Winnie Senyange and Others v Peninah Nakafero and Others (Civil Suit 9 of 2007) [2025] UGHCFD 55 (4 April 2025)

Full Case Text

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

#### (FAMILY DIVISION)

### **CIVIL SUIT NO. 09 OF 2007**

- 1. WINNIE SENYANGE - 2. HERMAN NSUBUGA - 3. FLORENCE BUGANZI SEJJEMBA::::::::::::::::::::::::::::::::::::

# **VERSUS**

- 1. PENINAH NAKAFERO - 2. EDWARD RWABANA - GODFREY KAGGWA - 4. AUGUSTINE MUZUNGU - 5. KORUTARO ROBERT - 6. COMMISSIONER LAND REGISTRATION - 7. ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::

### BEFORE: HON. JUSTICE JOHN EUDES KEITIRIMA

#### JUDGMENT

**1].** The Plaintiffs are the grand children of the late Augustine Mugomba formerly of Ssugu Kyaggwe and holders of letters of administration of the deceased's estate in which capacity they bring this suit and have substituted Mugomba Specioza Nakayiza Musisi and Magadalene Nankinga Kakumba.

2]. The plaintiffs claim against the defendants jointly and severally is for a declaration that there was no grant of letters of administration of the late Augustine Mugomba, recovery of land, an eviction order against the 5th defendant, cancellation of the title of the fifth defendant acquired fraudulently, general damages, special damages, interest and costs.

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$\mathbf{1}$

3]. The Plaintiffs contend that at the material time before his death, the late Augustine Mugomba, hereinafter referred to as "the deceased" was the registered proprietor of land comprised in Bulemezi Block 919 Plot 11 being 199.5 hectares of land at Bujongobya Luweero district.

4]. The plaintiffs contend that the late Augustie Mugomba passed away around 1976 intestate. That without any claim of right and not being a relative or beneficiary of the deceased's estate, the 1st defendant during or around the year 2005 unknown to and without the consent of the plaintiffs fraudulently applied for letters of administration to the estate of the late Augustine Mugomba.

5]. The Plaintiffs listed the particulars of fraud on part of the 1st defendant as follows:

- The 1st defendant claiming to be the daughter of the deceased whereas $\mathbf{L}$ not. - The 1st defendant claiming to be a beneficiary of the estate of the said $\mathbf{H}$ . deceased whereas not. - The 1st defendant purporting to have secured the consent of the relatives $\mathbb{H}$ . to the deceased to her application whereas not. - The 1st defendant purporting to have been granted letters of administration IV. by this court and proceeding to have the title deed transferred into her names knowing that she had no claim to it whatsoever and with no letters of administration for the said estate.

6]. That having filed an application for the letters of administration, the $1^{st}$ defendant in collusion with both the 2nd and 3rd defendants, fraudulently proceeded to have the title transferred and registered in the names of the 2nd and $3rd$ defendants.

7]. The Plaintiffs listed the particulars of fraud on part of the $2nd$ and $3rd$ defendants as follows:

That the 2nd and 3rd defendants jointly and or severally acted fraudulently $\mathbf{L}$ at all material times in that they knew that the 1st defendant had no letters of administration and fraudulently caused a transfer of the title in her names and proceeded to obtain it from her.

$\mathsf{Z}$

- That the said defendants created a fictitious person in the names of the $1^{\ensuremath{\text{st}}}$ $\mathbf{H}$ defendant to cover up for their fraudulent intention and actions of causing the transfer of title into their own names. - The said defendants colluded with the 1st defendant throughout the entire $\mathbb{H}$ . process until they secured registration of the title in their own names.

8]. The plaintiffs further contend that on or about the 26th day of July 2007, the $2nd$ and 3rd defendants jointly and severally fraudulently transferred the suit land to the 4th defendant.

9]. The plaintiffs listed the particulars of fraud on part of the 4th defendant as follows:

- That the 4th defendant had actual knowledge of fraud committed by the 1st, $\mathbf{L}$ $2nd$ and $3rd$ defendants by virtue of a caveat lodged thereon on 14th November 2006. - That the 4th defendant caused the removal of the said caveat using an $\mathbf{H}$ . illegal process considering that it was a caveat lodged by the beneficiaries of the estate of the intestate. - That the 4th defendant caused the purported service of notice to remove $\mathbf{H}$ the caveat which was never communicated at all to the plaintiffs or their appointed agent. - That the 4th defendant caused the removal of the caveat with the sole IV. intention of defeating the plaintiffs claim to the suit land. - That on the 23rd day of October 2007 the 4th defendant fraudulently V. transferred the suit land to the 5th defendant.

