THE REPUBLIC OF UGANDA

IN THE HIGH COURTOF UGANDA

AT MPIGI

CIVIL SUIT NO. 49 OF 2017

PROSPER NDYABAHIKA:::::::::::::::::::::::::::::::::::::PLAINTIFF

Versus

1. AGABA  STEVEN
2. REV. NATUKUNDA NATHAN::::::DEFENDANTS/COUNTER
3.  

(Administrators of the late Erimiya Kamuza Vide High court Administration Case No. 591

1. PROSPER NDYABAHIKA:::::DEFENDANTS TO COUNTER CLAIM
2. THE COMMISSIONER LAND REGISTRATION

BEFORE:  HONOURABLE JUSTICE  WILSON MASALU MUSENE

JUDGMENT

This case was initially filed in Nakawa Court as HCCS NO. 028 of 2011, in the names of  Prosper Ndyabahika vs Erimiya Kamuza.

After the dissolution of Nakawa court, it was transferred to the land division and Registered as HCCS NO. 2390 of 2016.  In March, 2017, it was transferred to  Mpigi High Court Circuit and registered as HCCS NO.  49 of 2017.  By that time, Erimiya Kamuza had died and was substituted by the Administrators to his estate, namely 1. Agaba Steven and  2. Rev. Natukunda Nathan.

Representation:

The Plaintiff, Prosper Ndyabahika was represented by M/S Pearl Advocates and Solicitors, while the Defendants/Counter  claimants were represented by M/S Stanley Omwony Co. Advocates.

Brief  background  facts:

The   Plaintiff’s case is that he is the owner of the suit land comprised in Gomba Block 3, Plot  1,  land  at Kyamukama measuring approximately 561 acres.  And the plaintiff averred that he purchased the  suit land from prince David  Namugala  Mawanda  on 22/8/2005  which Prince was beneficiary and  son of the late George William Mawanda who was owner and registered proprietor since 10/12/1945.

Prosper Ndyabahika  further  pleaded that the title was transferred into his names on 9.2.2006  and since then, he is in possession of the Certificate of title.

It was further the Plaintiff’s  case that at the time of purchase, the late  Erimiya Kamuza was introduced as a squatter but the same Erimiya Kamuza  has claimed to be a registered owner  with a Certificate of Title.

It was also  Plaintiff’s  case that  by  the time  the Plaintiff purchased the suit land, the special certificate of title in the names of Erimiya Kamuza had been cancelled by commissioner Land Registration  in the year 2002  on 15/2/2002, under  instrument  No. KLA 233477 and George William Mawanda was reinstated on the title.

The Defendant, the late Erimiya Kamuza  on the other hand claims to have purchased the suit land from George William Mawanda  in the year 1982, and that the payment  in respect, thereof was in form  of cows .  The Defendant, the late Erimiya Kamuza averred in his written statement of Defence that he paid cows to George William Mawanda and that in the year 1986 got the title transferred into his names and a special certificate was issued in the year 2000. The Defendant’s case was that he is in occupation of the disputed land not as  a squatter but as the owner.

The second Defendant/by counter claim, the commissioner for land registration filed  a defence to the effect that the transfer of the title to the Defendant in 1986  was in error as the registered proprietor  G.W Mawanda  had lodged a caveat on his title in 1981  under instrument  No. Kla 97711 of 11/3/1981 and secondly there  were no documents in lands to support  the transfer of the land by  G.W Mawanda to Erimiya Kamuza

In a joint scheduling memorandum  filed on 25.6.2013,  the following facts were agreed upon:-

1. That according to the photocopy of title presented by the Defendant, he got registered on 12/12/1986, under  instrument No. Kla 21947 as transferee from George William Mawanda.
2. The Defendant is in possession and occupation of the suit land.
3. In the year 2000, the counter claimant was granted a special Certificate of title by commissioner Land Registration under instrument No. Kla 215935 the duplicate Certificate of title having got lost.  N.B.  Whereas  at scheduling , the Defendant presented the fact that the duplicate title issued on 12/12/1986, was lost, when the photocopy  of the special certificate was attached to the witness statement of Agaba Stephen  as exhibit  D1,  issued under instrument  No. Kla 21935 of 15/6/2000, the title clearly showed the special certificate was issued  because the original duplicate certificate of title which was originally issued had been  “obliterated” and not lost.
4. In 2002, the special certificate of title issued to Erimiya Kamuza (Defendant/counter claimant ) was cancelled and reinstated into the names of George William Mawanda on 15/2/2002 under  instrument No. Kla 233477.
5. The Certificate of title for Gomba Block 3, Plot 1  was on 25/7/2002  under instrument No Kla 23904 / registered in the names of the Administrators to the estate of the late George William Mawanda.
6. On 25/7/2012, under instrument No. Kla 239042, the Administrators to the Estate of G.W Mawanda transferred the title into the names of \Prince David Namugala Mawanda son of G.W Mawanda and beneficiary.
7. On 9/2/2006, under instrument No. Kla 28978, the Plaintiff was registered on the Certificate of title  for Gomba Block 3 , Plot  1 as owner thereof after  purchase on 22/5/2005.

Issues:-

1. Whether  the Plaintiff acquired the suit land fraudulently?
2. Whether the  2^nd Defendant to the counter claim rightly cancelled the counter claimant’s name   from Certificate of title?
3. Whether at the time of purchase of the suit land by the Plaintiff, the suit land  was part of the estate of the late George William Mawanda?
4. What are the remedies available to the parties?

A number of Exhibits were were also agreed  upon and will be referred to in the submissions by both sides  and the decision of the court. These were:-

Plaintiff’s Exhibits

1).        Certificate of title for Gomba Block 3 Plot 1 at Kyamukama – P. Exh 1.

2)         Letters of Administration in Administration Cause  No. 7622 of 2000- P. Exh 2.

3)         Application by Administrators to be registered on the suit property P. Exh 3.

4)         Transfer forms for the suit land in favour of David Namugala Mawanda-P. Exh 4.

