Wakilii

Senkubuge and 3 Others v Nassali and 4 Others (Civil Suit 212 of 2009; Civil Suit 54 of 2011)

High Court · [2024] UGHCLD 182 · 2024 Judgment Partly for Plaintiffs AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Consolidated civil suits for cancellation of title and declaration of rightful ownership over land subdivisions of Kibuga Block 10, Plot 88
Decision
Judgment entered in favour of the 1st - 3rd Plaintiffs against the 1st and 5th Defendants with cancellation of titles and damages awarded; 3rd and 4th Defendants held to be bonafide purchasers and protected from ejectment; claims against 4th Defendant dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a certificate of succession issued by the Administrator General for the estate of a person who died after 18 August 1967 was null and void, rendering all subsequent transfers based on it void. The suit land comprised in Kibuga Block 10, Plot 88 remained part of the estate of the late Lauben Mukasa. The 1st and 5th Defendants fraudulently acquired subdivisions of the land. The 3rd Defendant and 4th Plaintiff were bonafide purchasers protected from ejectment. Title cancellations ordered and damages awarded.

Outcome

Judgment entered in favour of the 1st - 3rd Plaintiffs against the 1st and 5th Defendants with cancellation of titles and damages awarded; 3rd and 4th Defendants held to be bonafide purchasers and protected from ejectment; claims against 4th Defendant dismissed

Facts

Lauben Mukasa was the registered proprietor of land comprised in Kibuga Block 10, Plot 88. Upon his death in 1976, his son Keresipo Kiryowa obtained a certificate of succession dated 29 November 1990 from the Administrator General and was registered as proprietor in 1991. Keresipo subdivided the plot into Plots 1067 and 1068. Plot 1067 was transferred to the 5th Defendant for services rendered. In 1997, Keresipo sold Plot 1068 through the 5th Defendant (as attorney) to Iqbal Esmail who granted a lease to UPET, later assigned to the 4th Plaintiff. In 2007, Denis Senkubuge and Robina Nakkungu obtained letters of administration for Keresipo's estate and were registered on a special certificate of title for Plot 1068. The 1st Defendant purchased Plot 1068 from Robina Nakkungu in 2009 and subdivided it into Plots 1395, 1396, 1397, and 1398, selling Plot 1395 to the 3rd Defendant. In 2008, the 1st - 3rd Plaintiffs obtained letters of administration for Lauben Mukasa's estate and filed suit alleging the suit land remained part of his estate and that subsequent dealings were fraudulent.

Issues

  1. Whether the suit land was part of the estate of the late Lauben Mukasa at the time the 1st - 3rd Plaintiffs obtained letters of Administration for the estate of the late Lauben Mukasa.
  2. Whether there was a valid sale and transfer of the suit land (formerly comprised in Block 10, Plot 1068) to the 1st Defendant.
  3. Whether the sale and transfer of Plot 1395 to the 3rd Defendant by the 1st Defendant was unlawful.
  4. Whether the 3rd Defendant is a bonafide purchaser for value without notice.
  5. Whether the 4th Plaintiff lawfully acquired a sub-lease from UPET as a bonafide purchaser for value without notice.
  6. Whether the rectification of the register by the 2nd Defendant was justified.
  7. Whether the 4th Defendant was duly instructed by the 1st Plaintiff and Robina Nakkungu (being the Administrators of the estate of the late Keresipo Kiryowa) to deal with the suit portion of land and if so, whether he diligently and professionally executed the instructions lawfully.
  8. Whether the 1st to 3rd Plaintiffs' action against the Defendants in respect of land formerly comprised in Kibuga Block 10, Plot 88 is bad in law and barred by limitation.
  9. Whether the 1st to 3rd Plaintiffs have a cause of action against the 5th Defendant.
  10. What remedies are available to the parties.

