THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA, AT KAMPALA
CIVIL SUIT NO. 1088 OF 1998
STREAMS OF LIFE GIVING WATER MINISTRIES…………….. PLAINTIFF
1. AGNES OCHENG]
2. IRUMBA FRED]
3. DAVID MELVILLE ARYEM OCHENG]
4. DR. MARTIN ALIKER (ADMNISTRATOR
OF THE ESTATE OF THE LATE DAUDI OCHIENG…………………………………………………………DEFENDANTS
BEFORE: V.F.MUSOKE-KIBUUKA (JUDGE)
The plaintiff is a voluntary religious organization. It was registered under it’s present name on 30th March, 1994. (Exh P1). Prior to that date, it would appear, the plaintiff was known as Trinity Ministries International.
The plaintiff seeks through this suit, an order requiring the Commissioner for Land Registration to counsel the certificate of title held by the 2d defendant over land comprising, Kibuga, Block 10, plot 201, upon the ground of fraud. In the alternative, the plaintiff seeks a declaration that it is a bona fide occupant of the disputed land
entitled to a certificate of occupancy. It seeks an order against the 1 defendant for a refund to it of a sum of shs.2,500, 000/= together with general damages, interest and costs.
The 1st defendant did not file a defence. The case proceeded against her proceeded as provided under Order 9 rule 8 of the Civil Procedure Rules.
The 3rd defendant too did not file a defence. However, the claim against him was withdrawn by the plaintiff.
The 2nd and 4th defendants each filed a defence. However only the 2nd defendant appeared in court to defend the case against him. The hearing proceeded ex-parte as against the 4th defendant.
The plaintiff’s case is that it entered into a contract of sale dated 13th June 1991 (Exh P2) with the first defendant. The first defendant agreed to sell the disputed land, measuring 0.19 acres, to the plaintiff for a consideration of 2,500,000/=. A sum of 1,700,000/= was paid by the plaintiff to the first defendant upon execution of the contract of sale. The balance, 800,000/= was to be paid to the first defendant before the end of September, 1991.
The disputed land was originally owned by the late Daudi Ocheng. After his demise, it was registered in the names of the fourth defendant as administrator of the estate of the late Daudi Ocheng. The first defendant was a daughter of the late Daudi Ocheng and, therefore, one of the beneficiaries of his estate.
Under the contract of sale, the first defendant undertook to get registered as proprietor of the disputed land. The plaintiff would take possession but completion of the sale would take effect after the registration of the first defendant as proprietor of the disputed land when she would execute transfer deeds in favour of the plaintiff
The first defendant never got herself registered as proprietor of the disputed land. Instead the fourth defendant transferred the disputed land to the third defendant (one of the beneficiaries of the estate). The third defendant, in turn, transferred the disputed land to the second defendant. The second defendant was registered as proprietor on 15.7.1992.
The plaintiff claims that the second defendant obtained the certificate of title through fraud and seeks an order for the title’s cancellation upon that basis and under the provisions of section 185 of the Registration of Titles Act.
In his defence, the second defendant denied knowledge of the fact that the plaintiff and the first defendant entered into an agreement of sale of the disputed land on
June, 1991. The second defendant pleaded that he was the registered proprietor of the
disputed land and that he was a bona fide Purchaser for value and that the plaintiff was a trespasser on the disputed land. He prayed, in a counter claim, for an eviction order, general damages, mesne profits and costs of the suit.
The fourth defendant’s defence was that having divested himself of his duties as administrator of the estate of the late Daudi Ocheng, he could not be the subject of any of the claims set out in the plaint.
The following facts were of common agreement during the scheduling conference:
a) that the plaintiff was incorporated under the Companies Act, originally as Trinity Ministries International, but on 30th March ,1994, the name was changed to Streams Of Life Giving Water Ministries,
b) that the disputed land is registered in the names of the second defendant; and c) that the plaintiff is in physical possession of the disputed property.
Four issues were agreed upon for determination in this suit. They are:
a) whether the plaintiff purchased the disputed property;
b) whether the second defendant obtained the certificate of title through fraud;
c) whether the plaintiff is a trespasser on the disputed property; and
d) what remedies are available to the parties?
The only oral evidence on this issue was that of PW1, Jonathan Mitanda. His evidence was that the disputed land was donated to a church called Christian Cross Fellowship by one Andrew Kalibbala Kalanzi, now deceased. That was about 1983. Kalanzi donated several plots to that church.
The church started constructing a church building on a plot other than the one in dispute. They did not build the church on the plot in disputed because it was part of