10]. The plaintiffs listed the particulars of fraud on part of the 5th defendant as follows:

- That the 5th defendant had actual knowledge of the fraud committed by the $\mathbf{L} =$ $1^{st}$ , $2^{nd}$ , $3^{rd}$ and $4^{th}$ defendants by virtue of a caveat lodged thereon on $14^{th}$ November 2006. - That the 5th defendant colluded with the 4th defendant and together they $\mathbf{H}$ . caused the removal of the said caveat using an illegal process considering that it was a caveat lodged by the beneficiaries of the estate.

- The 5th defendant caused the purported service of notice to remove the $\mathsf{III}$ . caveat which was never communicated to the plaintiffs or their appointed agent. - That the 5th defendant unlawfully and forcefully evicted the plaintiffs' IV. caretaker of the suit land, a one Barashi James Mutabazi.

11]. That by reason of the foregoing, the plaintiffs have been fraudulently deprived of their interest in the estate of the said deceased for which reason they pray for a consideration that there was no grant of letters of administration and the 5th defendant's registration as proprietor of the suit land be cancelled.

12]. That the defendants' fraudulent transactions have caused the plaintiffs a lot of inconvenience for which they claim for general damages and that the defendants have caused them loss and expenses for which they claim for special damages.

13]. That the $6^{th}$ defendants' employees caused the registration of the $1^{st}$ defendant who had no grant of letters of administration and caused removal of the plaintiffs' caveat through illegal methods.

14]. The Plaintiffs are praying for judgment to be entered against the defendants jointly and severally and are seeking for the following remedies:

- A declaration that there was no grant of letters of administration to the $1^{\rm st}$ $\mathbf{I}$ . defendant. - An eviction order. $\mathbf{H}$ . - Cancellation of the 5th defendant's title of the suit land. $\mathsf{III}$ . - A declaration that the 1st, 2nd, 3rd, 4th and 5th defendant's names were IV. illegally registered. - General damages. V. - Special damages. VI. - Interest on the above from the date of filing the suit until payment in full. VII. - Costs of the suit. VIII.

15]. The first defendant never filed a written statement of defence. The 2nd and 3rd defendants filed a joint written statement of defence where they stated inter alia:

- Ĩ. That the plaintiffs are not entitled to the reliefs they are seeking for as they have no valid letters of administration of the estate of the late Augustine Mugomba since there is no evidence that the prior letters of administration granted to Penina Nakafeero vide Administration Cause No. 1255 of 2005 regarding the same estate were ever revoked. - That the administrator of the estate Penina Nakafeero had on 23rd of $\mathbf{H}$ January 2006 been registered as proprietor vide Instrument No. BUK 60180 as referred on the certificate of title and on the 27th January 2006 transferred the land to Edward Rwabwana and Geoffrey Kagwa as proprietors vide Instrument No. BUK 60187. - That by the time they bought the land it was already registered in the $\mathbb{H}$ . names of Penina Nakafeero as the administrator of the estate of the late Augusite Mugomba. - IV. That they carried out due diligence both formal and physical search on the land and there were no other persons claiming interest in the suit land. - That the plaintiffs therefore have no right to allege fraud on them as the V. title was procured with the honest belief that the proprietor had a valid title. - The said defendants dispute and deny all the claims and reliefs sought by VI. the plaintiffs and pray for the dismissal of the case with costs.

16]. In his written statement of defence, the 4th defendant states inter alia:

That the plaintiffs are not entitled to the reliefs they are seeking for $\mathbf{I}$ . because they have no valid letters of administration of the estate of the late Augustine Mugomba.

$\mathsf{S}$

- That there is no evidence that the prior letters of administration granted to $\mathbf{H}$ Penina Nakafeero vide Administration Cause No. 1255 of 2005 regarding the same estate were ever revoked. - That the administrator of the estate Penina Nakafeero had on the 23rd of $\mathbb{H}$ . January 2006 been registered as proprietor to the suit land vide Instrument No. BUK 60180 as reflected on the certificate of title. - That the said administrator transferred the suit land to Edward Rwabwana IV. and Geofrey Kagwa as proprietors vide Instrument No. BUK 60187. - That by the time the 4th defendant bought the suit land, it was registered in V. the names of Edward Rwabwana and Geoffrey Kagwa as the registered proprietors.

17]. The 4th defendant contends that if there were fraudulent transfers, he was a bona fide purchaser for value without notice of fraud. That the plaintiffs have no right to allege fraud on his title as it was procured with the honest belief that the proprietor had a valid title.

18]. The 4th defendant further contends that upon purchases of the suit property, he took physical possession of the same after lawfully transferring the same into his names and later sold the land to the 5th defendant without any interference and or notice of any adverse interest whatsoever.