Orders

  • A declaration that the original suit land comprised in Kibuga Block 10, Plot 88 belongs to the estate of the late Lauben Mukasa.
  • A declaration that the 1st Defendant and the 5th Defendant fraudulently acquired Plots 1068 and 1067 (subdivided from Block 10, Plot 88) respectively.
  • A declaration that all sale agreements disposing of Plots 1068 and 1067 were fraudulent and illegal, save for transfers to the 3rd Defendant, 4th Plaintiff, and Ssalongo Kasawuli Mukasa Michael who are bonafide purchasers protected from ejection.
  • Certificates for Plots 1396, 1397, and 1398 in the names of the 1st Defendant cancelled; plots to be delivered to the estate of the late Lauben Mukasa.
  • Compensatory damages of UGX 950,000,000 awarded to the 1st - 3rd Plaintiffs against the 5th Defendant.
  • General damages of UGX 40,000,000 awarded to the 1st - 3rd Plaintiffs against the 5th Defendant for pain, suffering, inconvenience, and mental anguish.
  • General damages of UGX 120,000,000 awarded to the 1st - 3rd Plaintiffs against the 1st Defendant for pain, suffering, inconvenience, and mental anguish.
  • Claims against the 3rd and 4th Defendants dismissed.
  • Judgment entered in favour of the 4th Plaintiff: a declaration that it is a bonafide purchaser of the sublease LRV 2616, Folio 7 on Plot 1068.
  • The 2nd Defendant to note the 4th Plaintiff's lease on Plot 1068.
  • Counterclaim by the 1st Defendant against the 4th Plaintiff dismissed with costs.
  • Interest on general damages at 24% per annum from date of judgment till full payment.
  • Costs awarded to the 1st - 3rd Plaintiffs against the 1st and 5th Defendants.
  • Costs awarded to the 4th Plaintiff against the 1st Defendant.

Rules and key headnotes

Administrator General — Powers — Certificates of Succession — Estates of Persons Dying After 18 August 1967
The Administrator General's power under the Local Administrations (Performance of Functions) Instrument S.I. No. 150 of 1967 is limited to issuing certificates of succession in respect of estates already administered according to customary law before 18 August 1967. The Administrator General has no power to issue a certificate of succession for the estate of a person who died after that date. Any such certificate issued is null and void.
Letters of Administration — Powers of Administrators — Joint Administrators — Registration of Titles Act Section 134
Where probate or administration is granted to more than one person, all of them must join and concur in every instrument relating to the land. Where one joint administrator purports to transfer estate land without the consent and participation of the other, the transfer is invalid and void. Section 272 of the Succession Act does not permit joint administrators who obtained letters of administration simultaneously to act singly in land transactions; they must act jointly at all times.
Illiterates Protection Act — Certificate of Translation — Mandatory Requirement — Effect of Non-Compliance
Any person who writes a document for an illiterate must write their own name and address on the document, which implies the document was read over and explained to the illiterate. The requirement of a certificate of translation under Section 3 of the Illiterates Protection Act is mandatory. Failure to comply renders the document inadmissible in evidence and unenforceable. A party seeking to enforce such a document must prove the illiterate understood its contents.
Registration of Titles — Forgery of Transfer Instruments — Impeachment of Title — Fraud
Where transfer instruments contain forged signatures of the purported transferors and the transferee is the beneficiary of the transfer, the court may infer that the transferee was behind the forgery or knew of it and took advantage. A transfer based on forged instruments is null and void and confers no interest in the land. The certificate of title of a registered proprietor is impeachable on account of fraud under Section 176 of the Registration of Titles Act.
Fraud — Concealment of True Consideration — Under-Declaration of Purchase Price — Stamp Duty
Concealment of the true consideration paid for purchase of land in order to defraud government of stamp duty revenue amounts to fraud. Where a buyer inserts a lesser figure on the transfer form as consideration when they actually paid more, the transaction is tainted with fraud and illegality. A title deed acquired in such circumstances is void because of fraud.
Bonafide Purchaser for Value — Protection from Ejectment — Sections 176 and 181 Registration of Titles Act
A bonafide purchaser for value is one who buys property for value without notice of another's claim and without actual or constructive notice of any defects in the seller's title. A bonafide purchaser does all that is reasonably possible to find out material facts before committing to the purchase. Where there are a series of subsequent transfers, for the title of the incumbent registered proprietor to be impeachable, the fraud of previous proprietors must be brought home to them. A bonafide purchaser is protected from ejectment under the Registration of Titles Act.
Power of Attorney — Scope of Authority — Strict Construction — Transfer versus Sale
A power of attorney is to be construed strictly. Where a power of attorney expressly grants the donee authority to 'sell' land but omits to include the power to 'transfer,' the donor reserves the power to transfer to themselves. The donee acts as agent of the donor. Where the donee transfers land without express or implied authority, they misrepresent their authority and the transfer is void ab initio. The power of attorney cannot bind the donor beyond its four corners.

