Court name
HC: Land Division (Uganda)
Case number
Civil Suit 158 of 2015
Judgment date
3 September 2018

Kyeyune Mukasa v Registered Trustees of Kampala Archdiocese and 2 Others (Civil Suit 158 of 2015) [2018] UGHCLD 90 (03 September 2018);

Cite this case
[2018] UGHCLD 90
Coram
Namundi, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

LAND DIVISION

CIVIL SUIT NO. 158 OF 2015

MICHAEL JOSEPH KYEYUNE MUKASA --------------------------PLAINTIFF

VERSUS

  1. THE REGISTERED TRUSTEES

OF KAMPALA ARCHDIOCESE

  1. BONIFACE KYEYUNE -----------------------------------------DEFENDANTS
  2. SAMUEL KAGGA

JUDGEMENT

The Plaintiff filed this suit against the Defendants seeking several reliefs which include:

  • Cancellation of 1st Defendants Registration in respect of Kyadondo Block 14, Plot 431 at Najjanankumbi
  • Cancellation of encumbrances if any including a caveat by the Defendant No. 2.
  • Eviction of Defendants from Suit Property.
  • Mesne Profits payable by the Defendants to the Plaintiff. 
  • Declaration that the last will of Rev. Father Joseph Kyeyune is null and void.
  • General Damages, Mesne profits and Interest.
  • Permanent injunction against the Defendants.
  • Costs of the Suit. 

The brief facts are that the late Rev. Father Joseph Kyeyune was the Registered proprietor of the suit land.  On the 8/9/1997, the Suit land was registered in the names of the Plaintiff as a minor until 1996.  Rev. Father Kyeyune was appointed guardian to the Plaintiff and was given power to deal with the suit land under High court Miscellaneous Cause 79 of 84.

The suit land was then transferred to the 1st Defendant by Rev. Father Kyeyune on 6/7/1998 and he even restated the above in his will before his death in 2003.  The Plaintiff then filed this suit claiming the suit property.

The 2nd Defendant claims interest in the suit land as customary heir to Father Kyeyune, while the 3rd Defendant claims he is a lawful tenant.

All the three Defendants filed statements of Defence in which they deny the Plaintiffs claims. 

The parties framed the following issues for determination:

  1. Whether the 1st Defendant was lawfully registered as proprietor to the Suit Land.
  2. Whether the 2nd Defendant has a valid claim to part of the Suit land and was justified in lodging a caveat thereon.
  3. Whether the 3rd Defendant is lawfully residing on part of the suit land.
  4. Remedies available to the parties. 

The parties agreed on all the documents relied on and they were admitted in evidence accordingly.

The parties gave evidence by way of witness statements by – the Plaintiff himself, the estate manager of the 1st Defendant – Paul K. Ziwa, while the 2nd and 3rd Defendants made their own statements. 

The Plaintiffs evidence is basically what is contained in the Plaint as well as the agreed facts.

He however states that he was away from Uganda for along time and was only informed by his brother Senyonjo Joseph in 2014 that his property had been fraudulently and illegally transferred into the names of the 1st Defendant. 

The said Senyonjo Joseph was not called as a witness.  There is also no evidence of the Plaintiff having been away from the country for a long period as he had nothing to prove so when tasked on cross examination. 

The 1st Defendants evidence as given by DW1 Mr. Ziwa the estates manager is that the Archdiocese received a title in its names and never participated in the transfer process. 

The 2nd Defendants evidence is that he is a Kibanja holder – relying on the authority of the will by the late Rev. Father Kyeyune. 

The 3rd Defendant testified that his only interest in the land is that of a tenant and he has been paying his rent as and when required to those who claimed authority over the property. 

No other person has demanded rent from him for the period he has been in occupation. 

I have considered the evidence, the submissions and the exhibits presented and agreed upon by the parties.

