Wakilii

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

High Court · [2024] UGHCLD 181 · 2024 Judgment for Plaintiffs AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance consolidated civil suits for cancellation of titles, declarations of ownership, and recognition of lease interests arising from disputed land transactions and succession
Decision
Judgment entered in favour of the 1st to 3rd Plaintiffs as against the 1st and 5th Defendants. The suit land reverted to the estate of the late Lauben Mukasa with specified plots cancelled. The 4th Plaintiff's lease interest declared valid. Claims against the 3rd and 4th Defendants dismissed.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the Administrator General had no power to issue a certificate of succession for estates of persons who died after 18 August 1967. The certificate issued for the estate of Lauben Mukasa (who died in 1970) was null and void, as were subsequent transfers based on it. The 1st and 5th Defendants fraudulently acquired Plots 1068 and 1067 respectively through forged transfer forms, concealment of consideration, and breach of statutory requirements. However, the 3rd Defendant and 4th Plaintiff were found to be bonafide purchasers protected under the Registration of Titles Act. The suit land reverted to the estate of the late Lauben Mukasa.

Outcome

Judgment entered in favour of the 1st to 3rd Plaintiffs as against the 1st and 5th Defendants. The suit land reverted to the estate of the late Lauben Mukasa with specified plots cancelled. The 4th Plaintiff's lease interest declared valid. Claims against the 3rd and 4th Defendants dismissed.

Facts

Lauben Mukasa was the original registered proprietor of land comprised in Kibuga Block 10, Plot 88 at Nakulabye. Upon his death in 1976, his son Keresipo Kiryowa obtained a certificate of succession from the Administrator General in 1990 and registered the land in his name on 29 January 1991. Keresipo subdivided the land into Plots 1067 (transferred to Wasswa Lubulwa, the 5th Defendant, for services) and 1068. Through a power of attorney, the 5th Defendant sold Plot 1068 to Iqbal Esmail in 1997. Iqbal leased the land to UPET, which sublease was acquired by Shell (4th Plaintiff). In 2007, Denis Senkubuge and Robina Nakkungu, claiming to be administrators of Keresipo's estate, were registered on Plot 1068 despite Iqbal Esmail's subsisting title. Robina subsequently sold Plot 1068 to Madina Nassali (1st Defendant) in 2009, who subdivided it and sold Plot 1395 to Joseph Kiyimba (3rd Defendant). In 2008, Senkubuge, Nakagiri, and Musoke obtained letters of administration for Lauben Mukasa's estate and filed suit seeking cancellation of titles and recovery of the land.

Issues

  1. Whether the suit land was part of the estate of the late Lauben Mukasa at the time the 1st to 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.

Orders

  • A declaration that the original suit land comprised in Kibuga Block 10, Plot 88 land at Nakulabye belongs to the estate of the late Lauben Mukasa.
  • A declaration that the 1st Defendant and 5th Defendant fraudulently acquired Plots 1068 and 1067 Kibuga Block 10 (subdivided from Block 10, Plot 88) respectively.
  • A declaration that all sale agreements made between the parties disposing off Kibuga Block 10, Plots 1068 and 1067 were fraudulent and illegal save for subsequent transfers to the 3rd Defendant, 4th Plaintiff, and other bonafide purchasers.
  • The certificates of plots 1396, 1397 and 1398 in the names of the 1st Defendant fraudulently subdivided from Plot 1068 are cancelled and the plots to be delivered to the estate of the late Lauben Mukasa.
  • Compensatory damages of UGX 950,000,000 awarded to 1st to 3rd Plaintiffs against the 5th Defendant for the economic loss of Plot 1067.
  • General damages of UGX 40,000,000 awarded to 1st to 3rd Plaintiffs against the 5th Defendant for pain, suffering, inconvenience and mental anguish.
  • General damages of UGX 120,000,000 awarded to 1st to 3rd Plaintiffs against the 1st Defendant for pain, suffering, inconvenience and mental anguish.
  • The 1st to 3rd Plaintiffs' claims against the 3rd and 4th Defendants dismissed.
  • A declaration that the 4th Plaintiff is a bonafide purchaser of the sublease LRV 2616, Folio 7 noted on Kibuga Block 10, Plot 1068.
  • The 2nd Defendant to note the 4th Plaintiff's lease on Plot 1068 and the 4th Plaintiff to regularise its lease with the estate of the late Lauben Mukasa.
  • The Counter claim by the 1st Defendant against the 4th Plaintiff dismissed with costs.
  • Awarded general damages to carry interest at the rate of 24% per annum from the date of judgment till full payment.
  • Costs awarded to the 1st to 3rd Plaintiffs as against the 1st and 5th Defendants.
  • Costs awarded to the 4th Plaintiff as against the 1st Defendant.