5)         application for special certificate of title and gazette dated 17/11/2002 P.Exh 5.

6)         Public Notice to the defendant by Commissioner for land registration for cancellation of title P. Exh 6.

7)         Will of the late George William Mawanda  P. Exh 7.

8)         Sale agreement between David Namugala Mawanda and the Plaintiff P. Exh 8.

9.         Caveat lodged by George William Mawanda  (incomplete) P. Exh 9.

10        Caveat lodged   by David Namugala Mawanda P. Exh 10.

Defendant’s/ Counter claimants Exhibits:

1. The special Certificate of title for Gomba Block 3  Plot 1 at Kyamukama admitted as  “D. Exh 1” .
2. DPP’s Letter dated 28/09/2010 admitted as “D. Exh 2
3. The defendant’s lawyer’s letter  admitted as “D. Exh3.”
4. Copy of the will of the late George William Mawanda admitted as Exh .D4.”
5. Complaint to the DPP admitted as “Exh. D5.”
6. Police report dated 24/2/2012  upon a complaint by the Plaintiff and Defendant consolidated admitted as  “Exh. D6.”

Issue  No. 1:

Whether the Plaintiff acquired  the suit land fraudulently?

The Plaintiff presented three witnesses, namely Prosper Ndyabahika  as PWI,  Kalyango Freddie as PW2 and  Prince David Namugala as PW3,  on top of documentary exhibits.

Counsel for the Plaintiff submitted that the Defendant, the late Erimiya Kamuza has always been a squatter on the land in dispute formerly owned by the late George William Mawanda. He added that the Plaintiff purchased the suit land  in 2005 and transferred the title in the year 2006.  It was also submitted that the Plaintiff  visited the land before purchase and the Defendant was introduced by Kalyango Freddie (PWII) agent for  Prince David Namugala and he was introduced as a squatter.

Counsel also maintained that  the Defendant/counter claimant  has no title  and from the evidence of PWII and PWIII, the Defendant has no evidence to prove he purchased land from the late George William Mawanda.   He added that from the Defendants own evidence, the defendant lacks any evidence to show he purchased land from G.W. Mawanda.

Further that the Defendant did not give any evidence in support of his defence and counter claim that he bought the land. 

Counsel for the  Plaintiff referred to the  evidence  of Agaba Stephen whereby in the statement  to the Director of  Public Prosecutions, dated 20.9.2010, he stated that he was a son to  Erimiya Kamuza, while  under paragraph 2 of the witness  statement in court  Agaba Stephen  stated that he is a farm manager of the Defendant, Erimiya Kamuza.  He submitted that it was a false hood in the Defendant’s case which should be noted seriously.

Counsel  also submitted that it is not indicated anywhere in Agaba  Stephen’s  Witness  Statement that Erimiya  Kamuza  used cows to pay the purchase price for the land in dispute and that none of the defence witnesses witnessed the alleged sale and exchange of cows.

Counsel for the  Plaintiff further submitted that whereas  the report  was attached to the witness statement of Agaba Steven, the same is suspect and they prayed  that  court ignores it, as  it’s not proved by whoever  made the investigation and report and Agaba is not competent to exhibit it as he cannot be cross examined on the investigations.

He added  that  the alleged investigator  states in paragraph 4:13  that two special certificates of title were in existence  yet evidence before Court is very clear that the special certificate of title issued to the Defendant was  cancelled.

Counsel concluded  that  DWI Agaba confirms  clearly the evidence of PWII, Kalyango and PWIII  David Namugala and Nicholus Wambuga  (Registrar of titles) that  the Special Certificate of title for Erimiya Kamuza  was cancelled by commissioner Land Registration and it’s the  reason the Defendant/Counter claimant filed a counter claim against the Commissioner Land Registration. 

It was also the Plaintiff’s submissions that PWII, (Kalyango Fred)  testified  and exhibited P. 14 whereby the Defendant received the notice of Commissioner Land Registration dated 17/10/2011 and the same was witnessed by Francis  Mubiri the Sub County Chief. 

Further  submissions were that whereas  the reason for issuance of Certificate of title in favour of  George William Mawanda in 2002  was that the original was lost as seen from Exhibit P.I  now registered in the names  the plaintiff  the photocopy of  the special  Certificate of title issued to the Defendant that was cancelled by  the Commissioner Land Registration, clearly shows that the reason for issuance was that the “original  previously  issued was obliterated.”

And that the title  being  obliterated and being lost  are clearly different  circumstances and reasons for issuance of a special certificate of title.

Counsel  for the Defendant on the other hand submitted that the  Defendant  pleaded particulars of  fraud  against the  Plaintiff and the commissioner  for  land Registration and went ahead to prove them by way of evidence beyond the balance of probabilities.

He  reproduced the particulars  in paragraph 7 of the written state  of defense and counter claim as follows: “Particulars of fraud against the Plaintiff

1. In collusion with one David  Namugala, tampering with the land office record to cause cancellation of the Defendant’s land title;
2. Causing the commissioner for Land Registration to cancel the defendant’s title without  giving  the Defendant a hearing;
3. In collusion with a one  David Namugala claiming that the suit land  was part of the deceased’s  (George William Mawanda’s ) estate whereas  not;
4. Purchasing  land of the Defendant without inspecting it and failing to confirm  that it was already  sold to the defendant over 12 years  before;
5. Abstaining  from conducting  the usual searches on the ground knowing the defendant’s ownership  would be revealed.
6. Purchasing  land fully  occupied by the Defendant and deliberately refusing to establish  the Defendant’s rights  on the land;

He further  stated that  under  paragraph 12  of the written statement of defence and counter claim,  the particulars of  fraud were pleaded as follows:

“Particulars of fraud against the Commissioner for land Registration”

1. Cancelling the counter claimant’s names from  the Certificate of title without affording him a hearing well aware that he had been lawfully registered  way back in 1986,
2. Illegally reinstating George William Mawanda  who had transferred  the suit land to the counter claimant in 1986  without his authority or consent;
3. Endorsing  transfer of the suit land into the names of George William Mawanda and subsequently the alleged executors  of the said George William Mwanda deliberately  to dispossess the counter claimant.
4. Irregularly  processing special  title in 2002  in favour of George William Mawanda  well aware that he had lawfully been issued with another special to the counter  claimant in the year 2002  to the same land.
5. Generally  conniving with the Plaintiff and his predecessors  in title to defeat the interest of the counter claimant.

