THE REPUBLIC OF UGANDA

IN THE HIGH COURTOF UGANDA AT MPIGI

CIVIL SUIT NO. 04 OF 2016

(Land civil suit No. 739 of 1997)

1.  
2. THE REGISTERED TRUSTEES OF THE SOCIETY OF THE MISSIONARIES OF AFRICAWHITE FATHERS

VERSUS

1. JOHN LUKOMA
2. KALULE KASAKYAEDWARD
3. SARAH NALULE:::::::::::::::::::::::::::::::::::::::DEFENDANTS

BEFORE: HON. JUSTICE WILSON MASALU MUSENE

JUDGMENT

Introduction

This is an old protracted case filed  20 years ago  in 1997  at the  Kampala High Court. The Plaintiffs, Edward Mpoza and  the Registered Trustees of the Society of the Missionaries of Africa  (White fathers), filed the case initially  against Dominico Kityo  who died  leaving  the case pending.  He was  succeeded by the present  Defendants, John Lukoma, Kalule Kasakya  Edward and Sarah  Nalule.   This same  case has also been handled by five  Judges  while at Kampala.   These  were  Justice P.M. Tabaro,  Lady Justice  Mary Maitum, Lady Justice Anna Magezi (who  have since  retired) and Lady  Justice Percy Night  Tuhaise and Pustice  Bashaija Andrew  , who are still in service.

In February, 2017, it was transferred to Mpigi High Court  circuit  from the land division in Kampala . 

The plaintiffs case against the defendants jointly and severally is for an order of removal of the caveats   lodged by the Defendants predecessor on the land comprised in Mawokota  Block 195  Plot  No.4  of which Karoli  Lutwama was registered  proprietor, and Mawokota Block 195  Plot 3  of which the second plaintiff is the registered proprietor.  The Plaintiffs further  claim from the Defendants  General damages for trespass and/or  conversion, mesne profits  and loss of earnings.

The Defendants on the other hand deny plaintiffs case and instead aver that the land comprised  in Mawokota  Block 195  Plot 4  and plot 3  (Originally  Mawokota Block 195  Plot 2)  was and is ancestral communal land  belonging  to the ancestarial  lineage  of Lutiba Kyemwa  (Omutuba gwa Lutiba Kyemwa) to which all defendants belong.

The defendants further state that Edward Mpoza Katuluba  does not belong to the  ancestral lineage  of Lutiba Kyemwa, but belongs to the ancestral  lineage of Kisumugungu of  Bunamwaya and so Edward Mpoza Katuluba  cannot inherit and/or  have interest  in the disputed  land.  Finally, the Defendants filed a counter – claim  which was refuted by the plaintiffs.  In the counter claim, it is stated that the certificate of Title for Mawokota Block 195 Plot 4  in the names of Kaloli Lutwama  was fraudulent, and that the same be cancelled and registered in the names of the defendants as Trustees for the lineage of Lutiba Kyemwa. 

Representation:

The 1^st  Plaintiff was represented by Mr. Kenneth Kajeke, while Mr. Fredrick Ssemwanga  was for  2^nd Plaintiff.  The three Defendants were represented by Mr.  Charles  Ssemakula Muganwa, Mr. Asumani Basalirwa and Mr. Ahmed  Bamujje.  The  Advocates  filed written submissions which are on record.

Agreed facts:

 According to the records on the 17/5/2001 before  Justice  J.P.M.  Tabaro  the facts agreed upon  were :

1.  
2. The Second plaintiff is the registered proprietor of Mawokota Block No. 195Plot No.3.
3. The first Plaintiff belongs to the order of the white fathers.
4. The second Plaintiff acquired the land as a giftfrom the first plaintiff.
5. The first defendant occupies part of the land in question within the definite grounds.
6. There are burial grounds on the land in issue, and the Plaintiffs do not dispute the presence of thesaid burial grounds.

Issues

1. The primary question is whether the first plaintiff was lawfully registered on 19/7/1958 or whether the registration was fraudulent.
2. If there was fraud,when was the frauddiscovered?
3. Whether or not the defendant claim is time barred
4. Whether or not the partiesare entitled to the remedies prayed for.

Issue No 1

The primary question is whether the first plaintiff was lawfully registered on 19/7/1958 or whether the registration was fraudulent.

Counsel for the  1^st  Plaintiff submitted that  PWI,  Nsubuga  Justine tendered before court exhibits  PIA  and PIB  which is a succession Register dated 26/10/1957.

He added that Exhbit  P1A  and PIB  detailed the children and the property left behind by the late Andereya Sajjabi Kyemwa and  Kaloli Lutwama  was listed as the second  child of the late Andereya Sajjabi Kyemwa, who was appointed as the heir.

It was also submitted that according to PW2, Nichols Wamboga, a Registrar of Titles tendered before court exhibit P2  and P3  which are certificates of title for land comprised in Mawokota Block No. 195  Plot No 3 and 4  respectively.

Counsel for the 1^st Plaintiff maintained that the late Kaloli Lutwama  got registered on Plot  4 on the 19.7.1958, and that Plot 3  was registered in the names of  2^nd   Plaintiff on 7.3.1989 as per exhibit P.2 . He challenged the Defendants allegations of fraud  as false,  reiterating  that the burden of proof of  fraud  lies on the party  alleging.  Reference was made to sections 110 and 111 of the Evidence Act and the case  of R.G. Patel vs Lal Makanji [1957] E.A 314; where  it was held  that allegations of fraud must be strictly  proved, although the standard of proof may not be so  heavy as to require  proof beyond   reasonable doubt, but something  more than a mere balance of probabilities.

