Court name
HC: Land Division (Uganda)
Case number
Civil Suit 2428 of 2015
Judgment date
31 October 2018

Dr. baguma v SSemugooma and 5 Others (Civil Suit 2428 of 2015) [2018] UGHCLD 86 (31 October 2018);

Cite this case
[2018] UGHCLD 86
Coram
Namundi, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(LAND DIVISION)

CIVIL SUIT NO. 2428 OF 2015

 

Dr. PAUL BAGUMA

(Suing through his Attorney

AUGUSTINE BAGUMA) =====COUNTERCLAIMANT/THIRD DEFENDANT

VERSUS

  1. GODFREY SSEMUGOOMA
  2. SHILA NAKKU SSEMUGOOMA
  3. FLORENCE NAKAZIBWE
  4. NANTENZA FLORENCE  =================COUNTERDEFENDANTS
  5. KYOMA BYEMARO JOHN
  6. ROBINA NYAMIJUMBI

 

 

BEFERE: JUSTICE GODFREY NAMUNDI

 

JUDGMENT

 

The 1st and 2nd counter Defendants sued the counter Plaintiff and 4 others for a declaration that land comprised in Kyadondo Block 221 Plot 1989 belonged to them as the rightful owners.

The counter Plaintiff filed a written Statement of Defense in which he denied the matter above and raised a counterclaim in which he states that he is the rightful owner of the land comprised in Kyadondo Block 221 Plot 1989.

When the matter came up for hearing on the 25th of October 2017, Mr. Mubangizi Absolom, counsel for the counter claimant informed court that a consent judgement had been entered between the counter claimant and the 1st to 4th counter defendants and the same had been sealed by court on the 28th day of April 2016.  He stated that the 5th and 6th counter Defendants were not party to the settlement since they had failed to respond to the summons.

 

He also stated that he attempted to serve them in person and failed, which prompted him to apply for substituted service and the order was granted. The 5th and 6th defendants were served by way of substituted service in the New Vision News paper of 15th September 2015.

Counsel prayed to proceed ex parte against the 5th and 6th respondents and the same was granted.

 

Two issues were agreed upon at scheduling as here below;

  1. Whether the counter claimant purchased the land comprised in Kyadondo Block 221 Plot 1989 at Nalya from the 5thcouter defendant.
  2. Whether the counter claimant is entitled to the remedies sought in the counter claim.

 

Evidence of the Counter claimant

The counter claimant called two witnesses, PW1 Grace Baguma and PW2 Augustine Baguma.

According to Grace Baguma, the counter claimant purchased the suit land on 9th May 2007 from the 5th counter Defendant, Kyomya Byemaro John who was the registered proprietor of the land. She further testified that she was present during the purchase and the writing of the sale agreement on which she signed as a witness. She referred to the sale agreement exhibited as CCPEX1 and was able to point out her signature.

 

PW2 testified that he has personally conducted a search in the Land Registry and established that the land was registered in KyomyaByemaro’s name. He informed court that the 5th counter Defendant availed them a copy of the Certificate of Title on which they based to conduct a search at Land Registry.  He also told court that they were connected to Byemaro John by Richard Nyakahuma who had sold to them the neighboring plot 1988.  Both witnesses also informed court that before purchasing the suit land, they physically inspected the same and it was vacant.

 

Decision of Court

Whether the Counter Claimant purchased the land comprised in Kyadondo Block 221 Plot 1989 at Nalya from the 5thcouter defendant.

In the case of Nsubuga V Kavuma [1978] HCB 307 it was held that in civil cases the burden lies on the plaintiff to prove his or her case on the balance of probabilities. Section 101(1) of the Evidence Act cap 6 provides that whoever desires court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist.

 

This case is undefended and in Pamela Sabina Mbabazi Vs. Henry MusisiBazira Court of Appeal Case No. 44 of 2004, it was held that if a case is undefended (as in this case) that standard of proof is lower than in a defended case. Similarly Order 8 Rule 3 of the Civil Procedure Rules provides that

every allegation of fact in a plaint, if not denied specifically or by necessary implication or stated not to be admitted in the pleadings of the opposite party, shall be taken to be admitted and in Habre International Co. Ltd Vs Ebrahim Alakaria Kassam and others, SCCA 4 of 1999.  The Supreme Court held inter alia that;

Whenever the opponent has declined to avail himself of the opportunity to put his essential and material case, in cross examination, it must follow that he believed that the testimony given could not be disputed at all

The Counter Claimant adduced exhibit P1, the Sale agreement dated 9th May 2007 which shows that the counter claimant purchased the suit land from the 5th counter Defendant for Ugshs 19,000,000/= in witness of Grace Baguma and Henry Baguma.

 

PW2 Augustine Baguma also testified that he conducted a search at the Land registry on the said suit land and established that the vendor Byemaro John was the registered proprietor of the said land. According to the case of Sir John Bageire Vs AusiMatovu C.A.C.A No.7 of 1996 Kikonyogo, DCJ, quoted Okello J.A (as he then was) and emphasized the value of land and the need for thorough investigations before purchase and held interalia that;

“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 of the sellers before purchase.”

It is evident that the counterclaimant did all that was reasonable to establish the true ownership of the land before the purchase of the same

This court is satisfied that the counterclaimant purchased the land comprised in Block 221 Plot 1989 at Nalya from the 5th counterdefendant.