Counsel for the Defendant further  quoted Section 64 (1) of the R.T.A which provides:- 

“Not withstanding the existence in any other person of any estate or interest, whether derived by grant or otherwise, which but for this act might  e held  to be paramount or to have priority, the proprietor  of land or of any estate or interest in the land under the operation of this Act shall except  in the case of fraud, hold the  land or estate or interest in the land subject to the encumbrances as are notified on the folium of the Registrar Book constituted by the certificate of title but absolutely  freed from all other encumbrances.”

It was  further submitted that a prudent purchaser would not have relied on the representations of PW2 and PW3.  That a prudent purchaser  would not have  taken those  representations  at face value and should have instead carried out independent investigations to verify  those  facts. Failure  to do so was simply  a fear  to know the truth which he either knew prior  to purchase or would have known had he been  more prudent.  That PWI  totally  failed to justify why he did not make inquiries  from the local council of the area. He  quoted  the case of Kampala  District  Land Board    & Another  vs Venansio Baweyaka & 3 others  SCCA No. 2/2007 which cited with approval the earlier decision  Kampala District Land Board  & another vs  national Housing  & Construction Corporation, where court held that although  mere knowledge  of equitable interest cannot be imputed as fraud  under the Act,  where  such knowledge  is accompanied by wrongful intention to defeat such existing  interest amounts to fraud. 

Counsel for Defendant added that the moment  the Plaintiff was told that Erimiya  Kamuza  was a squatter, he would have made independent investigations.  He added that although at the time the  Plaintiff got registered the Defendant’s  name had been cancelled, if the Plaintiff had conducted inquiries on the ground with all the background information he had, he would have discovered that the defendant was not a squatter  as alleged and that the defendant had been registered on the suit land in1986.  The Plaintiff was obliged to inquire into the registration of his immediate predecessors in the title which coupled with findings on the ground would have unearthed the basis of the defendant’s occupation and usage of the entire suit land.

The submissions by Counsel for the  2^nd  Defendant to the counter claim  (Commissioner for land Registration)  were that in the  year  2001  an anomaly claim/ complaint was raised by Prince  David Namugala  Mawanda accompanied by his  estate Manager  Kalyango Freddie (PW2)  to Commissioner Land Registration. And that  upon receipt of thereof and perusal of the Register,  the commissioner for Land Registration realized that the Defendant/counter claimant  was registered in error in 1986  for  two reasons viz;-

1. That at the material time,  there was existing  caveat by George William Mawanda, date 11^th March  1981 under  Inst. No. KLA 97711, the Registered Proprietor  (then).
2. There was no  documents in support of the transfer to the Defendant/counter claimant .  In consideration of the above, the commissioner for Land registration issued a notice, to the defendant/counter claimant, dated 17^th  October, 2014, of the intention to cancel:-

• The entry of the name of the Defendant/counter claimant and remove it from the register book.
• The special Certificate of title issued to the Defendant/counter claimant under Inst.  No. KLA 215935 dated 15^th  June 2000  was cancelled for having been registered in error and wrongly obtained

It was further  submitted that  the above notice was served to defendant/counter  claimant  using two modes namely:-

1. Personal service by a sub-county chief  one Mubiri  in presence of PW2 Kalyango Freddie on 2/11/2001.
2. Through  advertisement in Bukedde News  paper, dated 6^th  November, 2001, a local news paper  that is widely  circulated in Buganda Region where the Defendant/counter claimant lived. 

After considering but rejecting the objection of the Defendant/counter claimant, the commissioner for Land Registration on 10^th December 2017 communicated his decision to put the intention to cancel into effect and called for a special certificate of title in possession of defendant/counter claimant for  cancellation, which he (Defendant) did not deliver.

Further submissions were that the communication was also served  on  and received  by the defendant by personal  service that  was witnessed by Kalyango Freddie (PW2).  Following the above events and apparent satisfaction by the Defendant/counter claimant with decision of the  2^nd Defendant to the counter claim, the register was accordingly rectified.

Counsel for the  2^nd  Defendant further submitted that whereas  it is true  that the Defendant/counter claimant pleaded particulars of fraud  against  commissioner of  Land Registration as per this submission, that  it is not true that they went ahead to prove the alleged particulars  by way of evidence beyond  balance of probability or at all.

They added that  on the contrary  the alleged particulars  of  fraud were not strictly  proved to the standard required  by law for the following reasons

1. Cancellation of the counter claimant’s names from the certificate of title was done after effective communication from that of the Notice of Intention to cancel.  Refer to Exhibits  PExh 6 and PExh 13.
2. Reinstatement of George William Mawanda was done following  the procedures of rectification of register as provided  for under Section 91  of the Land Act. 1998 as amended by  Land  (Amendment ) Act 2004.
3. There was no deliberate  intention to dispose  the counter claimant or at all, as the rectification was a matter of reinstatement of the previous registered proprietor, George William Mawanda who was succeeded, by executors, on Certificate of the title in question.

Further submissions were that as it was communicated by commissioner Land Registration, processing  a special Certificate of  title in 2002  in favour of Defendant/counter claimant  was done in error hence subsequent  cancellation to rectify  the register.  While processing  of a special Certificate of title in favour of George William Mawanda  was done after the said cancellation and following all the procedures. Therefore no two special certificate of titles existed at the same time as the defendant counter claimant appear to suggest in their submissions. 