Legislation cited (25)

Cases cited (48)

  • John Bwiza v Patrick Yowasi Kadema (Court of Appeal Civil Appeal No. 35 of 2011)
  • Jovelyn Barugahare v Attorney General (Supreme Court Civil Appeal No. 28 of 1993)
  • Kibimba Rice Ltd v Umar Salim (Supreme Court Civil Appeal No. 17 of 1992)
  • Kampala Bottlers Ltd v Damanico (U) Ltd (Supreme Court Civil Appeal No. 22 of 1992)
  • Paulo Kawesa v Administrator General and 2 Others (High Court Civil Suit No. 918 of 1993)
  • Israel Kabwa v Martin Banoba (Supreme Court Civil Appeal No. 52 of 1995)
  • Kasaala Growers Cooperative Society v Kakooza and Another (Supreme Court Civil Appeal No. 19 of 2010)
  • Beruga Mustapha v Alice Norah Nassozi (High Court Civil Suit No. 446 of 2011)
  • Silver Byaruhanga v Fr. E. Ruvugwaho and Another (Supreme Court Civil Appeal No. 9 of 2014)
  • Yakobo Senkungu v Cresensio Mukasa (Supreme Court Civil Appeal No. 17 of 2014)
  • Betty Kizito v David Kizito and Others (Supreme Court Civil Appeal No. 8 of 2018)
  • Dhilon & Anor Vs Dhilon [2006] 1 EA at p.66
  • Zebiya Ndagire Vs Leo Kasujja [1924] HCB 153
  • F.X.Miramigo vs A.G [1979] HCB 24
  • David Mukasa Sendawula and Another v Nakalanzi and Another (High Court Civil Suit No. 423 of 1991)
  • Saul Kisiribombo v Emmy Tumwine and Others (Supreme Court Civil Appeal No. 19 of 2018)
  • Kinyara Sugar Ltd v Kyomuhendo Pamela (High Court Miscellaneous Application No. 61 of 2020)
  • Grace Nasoolo v Francis A. W. Bwengye (High Court Civil Suit No. 427 of 2002)
  • Nassanga vs Nanyonga [1972] HCB 318
  • Banco Arabe Espanol v Bank of Uganda (Supreme Court Civil Appeal No. 8 of 1999)
  • Bukondo Yereziya vs E. Rwananenyere [1929] HCB 96
  • Krishna chandra vs Nilakantha Mohanty, AIR 1996 Ori 1
  • A.G Vs Oluoch (1972) EA 392
  • Ismail Serugo v Kampala City Council and Another (Constitutional Appeal No. 2 of 1998)
  • Auto Garage & ors vs Motokov (No.3) (1971) E.A at 519
  • Nakiwala and 2 Others v Rwekibira and Another (High Court Civil Suit No. 280 of 2006)
  • Stanbic Bank (U) Ltd v Ssenyonjo and Another (Court of Appeal Civil Appeal No. 147 of 2015)
  • Wasukira and 2 Others v Harmony Group Ltd (High Court Civil Suit No. 40 of 2009)
  • Rosemary Nalubega and Another v Jackson Kakayire (Court of Appeal Civil Appeal No. 210 of 2004)
  • Pesa Finance Ltd v Lovis Ntale (High Court Civil Suit No. 470 of 2009)
  • Dieter Pabst v Abdu Ssozi and Another (Court of Appeal Civil Appeal No. 116 of 2000)
  • Rose Mary Nalubega and Another v Jackson Kakayire (Court of Appeal Civil Appeal No. 40 of 2004)
  • Oketha v Attorney General (High Court Civil Suit No. 69 of 2004)
  • UCB Vs Kigozi [2002] 1 EA 305
  • Hadley Vs Baxendale (1894) 9 ExCh 341
  • Charles Acire v Engola (High Court Civil Suit No. 143 of 1993)
  • Husky International Electronics, Inc vs Ritz No.15-145 of 2016 [529 US 356 (2016)]
  • David Sejjaaka Nalima v Rebecca Musoke (Court of Appeal Civil Appeal No. 12 of 1985)
  • Sidpra and Sidpra v Uganda Rehabilitation Development Foundation (High Court Civil Suit No. 199 of 1993)
  • Bryant Powis & Bryant Ltd vs Banque du Peuple [1893] AC 170 at 177
  • Fredrick Zaabwe v Orient Bank Ltd and 5 Others (Supreme Court Civil Appeal No. 04 of 2006)
  • Moses Aman and 3 Others v Zepher Besimbire (High Court Civil Suit No. 130 of 2011)
  • Armratlal Purshottam and Another v Gian Singh Bhandra (High Court Civil Suit No. 289 of 2010)
  • Agbanomovo & Ors Igbuku & Anor (2018) LPELR-46143
  • Jennifer Behange v School Outfits (U) (Court of Appeal Civil Appeal No. 53 of 1999)
  • Mungecha Vs A.G, [1987] HCB 55
  • DSV Silo vs The Owners of Sennar [1985] 2 All ER 104
  • Samuel Mubiru & Anor Vs Byensibe & Anor [1985] HCB 106

Full judgment

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Senkubuge_and_3_Others_v_Nassali_and_4_Others_(Civil_Suit_212_of_2009;_Civil_Suit_54_of_2011)_[2024]_UGHCLD_182_(4_July_2024)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.