19]. The 4th defendant contends that he did all the due diligence both formal and a physical search on the land before the purchase and the only squatter that was on the land at the time was a one Butambara.

201. The 4th defendant further contends that he was never involved in applying for the removal of a caveat since by the time he purchased the suit land from the 2nd and 3rd defendants there was no caveat on the suit land and hence could not have applied for the removal of the same.

The 4th defendant prayed that the suit should be dismissed with costs.

**21].** In his written statement of defence, the $5th$ defendant states inter alia:

- That the plaint does not disclose a cause of action against the him. 1. - That he is a bona fide purchaser for value without notice of any fraud. II. - $\mathbb{H}$ . That he bought the suit land from the former registered proprietor a one Muzungu Augustine for valuable consideration and took physical possession thereof without any interference from anyone and has since developed the suit land into a modern farm. - That he bought the suit land when there was no caveat whatsoever and his IV. never at any material time applied for the removal of any of the plaintiffs caveats since there was none on the title. - That he bought the suit land when there was only one squatter on the land V. by the names of Butambara who he compensated with two million shillings $(2,000,000/=)$ and left the land and this was done with the participation of the RDC called Kyomukama.

221. The 5th defendant further contended that Barahi James Mutabazi has never been a caretaker of the suit land and has never occupied the said land at all. The 5th defendant also contends that there was no complaint ever lodged at the police at Wakyato on the 7th of July 2007 and no statements were ever recorded by anybody from anyone.

**23].** The 5th defendant further contends that he has never colluded with the 4th defendant and has never served any notice to remove the caveat in respect of the suit land. The 5th defendant further contends that the plaintiffs are not entitled to the prayers they are seeking for from the court and prayed that the suit be dismissed with costs.

24]. The 6th and 7th defendants jointly filed a written statement of defence were they stated inter alia:

- That the suit does not disclose a cause of action against them and hence $\mathbf{L}$ should be dismissed with costs. - That the claim against them does not fall within the jurisdiction of this $\mathbb{L}$ court and that the plaintiffs are not entitled to the reliefs sought. - 25]. The following issues were raised for determination: - Whether there was a grant of letters of administration by this court. $\mathbf{L}$ - Whether the suit land was fraudulently acquired by the defendants. $\mathbf{H}$ - Whether the suit land was lawfully transferred by the 6th defendant into $\mathsf{III}.$ the $1^{st}$ , $2^{nd}$ , $3^{rd}$ , $4^{th}$ and $5^{th}$ defendants' names. - Whether the 4th and 5th defendants are bona fide purchasers for value IV. without notice.

## V. The remedies available to the parties.

26]. The parties proceeded by way of witness statements and their evidence is on record. The parties also filed written submissions which I have considered in determining this matter.

Issue one: Whether there was a grant of letters of administration by this court for the estate of the late Augustine Mugomba

27]. Section 101(1) of the Evidence Act Cap 8 provides 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.

(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."

28]. Section 102 of the Evidence Act provides that "The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side."

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29]. Section 103 of the Evidence Act Cap 8 provides that "The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."

30]. The burden of proof was therefore on the plaintiffs to prove that there were no letters of administration that were granted to the 1st defendant for the estate of the late Augustine Mugomba. The plaintiffs allege that there were letters of administration that were forged vide Administration Cause No. 1255 of 2005 in the names of Penina Nakafeero (the 1st defendant) which she used to be registered on the suit land vide Instrument No. BUK. 60180 at Bukalasa land office.

31]. The evidence on record shows that the 1st defendant transferred the suit land to the $2^{nd}$ and $3^{rd}$ defendants. No evidence was adduced by the plaintiffs to show that the said impugned letters of administration were either revoked or declared illegal on grounds that they were forged.

32]. The impugned Letters of Administration were never tendered in court nor was there a witness to testify that they were forged. Even if a letter was written by the Deputy Registrar that indeed the said letters of administration were forged that evidence should have been formerly tendered in court as an exhibit. This was never done. The plaintiffs therefore failed to discharge their burden to prove that the said letters of administration were forged. Evidence cannot be adduced by way of submissions.

## ISSUE 2: Whether the Suit land was fraudulently acquired by the defendants

33]. The 1st, 2nd and 3rd defendants never adduced evidence in court. The 2nd and 3rd defendants only filed their written statements of defence. The 4th defendant stated that he bought land that was already registered in the names of the 2nd and 3rd defendants. He then later sold it to the 5th defendant. This court was able to establish after visiting the locus in quo that it is the 5th defendant in physical occupation of the suit land.

**341.** The $4^{th}$ and $5^{th}$ defendants stated that they carried out due diligence before they purchased the suit land by carrying out a search in the land office and by

physically visiting the land. They stated that there was only one squatter that was compensated and he left the land.

