THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
CIVIL SUIT NO. 388 OF 2007
IVAN ASIIMWE & ANOR ::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFFS
HERMAN SSEMAKULA ::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANT
BEFORE: HON. MR. JUSTICE GODFREY NAMUNDI
Civil suits 375 of 2005 and 388 of 2007 were consolidated whereby Ivan Asiimwe became the Plaintiff and Herman Semakula the Defendant. Ivan Asiimwe was the Plaintiff in 375/2005 while Herman Semakula was Plaintiff in 388/2007.
Ivan Asiimwe had originally sued Semakula for trespass and conversion of land and sought orders for recovery by way of vacant possession, eviction, permanent Injunction, general damages, punitive damages, interest and costs of the suit.
In Civil Suit 388/2007, Herman Semakula sued Ivan Asiimwe and the commissioner land Registration seeking orders that the 2nd Defendant cancels the Certificate of Title obtained by the first Defendant fraudulently, damages, a declaration and a permanent Injunction against Asiimwe. On consultation the parties agreed on the following facts and issues.
- That the Plaintiff is the registered proprietor of the land and property comprised in Busiro Block 383 Plot 239 at Kitende which he purchased from Rashid Muyingo.
- In 2005, the Defendant – constructed a road and guard house and perimeter wall on the land in question, after removing a fence and the same was demolished by the Plaintiff.
- Whether the Defendant has locus stands to challenge the Plaintiff’s title.
- If so, whether the Plaintiff obtained the title in respect of the land through fraud.
- Whether the Defendant has a Kibanja on the land or is a mere trespasser.
- Whether the parties are entitled to the reliefs sought.
The Plaintiff case is based on the evidence of four (4) witnesses, while that of the Defendant is premised on the evidence of 7 witnesses. A total of 5 pieces of exhibits were produced by the Plaintiff while the Defendant exhibited 7.
RESOLUTION OF ISSUES.
Issue No. 1
Whether the Defendant has locus to challenge the Plaintiffs Title.
The Plaintiff relies on the evidence of PW4 Golooba and DW7 – both Registrars of Title as well as the agreed facts that he is the Registered proprietor of the suit land. The white page was also exhibited as Exh. P3.
It is submitted for the Plaintiff that the Defendant does not plead that the Plaintiff fraudulently took away his Kibanja. It is submitted that the suit is barred by Section 176 of the RTA which lays down the situations in which an action for recovery of land can be maintained. Reference was made to Kampala Bottlers Vs Damanico (U) Ltd – SCCA 22/92.
It is also submitted that DW6 Yosefu Semwezi failed to explain why he never lodged any claim or encumbrance. That in the absence of any other evidence, the Defendant has no locus to challenge the Plaintiff’s Title.
The Defendant’s case is that by the time the Plaintiff purported to purchase the Registrable interest in the land, the same was occupied by the family of Mzee Yosefu Mukasa Semwezi who had actually purchased a Registrable interest in the land from the late William Muwanga, the father of Rashid Muyingo on 6/3/1970.
That he was a tenant by occupancy on the land. The Defendants case mostly revolves on the evidence of Yozefu Ssemwezi Mukasa. He testified that he bought the mailo interest from Muwanga. The land office gave him surveyors who surveyed his portion. He was given a receipt for the surveyors fees. He then ran out of money before he could have himself registered as proprietor.
He later realised that the land had been stolen. On cross examination he stated that he lost all the Busulu Tickets. Further that he did not report to police on discovery that the land had been stolen.
In short, he had paid for the Registrable interest but never completed the registration.
The Defendant claims he had also filed Suit 388/2007 against Ivan Asiimwe based on Fraud. This Suit was consolidated with 375/2005. It is submitted for the Defendant that given the above back ground the Plaintiff (Ivan Asiimwe) put his Title in question when he claimed that the Defendant is a trespasser.
That Asiimwe could have got registered to defeat the interest of the Defendant or his predecessors in Title. The Defendant it is submitted inherited Ssemwezi’s equitable rights. The law as provided and agreed upon by both parties is that Section 59 RTA provides that a Certificate of Title is conclusive evidence of ownership. Section 176 RTA provides for the way a suit for recovery of land can be sustained. It is also now trite law that the allegations of fraud must be attributable to the transferee. Ref. Kampala Bottlers Vs Dammanico (U) Ltd SCCA 22/92.
It appears to me the Defendant’s claims in Suit 388/2007 are the basis for claiming he has locus to challenge the Plaintiff’s claims. Probably these are issues that should have been resolved at Scheduling to determine whether Semakula had a cause of Action against Ivan Asiimwe.
It is also not clear whether the Defendant is claiming to be a Kibanja Holder, or the holder of what should have been his predecessors Registrable interest (equitable interest).
