THE REPUBLIC OF UGANDA
CIVIL APPEAL NO. HCT 02 CV. AC 0001/03
(Arising from The Judgement and Decree of Arua Chief Magistrate's Court Civil Suit No. 29/02 before His Worship Boniface Wamala Esq.
Magistrate Grade I)
NYAKUNI JAMES ::::::::::::::::::::::::::::::::::: APPLICANT
BANKOLE MUSTAGA JABIR
AHMED JABIR ::::::::::::::::::::::::::::::::::: RESPONDENTS
BEFORE: HON. JUSTICE MARY I.D.E. MAITUM
This is an appeal from the Judgement and decree of the Chief Magistrate's Court at Arua, Civil Suit No. 29/02 before His Worship Boniface
Wamala, Magistrate Grade I.
The Respondents/Plaintiffs had sued the then Defends/Appellants for vacant possession of Plot 26 Adumi Road in Arua Municipality.
The Plaintiffs had also prayed for a permanent injunction and against the then Defendants/Appellant and for costs of the suit.
included 26 Duka/Adumi Road. Their Aunt Siama, who was illiterate, became the Administrator of the Estate of A. Jabir who had died
intestate. Due to the fact of her illiteracy, the 1st Appellant/Defendant had been agreed to, by members of the family, to be a Co-Administrator with Siama and two others who have since
died, i.e. Ngingi Kicks and Hamad Amber.
Allahai Jabir also owned Plot. 1-3 Duka Road, Arua Provision Stores (U) Ltd, 44 William Street Arua.
was not properly documented. The family gave him authority to apply to the Municipal Council Arua to grant a lease of the Suit Plot.
The 1st Appellant then applied for the lease in his own names and informed the family that since Siama was illiterate and the other two Co.
Administrators were deceased he would use his names to secure the lease. The 1st Appellant then secured the lease in his own names but used funds from the estate of Allahai Jabir to pay the required fees.
suit land from the 1st Appellant/Defendant. The family blocked development to the land, went to Municipal Council offices from where they learnt that, the
1st Applicant had written to the Council to transfer the lease in the names of Florence Poni as the new leasee.
the 1st Appellant. The 2nd Appellant during the time of the dispute over the land with Florence Poni was a tenant of the Respondent and was fully briefed by them on the development on the suit land as the
The Respondents then sued the two Appellants and his Worship B. Wamala found in their favour hence this appeal.
There are 8 grounds to this appeal:-
The learned trial Magistrate erred in law to grant the orders to the Respondents on a matter pertaining to an estate of a deceased
person when they were not the administrators of the same;
late Allahai Ibrahim Jabir, which exceeded his jurisdiction;
The learned trial Magistrate erred in law in admitting copies of documents as primary evidence and,
Set aside his worship B. Wamala's decree and reinstate the 2nd Appellant's name on the Certificate of Title and
The Respondents pay costs for both this hon. Court's and those in the lower court.
Mr. Alaka referred to Stroud's Judicial Dictionary P. 1517 and Halisbury's laws of England for 3rd Ed. Vol. 16 paragraph 121 & 174 for definitions of "Personal representatives, 'Executors and Administrators”.
He further contended that the 1st Respondent was not the natural son of Haji Ibrahim Jabir.
He contended that there was no evidence that the letters of Administration to Siama on 14/11/86 was ever revoked and the 1st Appellant included in the subsequent grant.
S. 234 of the Succession Act and that the trial Magistrate should have bared them from prosecuting the suit.
On the pleadings, which contained allegations of fraud, learned Counsel Alaka cited;
1. Kampala Bottle Ltd -v- Damanico (U) Ltd SCCA NO 22/92 and
Alibhai and ors -v- Karia & ors 1995-98 Vo!. 2 EALR where the late Hon Justice Oder stressed that "Where fraud is pleaded the particulars must be given/~ He argued that although the learned trial Magistrate was alive to this principle he, nevertheless, went ahead and found that there was fraud although the particulars of the fraud were not pleaded.
to him. Learned Counsel then cited in Section 176 RTA Cap 230 (The then 5.184 RTA Cap 205) which provides that no act of ejectment or other action for recovery of land shall lie or be sustained against a person who is the registered proprietor except on the ground of fraud. Counsel argued
that the learned trial Magistrate Grade I did not consider whether the Respondents came within the contemplation of 5.176 of the
RTA. (revised). Mr. Alaka further submitted that the 1st Respondent was merely a Managing Director of the family business called "Arua Provisional Stores" but not an Administrator of Haji Ibrahim Jabir's estate as assumed by the learned trial Magistrate Learned Counsel Alaka further pointed
out that the learned trial Magistrate G.1 exceeded his jurisdiction by purporting to cancel the 2nd appellant's title when it was only the high court which had the powers to do so under 5.177 RTA Cap 230.
