Lwanga v Mubiru and 3 Others [2024] UGSC 7 (23 February 2024)

THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA (Coram: Mwondha, Tibatemwa-Ekirikibinza, Tuhaise, Musoke, Musota, JISC) CIVIL APPEAL NO. 018 OF 2022 ISRAEL LWANGA iisissirsisissssssssssssssssssrsrzzeeseseeeetestt APPELLANT VERSUS

1, LEONARD MUBIRU

2. JULIAN NAMUBIRU

3. LYDIA NAMUTEBI

4. JOAN NANSUBUGA stssssssssssssssssssssssssetstssstttstt RESPONDENTS.

(An appeal against the decision of the Court of Appeal judgment at Kampala

in Civil Appeal No. 78 of 2016 dated 5* August, 2022 before Madrama,

Mulyagonja and Mugenyi, JJA) 8 JUDGMENT OF MWONDHA, JSC

This is a second Appeal, the appellant was dissatisfied with the judgment and orders

of the Court of Appeal and lodged the appeal in this Court. The grounds were

‘embodied in the Memorandum of Appeal as follows: -

(1) The learned Justices of the Court of Appeal erred in law in holding that the appellant was not a bonafide purchaser for value without notice of the defect in Title.

(2) The learned Justices of the Court of Appeal erred in law in holding that the actions of Leonard Kizito (the Administrator of the estate of the late Emmanuel Mubiru) were those of the Appellant.

(3) The learned Justices of the Court of Appeal erred in law in attributing DWI’s alleged knowledge of Leonard Kizito subsequent actions over the * Title for the suit land to the Appellant.

(4)The learned Justices of the Court of Appeal erred in law when they held that the actions of the 2" defendant (Leonard Kizito) to transfer the suit property were also the actions of the Appellant.

(5)The learned Justices of the Court of Appeal erred in law in holding that the Letters of Administration were used as a vehicle by the second respondent Leonard Kizito to register the Appellant (through collusion).

(6) The learned Justices of the Court of Appeal erred in law in holding that the appellant registration on title to the suit land having been effected on the suit land on the strength of the Letters of Administration he cannot enjoy the same protection as that of the registered Administrator of the estate.

(7) The learned Justices of the Court of Appeal erred in holding that the first defendant as an administrator not yet registered as such on the title had no authority to sell and later transfer the land into the names of the Appellant.

(8)The learned Justices of the Court of Appeal erred in misapplying the law on inconsistencies and contradictions in overly relying on the contents of Ex. PS without due regard to other pieces of evidence to the contrary, hence arriving at a wrong decision that the sale transaction took place? earlier or before the 1* defendant obtained the Letters of Administration.

(9)The Justices of the Court of Appeal erred in law when they ordered cancellation of the Appellant's Title basing on DW1’s laxity in making inquiries over the said land, even though doing so would not have revealed any fraud.

‘The appellant proposed that this court makes the following orders:-

(a) Allow the appeal

(b) the Court of Appeal judgment and orders be set aside and be substituted

with an order declaring the Appellant as bonafide purchaser for value without

notice of the suit land, dismisses the suit of the respondent against him.

Background

The background of the appeal was as follows: -

The respondents are the children of the late Emmanuel Mubiru who died intestate in

1987. Prior to his death he executed a will which inter alia appointed the 1*

respondent (Leonard Mubiru) heir and gave his land comprised in Busiro Block 396

Plot 37 at Bweya-Kajjansi on Entebbe Road to the 2", 3", and 4" respondents who were then minors unknown to the respondents (defendants), the 2 respondent (2"! defendant) Leonard Kizito who is a younger brother of the late Emmanuel Mubiru stealthily applied and obtained Letters of Administration in respect of the same estate in 1987. Leonard Kizito used the said Letters of Administration to dispose of the above plot to the appellant in 1990. In 2005 when the respondents (2™', 3, and 4") attained majority age and wanted to formally register the land in their names, they discovered from the land registry that the title was already in the appellant's names following a transfer executed by the 2 respondent (2" defendant). They immediately lodged a caveat. In 2008 the respondents filed a Suit No. 064 of 2008 in the Land Division of the High Court against Leonard Kizito (2" defendant). They sought inter alia a declaration that the respondents in this appeal are the lawful owners of the suit land, cancellation of the Letters of Administration obtained by Leonard Kizito, cancellation of the sale and transfer of the suit land to the appellant by Leonard Kizito, and sought for damages and costs of the suit. R ‘The 2, 3, and 4" respondents originally instituted the suit as donees of the Powers of Attomey of the 2"! defendant in the suit (Leonard Kizito). An application to be joined as parties was filed and it was granted. The suit continued with them as joint plaintiffs. In all transactions the appellant/I" defendant was represented by one Musisi Banalya Paul who executed the transfer documents on behalf of the appellant without any document and or Powers of Attomey. ‘The High Court delivered a judgment on the 9 December 2015, in which the trial Judge declared that the registration and transfer of the above land by Mr. Leonard Kizito from the names of Emmanuel Mubiru was fraudulent. The trial court at the same time declared that the appellant was a bonafide purchaser without knowledge of the fraud. Aggrieved by the above decision the respondents filed an appeal in the Court of Appeal Civil Appeal No. 078 of 2016. The appeal was determined in favour of the respondents on 5 August 2022. ‘The appellant was dissatisfied with the decision and orders of the Court of Appeal hence this appeal.

Representation ‘At the hearing of the appeal, Mr. Benard Mutyaba and Mr. Alex Kamukama represented the appellant. Mr. Kigenyi Emmanuel represented the respondents. Appellant's submissions Grounds 1, 2, 3 and 4 were submitted on jointly. Grounds 5, 6 and 7 were submitted on together and grounds 8 and 9 were separately submitted on. Grounds 1, 2,3 &4 Counsel for the appellant faulted the Court of Appeal on the ground that it made errors in its analysis of the evidence on record which lead them to a wrong conclusion that the appellant was not a bonafide purchaser for value without notice of defect on the title. Counsel submitted that the Court of Appeal imputed the actions of DW2 (Leonard Kizito) in transferring the title to the suit land to be those of the appellant. Counsel referred to the Record of Appeal page 971-972, which was the lead judgment of Madrama, JA (as he then was). Counsel submitted that the judgment did not point to the evidential nexus between the 2" and 1* defendants and there was no principle of aw articulated that could lead to such an assumption, 2 Counsel argued that it was incumbent upon the plaintiff to prove the allegations of fraud as against the registered proprietor. He relied on S. 101, 102, 103, and 106 of the Evidence Act. He also relied on Yakobo M.N Senkungu & Others v Crescensio Mukasa Civil Appeal No. 17 of 2014. Counsel submitted that the Court of Appeal appeared to have placed a heavier burden on the appellant/defendant to prove his innocence in the acquisition rather than on the respondents/plaintiffs responsibility. Counsel submitted that the law on the defence of a bonafide purchaser is well settled. He cited S. 176 of the Registration of Titles Act which provides: - “For the purposes of section_174, knowledge or waiver of inquiry may be inferred from any act of the legatee which renders it impossible to place the persons interested in the subject matter of the bequest in the same condition as if the act had not been done.”

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