Counsel for the Commissioner for  Land registration emphasized  that there was no connivance with the Plaintiff or any of his predecessor in title.  And that on the contrary the 2^nd Defendant to the counter claim acted independently pursuant to the claim/complaint as per evidence of PW2 Kalyango Freddie, in his witness statement and upon discovery of an error on the title register.  This was in exercise of the powers provided by law under Section 91 (2) of the Land Act 1998 as amended by Land (Amendment) Act  2004 which is equivalent provisions of Section 69 of R.T.A, applicable then.

They also made reference to the case of Kampala Bottlers vs Dominico (U) LTD, SCCA NO. 27 OF 2012 where fraud was discussed.  They concluded that no fraud was proved against the 2^nd  Defendant.

I have  carefully  considered and internalized all the submissions on record as far as the first issue is concerned.  The Plaintiff, Prosper Ndyabahika  in his witness statement reiterated that he is the current  registered proprietor of the Land in dispute  comprised  in Gomba  Block 3 Plot  1,  land at Kyamukama.  The Land title  was exhibited during  the hearing and marked  PEXH.1  It  was also Plaintiff’s evidence that he purchased  the land in question from Prince David Namugala  Mawanda on 22.8.2005  and at a consideration of  UGX 32,000,000/=.  The sale  agreement between David Namugala Mawanda and the Plaintiff was tendered in as P.EXH.8  it is also not disputed  that prince David  Namugala Mawanda was the Registered proprietor  of the land on 25.7.2002  before he sold to the Plaintiff. 

The sale agreement was concluded in the chambers of M/S Jombwe & Co. Advocates. 

PW1 Prosper Ndyabahika also testified that at the time he  bought, David Namugala confirmed to him that Erimiya  Kamuza was  a squatter  who was  occupying  10 acres.  PWI wanted to compensate Erimiya Kamuza as a squatter but he is said to have declined, stating that he also had title.  It was also the Plaintiff’s testimony under paragraph 10 of  his witness statement that the biggest part of the land he purchased  of about 561.0  acres was free and covered with bush, save for 10 acres  where Erimiya  Kamuza had a mud and wattle house, improved  with bricks  and where he was using for open grazing  plus  three gardens of beans, potatoes and cassava  around Defendant’s home.  The Plaintiff, under paragraph 6 of his witness statement stated:-

“6. That before I purchased the suit land, I first searched in land registry and the Certificate of title had no encumbrance registered by Erimiya  Kamuza.  The caveat earlier registered by the Defendant on 18/3/2002  had been cancelled by the Registrar as having been registered in error.  The only caveats that were on the title was for David  Namugala that was selling to me and that of his late father one George William Mawanda.” 

So when the Defendant, in the particulars of fraud against the Plaintiff alleged that Plaintiff colluded with one David Namugala to cause the cancellation of Defendant’s Title, I find and hold that it is not true as evidence on record reveals that by the time prince David Namugala sold to the Plaintiff in 2005, the title of the Defendant had already been cancelled. 

Consequently, the Plaintiff could not even have colluded with the Commissioner for Land Registration to cancel Defendant’s Title as the commissioner acted in exercise of their powers under Section 91 (2) of the Land Act 1998 as amended in 2004.

Furthermore, I find and hold that the cancellation of   Defendant’s Title was done after the notice given to the Defendant from the Chief Registrar of titles dated 17.10.2001.  That was long before the Plaintiff purchased in 2005 and so the Plaintiff could not be said to have colluded with David Namugala or Commissioner for Land Registration to cancel the Defendant’s Title.  I therefore agree with the submissions of counsel for the Plaintiff that when the Plaintiff purchased the suit land in 2005, and as per paragraph 18 of his witness statement, he could not have known about the  Defendant’s Land and title as he had no interest in the said land when Defendant’s Title was cancelled in 2002. 

Counsel  for  the Plaintiff  also referred to the evidence of PW2  (Kalyango)  and exhibits  P14, 15 and P16  which revealed that Kalyango knew the land he showed the plaintiff. 

I therefore  find and hold that the alleged fraud by the Defendant that Plaintiff  colluded and/or  connived with David Namugala in 2001 and 2002  was not proved as the  Plaintiff could not have participated in the cancellation of the Title,  which process started in 2001  and ended in 2002. The Plaintiff  was not in picture by then.

In Fredrick J.K. Zaabwe vs Orient  Bank & others SCCA NO. 4 of 2006, fraud was defined as :-

“ An intentional perversion  of truth for the purpose of inducing  another in reliance  upon it to part with some valuable  thing belong 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.  Anything calculated to deceive, whether by a single act or combination, or by suppression of truth, or suggestion of what  is false, whether it is by direct falsehood or  innuendo by speech or silence, word of mouth, or look or gesture……….A generic  term, embracing  all  multifarious, means which human ingenuity can devise, and which are resorted to by one individual to get advantage  over another by false suggestions or by suppression of truth, and includes all surprise, trick, cunning, dissembling , and any unfair way by which another is cheated, dissembling, and any unfair  way by which another is cheated.  “ Bad faith” and “fraud” are  synonymous, and also synonymous of dishonesty, infidelity, faithfulness, perfidy, unfairness, etc.

As distinguished from negligence, it is always positive, intention. It comprises all acts, omissions and concealments involving a breach of a legal or equitable duty and resulting in damage to another.  And includes  anything calculated to deceive, whether   it be a single  act or  combination of circumstances, whether  the suppression of truth or the suggestion or what is false whether it   be by direct falsehood or by  innuendo, by speech or by silence, by work or mouth, or by look or gesture……” 

I have  had to  quote  the holding in the above case in detail to show that there was no evidence  on record to show that  Plaintiff who purchased in 2005  acquired the land in dispute fraudulently.

In another  Supreme Court of Kampala  Bottlers vs Damanico (U) LTD, SCCA No. 27 of 2012.   Wambuzi C.J, as he then was, held  that  Fraud  that vitiates a land title of a Registered Proprietor must be attributable to the transferee and that fraud of  a transferor not known to the  transferee  cannot vitiate the title.  It was also emphasized that fraud must not only be pleaded, but must be proved and that the standard of proof is higher  than on the balance of probabilities. 