Poni from whom he bought the suit plot. Counsel Alaka cited the case of Lwanga -y- Registrar Titles (1980) HCB 25 to the effect that a bona fide purchaser's title was un impeachable since a previous registered owner, through fraud, could pass
a good title.
He stated that when Florence Poni attempted to develop the plot, she was resisted by the Jabir family members inspite of the fact
that they were informed by the Council that the plot did not belong to the late Haji Ibrahim Jabir. He continued that the Respondent
had appealed to the IGG whose office confirmed that the plot belonged to Florence Poni. He submitted that the 2nd Appellant was propelled to purchase the suit plot from F. Poni on the strength of the Report by the IGG. Counsel argued that this
very fact rendered the 2nd Appellant a bone fide purchaser for value.
photocopies tendered by persons who were not parties to the documents and that the learned trial Magistrate had relied on these secondary
evidence contrary to section 65 of the Evidence Act Cap 129.
had claimed to be a son of the late Ibrahim Jabir whereas he was not. He further pointed out that the letters of Administration bore
the names of SIAMA JABIR whereas she had given her name as SIAMA EZAKARU - PW3 Counsel further submitted that the learned trial magistrate
had relied on hearsay and failed to properly evaluate the evidence thus arriving at erroneous conclusion.
Learned Counsel Tebyasa Ambrose, for the Respondents, submitted that the suit plot had been occupied and used by the Respondents.
estate of the late Haji Ibrahim Jabir they were beneficiaries of that estate and as such had the capacity to commence proceedings
against an Administrator who held the estate in trust for them.
to benefit from an estate were assignees and heirs of the deceased. He further stated that paragraph 175 of Halisbury's laws of England (supra) confirmed that Administrators of a deceased person's estate
were merely Trustees for the benefit of the beneficiaries.
in the said suit. Learned Counsel cited:
Abdu Ssetayiga & ors -Y- Sulemani Semanda & ors SCCA No. 8/95and Supreme Court decision in:
the estate were valid.
beneficiaries of his estate as they had been brought up and fostered by the deceased.
Commenting on Stroud's Judiciary Dictionary cited by Counsel Alaka, Counsel Tebyasa that that dictionary in paragraph 3 stated:
Counsel further submitted that the 2nd Appellant, as a tenant of the Respondent knew about the controversy on the suit plot and was therefore a party to the fraud when Kampala District Land Board and anor. Jasper Sinqh Sanqhahu -versus- Noble Builders Ltd SCCA No 13/02 P.4 & 5. The background to the suit land is rather checkered, and this has some bearing on the status of Plot 26 Adumi Road and its relationship On 15/4/1975 A.I. Jabir applied to the Provincial Commissioner for Lands and Surveys in Gulu for allocation of Plot 26 Adumi Road
Adumi Rd in blissful ignorance of the true position until 1996 when Poni staked a claim on the plot.
Rd as beneficiaries and occupants of the Suit Plots since their uncle "acquired' the use of it in 1974. This is what the Respondents were doing when they authorized the 1st Appellant to obtain a lease for the Suit Plot. "Even if no letters of administration had been obtained, because of the Respondents right to the land and his developments thereon In paragraph 7 of the Plaint the Respondents stated that: As regards fraud by the 2nd Appellant, the 1st PW1, Mohamed Jabir, 3d respondent, testified at p. 12 of the Proceedings:- ''He used to ask us about all the happenings and we could relate everything to him". When the 2nd Appellant was asked whether Poni ever informed him as to why she was selling the plot to him. He answered:- On fraud allegation concerning the 2nd Appellant the learned trial Magistrate pronounced himself as follows. Ground 3 of the appeal is dismissed. Since there is no record to the effect that the documents were challenged, I find this ground superfluous and therefore dismiss it. Consequently the court finds as follows: The Registrar of Title is hereby ordered to cancel the 2nd The Appellants shall meet the costs of this appeals.
