THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT NAKAWA CIVIL APPEAL NO.85 OF 2012 ARISING FROM HIGH COURT LAND DIVISION APPEAL NO.0051 OF 2012 K.SEKITOLEKO JOHN WHITE JAGGWE MUGADYA SERUBIDDE...............................APPELLANTS SALIMA NAKASSAGA........................................RESPONDENTS BEFORE: HON JUSTICE MR.MASALU MUSENE JUDGEMENT This is an Appeal from the Judgment of the chief Magistrate’s Court at Nakawa by His Worship George Obong in Civil Suit No.234 of 2008 delivered on 4th/06/2012 wherein he held that the Respondent had a cause of action against the Appellants and ordered that the defendants should take all necessary steps to ensure that the plaintiff’s names are registered on the certificate of title, or alternatively compensate the respondent with an amount of money which reflects the current market price of the suit land, a permanent injunction restraining the Appellants, their servants or anyone claiming title from them, from interfering with the plaintiff’s interest, rights over the suit land and that the Appellants pay the Respondent’s costs. The brief facts of this case are that the Appellants being administrators of the estate of the late Eriyasafu Nduwulira were registered on various certificates of title including Block 228 Plot 1456 at Mbalwa Namugongo. The land at Namugongo was to be distributed among various beneficiaries including Peter Bisaso and Amos Twase Nduwulira. Peter Bisaso who being in possession of transfer forms and mutation forms sold a portion of the land comprised in Block 228, Plot1727 to the Respondent. This same land had been sold by Amos Twase Nduwulira to a one James Byekwaso. The respondent in bid to have this land registered discovered that it had been sold to another person and so filed the suit in the lower court. This appeal is premised on the following grounds as stated in the memorandum of appeal:- The Learned Trial Magistrate erred in law and in fact in failing to properly evaluate the Appellants’ and Respondent’s evidence thus coming to wrong conclusions The Learned Trial Magistrate erred in law and fact in finding that the Respondent has a cause of action against the Appellants. The Learned Trial Magistrate erred in law and in fact in deciding that the Appellants ensure that the Respondent is registered on the certificate of title of the suit land The learned Magistrate erred in law and fact in deciding in the alternative that the Appellants’ compensate the Respondent for the suit land with an amount that reflects the current market price of the suit land The Appellants were represented by Barugahare & Co. Advocates, while the Respondent was represented by M/S Luzige, Lubega, Kavuma & Co. Advocates. Each party filed written submissions through their Counsel. Grounds 1 and 2 Counsel for the Respondent pointed out the fact that ground 1 and 2 should be resolved together given the fact that evaluation of evidence rotated about the cause of action against the Appellants. Counsel for the Appellants argued that according to the evidence on record, the Respondent was not diligent enough to carry out a title search or contact or verify the Appellants who were the Administrators of the estate before purchasing the said land. Counsel stated that during the negotiation and the alleged purchase of the suit land by the Respondent from Bisaso Peter, none of the Appellants was present or consulted. Verification of ownership was done at the Chairman LC1’s place and not with the Appellants. Counsel further argued that had the Trial Magistrate properly evaluated the evidence, he would have found that by the time the Respondent engaged a surveyor the suit land had already been issued to another party not being the Respondent. He pointed out the fact that according to the evidence on record the Registrar of Titles established that James Byekwaso and not the Respondent had genuinely bought the suit land and that the Respondent had not followed the right procedures, did not have sufficient documents and was instead duped. Counsel further contended that had the magistrate evaluated the evidence properly, he would have found that the Appellants were not privy to the purchase of land by the Respondent and that they cannot be held liable for any loss arising out of the misfortune, carelessness or lack of diligence on the part of the Respondent since they were not even aware of the purported sale of land by Peter Bisaso. Counsel for the Appellants also noted that it was James Byekwaso and not the Respondent who was in possession of the certificates of title for both Plot1728 and 1727 which were issued the same day and that one plot 1728 was already in his names and the other could have been transferred into his names except for a caveat registered by the Respondent. Considering the fact that the Respondents resolved ground 1 and 2 together, I will proceed to now look at ground 2 of the appeal before referring to the Respondent’s submissions. Counsel for the Appellant argued that the