THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(LAND DIVISION)
CIVIL SUIT NO. 2727… OF 2016
(FORMERLY NAKAWA CIVIL SUIT NO.727 OF 2015)
RICHARD KIGGWE
(Administrator of the Estate of the Late Mutogo Yokana)
…………………………………………………………………PLAINTIFF
Vs
KIZITO JOSEPH MUBIRU
(Administrator of the Estate of the late John Ssebana Kizito)………………….
…….………………………………………DEFENDANT
PLAINTIFF’S WRITTEN SUBMISSIONS
BACKGROUND
The late Yokana Mutugo was the registered proprietor of the land comprised in Block
169 Plot 75 Kyadondo measuring approximately 28.70 acres(herein after referred to
as the suit land) to which he divided among his children portioning 5acres to the late
Eriya [Link] late Eria Kigozi sold his portion to the late Ssebana Kizito and
handled to him the duplicate certificate,letters of administration with the transfer
forms .The Defendant was to transfer the land into the names of late Eria Kigozi as an
administrator of the estate of late Yokana [Link], without the consent and
knowledge of Eria Kigozi, the late Ssebana transferred the entire suit land into his
names via Instrument number KLA [Link] late Ssebana subdivided the land and
graded a portion of it in preparation to sell it without proper authority and against the
wishes of the beneficiaries.
ISSUES FOR DETERMINATION
1. Whether the Late Ssebana Kizito acted fraudulently when he registered himself
on the certificate of title as the owner of the suit land?
2. Whether the Late Ssebana Kizito was a bonafide purchaser for valuable
consideration of the suit land?
3. What remedies are available to the plaintiff?
My Lord, I will deal with each issue separately in their order as stated above.
RESOLUTION
Issue one
My lord, it is the principle of law that a certificate is conclusive evidence of title as
envisioned in Section 59 of the Registration of Titles Act Act cap [Link],fraud
is an exception to this principle as it make the certificate void against all parties to the
fraud as stated in section 76 of the Registration of Titles Act cap 240.
Fraud was defined in the case of Fredrick Zaabwe v Orient Bank Ltd and 5Ors Civil
Appeal no.4 of 2006 to mean a intentional perversion of truth for the purpose of
inducing another in reliance upon it to part with some valuable thing belonging to him
or surrender a legal right.
Court went on to define what amounts to fraudulent as ‘ to act with intent to defraud
means to act willfully ad with the specific intent to deceive or cheat ordinarily for the
purpose of either causing some financial loss to another or bringing about some
financial gain to oneself.
Burden and standard of proof in fraud cases.
The burden of proof in civil cases is on the plaintiff.(Section 101 of the Evidence Act
Cap 8)
The standard of proof in fraud cases is that it must be strictly proved although not
beyond reasonable doubt but something more than a mere balance of probability is
required.(J.W.R Kazzora v M.L.S Rukuba Civil Appeal no 13 of 1992)
For one to prove that there was fraud,Wambuzi CJ as he was then in the case of
Kampala Bottlers Ltd v Damanico Ltd SCCA no. 22 of 1992 held that the transferee
must be guilty of some fraudulent act or must have known of such act by some body
else and take advantage of such act.
Late Ssebana acted fraudulently when he transferred the suit land into his names vide
instrument number KLA 105279 on the 18th day of May 1983 without the consent of
the then administrator the late Eria [Link] act of the late Ssebana was intended to
cheat the registered proprietor and to bring gain to the transferee as he was only
entitled to the 5 acres alone that he had purchased from the late Eria and not the entire
suit [Link] is supported by PW 2 the son to the late Eria Kigozi where in his
statement on paragraph…. he states that his father sold 5 acres of the suit land to
sebana and that after the sale his father came home and told them [Link] further states
that his father gave the title to the late sebana to take off his 5 acres but never retuned
it to them.
Issue 2
My Lord,on the second issue,a bonafide purchaser refers to a purchaser who
purchases in good faith without notice of any defect in title and for a valuable
consideration.
For one to rely on the doctrine of bonafide purchaser, Court in the case of CR Patel v
The Commissioner Land Registration and ors Civil suit no 87 of 2009 set out the
conditions that he/she must satisfy and they are as follows;
a) He holds a certificate of title
b) He purchased the property in good faith
c) He had no knowledge of the fraud
d) He purchased for valuable consideration
e) Vendors had apparemt valid title
f) He purchased withgout notice of any fraud
g) He was not party to the fraud.
My lord, it is not in dispute that the late Yokana Mutogo was the registered proprietor
of the suit land and that upon his death the son the late Eria Kigozi the customary heir
was granted 5 acres as per upon the wishes of the [Link] the 5 th
condition being fulfilled.
On the 1st,2nd,3rd,4th,6th and 7th conditions,PW2 and PW4 in their statements on
paragraphs ……..and …. repsectively clearly state that the late sebana was given the
title to take off his 5 acres that he had purchased and not the whole suit land meaning
that he had no good title and hadnot purchased the remaining land in good faith or for
a valuable consideration.
My lord, the late Ssebana prompting to own the land that he was not entitled to
amounts to fraud and him being a party to the fraud disqualifies him from seeking
protection under the doctrine of a bonafide purchaser .
Issue 3
Remedies
1. Damages .
Section 162 of the Registration of Titles Act cap 240.
2. Cancellation of certificate .
Section 161 of the Registration of Titles Act cap 240
3. Recovery of land
Section 160(c) of the Registration of Titles Act cap 240
4. Costs
Section 27 of the Civil Procedure Act Cap 282
Costs of and incident to all suits are in the discretion of court or judge and the
court or judge shall have full power to determine by whom and out of what
property and to what extent those costs are to be paid.
The court or judge not having jurisdiction to try the suit does not bar the
discretion to grant costs but the costs follow the event unless court for good
reason otherwise orders.
Court in the case of Uganda Development Bank v Muganga Construction Co ltd
(1981) HCB 35 held that a successful party can only be denied costs if it is proved
that for his or her conduct, the action would not have been brought ,the costs will
follow the event where the party succeeds in the main purpose of the suit.
My lord ,I pray that the plaintiff be granted the above remedies as he has proved that
the defendant (Late Ssebana ) was fraudulent in his actions of transferring the suit
land in his names and registering his name as the proprietor on the certificate of title
therefore entitled to the remedies above.
I pray so
Dated at Kampala this ………….day of ……………202….
….…………………………
COUNSEL FOR THE APPLICANT