Issue No. 2
Whether the Plaintiff obtained the Title through fraud. (Arising out of C/S 388/2007)
The Plaintiff ‘s case is based on his Certificate of Title PEXH 3, the evidence of PW4 Golooba and that of DW6 – Kakerewe Yusufu, whose evidence he claims indicates that he is the Registered owner. Further that in accordance with the case of Kampala Bottlers Vs Damanico (U) Ltd (Supra) fraud must be attributed to the transferee. That fraud can only be proved within the provisions of Section 176 RTA.
For the Defendant, It is submitted that there is enough evidence to prove that the Plaintiff obtained the Title to the suit land fraudulently. Several authorities in fraud are cited which include;
- Kampala Bottlers Ltd Vs Damanico (U) Ltd (Supra),
- Katarikawe Vs Katwiremu & Anor HCCS 2/73
- Bazirake & Anor Vs Mutaba C/A 43/2008
- Fredrick J.K Zaabwe Vs Orient Bank Ltd C/S 4/06 and others.
I have no issues with the law on fraud as laid out in the authorities. The evidence must however be related or relevant to the law cited. The Defendant’s evidence of fraud attributable to the Plaintiff is that the Plaintiff failed to carry out due diligence to
- Establish that there were squatters on the land.
- That the Defendant and his predecessors were already in possession.
- Failure to carry out a search at the land office to establish that William Muwanga had sold the land to Joseph Semwezi.
- Failure to inquire from neighbours and LC officials e.g DW3, DW5.
- That there was a change on the white page, mutation forms, consent forms and receipts, in respect of sale in the names of Semwezi.
The Defendant faults the evidence of PW2 whose evidence is that he did not know whether there were squatters or not. Further he claims evidence of DW2 Emmanuel Luwaga establishes that there were ruins of a house on the suit land, that the Plaintiff never bothered to find out to whom it belonged.
He also relies on the evidence of DW3 who claims to have been an LC official right from the inception of Resistance committees and who testified that the land used to belong to DW4 who then sold it to DW2 (luwaga). It is also submitted that according to Exhibit D3(d) there is a clear list of people who were bibanja holders on the suit land including Sewezi.
It is also submitted that under Section 35 of the Land Act 1998, bonafide occupants are protected and that since the Defendant inherited the rights of a bonafide occupant, then his interests are established as a tenant by occupancy.
The Defendant also cites the evidence of DW7 Yusuf Kakerewe which pointed out the discrepancies in the Certificate of Title, and that there were mutation forms on record (Exhibit DE7) showing that Muwanga William signed in favour of Joseph Semwezi. The said Kakerewe also pointed out that the procedure for registration was not reflected in both the owners’ copy and the white page. That there were discrepancies in signatures and that one Wamayi – a registrar was not working in the land office by the time he purported to have signed.
It is submitted that the Plaintiff cannot be a registered owner when the registration was procured through fraud. I note that when Kakerewe DW7 was asked by court, he stated that one should rely on the owners’ copy.
There was no evidence of forensic experts in respect of questioned signatures. It is also note worthy that while DW4 Golooba (a Registrar) confirmed that the Plaintiff’s Title was clear, DW7 (also a Registrar) claimed there were discrepancies. It is also noteworthy that the Defendant only came up with documentation of sale of a Kibanja after a case was reported at Kajjansi police. (Evidence of PW2 and DEX 2).
Considering the submissions by both parties as related to the evidence, one must consider the provisions of Section 176 RTA Paragraphs (a) – (d) thereof are very relevant.
Further, that the production of a Certificate of Title shall be an absolute bar and estoppels to any action except in the circumstances outlined in (a) – (d) above. The authority of Kampala Bottlers Vs Dominico (Supra) is very instructive in that fraud must be pleaded and proved and must be attributable to the transferee.
The instances cited by the Defendant as being fraud on the part of the Plaintiff do not amount to fraud within Section 176 of the RTA and they cannot be attributable to the Plaintiff.
There is also no evidence adduced that the Plaintiff’s Certificate of Title was not issued by the Land office/Registry. The discrepancies pointed out by DW7 are to say the least attributable to the land Registry, and not to the Plaintiff. The said DW7 clearly stated when questioned by court that it is the owners’ copy that should be relied upon.
Finally, the claim that the Defendants predecessor in Title – one Semwezi DW6, should have been the registered owner is not supported by any credible evidence. The said DW6 does not state why he never completed the registration if at all for the over 40 years that the sale is alleged to have taken place, He never reported to police when he ‘realised’ the land had been ‘stolen’. He does not state why he never filed a caveat in any case against any subsequent transactions.
I am satisfied that the Plaintiff’s Title is protected within the meaning of Sections 59 and 176 of RTA and fraud has neither been proved or attributed to him.