Learned Counsel for the  1^st Plaintiff  further submitted that the Defendants have failed to prove that the original plaintiff, (Kaloli Lutwama) posed as a descendant of Lutiba Kyemwa  as  the name of Kyemwa  belongs to members of Ngeye  clan and  any clan member can use the same.  They referred to the testimony of PW3,  Edward Mpoza  Katuluba to the effect that the names of the original Plaintiff’s  father was Andereya  Sajjabi Kyemwa  of Ngeye clan.  Counsel added that there is no evidence on the court record that the  1^st  original  Plaintiff posed as a descendant of Lutiba Kyemwa’s   lineage  in the Ngeye  clan to which the Defendants belong.  Further submissions were that the Defendants  have  also failed miserably  to prove that the Certificate of title for  Plot No. 4  which is exhibit  P3  is forged and that  it is PW2  Mr. Nicholas  Wamboga  who produced  before Court the white page  and he availed Certified  copies of  the Certificate of title to Court.  Emphasis was that forgery is a very serious matter which  needs to be investigated  and proved,  which  Defendants have failed to do. Counsel added that   the allegation that the late Anderea  Ssajjabi  never owned  land in Luwala  village in  Mawokota  is not true. They added that   it is   through the evidence produced  by PWI  from the office of the Administrator General  which proved that the said land originally belonged to Andereya Ssajjabi  Kyemwa  and the original first plaintiff acquired  the same as his inheritance.  The allegations that the Second Plaintiff never paid  any money to the  first original plaintiff is not true.  The said land was transferred to the second plaintiff as a gift  as per the application for consent to transfer land and the evidence of PW4  the representative of the second Plaintiff. 

The conclusion was that no fraud was committed by the first original  Plaintiff and so the registration on 19.7.1958  was lawful.

Counsel  for the  Defendants  on the other hand  submitted  that the Defendants’ Pleadings disclose  several specific grounds of fraud,  namely:-

• The firstPlaintiff and the estatehe representsdidnot belong to thelineage of Lutiba  Kyemwa.
• The suit land belonged to the lineage of Lutiba  Kyemwa to which the Defendantsbelong.
•  
• The 1^stPlaintiff and his estate subdividedthe suit land which was originally plot 2 into plotsi.e 3 and 4
• The 1^stplaintiff and his estate having had no interestin the suitland,they couldn’t subdivide the landlegally.
•  

Counsel  added that whereas Edward Mpoza  Katuluba  states that he is the administrator of the Estate of Kaloli  Lutwama  who got  registered  on the suit land comprised in Mawokota Block 192  Plot 2  on 19.7.1958, that  under paragraph 9, he  states that Andereya  Kyemwa  from whom  Kaloli Lutwama inherited acquired  the said land from his majesty’s  Government  on 16.7.1934.  Counsel for Defendants then made reference to the cross-examination of 1^st Plaintiff  (PW3)  on pages 6-7  of the proceedings of 23.2.2017  where PW3  revealed that  the head of his clan is Kisumugungu, who reports to Bakazi Lwendo, while  the Defendants belong to Lutiba Kyemwa  lineage.  PW3, Edward  Mpoza is  also  quoted to have testified that in the lineage of Kisumugungu where he and his father belongs, there is no one called Kyemwa as Kyemwa  belongs to Ngeye clan.  At the same time, counsel for Defendants made reference the supplementary witness statement of   Edward  Mpoza  Katuluba  of 4.12.2014  where he confirmed  that the name Kyemwa  is a title which the lineage of Lutiba Kyemwa uses.

Counsel  made reference to paragraph 10 of  Sarah Kalule’s affidavit  dated 5.11.2014, where  she started:- 

“10 Again   from the clan  records, I know that Anderea Ssajjabi  after serving as a soldier during the Second World War of 1939 to 1945  was thereafter appointed the Ssaza Chief  (county chief) of Mawokota assuming the title of Kayima as such, and I also know that Anderea Ssajjabi  belonged to Ngeye  clan in Buganda  and that he was a member or a grandchild in the  “Lineage of Kisumugungu”  whose  ancestral land is located at Bunamwaya in Kyadondo County.”

It was therefore reiterated that Anderea Ssajjabi,  the grand father  of Edward Mpoza  belonged to the lineage of Kisumugungu, and that the lineages of Lutiba Kyemwa  and Kisumugungu  had separate  burial grounds. 

Further  submissions by counsel for the Defendants were that from the testimony of PW3,  Edward Mpoza  Mutuluza, Anderea Ssajjabi  was buried  at Luwala  and not on the burial grounds of Lutiba Kyemwa.

Counsel  added that what PW3  stated about burial of Anderea Ssajjabi  was  also repeated by Sarah  Nalule in her affidavit evidence, paragraph  14 (b) as follows:

“14 (b) when  Anderea Ssajjabi  died in July, 1957  he was buried  outside  the suit land far from the cemetery  reserved for the Kyemwa’s burial  and  this fact was clearly  pointed out to Lady Justice Tuhaise  when she inspected the suit land.  This fact  proved that Anderea  Ssajjabi  had conceded that he was not Kyemwa and his relatives of the lineage of Kisumugungu recognized the same.”