 

Whether the counter claimant is entitled to the remedies sought in the counter claim

Counsel for the Counter Claimant submitted that the only remaining remedies sought in the counter claim are those against the 5th and 6th Counter Defendants and these were as follows;

  1. A declaration that the Counter Claimant is the rightful owner of the land comprised in Kyadondo Block 221 Plot 1989 at Nalyako.
  2. An order of cancellation of the entry on the certificate of title for Kyadondo Block 221 Plot 1989 at Nalyako by removing the name Robina Nyamijjumbi and entering the name of Dr. Paul Baguma.
  3. General damages
  4. Costs on the counterclaim

I will resolve the counterclaimants prayers in (a) and ( b) together.

The evidence before this court shows that the 6th Counter Defendant, Robinah Nyamijjumbi is the Registered Proprietor of land comprised in Kyadondo Block 221 Plot 1989 at Nalyako. Section 176 (c) of the Registration of Titles Act cap 230 is to the effect that the registered proprietor of land is protected against ejectment except in cases of fraud. As to standard of proof the law is that allegations of fraud must be strictly proved, although the standard of proof may not be so heavy as to require proof beyond reasonable doubt. (see case of J.W Kazzora V M.L.S Rukuba Civil Appeal No.13 of 1992)

In Kampala Bottlers Ltd Vs Damanico (u) Ltd SCCA No.22 of 1992Wambuzi CJ stated in his judgment that “….fraud must be attributable to the transferee.” The transferee must be guilty of some fraudulent act or must have known of such act by somebody else and taken advantage of such act.

According to search Certificate dated 23rd February 2015, the 6th Counter Defendant, Robinah Nyamijjumbi is the registered proprietor of the land comprised in Kyadondo Block 221 Plot 1989 at Nalyako having been registered unto the same on 30th August 2006.

Counsel for the Counter Claimant argued that the purported registration of the 6th Counter Defendant unto the title was intended to defraud the counter claimant of his rightful ownership to the suit land.

This purported transfer raises suspicion since PW2 Augustine Baguma testified that he personally conducted a search at the Land registry before the counter claimant purchased the suit land from the 5th counter defendant and established that the 5th counter defendant Kyomya Byemaro John was the registered proprietor of the suit land. In the case of Massa Vs Achen [1978] HCB 279 court stated that an averment on oath which is neither denied nor rebutted is admitted as the true fact.

The counter claimant also adduced evidence to show that the land was vacant at the time of purchase. The fact that the 6th defendant has not taken possession of the said land since 2006 also points to fraudulent intent. In CresencioMukasa Vs YakobaSenkungu& 4 Others C.A.C.A No.35 of 2006, the Curt of Appeal held that the fact that there was no occupation of the land by the purchasers for a period of 11 years after the purported transfer from the original proprietor irresistibly pointed to an inference of a fraudulent transaction.

The burden lay on the 6th Defendant to prove the said transfer was authentic however the 6th Defendant did not appear in court to prove the validity of the transfer into her names and thereby failed to discharge the burden. (Ref: Yakobo Senkungu M.N & 4 Others Vs Crensencio Mukasascca No.17 of 2014.

In Husky International Electronics. Inc Vs Ritz No.150-145 of 2016 the Supreme Court of United States of America expanded the meaning of actual fraud as encompassing fraudulent schemes that can be affected without a false representation.

The purported earlier transfer of the suit land into the names of the 6thcounter Defendant clearly is a fraudulent scheme intended to defraud the counterclaimant.

It is my finding that the Counter Defendant is the rightful owner of the land comprised in Kyadondo Block 221 Plot 1989 at Nalyako and that the 6th Counter Defendant’s name be cancelled form the Certificate of Title.

b) General damages

It is rite law that damages are the direct probable consequence of the act complained of Such consequences may be loss of use, loss of profit, physical inconvenience, mental distress, pain and suffering. General dames must be pleaded and proved. (Moses Kizige Vs MuzakawoBatolewo [1981] HCB 66)

In Assist (U) Ltd v Italian Asphalt & Haulage & Another HCCS 1291/1999, unreported, inconvenience was held to be a form of damage.

Counsel argued that PW2 testified that he had to follow up on the 5th counter Defendant and these follow ups led t expenses and inconvenience on the part of the counter claimant.

In Robert Coussens V Attorney General SCCA No.8 of 2009 it was held that;

“That the object of the award of damages is to give the plaintiff compensation for the damage, loss or injury suffered.”

The actions of the 5th and 6th Dounter Defendants have inconvenienced the Counter Claimant and I find that Ugshs 20,000,000/= (Uganda Shillings twenty million) is appropriate damages, and I award the same.

c) Costs

The law is that costs follow the event and that the successful party is entitled to costs of the suit unless there are good reasons to order otherwise. (See case of Paulo Bagenzi v School Out Fitters (U) Ltd, CACA No.53 of 1999)

I award the counterclaimant the costs to the counterclaim.

Judgment is entered in favor of the counter claimant and I accordingly make the following orders;

  1. That the Counter Claimant Dr. Paul Baguma is the owner of the land comprised in Kyadondo Block 221 Plot 1989 at Nalyako.
  2. The Registrar of Certificates of Title cancel the names of 6th Defendant Robinah Nyamijjumbi on the Certificate of Tile for Kyadondo Block 221 Plot 1989 at Nalyako and enter the names of Dr. Paul Baguma on the said Certificate of title.
  3. I award the Counter Claimant damages amounting to Ugshs 20,000,000/= (Uganda Shillings twenty million).
  4. The 5th and 6th Counter Defendant shall pay the costs of the counter claim.

 

GODFREY NAMUNDI

JUDGE

DATE 31st October, 2018