In the present case, none of the Defendants witnesses,  either  DW1, Agaba Stephen, DW2, Kashashari Godfrey  or DW3, Flora  Kamuza testified about any alleged fraud  on the part of the Plaintiff in the process of  acquisition  of the  land in dispute  in 2005.  None at all.  So all the alleged particulars of fraud against the plaintiff have  not been proved.

And as  correctly  submitted by counsel for the Plaintiff, DW1,  Agaba Stephen stated that he is a son of Erimiya  Kamuza on 20.9.2010 at police, while under paragraph 2 of his witness statement, he states:-

“ 2. That  I am a  farm manager  of the  defendant and his duly appointed  Attorney.  The Defendant is now aged 100 years of age.  A copy of Powers of Attorney is on Court record.”

During cross-examination, he maintained that he is the Farm manager.  This Court notes that such a witness, DW1, Agaba Stephen is not a truthful witness because he is not  a son of Erimiya  Kamuza .  This is what Court found  out during the locus  in quo.  Secondly  Agaba  added that he has been a farm manager of Erimiya  Kamuza since he was  12 years old by 1982.  And yet he did not know where Kamuza was coming from in 1982.  Those were inconsistencies in a testimony of a witness who cannot  be belived  by Court.

Further more, one  wonders how a boy of 12 years  could be a farm manager, and this Court also doubts  why the police officer who made a report after investigations was not called as a witness.  Why was the alleged report attached to the statement of Agaba Stephen as if he was the author of the Police report.  All that  casts  doubt in the Defendant’s case.  As already  noted, the Defendant’s case contrasts with that of the  Plaintiff,  PWI,  who maintained that he physically inspected the land before purchase  in 2005,  did a search with land office and acquainted  himself with  the history of the land.  When PWI  was told Kamuza Erimiya was a squatter, he made an attempt to compensate his interest, which Erimiya  Kamuza is reported to have  refused.  His testimony was strongly and consistently supported by PW2 and PW3.  This court also finds and holds that there is no evidence  by way of purchase agreement or otherwise as to how Erimiya  Kamuza bought the land.  There was no member of the family  of George William Mawanda who witnessed the late Erimiya Kamuza purchase the land and paying  consideration of cows.  That therefore remained hearsay and left the late Erimiya Kamuza in possession as a squatter on part of the land. 

The submissions by counsel for the Defendant that the Plaintiff was guilty of  willful  blindness and should not have believed PW2 and PW3  who told  him that Erimiya  Kamuza was a squatter are rejected  by this  Court.  The Plaintiff  was not only showed  the location of the land, but  the Certificate of title  in the names of prince David Namugala Mawanda registered on 25.7.2002.

That was a confirmation that the person who sold to the Plaintiff  was the Registered  Proprietor .  In such  circumstances, it was not necessary for the plaintiff to make inquiries beyond  prince David Namugala’s  name  on the Certificate of title.

In any case the alleged particular of fraud “that the Plaintiff was guilty of will full blindness for fear of finding the truth which amounted to fraud….” was not pleaded.

It is now settled law that parties are bound by their pleadings and no departure there from can be allowed. 

Issue No1 is therefore hereby resolved in the  Negative.

Issue No 2.

Whether the 2^nd  Defendant to the counter claim rightly cancelled the counter-claimant’s name on the Certificate in Title. 

Counsel for the Defendants/counter claimants submitted that since the late Erimiya Kamuza acquired  the land in dispute  in 1982  and transfer into his names effected much  later in 1986, then the irregularity of having  a caveat on the white page  could not blamed on the late Erimiya  Kamuza.  He added that the late Erimiya Kamuza believed that everything  was in order  and that it was the  Commissioner for land Registration who was practicing double standards.

Counsel also submitted that if any documents such as  transfer  forms  from George William Mawanda to Erimiya Kamuza  were missing from the Registry, then the Defendants/ Counter claimants were not to blame. 

Further submissions were that the claim  by PW2 to have  served  Notice  upon the late  Erimiya Kamuza in the presence of the sub-county chief of Maddu  should not be believed as there was no return of service on the land Registry file,  hence no evidence of service of Notice of cancellation of Erimiya Kamuza’s  Title.  Counsel for the Defendants therefore concluded  that the commissioner for Land registration acted without  Jurisdiction when cancelling  the Defendant’s  names.  He added that Section 91  of the land Act upon which the Commissioner for  Land Registration relied on was  never intended to abolish the concept of   indefeasibility of title.  And that the alleged errors, illegalities and frauds  in the earlier  Registrations of  Erimiya Kamuza did not entitle the Commissioner for land Registration  to cancel  registration of the Defendant as he did.

Counsel for the Plaintiff on the other hand made  reference to Defendant/counter claimants paragraphs 12 (i)-(v), on the following  alleged  particulars  of collusion  and fraud between Plaintiff and commissioner for land Registration (2^nd Defendant to counter- claim). 

1. Cancelling counter claimants names from the certificate of title without affording  him a hearing well aware that he had been lawfully  registered way back in 1986.
2. Illegally reinstating George William Mawanda who had transferred   the suit  land to the counter claimant in 1986 without his authority or knowledge.
3. Endorsing transfer of the suit land into the names of  George  William Mawanda  and subsequently  the alleged executors of the said George William Mawanda to deliberately dispossess the  counter claimant.
4. Irregularly processing special title in 2002 infavour of George William Mawanda well aware that he had issued another special title to the counter claimant in the year 2002  to the said suit land.
5. Generally  conniving with the plaintiff and his predecessors in title to defeat the interest of the counter claimant.

Counsel for the  Plaintiff  1^st Defendant to counter claim added that prosper Ndyabahika  had nothing to do with the suit land before the year 2005,  and that to allege any collusion on his part  on the happenings in the year 2001 and 2002  was baseless and un fair. 

