RTA mandates the Registrar of titles to keep a register book and to register therein the Certificates of Title under S 38(2) thereof.

it is the ope now *t* it replaces the Iost^duplicate a^iKqow becomes the ... ..-------- date */* If an owner of the Duplicate certificate loses or cannot trace the duplicate, then he/she applies to the Registrar to issue him another certificate in lieu of the lost one which is referred to as a special certificate under Section 70 **RTA.** That the evidence of the Ag. Commissioner that the certificate in the possession of the Plaintiffs looked genuine because of the texture, signature and seal cannot be relied upon without a corresponding record in the Registry of Titles. The only way a special certificate can be issued by the Registrar conforming with the original record in the possession of the Registry. In essence, it duplicate because

J 'JtVsoiON

It is submitted that all steps set out in the law leading to the iss of a special certificate were followed and the same was issued.

It was submitted for Defendant No. 2 that the contents of the sp certificate replacing a presumed lost title are in tanderm with **t** on the Register in the land office.

The Registrar-DW2 even confirmed that the special Certificate originated from his office. That the 2 titles are not concurrent since one is a special Certificate replacing a presumed lost title.

If they were concurrent then the one issued earlier would take precedence. Reference was made to **Patel Vs Commissioner Land Registration, HCCS 87/0009.**

## **There in it was stated that;**

- Concurrency of titles does not arise in the context of **Section 176** (a) **RTA** where there is a special Certificate and a duplicate Certificate of Title in respect of the same land. - priority. A special title is a replacement of the Duplicate Certificate of Title. It **is** not a new or separate Certificate. The Duplicate cannot therefore be construed as a prior title that takes

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- (III) In the context of Section 70 RTA, the effect is that once a special certificate of title is issued, it shall be available for all mtents and purposes and uses for which the duplicate certificate so lost e.t.c it would have been available. - (iv) A special certificate becomes a replacement of a duplicate certificate of title which is presumed or lost forever.

An evaluation of the evidence on record reveals that at the time of the consent Judgment/Decree, the Plaintiffs were aware but did not challenge it. It is also evident from the record that at least Plaintiff No. 1 was aware of the Gazette Notice. She never produced the Duplicate certificate in the land office, nor did she lodge a caveat or objection, and a special certificate was accordingly issued. According to the evidence of DW2, there is no record in the land office to support the existence of the Duplicate certificate in the Plaintiffs7 possession.

**I**

No evidence has been adduced to prove that there were procedural ^regularities leading to the issuance of the special certificate to call for its impeachment. As up to the time of the issuance of the special certificate to Tom Luwalira. There is no evidence at all adduced that the current registered proprietor was earlier involved or had anye' knowledge thereof. **T &gt; f- tV ' P G u**

**fr.\**

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Finally the only evidence that the Duplicate Certificate of Title in the possession of the Plaintiffs could be genuine is that of DW2 who stated that according to the texture, signatures and seal it could be genuine. There was no attempt to subject the same to forensic examination. This coupled with the absence of any records in the -S land office to support its existence makes the said Duplicate certificate incomplete, if not suspicious. Section 39 of the RTA has accordingly not been satisfied.

Finally on the authority of Patel Vs Commissioner Land Registration (Supra) It is clear that the document in the possession of the plaintiff $\sim$ JD cannot be concurrent with the special certificate. Once the special certificate was issued on the presumption that the Duplicate was lost, irretrievable or obliterated, then any other Duplicate certificate that turns up ceased lo have effect as it has been permanently - 15 replaced.

It is my conclusion therefore that the special certificate in the possession of the 2nd Defendant is valid and cannot be impeached. ssues 1 and 2 are resolved in favour of the Defendants.

## Issues 2 and 4

$\big| \,$

Whether the acquisition of the suit land by the 2nd Defendant from $-20$ the $1st$ Defendant was fraudulent/unlawful and whether the $2nd$ Defendant is a bonafide purchaser for value without Notice?

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notice that the submissions for the Plaintiffs in respect of the above issues are based on the presumption that the special certificate was not valid.

Secondly the Plaintiffs are citing the weaknesses in the evidence of DW3 rather than the evidence pointing to fraud with the knowledge —S and participation of the 2nd defendant. They cite the fact that the 2 defendant ought to have known that there were shortcomings in the title issued to Yoswa Kyeswa and Tom Luwalira - because of the error in the date the letters of Administration were issued. Further, that having bought sister plots Block 4 Plots 588 and 267 from the-/7? Plaintiffs, he should have known that a sister plot could not have had a title issued in 2009.

**I**

**]**

**i**

Regarding the claim that the 2nd Defendant is a bonafide purchaser for value, it is submitted that due to the existence of an earlier Title, it is not possible that the 2nd Defendant could be a bonafide purchaser for value. Reference was made to **Middle North** Agencies **Ltd** Vs New Uganda Securco **Ltd** in which it was held that an earlier title supersedes a later one and the subsequent title should be cancelled.

It is submitted for the 1st Defendant that no evidence of fraud has^D been provided. In the absence thereof, the 1st Defendant passed a good title to the 2nd Defendant

**E**

**Kl J**

DATE/- Page16of18

r the 2 Defendant, it has been submitted that under **Sections 59** and **176 (c)** of **RTA,** it is upon the Plaintiffs to prove fraud if they want to impeach the special Certificate of Title.

**I,**

**1**

**I**

That this has not been done. Ref: **Faustino Mbundu Kanamira Vs Ruchagoza John HCCS. 129/2009.** It is further submitted that the 2n *-S* Defendant cannot be faulted for the manner in which the special certificate was obtained by the 1st Defendant. A look at the plaint reveals a list of the particulars of fraud attributed to the 1st and 3 Defendants. Under Issues 1 and *1,* I have dealt with the process leading to the issuance of the special certificates of titles. ^- / P

I made a finding that the said special Certificate is valid and is the only and current title in respect of the suit property, having replaced and rendered inapplicable any claims of the existence of any other title. The 2nd Defendant is being faulted for having failed to question the issuance of the special certificate. That in my view does not-/£ amount to fraud on the 2nd Defendant's part.

Zion The **ef:** *allegations unproved. finding that they* It must be proved that the transferee was privy to the alleged fraud. **Construction Ltd Vs David Abahaire** & **Ors.** of fraud accordingly fall on the way side as being Defendant acquired a clean title and it is my^>Lo are Bonafide Purchasers for value without Notice. The 2nd

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## Issue No. 5

The Plaintiffs prayed for General Damages and mesne profits, plus interest and costs. Having failed to prove their interest in the suit property and the claims of fraud, it follows that they do not deserve the above remedies.

In conclusion, I find that the Plaintiffs have failed to prove their claim on a balance of probabilities. I find that the special Certificate of Title contested by the Plaintiffs was lawfully issued and is valid.

Further that the 2nd Defendant is a bonafide purchaser for value, whose possession and occupancy should not be tampered with. The *f O* 2nd Defendant should accordingly enjoy quiet and peaceful possession thereof.

The suit is accordingly dismissed with costs to the 1st Defendants. The 3rd Defendant is not entitled to costs because they never filed a Statement of Defence. and 2nd

*GODFREY NAMUNDI JUDGE 4/05/2017*

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DATE .