“The phrase legal representative and such cases will generally mean next of skin and not Executors or Administrators"
He further stated that:
''The definition included persons who become entitled to the deceased's property. Counsel argued that under 0.31 of the CPR Executors
and Administrators are entitled to sue but that the order was not mandatory and that a person with a rightful claim to the estate
could sue or be joined as a party to a Suit. Counsel, Tebyasa, submitted that PW3 SIAMA JABIR, according her evidence had given authority,
as someone having the Letters of Administration to the Respondents to sue the appellants. He further submitted that even without
that authority, the Respondents had a right, under S. 178 RTA to commence an action for the recovery of property fraudulently appropriated.
He added that a person deprived of land had a right to sue to recover it. - See Israel Kaggwa supra. Counsel stated that in the above case the Supreme Court held that even if the Respondent had no Letters of Administration,
his right to the land did not depend on Letters of Administration. Counsel submitted that the evidence that the Respondent's father
had used the suit land was not challenged in the lower court and that the Respondent's use of the land gave them the right over it.
Counsel stated that the trial in the lower court was properly commenced and that substantive justice was done and therefore there
was no need to address issues which were not canvassed in the lower court.
Court. He further submitted that the Appellants had not rebutted the evidence relating to fraud in the lower Court.
four Administrators, i.e. Siama, Kicks & Hamed Amba and himself, he had applied for the plot in his individual names, thus therefore,
admitting his own fraud. Counsel Tebyasa, quoted the WSD where in para 2 of the same the 1st Defendant and present 1st Appellant had stated "The 1st Defendant admits the contents of paragraph 2 of Plaint? see WSD.
of the suit plot. He further stated that the 1st Appellant had used funds from Ibrahim Jabir's estate to pay fees and premium for the suit plot.
the plot and for this reason she knew of the fraudulent acquisition of the plot by the 1st Appellant, Counsel stated.
he bought the plot from F. Poni. Counsel submitted that according to the evidence on record the 2nd Appellant tried to forcibly enter the suit plot and even took policemen to gain access and that he had all along known of the dispute
on that plot.
complied with by the 1st Appellant and not before. He further noted that the Appellant had sold the suit plot after only 2 years instead of the 5 years of
settled it. Citing
Vanansio Babiweyake &. 30rs C.A No. 57 LOS
apply for a lease of that land without recognizing the right of the occupant to exercise his right to be offered a lease; He contended
that the 2nd Appellant knew that the Respondent had disputed F. Poni's ownership of the suit land and should not have bought it from her.
relevant documents. He stated that since the Respondents had no legal representation their pleadings in Court was sufficient for
them to obtain substantive justice.
but he stated that the learned trial Magistrate had the power to order a cancellation of the lease to the 2nd Respondent which would have automatically cancelled the certificate of Title. Counsel argued that this hon. Court should address
itself on whether there was sufficient ground to warrant the cancellation of Title. Counsel further argued that the cancellation
of Title by the learned trial Magistrate was a mere declaratory order which he had power to make and cited:
of Title by the trial Magistrate was a mere irregularity which could be cured by an Appellant Court. He argued that this court could confirm the learned trial Magistrate's finding under S. 98 CPA and S. 33 & S. 142 of the Judicature Act.
under S. 29 (3) (a) of the Land Act because they were settled on that land through Haji Ibrahim Jabir by the land Commission.
to nieces and nephews as daughters and sons respectively. To the objection that the person to whom letters of Administration was
granted was not to PW3, who gave her name as SIAMA EZAKURU, and not SIAMA JABIR, Counsel for the Respondent countered that in the
case of B.O.B. Okello Oryem (No. citation given). It was held that one person could have several names.
complained of had not been specified by Counsel.
the Lower Court and that this court should ignore the procedural irregularities in the lower court's proceeding and base itself on whether substantive justice was done. Counsel cited, Makula International-versus- Cardinal Nsubuqa  HCB n.
in its totality and in respect of Art 126 (2) (c) of the Constitution Learned Counsel prayed Court to dismiss the Appeal.