He added that no particulars of connivance or collusion were pleaded and/or proved before Court, to show that  Prosper  Ndyabahika  and  Commissioner for Land Registration worked together  in2001 and 2002.

Counsel  made reference to the evidence of PW2,  Freddie Kalyango and PW3, David Namugala who testified as to what happened in the year 2000 when G.W  Mawanda (Father)  of David Namugala died up to  July, 2002  when David Namugala was registered on the Certificate of title, having obtained  transfers  from the executors of the late father G.W Mawanda who was registered owned since 11.12.1945.

It was further submitted that the Defendant was notified about the intention to cancel his title and his objection was rejected by the commissioner for land Registration.

Reference was made to the evidence of Nicholas  Wamboga  under paragraph 8 where  he stated that there were no evidence of  transfer  documents in favour  of Kamuza.  Counsel for the Plaintiff submitted that in  the  notice exhibit P14, which  Kamuza received  in the presence of Francis  Mubiru  Senyonga, the sub-county  Chief  of Maddu, he was notified that his transfer in 1986  lacked supportive documents, and that the special Certificate issued under  Kla 205935  on 15.6.2000 was illegally and wrongly  obtained.

Counsel  for the  2^nd  Defendant/Counter claimant submitted on the  2^nd Issue that the office of commissioner for  Land Registration is mandated to rectify  the Register, correct errors of entries thereon and cancellation of title.  They referred  to section 91 of the land Act as amended by the land  (Amendment  Act 2004).

Counsel further submitted  that following anomalies/ claims/ complaint was raised by Prince David Namugala  Mawanda and his Estate Manager, Freddie  Kalyango  (PW2)  to the  then commissioner land registration, Mr. Tibisasa Jonathan. 

 They added  that  a Notice on intention to   rectify the Register by cancelling the entry of the Eriya Kamuza and special Certificate issued in his favour was issued.  The Notice was served to the defendant/counter claimant  vide  2 modes Viz;

1. Personal service that was witnessed by PW2 (Freddie Kalyango).  Refer to  paragraph 14  of is witness statement and exhibit P6 (i)
2. Notice  issued vide advertisement  in Bukedde News papers dated 6/11/2001 Exhibit P.6 (ii).

Further submissions were that the Defendant counter claimant raised objection which was rejected.  And that it was unfortunate that a copy of reply by defendants/cancellation where the objection was   raised mysteriously  got missing from the file.  However  with due regard to the contents of notices of the decision  taken by the Commissioner Land registration (Exhibit P 15), they  submitted  that the objection  existed and was considered but accordingly rejected.

Counsel for Commissioner added that the decision by 2^nd  Defendant counter claim was served  to the defendant/counter claimant by (PW2 Freddie Kalyango) and was accordingly received as evidenced by acknowledgement using his thumb print.

And finally that the Defendant/counter claimant  did not appeal or in   any other  way contest the decision of the  2^nd Defendant  to counter  claim, implying  that he was satisfied with the decision. 

Counsel for commissioner for land Registration concluded  that there were no supporting documents from the  late Erimiya Kamuza.  That the Defendant/counter claimant failed  to produce the person who witnessed the alleged transfer and no document or  evidence of purchase.

I have considered  the  submissions from all sides with regard  to the  2^nd issue as to whether the Commissioner for Land  Registration  rightly cancelled the  counter claimant’s special Certificate of title.

I have also considered  the evidence of witnesses from both sides.  For avoidance of doubt,  I shall reproduce sections 91  (1) , (2) (3), (4)  and (5)  of the Land Act as follows:

Section 91 special Powers of Registrar.

1. Subject to the registration of titles Act, the Registrar shall, without referring  a matter to a court or a district  land Tribunal, have power to take such steps  as are necessary to give effect  to this Act,  whether by endorsement or alteration or cancellation of Certificates of title, the issue of fresh certificates of title or otherwise.
2. The  Registrar shall, where a Certificate of title or instrument

1. Is issued in error,
2. Contains a misdescription of land or boundaries.
3. Contains an entry or endorsement made in error;
4. Contains an illegal endorsement;
5. Is illegally or  wrongfully  obtained; or
6. Is illegally or wrongfully retained.

Call for the duplicate  certificate of title or instrument for cancellation, or correction or delivery to the property party.

1. If a person holding a Certificate of title or instrument referred to in sub section (2)  fails or refuses to produce it to the registrar within a reasonable  time, the Registrar shall dispense with the production of it and amend the registry copy and where necessary issue a special certificate of title to the lawful owner.
2. The Registrar may

1. Correct errors in the Register Book or in entries made in it;
2. Correct errors in duplicate Certificate or instruments and
3. Supply entries  omitted  under this Act.

1. The Registrar may  make amendments consequent  upon alterations in names or boundaries  but in the correction of any such error or making of any such amendment  shall not erase or render illegible the  original words.

The exercise of the powers of the commissioner for Land Registration are therefore provided  for under the Law.

1. The commissioner is in such circumstances bound to conduct  a hearing in accordance with the principles of  natural  Justice and to communicate  his/her  decision in writing which was done in the instant case.  I shall refer to paragraphs 4,5,6,7,8,9 and 10  of the witness statement of (DW4) Wamboga  Nicholas  from the Commissioner land Registration.  He stated as follows:-
2. That I have  studied  and understood  the history of  block 3 Plot  1 land at Kyamukama and other related documents connected with the instant case hence this witness statement.
3. That the commissioner land Registration in year 2000, realized that the Defendant counter claimant was registered in error in 1986  names under  transfer from previous  Registered proprietor Prince  George William Mawanda because there  was existing  caveat registered in 1981  under  inst. NO. KLA97711 OF 11^TH March 1981  and there were no documents in support of transfer.
4. That in accordance with the law, the commissioner Land Registration (2^nd  Defendant to counter claim) notified  the defendant (counter claimant) of  his intention to cancel title the same having been registered in error and wrongly obtained  copy of notice attached and marked Annexture “A1”.
5. That the same notice was published  in Uganda Gazette of 6/11/2001  at page 20 by the  2^nd Defendant to counter claimant  . A copy  attached and marked  annexture “A”.
6. That the Defendant counter claimant’s claim  could not be sustained in absence of  fact that at the time of registration of the counter claimant  the caveat that had been registered by George William  Mawanda (the purported transfer or vide inst KLA 97711 of 11.3.81 was still on the Certificate of title and there were no signed  transfer forms.  The same  information was communicated to counter claimant a copy of a c letter  attached and marked annexure  “B”.
7. That  is was  on the  above basis  that the registrar book was amended, special certificate of title of the counter claim cancelled and George William Mawanda  reinstated.
8. That the said cancellation was made in accordance with established law and procedure  as per the above mentioned notices.

