Topic: Fraudulent transactions – Certificate of Translation, Certificate of Succession, Defective Written Statement of Defence
Date of Judgement: 4th July 2024
Court: High Court of Uganda at Kampala (Land Division)
Case Number or Citation: Consolidated High Court Civil Suits No. 54 of 2011 and Civil Suit No. 212 of 2009.
Judge: Hon. Mr. Justice Byaruhanga Jesse Rugyema
Summary Facts of the Case
This case concerned the ownership and the validity of transactions on land originally part of the estate of the late Lauben Mukasa who died in 1970.
In 1990, his heir Keresipo Kiryowa obtained a certificate of succession from the Administrator General and accordingly in 1991 was registered as the proprietor of the property.
Keresipo Kiryowa subdivided the estate and transferred one plot to Wasswa Lubulwa Yofesi (the 5th Defendant) as payment for services rendered in processing the succession certificate.
In 1996, Kiryowa granted Powers of Attorney to the 5th Defendant to deal with the suit land and the 5th defendant accordingly sold the land to one Iqba Esmail who got registered on the land as the proprietor and accordingly leased the land to Uganda Petroleum Company Limited (UPET) whose lease was succeeded by Shell (Vivo Energy (U) Limited.
The 1st Plaintiff, Senkubuge Denis, and Robina Nakkungu being children of Keresipo Kiryowa obtained letters of administration for Kiryowa’s estate and were registered on the title for the suit land.
A conflicting title was issued to both of them for the suit land, despite the existing registration on the land of Iqbal Esmail.
Robina Nakkungu, allegedly acting with Senkubuge Denis sold the suit land to Hajjati Madina Nassali, the 1st Defendant.
However, the alleged sale agreement lacked the required certificate of translation under the Illiterates Protection Act.
Main Legal Issues Before the Court
- Whether the suit land was part of the estate of the late Lauben Mukasa.
- Validity of the Written Statement of Defence by the 4th Defendant.
- Legitimacy of the transfer of the suit land to various defendants.
The Decision of the Court
Invalid Succession Certificate: The Court found that the suit land was part of the estate of the late Lauben Mukasa at the time the Plaintiffs obtained letters of administration because it had by that time reverted to him.
The Court found that the original transfer of the suit land from Lauben Mukasa to Keresipo Kiryowa was based on an invalid succession certificate granted by the Administrator General in 1990.
Consequently, the subsequent transactions on the land, including the purported subdivisions and transfers, were declared null and void ab initio.
Citing Paulo Kawesa vs Administrator General & 2 ors, the Court held that the Administrator General’s powers to issue certificates of succession only applied to estates already distributed under the Buganda Land Succession Law before 18th August 1967.
Estates of individuals such as Lauben Mukasa who died in 1970 after this date were therefore not within the scope of the Administrator General’s powers under the Local Administration (Performance of Functions) Instrument, S.I No.150 of 1967.
Time Limitation: The court found that the Plaintiffs’ suit was not time-barred as the period of limitation began upon discovering the fraud under Section 25 of the Limitation Act.
The plaintiffs filed the suit in 2011, within three years after obtaining letters of administration and discovering the fraudulent activities. ( from 2008). The Court reasoned that the fraudulent activities were not immediately apparent and were only discovered after a detailed investigation following the issuance of letters of administration.
Written Statement of Defence (WSD): The 1st to 3rd Plaintiffs argued that the 4th Defendant’s WSD was defective because it lacked the Registrar’s signature and the court seal. The court found the WSD indeed defective because it did not comply with Order 9 Rule 1 of the Civil Procedure Rules (CPR), which mandates that a WSD must be signed by the Registrar and bear the official court seal.
The Court held that without the Registrar’s signature and the court seal, the WSD was considered improperly filed and accordingly expunged it from the record. The learned Judge emphasised that such a procedural error was incurable by Article 126 (2) (e) of the Constitution.
Fraud and illegalities:
- The purported land sale agreement did not include a certificate of translation as required under Section 3 of the Illiterates Protection Act yet the purported vendor Robina Nakkungu was an illiterate person.
- The sale and transfer of the suit land to Hajjati Madina Nassali (1st Defendant) lacked consent from all co-administrators of the estate. This violated Section 134(3) of the Registration of Titles Act, which requires all administrators to act jointly.
- Documents, including the purported sale agreement and transfer forms, were found to be forged. The handwriting expert confirmed that some of the signatures purportedly belonging to Senkubuge Denis (1st Plaintiff) were forged.
The Court awarded the 1st-3rd plaintiffs damages of UGX 120,000,000 against the 1st defendant for causing them pain, suffering, anguish, and inconvenience by appropriating their land in a fraudulent manner.
The Court awarded UGX 950,000,000 compensatory damages for economic loss against the 5th defendant for abusing the power of attorney granted to him by the late Lauben Mukasa to carve out a plot in the suit land using the illegal certificate of succession which he disposed of at a consideration of UGX 950,000,000.
UGX 40,000,000 was also awarded to the plaintiffs against the 5th defendant for causing them pain, suffering, inconvenience and mental anguish.
Key Quote
“I find that the import of S.3 of the Illiterates Protection Act is to ensure that documents which are purportedly written for and on instructions of illiterate persons are understood by such persons if they are to be bound by their content. The impugned agreement (p.Exh.5) and other documents executed prior by the 1″ Plaintiff and Robina Nakkungu including the sale agreement to F. Ntambara (P.Exh.4) cannot be relied upon in any litigation by any party seeking to enforce a right. It would therefore follow that in the circumstances of this case, the subsequent registration of the 1st Defendant as the owner of Block 10, Plot 1068 based on the impugned agreement of sale of the suit land that lacked a certificate of translation is legally untenable thus unlawful and hence null and void. Besides, there is overwhelming evidence that the 1st Plaintiff was not a party to the purported sale and transfer of the suit land (formerly comprised in Kibuga Block 10, Plot 1068) to the 1st Defendant.” – Justice Byaruhanga Jesse Rugyema
Law Applied by the Court:
- Section 3 of Limitation Act
- Order 9 1 of the Civil Procedure Rules (CPR)
- Section 134 of the Registration of Titles Act (RTA)
- Paulo Kawesa vs Administrator General & 2 ors, HCCS No.918 of 1993 [2012]UGHC 109
- Stanbic Bank (U) Ltd Vs Ssenyonjo & Anor, CACA No.147 of 2015.; Agreements with an illiterate that are not translated are unenforceable
- Kampala Bottlers Ltd Vs Damanico (U) Ltd, SCCA No.22 of 1992; Fraud is actual or some act of dishonesty
- Banco Arabe Espanol vs BOU, SCCA No. of 1999
Counsel on Record
- Plaintiffs: Luzige Joseph, Alaari Muheirwe, Teddy Nangobya, Daniel Byaruhanga, Tumuhaise Ferdinand, and Jet Tumwebaze
- 4th Plaintiff: James Zeere
- 1st Defendant: Joseph Kyazze, Jackline Natukunda, Joanita Akello, and Musa Kabega
- 2nd Defendant: Sekabira Moses (Office of the Commissioner Land Registration)
- 3rd Defendant: Isaac Walukagga
- 4th Defendant: Ewalu Ronald
- 5th Defendant: Ambrose Tebyasa
Conclusion
This case illustrates the significance of a certificate of translation in transactions involving illiterate persons and that the registrar’s signature and court seal on a WSD are mandatory.