Court name
HC: Land Division (Uganda)
Case number
Civil Suit 885 of 2017
Judgment date
28 June 2018

Mubiru and 2 Others v National Forestry Authourity (Civil Suit 885 of 2017) [2018] UGHCLD 89 (28 June 2018);

Cite this case
[2018] UGHCLD 89
Coram
Namundi, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA

(LAND DIVISION)

CIVIL SUIT NO. 885 OF 2017

1, ERIA MUBIRU

2. VIVIAN KEZA

3. PENINAH BUSINGYE KABINGANI===============PLAINTIFFS

                                                            VERSUS

NATIONAL FORESTRY AUTHORITY===============DEFENDANTS

 

BEFORE HON. JUSTICE. MR. GODFREY NAMUNDI

JUDGMENT

 

The Plaintiffs filed this suit against the Defendant seeking the following remedies;

  1. A declaration that the Plaintiffs are the registered proprietors of Freehold Land Comprised in Busiro Block No.376 Plots 1278, 1279, 1280, 1281, 1299 and 2281; Busiro Block No.537 Plots 291, 294, 335, 337, 347, 435, 482, 483, 488, 489, 497, 498, 499, 500, 537 and lawful owners of land and property comprised in Busiro Block No.376 Plot 1282; Busiro Block 537 Plots 295, 300, 301, 306, 307, 308, 309, 312, 342, 343, 344, 346, 384, 484, 486, 487, 490, 491,492, 493, 495 and 501; and Busiro Block 405-406 Plots 1344 and 1469 land at KataleWakiso District and measuring approximately 350 acres.
  2. A declaration that the Plaintiffs’ constitutional and fundamental right to own the suit properties has been infringed and threatened by the Defendant’s actions.
  3. A declaration that the actions and activities of the Defendant amount to trespass on the suit property.
  4. A Permanent Injunction restraining the Defendant, the Defendant’s servants, agents and or persons deriving from it from trespassing, disposing , alienating or in any other interrupting or interfering with the Plaintiffs’ ownership, use, enjoyment of and, or quiet possession of the suit property.
  5. An order for General damages.
  6. Costs of the suit.

The Defendants filed a Written Statement of Defense as well as a Counter –Claim. Therein the Defendants denied all the Plaintiff’s claims, stating that the suit land forms part of Kajjansi Central Forest Reserve.

That it is duly gazetted and any activity thereon can only be possible through the due process of law to wit; degazetting of the said forest reserve and this has never been done.

In the counter claim the Defendants/Counter- Plaintiffs allege illegalities perpetrated by the Plaintiffs/Counter-Defendants in acquiring the suit land

Background

The Plaintiffs are joint registered proprietors of property comprised in Busiro Block No.376 Plots 1278, 1279, 1280, 1281, 1299 and 2281; Busiro Block No.537 Plots 291, 294, 335, 337, 347, 435, 482, 483, 488, 489, 497, 498, 499, 500, 537 and claim to be lawful owners of land and property comprised in Busiro Block No.376 Plot 1282; Busiro Block 537 Plots 295, 300, 301, 306, 307, 308, 309, 312, 342, 343, 344, 346, 384, 484, 486, 487, 490, 491,492, 493, 495 and 501; and Busiro Block 405-406 Plots 1344 and 1469 land at Katale Wakiso District.

Sometime in 2016, the Plaintiffs were approached by real estate agents and informed them that the suit properties were available for sale.  They claim they duly purchased the Suit land after conducting due diligence, took possession of the same and started using it.

On 13th March 2017, the officials of the Defendant arrested the Plaintiffs’ workmen and detained them at Kajjansi Police Station vide SD REF; 09/13/03/2017.

 

Plaintiffs’ Case

The Plaintiffs relied on the evidence of PW1 Eria Mubiru, PW2 Peninah Busingye and PW3 Lutaaya John Vianney.

PW1 and PW2 in their witness statements stated that they and a one Vivian Keza are the registered proprietors of property comprised in Busiro Block No.376 Plots 1278, 1279, 1280, 1281, 1299 and 2281; Busiro Block No.537 Plots 291, 294, 335, 337, 347, 435, 482, 483, 488, 489, 497, 498, 499, 500, 537 and lawful owners of land and property comprised in Busiro Block No.376 Plot 1282; Busiro Block 537 Plots 295, 300, 301, 306, 307, 308, 309, 312, 342, 343, 344, 346, 384, 484, 486, 487, 490, 491,492, 493, 495 and 501; and Busiro Block 405-406 Plots 1344 and 1469 land at Katale Wakiso District.