From the testimony of DW4, Nicholas Wamboga, it is clear that a transfer of interest in land can be effected  by having  a caveator  consenting by writing a letter or signing of transfer forms.

In the present case, the defendant did not prove that there was a signed transfer form or letter by George  William  Mawanda.   Therefore the transfer  to Erimiya  Kamuza  was irregular  and the Registrar for land Registration  properly exercised his powers to cancel the same.  And this followed a Notice  issued by Registrar  under Regulation 72  of the land Regulations of 2001  dated 17^th  October, 2001  and signed by Jonathan N Tibisaasa, Commissioner for Land Registration.

So  whereas Erimiya Kamuza claimed to have purchased the land in dispute in 1982  from George William Mawanda and claimed to be  in occupation as owner and not a squatter, this court finds and hold that there  was no purchase agreement from George William Mawanda  exhibited in court as Documentary evidence.  There was no evidence on the part of the  Defendant as to how much  the consideration was and who was present  during the alleged purchase in 1982.  Those are pertinent issues which cannot be swept under the carpet as it is not enough to enter land of a Registered  absentee landlord as was apparent  in this case, construct  new structures  here and there is different corners of the land and claim ownership  thereof.  The Courts of law is this country  will not allow such  high handed land grabbing  under the  guise of being in possession piecemeal by piecemeal as that  alone does not confer ownership of over 1  sq. mile  of land  (561 acres)  when there is a plaintiff who properly  purchased and has a Certificate of title. 

Further  still, the  counter-claimant did not produce  evidence   to the satisfaction of this court  as to how the title originally issued to him (Erimiya  Kamuza)  got obliterated as the reason for getting  the Special Certificate of title, apart from   paragraph 5 of  Agaba Stephen’s witness statement that the Certificate of title was  kept  by Erimiya Kamuza in a wooden suit case and was stolen in 1999. That statement was not substantiated  and/or proved at all.  And Moreover  evidence  from land  office revealed that  original title had been obliterated.   One must  therefore go to  equity with clean hands. Lack  of documents of sale or transfer from George William Mawanda to Erimiya Kamuza shows that there was something  fishy with the purported purchase  and transfer of the disputed land from Geroge William Mawanda to Erimiya Kamuza.  It was an allegation as already noted  where no scindila of evidence was brought  before this Court. And whereas the counter claimant (Erimiya Kamuza) claimed he purchased  the disputed land in 1982, one of his children, George  Mucucura now  aged 55 years  testified  at the locus in  quo that he was produced on the disputed land.  For somebody to be aged  55 years  in 2017  means that he was born  in the year 1962, which is 20 years  before 1982.

This court was left wondering how  Erimiya Kamuzu’s son Mucucura had been born on the land in dispute  20 years before his father moved or acquired the same.  That was a total contradiction and obvious lie which discredited the Defendant/counter claimant’s case.  The case of the Defendant/counter claimant was therefore left naked.  And apart from being in occupation of part of the land as a squatter, albeit for over 20 years, there  was no evidence to support Erimiya Kamuza’s  claim that he owned the disputed land.  This Court  therefore agrees with the submissions of counsel or the Commissioner for land Registration that the contentions raised by the Defendant/counter claimant  (Erimiya  Kamuza) were an afterthought and  wishful desire to unjustifiably  discredit the office of the Commissioner for  land registration and to defeat the ends of Justice. 

In the premises, I find and hold that the  2^nd Defendant to Counter claim  rightfully and lawfully cancelled Erimiya Kamuza’s special Certificate of title.

Issue No. 3  whether at the time fo purchase of the  suit land by the plaintiff, the  suit  land was part of the estate of George William Mawanda.

Counsel for the Plaintiff under this issue submitted that both the Plaintiff, prosper Ndyabahika and PW2,  Freddie Kalyango  and even PW3, David Namugala clearly testified as to how the Title  moved from George William Mawanda to the Executors of of his WILL and then to David Namugala as a beneficiary.  On the  issue of lawyers for the Estate of Erimiya Kamuza trying to create an impression that the  disputed land  was not part of the estate of the late George William Mawanda as the  WILL had many crossings, counsel for the plaintiff submitted that PW2,  David Namugala  testified  that his father’s WILL was proved before Court and it resulted into grant of letters of probate under probate and administration Cause No. 762 of 2000 in favour of Joseph Ssempebwa, Prince Kassim  Serufusa Zake Ferikitunsi  Kaziya Nabisenke and Namukabya Natamba, executors to the WILL of Prince George William Mawanda Chwa.  The same was granted by Justice S.B. Bossa as she then was,  (now Justice of the International Criminal Court, ICC at the Hague). 

Counsel for the Plaintiff  added that there were no proceedings  to challenge  the said WILL  and that exhibit P2  was a copy of  the said letter of  probate.

Counsel for the Plaintiff further submitted  that the evidence of PW2  was clear  that by the time he sold the land to the Plaintiff,  the same was registered in his names. 

Counsel concluded that by the year 2005,  the land in dispute  was no longer  part of the estate of  George William Mawanda but belonged to David Namugala Mawanda as owner and being a beneficiary to his father’s   Estate.  They added that the Defendant/ Claimants had ceased to be registered owner in February  2000, when his  names was cancelled, and that nothing was done challenging the decision of the Commissioner for land Registration that year of 2002.  The conclusion was hat by the time of purchase, the suit land belonged to David  Namugala  and it had only one certificate of title which was transferred to the  Plaintiff by David  Namugala.