Counsel for Defendants also referred this court to the evidence at locus in quo on 5.7.2017 by this court where PW3,  Edward Mpoza Katuluba confirmed  that Anderea Ssajjabi was buried on Block 196  and not Block 195  which is in dispute.

Counsel  therefore invited  this Court  to find that the 1^st plaintiffs predecessor, Anderea Ssajjabi  Kyemwa, was not part of the lineage of Lutiba Kyemwa.      

It was further submitted that  evidence the Defendants belong to the lineage  of Lutiba Kyemwa is  overwhelming.  That PW3  on page 7 of  his cross examination proceedings  confirms  it.

He added  that  PW3 in his cross examination on 5/4/2017 , page 14 1^st  paragraph  confirms that the suit land  has bibanja  of about  58  people in number  including  Dominic Kityo.

DW1 states in her examination in chief   paragraph 2 of her witness statement, that she is a daughter to the late Dominic Kityo.

She further says that all her ancestors have their origin on the suit land and were buried on the same land, which is the ancestral land of  the lineage of Lutiba  Kyemwa  who owns the same in trust for all the  members of the lineage.

Counsel also referred to the evidence of Sarah  Nalule   DW1 in paragraph 4 a gives  the  history of the acquisition of the suit land and she continues to corroborate the same under paragraph  4c,5a,7,9,10,11,13,14,15,16,17  etc.  He concluded that the above testimony was never challenged during DW1’s cross examination. 

I have carefully considered the submissions on both sides as far as the first issue is concerned.  I have also read and internalized the pleadings on both sides and the pertinent matters raised during the hearing.

In the first instance, I find that the issue of which lineage the 1^st Plaintiff, Edward  Mpoza Katuluba and the Defendants  (John Lukoma, Kalule Kasakya  Edward and Sarah Nalule) belong  is important and  fundamental.  From the evidence on record and the submissions on both sides, my finding is that the 1^st  Plaintiff,  Edward Mpoza  Katuluba, his uncle Karoli Lutwama and grandfather, Andereya  Ssajjabi  “Kyemwa” was  not or did not belong to the lineage of Lutiba Kyemwa.  The  testimony  of Sarah Nalule, both in the affidavit and during  cross examination is clear that she was born in 1953  at Luwala on the suit land now registered as Mawokota Block 195 Plot  3 and 4.  She was born to the late Dominico Kityo  Batambugwe, son of Atanasi Musi, the son of Ssebabenga.  Sarah  Nalule under paragraph 2  of her affidavit  evidence confirmed  that all her ancestors  have their origin on the land in dispute and all their graves  are on the same.  When PW3, Edward Mpoza Katuluba was cross-examined by Mr. Ssemakalu  Muganwa Charles  for Defendants (on page 7 of  the proceedings of 17.2.2017), PW3 stated that he is  aware of the Lutiba  Kyemwa lineage.  PW3  added that he knows  John Lukoma  and Sarah  Nalule and that the defendants belong to the Lutiba  Kyemwa lineage.  PW3  on the same page  7 added;-

“The father of Kaloli Lutwama was Andereya  Ssajabi  Kyemwa.  He is my grandfather. Andereya  Ssajjabi  was a trustee of the lineage of Ssekiti.  He was also a leader of the sub clan of Kidolindo.”

   And  under the same testimony, PW3 stated that his grandfather, Andereya Sajjabi Kyemwa  was   of Kisumungungu lineage.  The foregoing  evidence therefore settles the fact that the  1^st Plaintiff, Edward  Mpoza Katuluba and the Defendants belonged to different lineages of Kisumugungu and Lutiba Kyemwa  respectively. 

The next issue to consider is whether the land in dispute belongs to the Lutiba Kyemwa clan or not.  From the supplementary witness statement of Edward   Mpoza  Katuluba, under  paragraph 4, he stated that the suit land was originally owned by  his majesty’s      Government as crown land and that it was given to Andereya Ssajjabi Kyemwa by  His Majesty’s  government.

Edward  Mpoza  also added under paragraph 7 that Kaloli Lutwama, whom he succeeded never committed any fraud  in applying for the Certificate of title for Mawokota Block 195  No. 2,  now Plots 3 and 4.

He also  added that the suit land has never  been registered in the names of Lutiba  Kyemwa.

 However, during cross examination by counsel for the Defendants, PW3 Mr. Edward  Mpoza  Katuluba  stated that he did not have any document showing that Andereya Ssajjabi Kyemwa  ever owned  the suit land.  PW3  added:- “I know  the details of the land.  Kalori  Lutwama acquired that land as inheritance  in a will of andereya Ssajjabi Kyemwa .  I don’t  have the will.”

This Court found the above testimony of the  1^st Plaintiff  contradictory when the alleged Will was   not  produced.  And as  submitted by the Advocates for Defendants, PWI on pages 5  of the proceedings of  9.9.2013,  during  cross examination  confirmed that in 1967,  when the  files were transferred, there were no record of titles.  And when the same PW1 was  asked whether in the lands office they had any records showing that Andereya Ssajjabi ever  owned Plot 2 Block 195  Mawokota  before  July 1958, the response was  “No we don’t  have.”   

Another question was asked, whether lands office had any record showing  that the suit  land was ever registered  n the names of Andrew Ssajjabi in 1928  and his answer  was a gain,  “No we don’t  have.”    