The Plaintiffs contended that they were taken for physical inspection and viewing of the property by the representatives of the real estate companies, the vendors. They found a vast piece of vacant land of about 350 (three hundred fifty) acres of which 200 (two hundred) acres were clearly ready for possession and about 150 (one hundred fifty) were occupied by brick laying, sand mining, goat raring and small scale farming activities.

That the entire land bordered a tea estate, human settlements and the Entebbe- Kampala Express Highway.

The Plaintiffs contended that they did not see any public notice of any third party interests on the land and their meetings and interaction with neighbors and area local leaders confirmed to them  that the land belonged to the vendors and that there was a cordial relationship between the vendors and squatters.

They further contended that they carried out searches in the land registry over a period of time and established that the vendors were the true registered proprietors mostly dealing in real estate and that their freehold titles were conditioned for residential or commercial purposes.

They also contended that the vendors were both private persons and real estate companies with physical and proper registered addresses. That the Plaintiffs received confirmation from the Department of Surveys and Mapping of the Ministry of Lands that the area schedule of the current suit property was not within the Kajjansi Forest Reserve.

The Plaintiffs also contended that they discovered that the titles were issued as far back as 2013 under valid instruments.

That their search in the Wakiso land registry established that the land was formerly public land under the jurisdiction of Wakiso district  Land Board which had allocated and duly processed it into the ownership of the Plaintiffs’ predecessors in title.

That further during the physical search, they discovered and established from the records at the Wakiso District Land Registry that the management of the land had over time evolved from being controlled by the Colonial Government, Uganda Land Commission, Mpigi District Land Board and Wakiso District Land Board and that all these legal entities had overtime transacted and dealt with this entire land and adjoining land as public land.

The Plaintiffs also established from the records that the suit land neighbors several private individuals and institutions, notably Uganda Clays Ltd, Pan Tiles Company, a tea estate, the Forest Department and that indeed the whole of Kajjansi town among others sits on the same stretch of former Public land as stated hereinabove and all the land titles of the above mentioned individuals and institutions were processed in a similar manner to the process under which their predecessors in title acquired theirs.

That their predecessors in title had been allocated this land as the area residue of public land that had never been allocated by that time.

They also made inquiries from the Department of Surveys and Mapping of the Ministry of Lands requesting for on guidance as to whether there could be an overlap of the vendor’s title with the proprietorship of any other person and they received a confirmation letter from the said Department that Wakiso District Land Board had allocated public land to different individuals and companies and that the area schedule to the current suit property was not within the Kajjansi Forest Reserve.

The Plaintiffs on the basis of their findings, purchased the suit property for a valuable consideration of USD 1,520,000 (One million, five hundred twenty thousand US Dollars.

Defendant’s case

The Defendant on the other hand relied on the evidence of DW1 Opar Zachary Wonumbe and DW2 Leo Twinomuhangi.

The two (2) witnesses stated in their witness statements that Kajjansi Central Forest Reserve was first gazetted as a Central Forest Reserve in 1932, then in 1948 and 1968 and finally in 1998 and it is still gazetted as such to date.

The two (2) witnesses further contended that the said Kajjansi Central Forest Reservehas never been a degazetted.

DW1 Opar Bernard Zachary Wonumbe a Boundary and Survey Specialist working with National Forest Authority (NFA) stated that he collected the coordinates of the suit titles and plotted them on the cadastral map and found them falling squarely inside Kajjansi Central Forest Reserve.

DW1 further stated that a Forest Reserve of any nature can only cease wholly or in part to be so if the Minister declares so by an Order published in the Gazette.

He also contended that the Plaintiffs have embarked on massive grading, surveying and clearance of vegetation on the suit land, much to the detriment of the Defendant and the country as a whole hence the need for an order of restoration against the Plaintiffs.

DW2 Leo Twinomuhangi a Ranger Manager Lake Shore Range/Central Region of the Defendant stated that the boundary plan of Kajjansi Central Forest Reserve has never changed.