Counsel for the Defendant counter-claimants on the other hand submitted that the land in dispute was not mentioned in the  WILL of late George  William Mawanda because the late George William Mawanda knew it  did not form part of his Estate.  They also alleged that the Will was massively altered.

Counsel for commissioner for land Registration Associated themselves  with the submissions of counsel for the Plaintiff.  They emphasized that at the time of the transfer of the Certificate  in title  to the plaintiff/  1^st Defendant  to counter claim, Prince  David Namugala Mawanda (Transferor) was the Registered proprietor.  The conclusion was that  the land had ceased to be part of the Estate of  George William Mawanda. 

I shall not waste much time on this issue because PW2,  told court that he was heir to his father, the late George William Mawanda.  Then under clause 7 (d) of the will dated 12/6/1994, all land that belonged to George William Mawanda that was not specifically  mentioned in the will was bequeathed to him (Prince David  Namugala  Mawanda).  

It was  also prince David Namugala ‘s testimony that after the last funeral rites of his father in 2000, he discovered that  most titles  left by his father were not seen.  He instructed his agents  to search in the lands registry to establish  the status of his father’s estate.  Then under paragraph 5 of his witness statement, he testified that what he established in respect of the land in dispute  was that  his father  had not sold the  suit land.

I therefore  find and  hold that by the time of purchase, the suit land belonged to David Namugala  and it had only one  Certificate of title which is the same position at this point  in time.  The only available title is that of the plaintiff as transferred from David Namugala. 

In any case, the Defendant/counter claimant does not dispute that David Namugala was heir to George William Mawanda. 

Remedies available  to the parties.

This Court  has exhaustively  discussed all issues in this case and decided that the Plaintiff, Prosper Ndyabahika is the lawfully registered Proprietor  and owner  of the land in dispute, and therefore   landlord  under mailo  tenure.  This  followed failure  by the Estate of the late Erimiya Kamuza to prove on the balance of  probabilities that the late Erimiya Kamuza  bought the land in dispute  from the late George William Mawanda and so his son and heir,  prince David Namugala  sold to Prosper Ndyabahika for valuable consideration and as a bonafide  purchaser for value.  This Court has also found and held that the Commissioner for land Registration proved to the satisfaction of the Court and on the balance of probabilities that due process  was followed  in the cancellation of Erimiya Kamuza’s  special Certificate of title  in 2002.  That was before the land in dispute  was sold to the Plaintiff, Prosper  Ndyabahika  in 2005.

Nevertheless, this court is not only a court of law, but  it is a court of  Justice.  I visited the land in dispute and saw what  was on the ground.  So whereas the     Plaintiff, Prosper Ndyabahika  is decreed as the lawfully Registered proprietor of the land comprised  in Gomba Block 3 Plot 1, land  at Kyamukama, the estate of  the late Erimiya Kamuza have stayed  and  used part of the land for over 20 years .   It  would definitely be very unfair  and unrealistic for this court to order their eviction after such a fairly long stay and use of part thereof.

I therefore  proceed under Section 29 (2) (a)  of the land Act, Cap  227, laws of Uganda to declare the Defendant’s estate as bonafide occupants on  part of prosper Ndyabahika’s land .

Section 29 (2)  (a) provides: “ Bonafide occupant” means a person who before the coming into force of the constitution-

1. Had occupied and utilized or developed any land  un challenged by the registered owner or agent of the registered owner of twelve years or more; or

Going by the evidence on record that the late Erimiya Kamuza came on part of the land in question in 1982, then by 2002 when his special Certificate of title  was cancelled, he had been on part of the disputed land for 20 years.   The  late Erimiya Kamuza and his estate therefore qualify to be bonafide occupants under the laws stated, but on that portion of  land occupied which going by what  I saw during the locus in quo, I estimate it to be  50 acres now.

I therefore do hereby decree that the defendant’s estate are entitled  to stay and live on only  50 acres where the deceased had his homestead and was  buried.

They are to stay as bonafide occupants on the  50 acres,  well knowing that their landlord is Prosper Ndyabahika.  They will therefore be governed by the laws and Regulations relating to  Registered proprietors  and bonafide occupants.   And for  avoidance of doubt, the  50 acres decreed to  Erimiya Kamuza’s Estate  shall start  where Erimiya Kamuza was buried, and the surrounding homestead and will cover only  50 acres, extending to one of the water  Dams for their cattle.  The rest of the land is  for  the sole and exclusive  use of the Registered proprietor  Prosper Ndyabahika .

In summary  and for  avoidance of doubt, and pursuant to  Section 29 (2) (a) of the  Land Act, and in the exercise of this Court’s powers under section 98 of the civil procedure Act and Section 33 of the Judicature Act, it is hereby confirmed and decreed as follows:

1. The Plaintiff, Prosper Ndyabahika is the lawful owner and Registered  Proprietor of all that parcel of land comprised in  Gomba, Block 3  Plot 1,  land at Kyamukama.
2. The Estate of the late Erimiya Kamuza are entitled to stay and  utilize only (fifty) 50 acres  of the land in question as already described  above as bonafide occupants.
3. The family and estate of the late Erimiya Kamuza are therefore relocate and share out the 50 acres decreed to them as bonafide occupants.
4. The rest of the land  and  water dams shall be for the exclusive use and possession of the Registered Proprietor, Prosper Ndyabahika. Any scattered  settlements there  on  by members of the family and estate of Erimiya Kamuza are to be  vacated.
5. In view of the equitable remedy granted to the estate of the Defendant as bonafide occupants on 50 acres (fifty) out of Prosper Ndyabahika’s land, I shall not condemn them in costs.
6. I accordingly  order that each party  meets their own costs.

...……………………………..

Wilson Masalu Musene

Judge

08/01/2018