Furthermore,   much as the Plaintiffs’ case was that the land in dispute  originally belonged to Andereya Ssajjabi, PW3, Edward  Mpoza  confirmed  during  cross examination in this Court  that Andereya Sssajjabi Kyemwa  died in 1957  and was not buried on the burial grounds of Lutiba  Kyemwa.  That is another point that Andereya Sajjabi  the grandfather of the 1^st plaintiff had no interest n the disputed land  as claimed by the 1^st plaintiff. 

It is also  on court record during cross examination of Edward Mpoza  when he stated that he did not remember  anything in the report  of Andereya Ssajjabi when he died  concerning  Lutiba  Kyemwa’s interest. 

This Court  on the other hand is inclined to believe the Defendants’ case  about the origin of the land in dispute  which according to Sarah Nalule’s evidence from paragraphs 4 up to 15  was very elaborate  and consistent, even during the rigorous cross-examination  by advocates for the Plaintiffs.  In summary, Sarah Nalule’s testimony was that the land in dispute was given to  Omutaka Lutiba, the head of the lineage of “Lutiba Kyemwa” by Ssekabaka Nakibinge who ruled  Buganda between 1440 and 1490, and that the history of the suit land has been mailo and not crown land.  She added that the Defendants  and all the people they represent over the disputed land are members and children and grand children in the lineage of “Lutiba Kyemwa,” located at Luwala in Mawokota County. Under paragraph 9, she testified that on the suit land, the lineage of Lutiba Kyemwa owns   cultural sites, cultural offices (Embuga), shrines, grave yards, a cave and a landing site called Ssanya built by the great grandfather, Ssanya  Namugabo.  When  this court  moved to  locus in quo on 5/7/2017,  we started  at Ssanya  landing site and court  was shown the burial  grounds of “Lutiba Kyemwa lineage”  which were not disputed by  Mpoza Edward  Katuluba , the 1^st  Plaintiff. 

Under paragraphs 11, 12,13 and 14, Sarah Nalule  testified that when Andereya Ssajjabi at one time started calling himself   “Kyemwa”, that one Erasto  Segirinya representing all descendants of Lutiba Kyemwa filed a case against him in the sub-clan  Tribunal  of Bakazirwendo, which  decided  against  Andereya  Ssajjabi.  She concluded that Andereya Ssajjabi conceded   defeat  and when  Joseph Kasule was officially installed as the rightful Lutiba Kyemwa xv,” both Andereya Ssajjabi and Kaloli  Lutwama attended as witnesses. And  an English translation of the document was tendered in and marked D5,                                                       Luganda version and D6, English translation. Again, that piece of evidence was not challenged in cross-examination by Counsel for the Plaintiffs.

Sarah Nalule’s evidence was ably corroborated by DW2, Desderio Kawoya who testified as follows:-

“I recall attending a clan meeting in 1956.  I also recall sitting in a clan Court.  It is called a clan meeting.  Sajjabi was claiming to be Kyemwa.  He was told he was not Lutiba.  I know Edward Mpoza. He is our brother in the clan but not from same lineage.  Mpoza’s father was Katuluba.  The grandfather was Sajjabi.  Sajjabi never had land in our area.”

The conclusion of this court therefore is that the suit land belonged the lineage of Lutiba Kyemwa.

I now come to the issue of the registration of the land in dispute in 1958 in the names of Kaloli Lutwama, and the issue of fraud.  The law on fraud  has been discussed in many cases including that of F.I.K Zaabwe vs Orient Bank and 5 others, S.C.C.A NO. 4 of 2006.

At page 28  Katureebe JSC in his lead judgment  relied on the definition of fraud in Blacks Law Dictionary 6^th Edition at page 660 to mean “An intentional  perversion of truth for purposes of inducing another in reliance  upon it to part  with some  valuable   thing belonging to him or  to surrender a legal right.” A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations or by concealment of that which deceives and is intended to deceive another so that he shall act upon it to his legal injury.”  I also  refer to the case of Kampala Bottlers Limited  versus  Damanico (U) Limited SCCA No. 22 of 1992 ,  where Wambuzi C.J  on page  5   which held that  :-“Fraud  must  be attributed  to the transferee.  I must add here that it must be attributed either directly or by necessary implication.  By this I mean the transferee must be guilty of some fraudulent act or must have known of such act by somebody else and taken advantage of such act.”

Counsel for the Plaintiffs submitted that the Defendants  failed to prove  that the 1^st original  Plaintiff, (Kaloli Lutwama) posed as a descendant of  Lutiba Kyemwa.  They  added that  the defendants failed to prove that the   Certificate of title for the disputed land were forged.

However, in the evidence of Sarah Kalule, under paragraphs 18 and 19. She  stated that the original 1^st Plaintiff , Kaloli Lutwama wrongly  claimed  the  suit land as having  been owned by his late father Andereya Ssajjabi which was not the case and that Kaloli Lutwama  wrongfully posed as a descendant of Lutiba Kyemwa.  Sarah Nalule under paragraph 20 stated and I quote:-

“20 The Certificate of Title  for Mawokota Block 195 plot 4 is a forgery because of the following:-

• The Registrar of titles Kulumba Kiingi who signed the title was not a Registrar of titlesin July 1958.
• The father of Kaloli Lutwama is shown as “A . S Kyemwa”but he was not Kyemwa.
• The districton thetitle called “West Mengo” was not in existence in 1958, it was created after the 1967 constitution when president Obote abolished Buganda kingdom.
• The Certificate of title is in the new Mailo system of county Block and Plot which started in September, 1958 under the law made by the governor then whereas the Certificate of Title was made on 19^th July,1958.”