There is no dispute that the suit property was at one time registered in the names of the Plaintiff.  (See Exhibit PEX 1).  Neither is there a dispute that the same was transferred into the names of the 1st Defendant in 1998. 

I have had a look at the Guardianship Order by the High Court – which appointed Rev. Father Joseph Kyeyune as guardian of the Plaintiff. 

The Rev. Father Kyeyune is stated in that order or be the uncle of the said Michael Joseph Kyeyune whose father was dead at the time (PEXH 7).  There is an attachment to that order – a letter by. Opio Robert, for the Chief Registrar of Titles dated 15/11/1993 and addressed to Ms Edward Elue & Co. Advocates. 

The said letter laid out the procedure to follow in respect of the land over which the guardianship order was granted.  Inter alia, it directed that the same could be transferred to a would be purchaser without permission from the Registrar of Tittles.

That the guardian ship order was enough.  It is dated 15th November 1993. 

The issues framed by the parties accordingly have to be considered with the above background in mind. 

Issue No. 1. 

Whether the 1st Defendant was lawfully registered as proprietor of the suit land. 

It is the case for the Plaintiff that the 1st Defendant got registered on the suit land certificate of title without the consent of the Plaintiff or without the Plaintiff’s transfer instrument, or attorney.  That the guardianship order was not invoked during the Plaintiff’s minority period which lapsed on 25/4/1996. 

That the Registration of the 1st Defendant was in 1998 and that this was long before Rev. Father Kyeyune made his will in 2003 – bequeathing the property that was no-longer his to the 1st Defendant. 

That this cannot be termed a donation since the 1st Defendant was already registered as proprietor.  That this renders the 1st Defendant’s registration fraudulent. 

Reference was made to SSCA 4/2006 – Fredrick JK Zaabwe Vs Orient Bank Ltd & 5 Ors, where fraud has been defined as “anything calculated to deceive, whether by single act or combination or suppression of truth, or suggestion of what is false, whether it is by direct falsehood or innuendo, by speech or silence……..”

It is submitted that the 1st Defendant having kept silent in receiving and keeping the certificate registered in their names when the Plaintiff had not executed a transfer instrument in their favour was fraudulent and unlawful. 

That the 1st Defendant’s conduct amounted to suppression of the truth to unfairly cheat the Plaintiff – which amounts to fraud. 

For the 1st Defendant It is submitted that they acquired the land by way of a donation from the late father Kyeyune in 1998 who handed over the Certificate of Titled after he had had the 1st Defendant registered as proprietors.

That this is supported by the evidence of Paul Zziwa in his witness statement paragraphs 5, 6 and 7.   That under Section 59 of the Registration of titles Act, a Certificate of Title is conclusive evidence that the person named in the Certificate is the lawful proprietor, and such title is indefeasible except in circumstances set down by law

That Section 92 RTA allows dealing in land in various ways and such interests are passed in the manner prescribed under Section 54 of the Registration of Tittles Act.

In respect of fraud it is submitted that under Sections 59 and 77 of the RTA, the Title can only be impeached in situations where the transferee participated in or was privy to the fraud.  Fredrick Zaabwe Vs Orient Bank (Supra) was also relied on upon in defining fraud. 

Defendants counsel also cited Kampala Bottlers Ltd Vs Dominico (U) Ltd SCCA 22/92.  Therein, the court observed that “proof of fraud lies on the claimants, and its burden is higher than the balance of probability but not higher than the burden in criminal matters.”

In the same case it was held that: “Fraud must be attributed to the transferee by necessary implication, that the transferee must be guilty of some fraudulent act or must have knowledge of such act by somebody else and take advantage of such act.”

It is submitted that in the instant case, the Plaintiff does not substantiate that the 1st Defendant participated in the fraud or had any knowledge of the same.  That he has not adduced any evidence that the 1st Defendant had any hand in the transfer of the land. 

I have considered the evidence adduced by the Plaintiff.  He says he was only informed by Joseph Senyonjo to come and reclaim his land that was fraudulently transferred. 