learned Magistrate erred in law and fact in finding that the Respondent had a cause of action against the Appellants. He argued that for there to be a cause of action against a defendant, the plaintiff must show that he enjoyed a right, that right has been violated and that the defendant is liable. See AUTO GARAGE VS MOTOKOV [1975]1 E.A 514. He stated that in this case being one of a contractual nature, there was no evidence on record to show that there was a contract between the Appellants and the Respondent. They never had any prior dealings with the Respondent and did not know about her they were summoned in court. He argued that any dealings concerning the purchase of the said land were between Bisaso Peter and the Respondent. Counsel noted that the Appellants as administrators of the estate owed a duty to the beneficiaries and not to third parties unknown to them at the time of signing and handing over transfer and mutation forms to the beneficiaries. According to DW1’s testimony, the Appellants signed the Transfer and Mutation form to subdivide the land so that each beneficiary could get his share and that Plot 1727 was part of the land given to DW2 and not Bisaso Peter. Counsel for the Respondent on the other hand maintained his position that the respondent has a right arising from buying the suit piece of land and paid full consideration for it. The land was accordingly indicated as being near Konoweka River, which was fenced off by the respondent who took effective occupation from 2005 to date. Counsel also argued the Mutation and Transfer forms were signed by the Appellants and were tendered in court as EXP2 which were identified and confirmed by DW1 the 3rd Appellant as having been signed by the Appellants for Bisaso Peter. Counsel argued that according to DW1 (Mugadya Michael) who is the 3rd Appellant’s evidence, he stated that Peter Bisaso sold his portion of land to Byekwaso but during cross examination he stated that he never saw the sale agreement between Mr. Bisaso Peter and Byekwaso. Similarly, DW2 also testified that Peter Bisaso had sold his one acre of land to Byekwaso although during cross examination he said he did not witness the purported sale to Byekwaso. DW3 also told court that he bought one acre of land from Peter Bisaso and they made an agreement which he failed to exhibit in court. Counsel contended that the Trial Magistrate properly evaluated this evidence hence coming to the conclusion that that bit of evidence was stage managed to defeat the plaintiff’s claim over the suit land. The Respondent further argued that her right had been violated since she bought the land in 2005 and took occupation of the same but has failed up to date to get a land title. Counsel argued that the Appellants are liable for this violation since the suit land is registered in their names and they signed the Transfer and Mutation forms for Bisaso Peter. He further noted that the Appellants filed Misc. Cause No.530 of 2009 in the Chief Magistrate’s Court at Nakawa to have the Respondent’s caveat removed but the application was dismissed and they further filed a civil revision in High Court Vide Misc. Cause No.112 of 2009 which was also dismissed. Counsel therefore argued that why would the Appellants fight to remove the caveat if they are not privy to this contract. He therefore noted that they were the ones responsible for the violation of the Respondent’s right. Having looked at the evidence on record and the submission by both counsel, I will now examine ground 1 and 2 of the appeal which were as follows; The Learned Trial Magistrate erred in law and in fact in failing to properly evaluate the Appellants’ and Respondent’s evidence thus coming to wrong conclusions The Learned Trial Magistrate erred in law and fact in finding that the Respondent has a cause of action against the Appellants. In the case of PANDYA V R (1957) EA 336, it was established that the duty of court as the first appellant court is to evaluate the evidence on record as a whole and come to its own conclusion. According to the evidence on record, it was agreed by both parties that Peter Bisaso was a beneficiary to the estate of Eriyasafu Nduwulira. The appellants in their testimonies stated that he was entitled to one acre of land in Mbalwa and five acres in Mawogola to which they signed Mutation and Transfer forms. They stated that this was his share of the estate. The Appellants also testified that Peter Bisaso sold his one acre to Peter Byekwaso but none of them saw the sale agreement. DW3 Peter Byekwaso also testified that he bought the one acre of land in Mbalwa from Peter Bisaso and signed an agreement accordingly. However he stated that he did not have the said agreement and never produced it in court. It should be noted that under S.63 of the Evidence Act Cap 6, it is stated that; “The contents of documents may be proved either by primary or by secondary evidence.” In this case the Appellant neither produces primary or secondary evidence in