Sarah  Nalulwe  therefore gave particulars of  fraud and during cross examination by counsel for the  1^st Plaintiff,  she stated that the  white  documents produced by Mr. Mpoza  were a forgery as Mpoza  is not in their clan.  She also added that Kaloli Lutwama wrongfully gave out their clan land to  Missionaries  and that her predecessors did not get title as the land had been wrongfully  taken.

Sarah Nalule also stated under paragraph 21 that the Certificate of Title produced by the Plaintiff as  “Annexture F”. cannot be genuine  because on 16.7.1934  when it was purported to have been issued, Anderea SSajjabi  had not assumed the title of “Kyemwa”, as  he became an “imposter Kyemwa after  1945 after Second  World War.  She also  added under paragraph 24 as follows:-

“24 Pere Kaloli Lutwama as an educated Catholic priest knew and ought to have known that his father Anderea Ssajjabi was sued in the sub-clan court of Kawooya Bakazirwendo for wrongfully taking over the leadership of the lineage  of Lutiba Kyemwa and for assuming  the  title of “Kyemwa”  and for purporting to take over the ownership of the suit land and that he lost this case and that he was ordered to stop using  and posing  as Kyemwa and using his title of Kyemwa .  Pere Kaloli Lutwama in fact attended the official installation of Joseph Kasule as Kyemwa XV together with his father.

Sarah Nalule was not shaken during cross examination .  And  judging from her demeanor,  Sarah Nalule  impressed  this Court as a truthful witness.  And again, her evidence was supported by Desderio Kawoya, DW2  who stated during cross examination that the title in possession of the  1^st Plaintiff is a forged one and that they made a report to  Mpigi Police about the forgery.  Both Sarah Nalule and Desderio Kawoyas’ evidence was not challenged and this Court believed the same.

Furthermore, whereas PW2, Wamboga Nicholas in examination in chief stated that Kaloli Lutwama (1^st Plaintiff’s predecessor in Title) was registered under instrument  No. KLA 16114 on 19.7.1958, during cross examination and upon being  asked  whether he had instrument  Number KLA 16114, he said he  did not have.  I also agree with the submissions of counsel for the Defendants that PW2 also failed to answer the crucial question as to whether  he was aware that in 1958, the system that was obtaining in land office was MRV, and not Block and plot which came after independence in 1962.

From  the evidence of DWI, Sarah Nalule and DW2 Desderio Kawoya, and in the circumstances, this court is satisfied that Kaloli Lutwama was fraudulently registered on the suit land because  he was registered on land which was not his and which did not belong to his father Anderea Ssajjabi.

The  suit land, as already found and held belonged to the lineage of Lutiba Kyemwa to  which Anderea Ssajjabi did not belong.

Secondly, no evidence was led by the Plaintiffs to show that the predecessor of Kalori  Lutwama, Andereya Ssajjabi was ever registered in the Land Office.  This Court therefore wonders how Kaloli Lutwama acquired the land in dispute and yet the person from whom he allegedly acquired, Andereya Ssajjabi was not registered so as to transfer the same to him.  The witness called by the Plaintiffs, PW2, Wamboga Nicholas failed to adduce such evidence.  I therefore  agree with the submissions of Counsel for the Defendants that the circumstances leading  to the creation of the title for Block 195  Plot 2 raises  a lot of  doubt, suspicion  and was fraudulent as Andereya  Ssajjabi  could not give away  what he did not own. 

Furthermore, whereas PW3 in his examination in chief  states that Kalori Lutwama inherited the suit land from his late father Andereya Kyemwa, who in turn acquired  the same from  the colonial government in 16.7.1934, this court  cannot believe that the colonial government could give away land that was not crown land.

In any case no instrument was tendered in court  to confirm the alleged acquisition  from the Crown/Colonial government.  Both PW3, Mpoza Edward Katuluba and PW2 Wamboga Nicholas, the Registrar  of titles during  cross-examination admitted that they had no document to show that Andereya Ssajjabi over owned the land in dispute.

And as noted earlier, PW3 stated during cross-examination that Kalori Lutwama acquired the land as inheritance in a Will of Anderea Ssajjabi Kyemwa, but failed to produce the Will.  All that were manifestations of fraud.

Even if such alleged will was produced, in view of the earlier finding that the disputed land belonged to Lutiba  Kyemwa lineage, then  Ssajjabi Anderea could not give what was not his to Kaloli Lutwama.  In such circumstances, the succession Certificate was irrelevant.

The transfer  of land is governed by the Registration of titles Act in which it is provided  under S. 92 of Cap 230  which is a replica  of the RTO (Registration of titles ordinance) that…. The proprietor of land…..may transfer the same by transfer in one of the forms in the 7^th Schedule to the act.  Under S. 92 b) of the same  Act it is provided  that “….upon the Registration of the transfer, the estate and interest of the proprietor  as set  forth…….” Shall pass to the transferee who shall thereupon become the proprietor thereof.

Under S. 64 (i)………the proprietor of land or of any estate or interest in land under the  operation of this Act  shall  except  in the case of fraud hold the land, or estate………..

Under Section 77 of the same law, any Certificate of title……procured by fraud, shall be void as against all parties who are prives to the fraud. And  that is  exactly  the situation obtaining in this case.

I also agree with counsel for the Defendants that Mengo Government having not been the registered owner of the suit land, it had no capacity to deal with the suit land and as such any instrument purportedly issued by Mengo in respect of the suit land was invalid and had no effect of transferring or otherwise dealing with the suit land as per the above sections of the law.  Consequently, exhibit PIA and PIB have no relevance.