35]. Section 136 of the Registration of Titles Act Cap 140 (which applied then) provided that no person dealing with a registered proprietor was required to inquire into the circumstances under which the proprietor acquired the title unless there was evidence of fraud.

36]. It was also held in the case of Kampala Bottlers Limited versus Damanico (U) Limited -S. C. C. A. No. 22 of 1992 that fraud must be attributable to the person against whom it is alleged. For a title to be impeached, fraud must be directly linked to the current title holder. There was no evidence adduced by the plaintiffs that at the time the 4th and 5th defendants purchased the suit land, there was caveat lodged on the title or even if it had been lodged it had been removed by the said defendants.

37]. Even if there had been a caveat lodged on the title and later removed, a witness from the land office should have testified as to who caused its removal because the defendants could not have removed the caveat on their own. PW1 stated on cross examination that the defendants bought the suit land when there was no caveat. PW3 stated on cross examination that he didn't know the role the 5th plaintiff played in removing the caveat from the suit land. PW3 also stated that by the time the 2nd and 3rd defendant acquired the suit land, there was no caveat lodged on the suit land at the time. He also stated that he never knew the role the 4th defendant played in removing the caveat.

38]. PW4 who was an investigating officer also stated that he didn't know the role the defendants played in removing the caveat from the suit land. By the time the 4th and 5th defendants were registered on the land there was no evidence that they were involved in any fraud or can any fraud if any be attributable to them as no evidence has been adduced to that effect.

39]. Section 59 of the Registration of Titles Act Cap 240 provides that "No certificate of title issued upon an application to bring land under this Act shall be impeached or defeasible by reason or on account of any informality or irregularity in the application or in the proceedings previous to the registration of the certificate, and every certificate of title issued under this Act shall be received in all courts as evidence of the particulars set forth in the certificate in

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the Register Book, and shall be conclusive evidence that the person named in the certificate as proprietor of or having any estate or interest in or power to appoint or dispose of the land described in the certificate is seized or possessed of that estate or interest or has that power."

40]. Section 165 of the Registration of Titles Act Cap 240 provides that "Nothing in this Act shall be so interpreted as to leave subject to an action of ejectment or to an action for recovery of damages as aforesaid or for deprivation of the estate or interest in respect to which he or she is registered as proprietor any purchaser bona fide for valuable consideration of the land under the operation of this Act, on the ground that the proprietor through or under whom he or she claims was registered as proprietor through fraud or error or has derived from or through a person registered as proprietor through fraud or error; and this applies whether the fraud or error consists in wrong description of the boundaries or the parcels of any land or otherwise howsoever."

41]. Therefore, once the defendants got registered on the title to the suit land their title could only be impeached on proof of fraud on their part as transferees.

This in my view also resolves issue three.

## ISSUE 4: Whether the 4th and 5th defendants are bona fide purchasers for value without notice.

42]. It was held in the case of Hannington Njuki versus William Nyanzi-H. C. C. S No. 434 of 1996 that for a purchaser to successfully rely on the bona fide purchaser doctrine he or she must prove that:

- He or she holds a certificate of title. $\mathbf{L}$ - He or she purchased the suit land in good faith. $\mathbf{H}$ . - He or she had no knowledge of the fraud. III. - He or she purchased the suit land for valuable consideration. IV. - V. The vendors had apparent title. - VI. The purchaser was not a party to the fraud.

431. The $4^{th}$ and $5^{th}$ defendants adduced evidence that they carried out a search on the suit land before they purchased it. They led evidence by DW6 who was their lawyer on how the sale agreement was drafted when defendant four was buying the suit land and when he was selling it to the 5th defendant. DW6 further

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stated that the land had no encumbrances at the time. There was no evidence adduced that the said defendants had notice of any fraud as alleged by the plaintiffs. The vendors had apparent title.

44]. There was no evidence adduced that at the time the said defendants purchased the suit land there were caveats lodged nor was there any evidence to show that the respondents were responsible for removing the caveats the plaintiffs had allegedly placed on the suit land. The plaintiffs should have called witnesses from the land office to prove whether caveats had actually been placed on the title or even removed at the instigation of the defendants. The said defendants therefore qualified as bona fide purchasers for value without notice.

45]. I find that the plaintiffs have failed to prove their case to the required standard. The plaintiffs evidence was equally contradictory because whereas PW1 stated on cross -examination that the suit land had been gifted to her by her late father who left a Will, the other plaintiffs witnesses stated that the late Mugomba Augustine died intestate. The Plaintiffs case cannot therefore be relied on and will be dismissed with costs to the 4th and 5th defendants.

Hon. Justice John Eudes Keitirima

04/04/2025