THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(LAND DIVISION)

CIVIL SUIT NO.363 OF 2010

1. NAOME JUMA
2. PHILIMON OCHANDA::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFFS

(Administrators of the estate

of the late Hellen Okiri Ochanda) 

VERSUS

1. NANTUME RUTH

2. OBAMBO JORAM  ::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANTS

BEFORE:      HON. MR.JUSTICE BATEMA N.D.A, JUDGE.

JUDGMENT

Brief facts

The Plaintiffs brought this case against the Defendants praying for declaratory orders, vacant possession, permanent injunction, Mesne profits, damages and costs.;

The brief facts of this case are that, the Plaintiffs are the administrators of the estate of the late Hellen Okiri Ochanda. That the said deceased bought a plot and houses on it from one Boaz Membo in 1976. That the said Boaz Membo had earlier bought the plot from one Nalukenge and that the same plot was vacant. That around the year 2003, the 1^st Defendant entered into a land sale agreement with one Nalongo Nalukenge buying the same land.  The said 1^st Defendant used the said agreement to claim the land and threatened the Plaintiffs with eviction.

The 1^st Defendant asserts that she bought the suit property from Nalongo Nalukenge on 18^th August, 2003.   That she constructed 25 tenements and remained in possession of the suit land and the houses until 2008, when Nalukenge died. The 2^nd Defendant did not enter defence so the matter proceeded exparte against him.

The following issues were framed in the joint scheduling memorandum:

1. Whether the Plaintiffs have a right of claim in the suit property.
2. Whether the Defendants have a right of claim in the suit property.
3. Whether the Plaintiffs are entitled to the remedies sought.

Burden of proof

It is settled, law that, in civil cases, it is the duty of each party to prove their case to the satisfaction of Court. Section 101 of the Evidence Act is to the effect that he who alleges must prove. . The standard of proof is proof on a balance of probabilities.

Evidence Adduced

The Plaintiffs led their evidence through 2 witnesses and exhibited some documents in support of their case. They exhibited PEXH.1, a sale agreement upon which the deceased Hellena Mugadi/Hellena Ochiri Ochanda purchased the suit land and houses thereon from Boaz Membo dated 8^th September, 1976. The Plaintiffs also exhibited PE2, Letters of Administration granted to them in respect of the estate of the late Hellen Ochiri Ochanda, the basis upon which they brought this suit.

Exhibit PE3 was a transfer instrument upon which the deceased Hellen Ochiri Ochanda ascended to ownership of the suit land. The Plaintiffs proved that upon purchase and subsequent transfer, the deceased Hellen Ochiri took possession and continued to even pay property rates tax in respect of the suit property.  The Plaintiffs also exhibited the said receipts, some dating back to 1976 throughout the 1980s and the same were collectively admitted as exhibit PE4.

In her defence the 1^st Defendant Nantume Ruth testified as DW1. She told Court that she bought the disputed land in 2003, from Nalongo Nalukenge. She only consulted the said Nalongo Nalukenge to satisfy herself that what she was being sold actually belonged to the seller. She also told Court that the said Nalongo Nalukenge was not in occupation of the suit land, but operated a charcoal-selling makeshift stall   (kibanda).

Nantume Ruth also exhibited in Court DEXH1, a sale agreement dated 18^th August, 2003.  She told Court that the sale was in respect of the legal interest in the suit land.  She said that the suit land is registered land, although she did not know the plot number or block number that the suit land had a certificate of title, which too, she failed to produce in Court. She further told Court that transfer forms were signed in her favour, but she equally failed to produce the same.

Nantume Ruth told Court that she carried out a search in the Land Registry and established that the registered proprietor of the suit land was one Sophie Nazziwa. She did not show Court any certificate of search.  It is unclear why she went ahead to buy the Suitland from Nalongo Nalukenge after establishing that the same Nalongo Nalukenge was not the owner.

DW2, Kalungi Kagimu Scofields, the then General Secretary of LC1, said that the   1^st Defendant   approached him to draft the exhibited sale agreement.  He did not confirm ownership of the suitland by Nalukenge the seller or the buyers. He was not a useful or helpful witness. It appears the LC knew of both sales and did not want to commit themselves in a particular way.

Issues No. 1and 2: Whether the Plaintiffs or Defendants have a right of claim in the suit property.

Purchase

The Plaintiffs exhibited PEXH.1, a sale agreement upon which the deceased Hellena Mugadi/Hellena Ochiri Ochanda purchased the suit land and houses thereon from Boaz Membo dated 8^th September, 1976. Exhibit PE3 was a transfer instrument upon which the deceased Hellen Ochiri Ochanda ascended to ownership of the suit land. The Plaintiffs proved that upon purchase and subsequent transfer, the deceased Hellen Ochiri took possession and continued to even pay property rates tax in respect of the suit property.  In her defence the 1^st Defendant Nantume Ruth   told Court that she bought the disputed land in 2003, from Nalongo Nalukenge. She said that the suit land is registered land, although she did not know the plot number or block number that the suit land had a certificate of title, which too, she failed to produce in Court.  She further told Court that transfer forms were signed in her favour, but she equally failed to produce the same. .   My opinion is that a first purchase in time takes precedence.  The Plaintiffs’ equity was created first in time in 1976 and so must prevail over the one created in 2003.