Issue No. 3
Whether the Defendant is a Kibanja holder on the land or is a mere trespasser.
It is submitted for the Plaintiff that the Plaintiff bought the suit land with no encumbrances. The claim is supported by the evidence of PW2 and PW3 who also state that the land was free of encumbrances when he bought it. The Defendant’s actions of trespass took place in 2004 and the Plaintiff reported the matter to the police.
It is only then that the Defendant came up with an agreement showing that he had bought the same suit land a few days earlier. That the said agreement does not indicate the boundaries of the land. It is also submitted that much as Semakula alleged he constructed a house on the suit land, no evidence of such house was led.
That the Defendant failed to discharge his allegation that he has a Kibanja on the Suit land. The Defendant has cited the case of Uganda Posts 7 Telecomunications Co. Vs Kitemba Lutaya S.C.C.A 36/95 that defines what amounts to trespass. It is submitted that the evidence of DW1, DW2, DW3, DW4, DW5 all confirm that the suit land was occupied by the family of Semwezi.
The Defendant inherited the rights of that family and especially the son Peter Nsubuga and latter Luwaga – who sold to the Defendant. That by the time of the Plaintiffs purchase, the said Semwezi was both a Kibanja holder as well as legal owner and is deemed to have consented to the sale by Nsubuga Peter who sold to Emmanuel Lwanga.
The Defendant also relies on the fact that he bought the land on 4/10/2013 before the Plaintiff purchased the same from Rashid Muyingo, the Administrator of the estate of William Muwanga. That since Semwezi bought from the legal owner, then he became the legal owner.
In rejoinder, it is submitted that if at all the Defendant inherited the rights of the predecessors in title as Kibanja holders there is no evidence of payment of Busulu. An evaluation of the evidence earlier showed that Semwezi who claims to have purchased from William Muwanga had nothing to show that such a purchase took place.
No registration in his names took place, No caveat was ever filed and if at all he was ever a Kibanja holder, there was no evidence of payment of Busulu. He has no explanation for having failed to take any action when he (according to his evidence) realised that the suit land had been stolen as he alleges. The other aspect is that not being the registered owner, he could not consent to the sale by the sons who purported to have sold to the Defendant.
On the other hand, the Plaintiff purchased from Rashid Muyingo, the Administrator of the estate of William Muwanga the Registered proprietor. The Plaintiff proceeded to have transfers effected and he became the registered proprietor. Both the fact of Rashid Muyingo as Administrator of Estate and the Plaintiff having acquired a Title and becoming registered proprietor have not been disproved.
The Defendant in my view has been nibbling at the edges trying to find an entry into what does not clearly belong to him. It is my conclusion on this issue that he is a trespasser on the suit land.
Issue No. 4
The Plaintiff in C/S 1/2005 (375/2005) made the following prayers;
- A declaration that the Defendant is a trespasser on the suit land.
- An order for vacant possession.
- Eviction of the Defendant and his servants
- A permanent Injunction to the Defendants in respect of the Suit land.
- General damages.
- Punitive damages.
- Costs of the suit.
Having resolved issues 1-3 in favour of the Plaintiff, it follows that he is entitled to the remedies out lined in 1-4 above.
Regarding prayers for General damages and Punitive damages, it came out in evidence that the defendant indeed trespassed on the Plaintiffs land without any claim of right. General damages are awarded by courts as a result of the wrong acts of the offending party. The principle is that the successful party must be placed in the position he/she was before such wrongdoing.
In the instant case, the Plaintiff has been subjected to inconvenience by the Defendant’s wrongful acts of trespass and lengthy litigation. He is entitled to the General damages claimed. The Defendant as Plaintiff in Civil Suit 388/2007 had several prayers that included cancelation of the Plaintiff’s Title.
It is my finding that having failed to prove his claims that he is either a Kibanja holder or legal owner or equitable owner, he is not entitled to any remedies.
In conclusion I do enter Judgement in favour of the Plaintiff in respect of Suit 375/2005 and grant the prayers as outlined in the Plaint. The Defendant’s claims in Suit 388/2007 are dismissed for lack of merits with costs.
The following Orders are made and are to be effected immediately.
- It is declared that the Defendant (Herman Semakula) is a trespasser on the suit land – which it is declared belongs to the Plaintiff as Registered owner.
- An Order for eviction and grant of vacant possession against the Defendant is issued in favour of the Plaintiff.
- A permanent Injunction is issued against the Defendant (Herman Semakula) in respect of the Suit land.
- General Damages are awarded to the Plaintiff – assessed at Sh. 200,000,000/= for inconvenience caused to the said Plaintiff by the Defendant.
- The Defendant (Herman Semakula) is to meet the costs of the 2 suits to be appropriately determined at taxation by the taxing master.
DATE:14th March, 2017