to the JABIR family as represented by the Respondents. PW6, Abdu Twalib Kassajja testified in the trial that Nasur AIi Habuba Munyoro
had "given the /andNto Alahai 1. Jabir who in 1969 had married Habuba Alahai Jabir who was Munyoro's daughter named Apio. The witness testified in the lower
Court that Alahai Ibrahim Jabir had given Habuba A.N Munyoro shs 800/= "as a token of thanks” Now it was not elaborated whether the 800/= was for a Sale/gift for the land or whether it was in a form of dowry for Apio, the daughter
of Nasur A. Habuba Munyoro.
were eucalyptus trees planted there. According to this witness the land belonged to the late A.1. Jabir. In cross examination the
witness stated that the suit land was given to the late Jabir A.1. in 1972. The witness stated that there was a written document
when the suit land was given to A.I. Jabir. The witness claimed to have been present when the transaction took place and saw witnesses
to the transaction appending their names to the document. His father Twalib Kassajja and a sister to Nasur Habuba Munyoro were witnesses.
He stated that the documents in respect of the suit plot were signed in April 1975.
stated that the late Jabir had documents to the suit land and those which were not in dispute. She further testified that after the
late Jabir was killed; all his documents were passed to Mama Siama. PW4 further stated that the suit land used to have a house with a store and was used
as a parking yard and a garage. She stated that Habuba Munyoro had given the land to Alahaji Jabir in the presence of her children
one of whom was Nasur Ali. She testified that she had been shown a document concerning the suit land but she did not read it. She
further testified that when she got married to the late A.I. Jabir he was already in possession of the suit land and he had put up
a house and a parking yard on it.
yard. She testified that the suit plot also had a temporary structure on it which was used as a store, for charcoal and for slaughtering
all the files to Andiga, the 1st Appellant/Defendant. She stated that to her knowledge the Suit plot formed part of the late A. I. Jabir[s estate. She further averred
that the 1st Appellant had informed her that he had sold the suit plot to Florence Poni and that the 2nd Appellant had confronted her accusing her of blocking his attempts to develop the suit plot.
tenure. It is unfortunate that no documents were availed to court regarding this plot. PWI and PWII the present Respondents testified
that the 1st Appellant had carried out all the documents out of the office on the pretext that he was doing some work at home so no document pertaining
to this land has been made available.
land under a customary practice and therefore had the power to give it away absolutely. In 1974 when the land was allegedly given
to Jabir, that land might have been public land. By the Public Land Act, a person could, however, apply for a lease on public land.
Did Habuba Munyoro apply for a lease? This is a moot question.
to settle on the land or to get a lease for it.
However, from the evidence adduced at the lower court, it appears that A.I. Jabir was in possession of Plot 26 Adumi Rd from 1974
1980 when he had to ran to the Congo because of the war. After his death in Arua in 1984. His sister and the Administrator of his
estate took over the suit plot as part of his estate in 1984.
in Arua. A copy of the letter was given to the Ag. Town Clerk, Arua Municipal Council and to the DCCND Arua. There does not seem
to have been any response of any kind to this letter. The 1st Appellant, DWl had admitted in his evidence that it was he who drafted that letter of application of behalf of A.I. Jabir and that
it was addressed to the wrong authority. "Infact I am the one who wrote that /etter// 1st Applicant on P.27 of proceedings.
D. W l, the 1st Appellant stated that he again applied for the suit Plot on 26/5/93 and it was allocated to him. The Respondents seemed to have been
in blissful ignorance of the fact that plot 26 Adumi Rd, the suit plot, had been located to Asa Nuru and later to James Yeka Azio.
It seemed the two never took steps to attempt to develop the plot because the Respondents did not even mention them in their testimonies.
was given authority to apply for lease extension of all the late A.I. Jabir's bUildings on lease. This appeared to have been the
time when he applied unsuccessfully for the suit plot 26 Adumi Rd.
yard. Andiga informed the family, according to PW1/s testimony Pages 3-4 proceedings that he would apply for a lease of Plot 26 Adumi
Rd on behalf of the family and use land titles of the family plots to borrow funds for developing the suit plot.
two other co-Administrators, Kicks and Amber were dead and Siama was illiterate so the family was satisfied and continued to believe
that plot 26 Adumi Rd was to be applied for on behalf of the estate of A.I. Jabir.