court thereby failing to prove this transaction. It should be noted that this part of evidence is very pertinent to this case because it forms part of the basis of the Appellant’s case since they claim that Peter Bisaso had already sold his one acre of land to Byekwaso and so the one he sold to the Respondent did not belong to him. Court will therefore not merely rely on the testimonies of the Appellants without proper proof of the sale agreement between Bisaso and Byekwaso. The Respondent on the other hand tendered in court the sale agreement between her and Peter Bisaso which therefore leaves no doubt that she did purchase land from Peter Bisaso. The issue therefore that arises is whether at the time of this transaction, the suit land was already sold to James Byekwaso. The Respondents stated that before purchasing this land in 2005 she went to the LC1 chairman’s place for verification and after signing the sale agreement, she took occupation of it by fencing it off, she also identified it by saying that it was near Konoweka River which is the suit land. The Appellants argued that Byekwaso bought the suit land and went ahead to survey it and have it registered in his name. They argued that the Trial Magistrate failed to consider the fact that it was Byekwaso in possession of the certificates of title of both plot 1728 and 1727 which were already in his names and the other one 1727 the suit land could have been transferred in his names except for the caveat registered by the Respondent. It should be noted that being in possession of the certificate of Title is not the same thing as having his name registered on it and therefore since his name was not registered on this title means he is not the owner of this suit land yet. Therefore looking at the evidence on record, I am more inclined to agree with the judgment of the lower court that the evidence adduced by the Appellants is stage managed to defeat the Respondent’s interests on this suit land. In relation to the issue of whether the Respondent has a cause of action against the Appellants, court will refer to the case of Auto Garage V Motokorv [1971] E.A 514 cited by both counsel which states the elements that must exist to warrant a cause of action which include the existence of a right enjoyed by the plaintiff, that right has been violated and the defendant is liable. In this case indeed the plaintiff enjoys a right derived from purchasing the suit land, this right has been violated since she purchased the said land but cannot get title to the same land. The main issue in contention here is whether the Respondents are liable. The Appellants argued that they are merely administrators of the estate and are not privy to the contract between Peter Bisaso and the Respondent. They argued that they are only responsible towards the beneficiaries of the estate which does not include the Respondent. However, I am more inclined to be in agreement with the argument raised by the respondent that the fact that the Appellants as administrators of the estate had this land in their names and also the fact that they went ahead to file a case in court to remove the caveats lodged by the respondent points to their involvement in the suit land which involvement has hindered the enjoyment of the respondent’s right. I hereby find that grounds 1 and 2 lack merit Ground 3 and 4 Appellants argued that based on the fact that the Respondent had no cause of action against the Appellants then the learned Magistrate erred in law and in fact in deciding that the Appellants ensure that the Respondent is registered on the certificate of title. Counsel further argued that James Byekwaso is the one in possession of the certificate of title of the land and not them. Counsel also pointed out the fact that the respondent had in her pleadings prayed for an alternative remedy of refund of money paid and not to be compensated at the value of the land. The respondent on the other hand contended that the Appellants being the current registered proprietors of the suit land comprised in Plot 1727, had signed the Transfer forms in favour of Bisaso Peter and still had interest on the land since they lodged caveats were rightly directed by the Trial Magistrate to take necessary steps towards ensuring that the plaintiff’s names are registered on the certificate of title for the suit land or compensate the plaintiff for the market value. They alternatively prayed that the Registrar of Titles be directed to transfer the suit land into the Respondent’s name. Having found that grounds 1 and 2 lack merit court hereby find that the Trial Magistrate did not error in law in directing the above remedies. Court however finds that the more practicable remedy in the circumstances would be to direct the Registrar to transfer the suit land in the Respondent’s name. Otherwise, I find no merit in the Appeal which is hereby dismissed with costs. ........................................................... WILSON MASALU MUSENE JUDGE 18/09/2014