In the premises, the lands office could not have registered any document from Mengo  to deal with the land in dispute.  It is the finding and holding of this court that the fraudulent misrepresentation from Mengo  under  the guise of a Certificate of  succession was issued to defraud the Defendants’ land /suit  land).  Besides, there was no transfer form registered in the land office as required under the law.  And as already noted, Andereya Ssajjabi’s alleged acquisition of the suit land from His majesty’s Government had no lota of evidence.

It is therefore clear that the root of the title to the suit land was not proper and was marred by fraud .

In Matovu & 2 others vs Ssenviri and another [1979] HCB 187, it was held  that when a person Procures  Registration to defeat  unregistered interest of others, then such person is guilty of fraud.  It therefore follows that once such fraudulent registration is found out, then the Certificate in respect thereof is null and void and has to be cancelled under Section 177 of the  R.T.A .  The Defendants in this case lodged caveats in respect of the said land in dispute and which land is occupied by the Defendants and other family members of the lineage of Lutibwa Kyemwa.  This was conceded by PW3, Edward Mpoza Katuluba who admitted that the disputed land has a bibanja people, who are over 58 in number, including Dominic Kityo (deceased) who lodged the caveat.  And for emphasis, paragraph 24 of Sarah Nalule’s affidavit  evidence  reveals  that  Kalori Lutwama and his father Andereya Ssajjabi attended the  official installation of Joseph Kasule as Kyemwa XV so  Kaloli  Lutwama had constructive knowledge that  his father had fraudulently  taken over the suit land after the decision of the sub-clan of Bakazirwendo.

And since  1^st Plaintiff  stepped in the  shoes of late Kalori Lutwama, the same constructive knowledge is legally imputed on him.  Issue no 1 is therefore resolved in the negative in that the  1^st Plaintiff’s registration was fraudulent.

Having  found and held that the Registration of the  1^st Plaintiff and  his predecessor Kaloli Lutwama was fraudulent, I now come to the  2^nd Plaintiff, the Registered Trustees of the society of missionaries of Africa  (white fathers).

Counsel for the  2^nd plaintiff  made reference to paragraph 9 of the amended plaint that the  2^nd Plaintiff obtained land as a gift  from Karoli Lutwama who succeeded his father Andereya Ssajjabi Kyemwa.  They also referred to paragraph 11 of the amended Plaint  that the land comprised  in  Mawokota Plot 3  was not in  any way occupied by the defendant or any  other person  other than the  Registered proprietor till 1996  when the Defendant  started  to claim  ownership and lodged  caveats.  As to whether the registration of  2^nd  Plaintiff was fraudulent, counsel referred to paragraph 2 of  Rev.  Fr. Otto Katto Asimwe’s witness statement  (PE4)  to the effect that the late Rev. Father Kaloli Lutwama gave the  2^nd Plaintiff the land in question as a gift, and thereafter, Rev. Fr. Kalori  Lutwama  executed transfer  instrument  dated 8.9.1987 (annexure “B”) .  fraud  on the part of the  2^nd plaintiff  was denied.  Counsel  also made reference to the testimony of  PW2,  Nicholas Wamboga, a registrar of titles  to the effect that the process  of transfer of the land into the names of the  2^nd  Plaintiff  was  not fraudulent  as alleged by Defendants.

Counsel  also made reference to sections  110 and 111 of the evidence ac as to  where the burden of proof lies.  Counsel for   2^nd plaintiff  reiterated that the allegations of fraud by the Defendants  fell short of the principles  laid down in the cases of Fredrick  Zaabwe  vs orient Bank & 5 others , SCCA NO. 4 of 2006  and Kampala Bottlers vs Damanico (U) Ltd SCCA No. 22 of 1992 [1994-95] H.C.B. 49.

They  maintained  that the land in question  was given to the 2^nd plaintiff as a gift.  Reference  was made to the transfer application form   annexture  “C”  to PW4’switness  statement. 

Counsel for the Defendants on the other hand submitted that the transfer form by which  Kaloli  Lutwama  transferred  land to the  2^nd Plaintiff had no seal or stamp  of signatures of the society  of white fathers.  And that it meant the  2^nd Plaintiff wasn’t  a party to the transfer form executed  by the predecessor  of  1^st Plaintiff , Kaloli  Lutwama.  They wondered how the transfer to  2^nd Plaintiff could have taken place  without  consent and without seal of the organization.  Even the issue of stamp duty  was raised, counsel for the Defendants wondering whether it was paid or not.  Counsel for Defendants concluded that all the above matters and circumstances raised fraudulent dealings with regard to  2^nd plaintiffs’ title. 

I have carefully considered the circumstances    and submissions on both sides.  Whereas the application for transfer form by Kaloli  Lutwama  marked as annexture  C to PW4’s  witness statement, states that the land was  undeveloped, and paragraph 6 of the statement is that Dominico Kityo  and his successors have no interest in the said land, what transpired  during  hearing was different.  During  cross-examination of Rev. father Otto Katto Asiimwe, PW4  by Counsel  Basalirwa Asuman, PW4 admitted that  there were people, whom he called squatters on the land in question.  PW4  added  that he did not know whether the family  of Kityo  were on the suit land or not.  In my view,  those are double standards on the part of PW4, for  on one hand, he states there were squatters  and  then adds it was un developed. Squatters are people and they  were customary owners  or bibanja owners  but for one who has obtained certificate of title without their knowledge,  he refers to them as  squatters.  In any case, the law recognizes both registered owners and bibanja  holders  or customary  owners.  So whereas counsel or the  2^nd plaintiff’s final submissions stated that the defendants could not claim that the said land belonged to Ngeye clan,  the case of the defendants was that the entire  land in dispute, Block 195, Plots 3 and 4  belonged to the  lineage of Lutiba Kyemwa. 