He has no substantive evidence that the 1st Defendant acquired the land by fraud.  The whole case for the Plaintiff is based on the differing dates i.e, that the transfer was effected after 1996 when the Plaintiff had attained maturity age.   Secondly that Rev. Father Kyeyune could not have donated the land to 1st Defendant in 2003 when it was already in the names of the 1st Defendant.  Thirdly, that the 1st Defendant knew these anomalies and kept quiet.

I must say the Plaintiff’s evidence falls short when it comes to the part played by the 1st Defendant in the transfer of the land.  If the late Rev. Father Kyeyune failed to use the Guardianship Order in its duration, this cannot be visited upon the transferee who I am satisfied received an already registered title.

I also mention the letter written by/for the Chief Registrar land Registration dated 15/11/1993, giving guidance on how the land could be disposed off -------- without permission from the Chief Registrar since there was a guardianship order.

It is not far fetched to conclude that the transfer was done in accordance with that advice and regardless of the dates. 

It has also been submitted for the 1st Defendant that the Plaintiff acquiesced to the donation and transfer of the property, having failed to take any action over the period. 

The Plaintiff is therefore estopped from coming up with a claim at this moment.  The case of Oilamong Vs Mohamed Olinga (1985) HCB was cited where Odoki J (as he then was) state:

“Acquiescence seems to be an equitable doctrine developed by the courts to temper the rigidity of the law and is dependant on the rule of estoppel.  The doctrine of estoppel prohibits a party from proving anything which contradicts his previous acts as a declaration to the prejudice of a party who relying upon them has altered his position.  Both acquiescence and limitation destroy the former’s right temdy------“

It is submitted that the Plaintiff did nothing about the land on attaining age of maturity - commensurate with a person that believed himself to be the rightful owner of the suit property.

That the plaintiff claims he was in South Africa and could not do anything.  That he was only informed by his brother in 2014 to come and reclaim the land. 

I have also considered that evidence and submission to which there is no rejoinder.  There is no evidence of the Plaintiff having been away or that he was suffering a disability.  I have the impression that the Plaintiff is only trying to take advantage of the date the Certificate was issued to his advantage. 

He was aware of the donation and did nothing until Father Kyeyune died.  He claims the said Father was his farther, the guardianship order says the Plaintiff’s father died and Father Kyeyune was his guardian. 

He has not discharged the burden to prove the fraud either by father Kyeyune or by the transferee the 1st Defendant to the required standard.      

I accordingly resolve Issue No. 1 in favour of the 1st Defendant.  I hold that the 1st Defendant is lawfully registered as proprietor of the suit land.

Issues No. 2 and 3

  1. Whether the 2nd Defendant has a valid claim to part of the Suit land and was justified in lodging a caveat thereon.
  2. Whether the 3rd Defendant is lawfully residing on part of the suit land.

The Plaintiff having failed to prove that the 1st Defendant is not lawfully registered as proprietor, it follows that delving into Issue 2 and 3 are really academic. 

The 2nd Defendant has clearly stated that he is a Kibanja holder, and derives his interest from the Title holder, much as the portion he occupies was given to him in the will of the late Rev. Father Kyeyune.  This is a matter between him and the lawful Title holder. 

Finally, the 3rd Defendant can neither be said to be unlawfully on the land or an impostor.  He has paid his rent faithfully for all the time he has been in occupation and not even once has the Plaintiff ever demanded rent from him.

In conclusion, I find the plaintiff’s claim fails. 

I dismiss it accordingly and make the following orders:

  1. That the 1st defendant is lawfully registered as the proprietor if the suit land. 
  2. The Plaintiff has no claim against the 2nd and 3rd Defendants.
  3. The Plaintiff will meet the costs of this suit.  

 

 

GODFREY NAMUNDI

JUDGE

DATE:3rd September, 2018