It was in 1996 when Florence Poni appeared on Plot 26 Adumi Rd that the family found out that the suit Plot Had been sold to her by
the 1st Appellant. The family resisted. The 1st Appellant then asked the family to refund Poni the purchase price, it refused because it was the 1st Appellant who had received the money.
for a lease of the above plot was written to the wrong authority i.e. The Provincial Commissioner for Land and Surveys in Gulu but
the letter was also copied to the Town Clerk, Arua Municipality who could have, tried he so wished, corrected the Applicant as to
which was the lawful authority to apply to.
part of the estate of I. Jabir. The Plot had been in their possession since 1974 with a break of four years then from 1984 1996 i.e.
for at least 17 years in total.
Even the Municipal Council did not alert them by any notice that it was leasing the land to another person so they occupied plot
an estate of the deceased person when they were not the Administrators of the estate.
aunt Siama, an illiterate, who had the letters of Administration of the estate of the late Ibrahim Jabir. The 3rd Respondents is the son of the late Jabir. The other Respondents are the nephews of the late Jabir and were brought up by him. According
to the testimony of PW3 Siama. The Respondents are also beneficiaries of the estate of the late Ibrahim Jabir (P.14 of the Proceedings
PW3). The Respondents had interest on Plot 26 Adumi
or equitable interest could sue - See also Gibbs -v-Messr (1891) A.C. 248.
of the estate of the late Ibrahim who was given the Plot by Habuba Munyoro in 1974.
if this is so then the Respondents could sue as the lawful or bona fide occupants or bear occupants of the suit plot by virtue of
their having occupied the Plot since 1984 in the case of being neither a lawful or bona fide occupants, the Respondents would recourse
to S. 30 (1) of the Land Act 1998 which provides thus.
with that person concerning his/her occupation of the land.”
do not depend on letters of administration.”
Justice Tsekooko also stated: (Supra)
''Even if it were assumed for the sake of argument that the Respondent could’nt sue, his conduct in preserving or protecting the estate are valid. "
I believe the Respondents were protecting the estate of the late Ibrahim against an "unscrupulous//administrator of the estate. Ground one of the appeal therefore fails.
On the ground two of the Appeal the Respondent pleaded fraud in their Plaint in paragraph 6 and gave particulars in the same paragraph.
“The matter was reported to the authorities but the two defendants (Appellants) ignored."
The 6th paragraph of the Plaint followed from paragraph 5 where it was stated:
land plot No. 26 Adumi Rd and sold it to the ;rd Defendant'~ (i.e. 2nd Appellant)
to the Municipality to process the title in the names of Ms. Poni. This, he did without informing the family. The Respondents only saw F. Poni coming with building materials to construct on the plot. The 1st Appellant wanted to defraud the family of the plot.
and his shop is next to our office.
This testimony was never challenged by the 2nd Appellant.
At page 6 of the Proceedings PW1 stated thus:-
"Florence Poni knew that the plot belonged to the family as the family approached her and other people also told her/~
On P.13 of the Proceedings when PW1 was cross-examined by the 2nd Appellant he stated:
the plot. The documents were in Andiga Jabirs name (i.e. 1st Appellant). We accused you together with Andiga (ft Appellant) because you also grabbed our land.”
This shows that there was some sort of collusion between the Appellants. In his evidence in cross examination the 2nd Appellant testified thus.
"It was my understanding with the seller and that is why I bought"
This could be interpreted in two ways. It could be that he colluded with Poni to buy the land or that she told him the reason why
she was selling which was kept as a secret between the two of them.
On the same P.31 the 2nd Appellant testified thus:
threatened Poni... It is true that in the letter Poni had stated that Andiga had deceived her that he was not a member of your family
and that she had by her investigation discovered that he was the head of the family.”
On the same page 2nd Appellant continued:-
"All the three reports of the IGG gave me the power to proceed and purchase the plot the reports were dated 24/8/99/ 10/4/2000
"All people occupying vacant plots in the town are not owners ... they are squatters and occupying the and temporarily.
"That is why I did not contact your family despite the fact that you were using the plot as a workshop.”