Counsel for the  2^nd  Plaintiff reiterated that the 2^nd Plaintiff, lawfully acquired the suit property from Rev father Kalori Lutwama who was the owner and registered Proprietor .  Further argument was that 2^nd Plaintiff acquired equitable interest in the said land.  However, and as this Court has already held and found, Kalori Lutwama, himself having been fraudulent, had no proper title to pass on to the  2^nd  Plaintiff.  Secondly, whereas Counsel for 2^nd  Plaintiff referred to the absence of the common seal on the 2^nd Plaintiff on the transfer forms as a mere technicality under Article 126 (2) (e) of the constitution, it is this Courts’ finding and holding that a common seal of an Association  is not a mere technicality .  It is substantial as it embodies and carries the authority of the Association Registered under the Trustees Incorporation Act.  Absence of the seal on the transfer forms to 2^nd  Defendant   and  authorized  signatures and content of the controlling authority  all implied or imputed  fraud.  Kaloli  Lutwama, who has been found  to be fraudulent  cannot be held to have transferred  proper title  to  2^nd   Plaintiff in the circumstances as a gift.  In Mukula International vs His Eminence Cardinal Nsubuga & another  court of appeal civil Appeal No. 4 of 1981, it was  held that  a Court  of  law cannot  sanction  what is illegal,  that an illegality once brought  to the attention of court,  overrides all questions of  pleadings  including any admission made.   In Uganda  Railways  Corporation  vs  Ekwaru & others  [2008] HCB 61, it was held that a trial Judge  has a duty to use  a judicial  microscope to see all those illegalities that may not be seen  by ordinary eyes of parties, including  those of their counsel  who may not have seen it.

So even  if some irregularities were not pleaded, it is the duty of this court to use its  Judicial microscope to point  out those irregularities in the interests of justice. 

Furthermore, both counsels for the Plaintiffs  have emphasized Registarable  interest  of the  Plaintiffs but the  crucial  question is how was the registrable interest arrived at.  The process of  acquiring  registrable interest was  flawed and was acquired to defeat customary interest  hence fraudulent.  And whereas it was submitted for the plaintiffs that the authority  of Marko Matovu  &  others vs Mohammed Sseviri and another was distinguishable , the advocates for the plaintiffs did not substantiate.   I wish to add that while  referring to the signature of Rev. Father  Christian Gillain on the acquisition and transfer, counsel for the  2^nd Plaintiff submitted that the constitution of the  2^nd  Plaintiff  provides for consent of any two of the trustees.  However, the constitution of the  2^nd plaintiff Association was not produced in evidence at the hearing.

Finally and as stated  under paragraph 23  of Sarah Nalule’s affidavit evidence,  Kaloli Lutwama was a catholic priest and member of the Missionaries of Africa (white fathers)  He was called “Pere Kaloli  Lutwama” ad he was therefore one of the  2^nd  plaintiffs and so had interest in Mawokota  Block 195  Plot 3  .  In other words, the alleged gift to  the  2^nd  Plaintiff was  in essence  a transfer to himself, giving with a right  hand and taking with the  left hand.  All that were  manifestations of fraudulent  intentions to deprive  or defeat the unregistered interests  of the Defendants.  And the person who gave the gift  did not have proper title  then the  gift  cannot stand.

I therefore  find and hold that the  2^nd Plaintiffs’  registration was fraudulent.

Issue No 2

If there was fraud, when was the fraud discovered?

Counsel  for the  1^st plaintiff submitted that Exhibit P4  which  is the Certificate of  Title for land  comprised in  Mawokota  Block No. 195  Plot No.4 indicates that the land was registered  in the names  of the first original plaintiff on the 19/7/1958.

He added that under the limitation Act Cap 80 Section 5  states that “No  action shall be brought  by any person to recover any land  after the expiration of twelve  years from the date on which the right of action accrued  to him or her or if it first accrued to some person through whom  he or she claims to that person.”

Counsel  then submitted that the defendants in their second  further  Amended Written statement of defence have attached a letter dated 20/1/1997  written  to the commissioner of land registration by Kawooya Bakazirwendo at Bumpenje 

He  maintained  that if it is this letter which the Defendants seek to rely on as confirming that the fraud  was discovered by the late Dominico Kityo in 1996,  they disagree with such proposition.  That  annexture  D5 and D6  were never exhibited  in this court indeed all the defence documents were never exhibited and given numbers what the defence did  was to dump documents  on the court record.  These  documents are therefore not exhibits .  Further  submissions  were that  the author of the letter dated 20/1/1997  was never produced in this court to tender the same.  Section 63  of the evidence Act Cap 6 was referred to and it states   that a document  must except  in cases referred to in  Section 64  of the evidence Act Cap 6 be proved by primary evidence see the case of DPP  of Tanzania versus Nathan  (1966) E.A  13.  He added that it is  trite law as held in the case of Biteremo versus Situma CA 15 of 1991  SC  unreported  that an item tendered for identification does not become  an exhibit  until it is  formally proved  and  admitted in evidence.  It was  submitted for the first plaintiff that anenxture  D5 and D6  attached to the Defendants Written Statement of defence and the witness statement save for the visitation to locus  in quo document  attached as D2  to Nalule Sarah  statement are inadmissible and are of no evidential value.