Rules and key headnotes

Administrator General's Power — Certificates of Succession — Limitation to Estates Administered Before 18 August 1967
Under the Local Administrations (Performance of Functions) Instrument S.I No.150 of 1967, the Administrator General's power to issue certificates of succession extends only to estates already administered under customary law before 18 August 1967. The Administrator General has no power to issue certificates of succession for estates of persons who died after 18 August 1967. Any certificate issued for such estates is null and void ab initio.
Fraud — Forgery of Transfer Instruments — Burden of Proof
Where handwriting expert evidence establishes that signatures on transfer instruments were forged, and the transferee is the beneficiary of the transfer, the burden shifts to the transferee to rebut the evidence of forgery. On a preponderance of probabilities, where the transferee fails to discharge this burden, the court may find that the transferee was behind the forgeries or knew of them. Transfer based on forged instruments is null and void and confers no interest in the land.
Illiterates Protection Act — Certificate of Translation — Effect of Non-Compliance
Section 3 of the Illiterates Protection Act requires documents executed on behalf of illiterates to bear a certificate of translation. The requirement is mandatory and intended to ensure that illiterate persons understand the contents of documents purportedly written on their instructions. Where parties to a transaction are illiterate and no certificate of translation is included, the document is inadmissible and cannot be relied upon to enforce any right. Registration based on such document is null and void.
Joint Administrators — Requirement for Concurrence in Land Transactions
Under Section 134(3) of the Registration of Titles Act, where letters of administration are granted to more than one person, all of them must join and concur in every instrument, surrender, or discharge relating to land. Section 272 of the Succession Act, which permits one executor or administrator to act where several are appointed, must be read together with Section 134(3) RTA. In cases of joint administrators, all must concur in transactions involving land. Transfer of estate land by one administrator without the other's concurrence contravenes Section 134(3) RTA and is invalid.
Fraud — Concealment of True Consideration — Payment of Less Stamp Duty
Concealment of the true consideration paid for purchase of land for purposes of defrauding government of revenue by paying less stamp duty amounts to fraud. Under Section 92(1) of the Registration of Titles Act, the true consideration must be concisely stated. Where a buyer inserts a lesser figure on the transfer form as consideration when a higher amount was actually paid, the mode of acquisition is tainted with fraud and illegality. A title acquired in such circumstances is void by reason of fraud.
Bonafide Purchaser for Value Without Notice — Protection Under RTA
A bonafide purchaser 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. To qualify as bonafide, the purchaser must do all that is reasonably possible to find out material facts pertaining to the property before committing to 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 him. A bonafide purchaser for value without notice is protected from ejectment under Sections 176 and 181 of the Registration of Titles Act.
Power of Attorney — Strict Construction — Limits of Authority
A power of attorney is to be construed strictly. Where an act purporting to be done under a power of attorney is challenged as being in excess of authority, it is necessary to show that on fair construction of the whole instrument, the authority is found within the four corners of the instrument either in express terms or by necessary implication. A donee of power of attorney acts as agent of the donor. Where the power of attorney authorises only 'sale' but omits 'transfer', the donee lacks authority to transfer land. Acting beyond the scope of the power of attorney constitutes misrepresentation and the transaction is void ab initio.

Legislation cited (33)

Cases cited (50)

  • John Bwiza v Patrick Yowasi Kadema (Civil Appeal No. 35 of 2011)
  • Jovelyn Barugahare v Attorney General (Supreme Court Civil Appeal No. 28 of 1993)
  • Kizza Stella and Another v Kalala Namayanja and Others (High Court Civil Suit No. 151 of 2004)
  • Paulo Kawesa v Administrator General and 2 Others (High Court Civil Suit No. 918 of 1993)
  • Dhilon & Anor Vs Dhilon [2006] 1 EA at p.66
  • Bukondo Yereziya vs E. Rwananenyere [1929] HCB 96
  • Krishna chandra vs Nilakantha Mohanty, AIR 1996 ori I
  • F.X. Miramigo vs A.G [1979] HCB 24
  • Israel Kabwa v Martin Banoba (Supreme Court Civil Appeal No. 52 of 1995)
  • 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)
  • Protection Security v Eastern Builders & Engineers (High Court Civil Suit No. 566 of 2011)
  • Kasaala Growers Coop. Society v Kakooza and Another (Supreme Court Civil Appeal No. 19 of 2010)
  • 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)
  • Beruga Mustapha v Alice Norah Nassozi (High Court Civil Suit No. 446 of 2011)
  • 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)
  • Kampala Bottlers Ltd v Damanico (U) Ltd (Supreme Court Civil Appeal No. 22 of 1992)
  • Yakobo Senkungu v Cresensio Mukasa (Supreme Court Civil Appeal No. 17 of 2014)
  • Husky International Electronics, Inc vs Ritz No.15-145 of 2016 [529 US 356 (2016)]
  • Zebiya Ndagire Vs Leo Kasujja [1924] HCB 153
  • Namugera v John Kinalwa (High Court Civil Suit No. 271 of 2019)
  • Betty Kizito v David Kizito and Others (Supreme Court Civil Appeal No. 8 of 2018)
  • Samuel Mubiru & Anor Vs Byensibe & Anor [1985] HCB 106
  • Auto Garage & ors vs Motokov (No.3) (1971) E.A at 519
  • DSV Silo vs The owners of Sennar [1985] 2 All ER 104
  • Silver Byaruhanga v Fr. E. Ruvugwaho and Another (Supreme Court Civil Appeal No. 9 of 2014)
  • Kibimba Rice Ltd v Umar Salim (Supreme Court Civil Appeal No. 17 of 1992)
  • 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)
  • Armatratal Purshottam and Another v Gian Singh Bhandra (High Court Civil Suit No. 289 of 2010)
  • 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. 4 of 2006)
  • Moses Aman and 3 Others v Zepher Besimbire (High Court Civil Suit No. 130 of 2011)
  • Agbanomovo & Ors Igbuku & Anor (2018) LPELR-46143, Benin Court of Appeal
  • Jennifer Behange v School Outfits (U) (Court of Appeal Civil Appeal No. 53 of 1999)
  • Mungecha Vs A.G, [1987] HCB 55
  • A.G Vs Oluoch (1972) EA 392
  • Ismail Serugo v KCC and Another (Constitutional Appeal No. 2 of 1998)

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_181_(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.