Issues

The following issues were framed for determination

  1. Whether the Plaintiffs/ Counter-defendants are the lawful owners of the suit property?
  2. Whether or not, the parties are entitled to the respective declarations sought?
  3. What remedies are available to the parties?

 

Counsel for both parties filed written submissions which Court has taken into consideration in determining this suit.

In civil cases the Standard of Proof is on a balance of probabilities.(See Uganda Petroleum Co. Ltd Vs Kampala City Council Civil Suit No.250 of 2005)

The Defendant/Counter-Plaintiff alleged illegality or fraud on the part of the Plaintiff/Counter-Defendant. The standard of proof is that fraud must be proved strictly the burden being heavier than on a balance of probabilities generally applied in civil matters. (Ref: Kampala Bottlers Ltd Vs Damanico (U) Ltd SCCA No.22 of 1992).

Issue No. 1

Whether the Plaintiffs/Counter-Defendants are the lawful owners of the suit property

 

This issue inherently raises two points for determination:-

  • Whether or not the suit land forms part ofKajjansi Central Forest Reserve.
  • Whether the Certificates of Title the Plaintiffs/ Counter-Defendants are holding on or over the suit land were procured fraudulently, illegally and or in error.

In the case of Nsubuga Vs 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.

PW3 Lutaya John Vianney, a land surveyor at the Principal level in the Ministry of Lands, Housing and Urban Development adduced correspondences, area schedules and maps in exhibits PE98, PE 100, PE101 and PE102 that showed that the Defendant had land in the area which had a title and which was in Plots 19, 31, 78, 79 among others. This was corroborated by exhibit PE98 an Internal Memo from DW2 Opar Bernard Zachary to the District Staff Surveyor of Wakiso District in which he categorically states plots 19, 31, 78, and 79 as the property in which National Forestry Authority has an interest.

PW3 further testified that they were the custodians of all the records related to land and that the suit land was not and did not form part of the Kajjansi Forest Reserve.

In Dr. Vincent Karuhanga t/a friends Polyclinic Vs National Insurance Corporation & Uganda Revenue Authority HCCS No.617 of 2002 it was held inter alia, that, “… The general rule is that the burden of proof lies on the party who asserts the affirmative of the issue or question in dispute. When that party adduces evidence sufficient to raise a presumption that what he asserts is true, he is said to shift the burden of proof that is, his allegation is presumed to be true unless his opponent adduces evidence to rebut the presumption.”

DW2 Opar Bernard Zachary on cross examination stated that the office of Commissioner Mapping and surveys was the custodian of all survey records and issues instructions to survey in the country and processing all survey field DATA.

He further stated that an opinion of the Commissioner Mapping and Surveys is binding on his office. Similarly DW1 Leo Twinomuhangi on cross examination also stated that a legal opinion of the Commissioner Mapping and Surveys was binding on his institution.

It is the finding of this court that the evidence adduced by DW1 and DW2 in support of the Defendant’s allegations of ownership as against the Plaintiffs was inadequate, considering the fact that the evidence from the office of the Commissioner Mapping and Surveys was not contested.

Accordingly, there is insufficient evidence to support the claim that the suit land forms part of Kajjansi Central Forest Reserve.

As to whether the Certificates of Title held by the Plaintiffs/ Counter-Defendants over the suit land were procured illegally and or in error, 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.

Counsel for the Plaintiffs/Counter-Defendant argued that fraud or illegality must not be presumed but has to be specifically pleaded and strictly proved and the requirement to plead particulars of fraud is mandatory.

He further argued that fraud cannot be presumed or inferred from peripheral matters and that the high standard of proof required in cases of fraud must be satisfied and mere suspicion or speculation is not proof.

It was counsel’s contention that the Defendant/ Counter-defendant in the instant case had failed to prove and demonstrate that the Plaintiffs/Counter-defendants were registered proprietors of the suit land through fraud.

Counsel for the Defendant argued that the Plaintiffs’ own evidence namely the Certificates of Title and search letters of 1/3/2017 and 10/3/2017 showed that Nabbanja and others own plots 1469,344 and 246, Mbabazi owns plots 301 & 307, Serugo owns plot 495, Mukasa owns plot 1344, Onyango owns plot 337, Lumbuye owns plot 309, Karamagi and others own plots 300,306,308 and 304.