These are various reasons advanced by the 2nd Appellant for buying the Suit Plot.
that he did not trust the 1st Appellant and he acknowledges the fact that F. Poni had, in her letter, which he read, bitterly complained of the 1st Appellant's dishonesty towards her.
“As an administrator of the late (Jabir 1.) persons estate and a managing director of the same family company, applying for land in which the family itself has interest, is to
say the least,
highly dishonest and fraudulent Surely such conduct cannot be upheld by a Court of Justice.”
"1 have not believed Nyakunis (2nd Appellant) evidence that he purchased the land on the strength of the reports of the IGG and the documents he saw on the file in the
Municipal Council. It should be noted that even after the IGGs report the Plaintiffs' (Respondents) family continued showing signs
of dissatisfaction an in fact resisted attempts to develop the land. It is therefore untrue for Nyakuni who was even on the ground
to say he was satisfied the matter had been finally settled. //
In Lukwago -v- The Registrar of Titles M.C. No 7A//77 (Supra) it was held:-
"Bonafide purchaser for value who obtains title from a fraudulent person
has good title so long as he had not been a party to the fraud or had notice of it.”
In Marko Matovu -v- Mohammed 5severino and anor  EACA & HCB 174. It was held:
"Knowledge of the other person's rights or claims over land and deliberate acquisition of a registered title in the face of protests is fraud.”
In John Katwiremu -Y- William Katwiremu &. ors  HCB 187 it was held:-
to have had knowledge then such a person is guilty of fraud. "
the lower Court. PW1 testified that he wanted to know what was happening and the Respondents told him everything.
was fraud under 5.98 CPA and Art 126 (2) (c) of the Constitution.
On ground 7 of the Appeal is that the trial Magistrate admitted in evidence copies of documents instead of the originals.
and none of them challenged the documents being copies. The Magistrate did not make it an issue which may indicate that he was satisfied
Ground eight that the Magistrate failed to properly evaluate the evidence and came to a wrong conclusion.
the evidence and even visited to locus in quo where he was told by LCI Chairperson of the area that the Respondents had occupied
the suit plot for over 10 years.
with the suit plot. He found that the 2nd Appellant fore knowledge of the interests of the Respondents in the suit land before he purchased it from F. Poni.
Appellant's name from Title. Since it was fraudulently
The Appellants have a right to appeal within 14 days.
Mary LD.E. Maitum JUDGE 11/9/2007
Judgement delivered in the presence of:
Mr. K. Alaka for the Appellants
Mr. A. Tebyasa for the Respondents Ms. Eva Namutebi -Court Clerk
Mary LD.E. Maitum JUDGE 11/9/2007
Counsel further submitted that the 2nd Appellant, as a tenant of the Respondent knew about the controversy on the suit plot and was therefore a party to the fraud when
Kampala District Land Board and anor.
Jasper Sinqh Sanqhahu -versus- Noble Builders Ltd SCCA No 13/02 P.4 & 5.
The background to the suit land is rather checkered, and this has some bearing on the status of Plot 26 Adumi Road and its relationship
On 15/4/1975 A.I. Jabir applied to the Provincial Commissioner for Lands and Surveys in Gulu for allocation of Plot 26 Adumi Road
Adumi Rd in blissful ignorance of the true position until 1996 when Poni staked a claim on the plot.
Rd as beneficiaries and occupants of the Suit Plots since their uncle "acquired' the use of it in 1974.
This is what the Respondents were doing when they authorized the 1st Appellant to obtain a lease for the Suit Plot.
"Even if no letters of administration had been obtained, because of the Respondents right to the land and his developments thereon
In paragraph 7 of the Plaint the Respondents stated that:
As regards fraud by the 2nd Appellant, the 1st PW1, Mohamed Jabir, 3d respondent, testified at p. 12 of the Proceedings:-
''He used to ask us about all the happenings and we could relate everything to him".
When the 2nd Appellant was asked whether Poni ever informed him as to why she was selling the plot to him. He answered:-
On fraud allegation concerning the 2nd Appellant the learned trial Magistrate pronounced himself as follows.
Ground 3 of the appeal is dismissed.
Since there is no record to the effect that the documents were challenged, I find this ground superfluous and therefore dismiss it.
Consequently the court finds as follows:
The Registrar of Title is hereby ordered to cancel the 2nd
The Appellants shall meet the costs of this appeals.