Actual possession

PW2 John Awino Oyunga told Court that the Plaintiffs were first in actual possession. They left the 2^nd Defendant as a caretaker of the suit property in 1994 when they went to Kenya. The caretaker would collect rent and send the money to the plaintiffs. That occasionally the 2^nd Defendant used to ask PW2 to write for him letters he would forward the money with to the plaintiffs. Both Defendants started staying together and it is believed that they cohabit as husband and wife. It is therefore most probable that the 1^st Defendant has at all material times been aware of the Plaintiffs’ claim but instead took advantage of their being away in Kenya to lay claims over the Suitland. Her co-Defendant refused and or failed to defend himself.

It was also evidence of the 1^st Defendant that she is the one who constructed the houses on the disputed land. When asked if she had any architectural plans approved by Kampala City Council or otherwise, she had none. Neither did she have receipts of the building materials. None of the builders was called as a witness. It is impossible to believe that she owned this land in KCC and built on it in 2003 without approved building plans.

Property rates taxes

The evidence as a whole shows that this land was first transferred to the late Hellen Okiri.  She even paid the mandatory property taxes.  But whoever wrote the receipts in the KCC offices was careless and not consistent in citing the right Block and Plot numbers. This was never her fault.

Fortunately, there is no evidence contesting the authenticity of all those receipts. Moreover, the physical land in Wabigalo remained the same. There is no contradictory evidence of a different piece of land owned by the plaintiffs in the same location. I see no contradiction in the Plaintiffs evidence to discredit their claim.

Nantume Ruth also exhibited DEXH2, a property rates tax demand note dated 14^th September, 2018.  This is new evidence coming long after she had filed her defence.  It is highly probable that the same exhibit is a carefully crafted afterthought.   It is not clear why and how she has never paid the property rates tax since 2003.  This standalone demand note exhibit whose origin we doubt is not good evidence in proof of ownership of the suit land.

 Due Diligence

 It is trite law that the value of land as valuable property calls for thorough investigations before purchase. Call it due diligence.          The buyer who fails to carry out due diligence and buys from fraudsters gets no legal title. Lands are not vegetables that are bought from unknown sellers. Lands are valuable properties and buyers are expected to make thorough investigations; not only of the land but also the sellers before purchase.

It is evident on record that the 1^st Defendant in this case did not do her due diligence to establish the status of the land she was buying including the people who were in occupation and the plot number.

The oral evidence and documentary exhibits produced by the Plaintiffs lay a believable systematic history of the land acquisition in proof of their ownership.

Citizenship

The Defendant also claimed in the final submissions that there is no way Hellen Mugadi could own land under Article 237(1) of the Constitution, she being a Kenyan. But there was no evidenced adduced in this Court to prove that indeed the Hellen Mugadi was a Kenyan.  A passport or National Identification card could have proved that.  And it is not true that Kenyans cannot own land in Uganda. The correct legal position is that a foreigner can apply for and acquire a lease in Uganda on certain conditions. I suppose that the plaintiffs can now start the process to regularise their acquisition if they are Kenyans now that the court wrangles are over.

I have found sufficient evidence on record proving that the Plaintiffs   have a right of claim in the suit property.

Issue 3: Whether the Plaintiffs are entitled to the reliefs sought. 

This court has already found that the oral evidence and documentary exhibits produced by the Plaintiffs lay a believable systematic history of the land acquisition in proof of their ownership.

  The Defendant’s case was too weak at pleadings, oral testimony and exhibits the general demeanour of the 1^st Defendant while in court left a lot to be desired. There was no serious appeal in her voice and testimony. She lacked that conviction of a person fighting for her rights.

Judgment is hereby entered in favour of the plaintiffs.

The Plaintiff’s, prayers are for a declaration that they are the rightful owners of the suit property, vacant possession, permanent injunction against the Defendants, mesne profits, general damages, interest and costs of the suit.

In the circumstances, I grant the above orders as sought by the Plaintiffs except one. Mesne profits were not proved and are not awarded.

In assessing general damages I note that the Plaintiffs have been denied full use and unlawfully kept out of their land for about 15 years.  An innocent party inconvenienced at the expense of the other should be paid general damages by the one who caused the inconvenience.  I award the inconvenienced Plaintiffs general damages of Shs. 30,000,000/- (Thirty million shillings only).

The Defendants are condemned in costs too.

The general damages and costs shall collect interest of 12% p.a. from the date of delivery of this judgment till payment in full.

.........................................

Batema N. D. A

JUDGE

13/03/2020.