THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA

LAND DIVISION

CIVIL SUIT NO. 505 OF 2012

ASABA DICKSON ::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF

VERSUS

1. P.S. SEBYALA
2. KOLLY MONICA GOLOOBA-TOOGO ZALWANGO
3. COMMISSIONER FOR LAND REGISTRATION :::::::: DEFENDANTS

BEFORE: HON MR. JUSTICE BASHAIJA K. ANDREW

Case summaries

Brief facts

ASABA DICKSON (hereinafter referred to as the “Plaintiff”) brought this suit against P.S. SEBYALA, KOLLY MINICA GOLOOBA-TOOGO ZALWANGO, and COMMISSIONER FOR LAND REGISTRATION (hereinafter referred to as the “1^st”, “2^nd” and 3^rdDefendants” respectively) seeking orders for the cancellation of the Special Certificate of Title issued under Instrument No. KLA 14989 of 11/09/85; entries on the Certificate of Title for Kibuga Block 28 Plot 681 Land at Makerere (hereinafter referred to as the “suit land”) general damages and mesne profits and costs of the suit. The Plaintiff alleges that the said Certificate of Title was fraudulently transferred from the names of EDIRISA SEBUGWAWO of P.O. Box 6444, Kampala into the names of P.S. Sebyala and later to the 2^nd Defendant by the 3^rd Defendant.

The Plaintiff is the Administrator of the estate of the late Zeresire Elijah which he obtained under Administration Cause No. 348 of 2011. The said Zeresire Elijah purchased land comprised in Kibuga Block 28 Plot 681 at Makerere from one Edirisa Sebugwawo who duly surrendered to the purchaser the Duplicate Certificate of Title and signed transfer forms.  The late Ziresire Elijah initiated the process of having himself registered as proprietor of the suit land by paying the stump duty and registration fees but could not complete the process.

When the wife Eurelia Mugyema tried to conclude the process in 1992 after the death of Ziresire, she found that a Special Certificate of Title had been issued in the names of Edirisa Sebugwawo in 1985 from whom her late husband had purchased the suit land and then a transferred to the 1^st and 2^nd Respondents respectively. When contacted, Edirisa Sebugwawo denied ever transferring the title to any of the Defendants, and objected to the transactions as fraudulent

Issues

1. Whether the 1^st and 2^nd Defendants fraudulently registered themselves as proprietor of land comprised in Kibuga Block 28 Plot 681 land at Makerere.
2. Whether the Plaintiff is entitled to the reliefs sought.

Held

1. All the above facts are uncontroverted because as earlier stated, the Defendants never filed their defence despite being served with summons. In Serunjoji v. Katabira [1988-90] HCB 148, it was held that a party who does not file a defence is deemed to have admitted the allegations in the plaint. Equally by the 1^st and 2^nd Defendants not filing their defence to the suit, it would be deemed that they admitted to fraud as particularized in the plaint.  Accordingly, it is found that the 1^st and 2^nd Defendants fraudulently registered themselves as proprietors of suit land.
2. The Plaintiff proved that he is the Administrator of the estate of the late Ziresire Elijah, who had purchased the suit land from the registered proprietor Edirisa Sebugwawo. The vendor executed transfer forms for the property in favour of the deceased. Clearly the deceased had equitable interest in the suit land as the equitable owner at the time of his demise. See: Sentongo Godfrey v. Mukono Industries (U) Ltd., H.C.C.S No. 55 of 2012. The estate of the late Ziresire Elijah

 in control of the property by the time of his death, and still are in control of the suit property. In Katarikawe v. Katarikawe & Another [1977] HCB 187, it was held that though in contract of sale of land an unregistered instrument of transfer is not effective to transfer title, the purchaser acquires an equitable interest in the land. Therefore, under Section 279 of the Succession Act, the Plaintiff as the Administrator to the deceased’s estate is entitled to have all estate property.  

1. Further, since it is the finding of court that the 1^st and 2^nd Defendants fraudulently got registered as proprietors of suit land, this court finds the 2^nd Defendant liable to ejectment and/or recovery of land  from her under Section 176 (c) of the Registration of Titles Act. As was held in Lwanga v. The Registrar of Titles [1980] HCB 24, registration obtained by fraud is void, and the title impeachable. See also: Edward Musisi v. Gridlys Bank (U) Ltd. & 2 Others [1983] HCB 39.

The suit was allowed with the following orders;

1. The 3^rd Defendant cancels the Special Certificate of Title issued in the names of the 2^nd Defendant as registered proprietor of land comprised in Kibuga Block 28 Plot 681 land at Makerere. 
2. The 3^rd Defendant registers in the names of the Plaintiff as the Administrator of the estate of the late Ziresire Elijah on the Duplicate Certificate of Title for land comprised in Kibuga Block 28 Plot 681 land at Makerere .
3. No general damages are awarded to the Plaintiff since there is no basis for them as no evidence was adduced to prove the same. See: Takiya Kashwahiri & A’nor v. Kajungu Denis, C.A.C.A. No. 85 of 2011.
4.  The Plaintiff is awarded costs of the suit payable by the 2^nd and 3^rd Defendants.