He further argued that there was no evidence that the above owners sold and transferred these plots to the Plaintiffs or Logic or Klassique.

It was counsel’s contention that this rendered the purported sales and transfers illegal, null and void.

It is the established law that fraud means actual fraud or some act of dishonesty that includes dishonest dealings in land or sharp practice intended to deprive a person of an interest in land including unregistered interest. (See case of Kampala Bottlers Ltd. Vs Damanico Ltd. SCCA NO.22 of 1992).

The burden of proof of illegality or fraud lies on the person alleging so. Such must be specifically pleaded in the pleadings, giving the particulars of the alleged fraud and prove so.

Order 6 Rule 2 of the Civil Procedure Rules reads:

In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default or undue influence, and in all cases in which particulars may be necessary, such particulars with dates shall be stated in the pleadings.”

The acts alleged to be fraudulent must be set out, and then it should be stated that these acts were done fraudulently.

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. (Ref: J.W Kazzora Vs M.L.S Rukuba Civil Appeal No.13 of 1992)

In Kampala Bottlers Ltd Vs Damanico (u) Ltd SCCA No.22 of 1992 Wambuzi CJ stated in his Judgment that “….fraud must be attributable to the transferee”

In essence 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.

The burden of proof lay on the Defendant/ counter-plaintiff to prove and demonstrate that the Plaintiffs/Counter-defendants were registered as proprietors of the suit land through fraud. The defendant called two witnesses DW1 and DW2 to support its case. 

However, the said witnesses did not lead evidence to show that the Plaintiff/Counter-Defendant obtained the suit land through fraud or in error or illegally.

In the instant case fraud was not specifically pleaded and neither was fraudulent intent pleaded. Fraud was not only not pleaded but it was also not proved

To act with “intent to defraud” means to act wilfully, and with the specific intent to deceive or cheat; ordinarily for the purpose ofeither causing some financial loss to another, or bringing about some financial gain to oneself. (Ref: Fredrick J.K Zabwe Vs Orient Bank & Ors SCCA No.4/2006)

The action and conduct of the Plaintiffs before, during and after the purchase of the land were those of a cautious and diligent buyer and as such cannot amount to fraud.

In the case of Sir John Bageire Vs AusiMatovu C.A.C.A No.07 of1996Kikonyogo, 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 inter alia 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.”

Counsel for the Plaintiffs argued that the 1st Plaintiff went to great length in adducing uncontroverted evidence on the process of how the Plaintiffs acquired the sit property, from the physical inspection of the suit land, consultation of neighbors and local leaders, to the carrying out due diligence on the vendors, searches on the lands registry, opening of boundaries, consultation and involvement of the Commissioner Surveys & Mapping up to the process of payment of valuable consideration of USD 1,520,000 (One million five hundred twenty thousand US Dollars), payment of stamp duty and taking of actual possession of the said suit property.

Counsel further argued that this evidence was corroborated by the testimony of Peninah Busingye Kabingani (PW2) and exhibits PE46-PE76 land search statements, exhibits PE77-PE83 evidence in form of Sale agreements, proof of payment which were exhibited as Plaintiffs exhibits PE83-PE87, tax payments receipts which were exhibited as Plaintiffs’ exhibit PE88 and the certificates of title exhibited as Plaintiffs’ exhibits PE1-PE45.

Counsel also argued that S.59 of the Registration of Titles Act Cap 230 is authority for the proposition that a Certificate of Title is conclusive evidence of Title.

PW1 also testified that the Plaintiffs carried out due diligence on the vendors and established that the vendors were both private persons and real estate companies with physical and proper registered addresses and were registered proprietors of the suit lands

A bona-fide purchaser does all that is reasonably possible and necessary within their power to find out about all material facts pertaining to property before he or she could commit him or herself to purchase the same.

It is the view of this court that if there any issues regarding the issuance of Titles over the suit land by the Commissioner for Land Registration, then it is the said Land Registry that has to explain any discrepancies if at all they exist.  The Defendants cannot wait until they are taken to court if at all they have any lawful claims.  They could have invoked the procedures provided under Section 91 of the Land Act CAP 227.

This court is accordingly satisfied that the Plaintiffs/ Counter-Defendants are the lawful owners of the suit property.