Counsel  concluded that if any fraud was committed which is denied then the same ought to have been discovered in 1958  when the first original plaintiff acquired registrable interest in the suit land. 

Counsel  for the Defendants on the other hand referred to paragraphs 25 (a) of Sarah  Nalule’s witness statement that Dominico  Kityo (previous defendant)  searched the lands office in 1996  and found out that the suit land had been fraudulently  registered  by the  Plaintiffs.  They added that fraud  was  discovered  in 1996  which was followed by the caveat of Dominic Kityo  on the suit land  dated 24.6.1997.

I have considered  the submissions on this issue and for avoidance of doubt,  I reproduce  paragraph 25  (a)  of Sarah Nalule’s  witness statement:-

“25(a)  the original   Defendant Dominico Kityo  now deceased went  to the land office in 1996  to make a search  after learning that the original Plaintiff  Kaloli Lutwama  now deceased wanted to sell the ancestral land of Lutiba  Kyemwa  at Luwala  and it is  then that Dominico Kityo  and other members of the lineage of Lutiba  Kyemwa  discovered that kaloli  Lutwama  had caused himself to be  registered as owner of the suit land fraudulently  on 1.10.1986.  Subsequently  dominico Kityo  lawfully  lodged a  caveat together with the supporting  affidavit are herewith attached  and marked together as “DII” and subsequently  Kaloli Lutwama  filed a suit against Dominico Kityo  seeking  the removal of his caveats on his land and the defendant Dominico  Kityo  filed a written statement of defense   with a counter claim seeking to recover the suit land as belonging to the Lutiba Kyemwa lineage  and therefore the defendant’s counter -claim is not time barred.”

Counsel for the second Plaintiff submitted that the Defendant did not exhibit any proof of when the fraud  was  discovered.  However, it is the finding and holding  of this court that the  lodgment of the caveats in respect of both plots  3 and 4  was evidence that fraudulent registration had taken place.  Even when Rev. Father  Otto Katto Assimwe was being cross-examined by Defendant’s counsel, he stated that the mutation form was made on 30.9.1986  by Kaloli  Lutwama   so the  fraud  could not have been discovered earlier and the caveats were lodged  in 1997.

It is therefore the finding and holding of this Court, in agreement with counsel for the Defendants that the fraudulent registration was found out and caveats lodged in 1997.

Issue No. 3

Whether  or not the Defendants claim is time barred?

Counsel  for the  Plaintiffs  submitted that the Defendant’s counter claim  for cancellation of the Certificate of title  held by  1^st and  2^nd Plaintiffs should not be cancelled as  39 years  have elapsed  since 19.7.1958.  Counsel  for 1^st  Plaintiff  quoted the case of  Muhammad B Kasasa vs Jasphar  Buyonga Siraji Bwogi Court  of appeal civil appeal  No. 42 of 2008,  where  it was held that a cause of action which is time barred should  not be allowed.

Counsel for the Defendants on the other hand submitted that the general position of the law is that in cases of fraud, time starts running from the time the fraud is discovered.  They made reference to Section 25  of the limitation Act,  Cap 80  Laws of Uganda.  They concluded that since fraud was established in 1996, it was immediately followed by caveats which culminated in the instant suit, then the suit and counter claim is not time barred.

On this issue, Section 5 of the limitation Act provides for 12 years within which to recover land.  Nevertheless and as correctly submitted by Counsel for Defendants, Section 25 of the Limitation Act provides for postponement of limitation period in case of fraud or mistake.  For avoidance of doubt, I do hereby reproduce  Section 25 (a), (b) and (c ) .

“25 where, in case of any action for which a period of limitation is prescribed by this Act, either-

• The action is basedupon the fraudof the defendant or his or her agent orof any personthroughwhom he orshe claims or his or her agent;
• The right of action is concealed by the fraudof any such person as ismentioned in paragraph (a)ofthis Section; or
• The action s for relief from the consequences of a mistake, the periodof limitation shall not begin to run until the plaintiff has discovered the fraudor the mistake.”

Since  I have already found and held that caveats were lodged in 1997  after the discovery of the fraudulent registration of the land in dispute,  and the main suit  and counter claim  were filed that very  year of 1997, then the Defendants  counter-claim is not time barred.

Issue No. 4

Remedies  available to the parties.

Counsel for the Plaintiffs had prayed for various remedies including an order for removal of caveats, general damages, loss of earnings, mesne profits, dismissal of the counter-claim and costs.

Since the Plaintiffs have lost in all issues as outlined above, then I do hereby dismiss their suit against the Defendants.  I further  do hereby make the following orders:

• I proceed underSection 177 of the R.T.A to orderthecancellationof thecertificates of titleofthe1^stPlaintiffand2^nd Plaintiff andnullifytheir registration as owners of Mawokota  Block  195  Plots  4 and 3respectively on account of fraud.
• I order that the names of the defendants/counter claimants be substituted on the Certificates of titlein respect ofMawokota Block 195  Plots  4 and 3 as trustees for the lineage of Lutiba  Kyemwa
• I award costs of the main suit and the counter claim to the Defendants.

……………………………

W. MASALU MUSENE

JUDGE

31/10/2017