Issue No. 2

Whether or not, the parties are entitled to the respective declarations sought?

 

This raises the question as to who was the trespasser to the said suit land as alleged by both parties as against the other.

In the case of Lutaaya Vs Stirling Civil Engineering Company Civil Appeal No.11 of2002 it was stated that;

“Trespass to land occurs when a person makes an unauthorized entry upon land, and thereby interferes, or portends to interfere, with another person’s lawful possession of that land. Needless to say, the tort of trespass to land is committed not against the land, but against the person who is in actual or constructive possession of the land. At common law, the cardinal rule is that only a person in possession of the land has capacity to sue in trespass.”

According to the testimony of PW1 and PW2, the Plaintiffs are in actual possession of the suit property and it was also an admitted fact that the Plaintiffs were the registered proprietors of the suit property.

Section 59 of the Registration of Titles Act cap 230 is authority for the proposition that a certificate of title is conclusive evidence of title. 

Trespass is a possessory action where if remedies are to be awarded, the Plaintiff must prove interest in the land.

The Plaintiffs/ counter-Defendants are the registered proprietors of the suit and are in physical possession of the same as ascertained from the witness statements of DW1and DW2.

The actions of the Defendant’s agents who entered on the suit land and arrested the Plaintiffs’ workers amounted to trespass on the Plaintiffs’ land.

 

 

Issue No. 3

Remedies are available to the parties.

The Plaintiffs prayed for general damages to be awarded to them. According to PW2’s testimony, the plaintiffs had a big project on the suit land where foreign US$ 18,000,000 (United States Dollars eighteen million)

PW2 also testified that as a result of the Defendant’s act of stopping the Plaintiffs usage of the suit land, the Plaintiffs lost the said project as the partners declined to invest in the suit land which was under controversy of ownership and the Plaintiffs sought for general damages.

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

The Plaintiffs only adduced a business plan exhibited as PE89 to substantiate the existence of this project.

It is my opinion, that the Defendant’s actions of stopping the Plaintiffs’ usage of the suit land entitles the Plaintiffs to general damages.

Considering the inconvenience occasioned to the Plaintiff as a result of the Defendant’s actions, I find that 200,000,000/= (Two Million Shillings) is appropriate general damages, and I award the same.

The Plaintiffs prayed for costs of the suit. The position of the law under Section27(2) of the Civil Procedure Act cap71 is that costs are awarded at the discretion of court, and follow the event unless for some good reasons the court directs otherwise. (See: Jennifer Rwanyindo Aurelia &Anor Vs School Outfitters (U) Ltd).

The Plaintiffs have succeeded in their claim and this court finds no justifiable reason to deny them the costs of this suit.

Judgment is accordingly entered in favor of the Plaintiffs/Counter- Defendants as follows:

  1. The Plaintiffs are declared the lawful owners of land comprised in Busiro Block No.376 Plots 1278, 1279, 1280, 1281, 1299 and 2281; Busiro Block No.537 Plots 291, 294, 335, 337, 347, 435, 482, 483, 488, 489, 497, 498, 499, 500, 537 and  Busiro Block No.376 Plot 1282; Busiro Block 537 Plots 295, 300, 301, 306, 307, 308, 309, 312, 342, 343, 344, 346, 384, 484, 486, 487, 490, 491,492, 493, 495 and 501; and Busiro Block 405-406 Plots 1344 and 1469 land at KataleWakiso District.
  2. The actions and activities of the Defendant amount to trespass on the suit property.
  3. A Permanent Injunction is to issue restraining the Defendant/counter claimant,  their servants, agents and or persons deriving from it from trespassing, disposing , alienating or in any other interrupting or interfering with the Plaintiffs’/Counter-Defendants’ ownership, use, enjoyment of and, or quiet possession of the suit property.
  4. The Defendant/Counter-Plaintiffs are ordered to pay as general damages 200,000,000/= (Two Hundred Million Shillings) to the Plaintiffs.
  5. The Counter claim by the Defendants/counter-Plaintiffs is dismissed for lack of merit.
  6. The Defendant/Counter-Plaintiff is to meet the costs of this suit in both the head suit and the counter-claim.

 

 

GODFREY NAMUNDI

JUDGE

DATE: 28th June, 2018