THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

VERSUS

1. ALEXANDER DAVID SIMBWA

BY COUNTERCLAIM
1. ALEXANDER DAVID SIMBWA
2. MOSES WALUGEMBE
3. HAJJI ABDU KARIM NSANJA SAAVA ::::::: COUNTERCLAIMANTS
4. WALUSIMBI GODFREY & 73 O’RS
5.
VERSUS
1. MADHIVANI GROUP LIMITED
2. THE COMMISSIONER FOR
LAND REGISTRATION :: COUNTERCLAIM DEFENDANTS
BEFORE: HON. MR. JUSTICE BASHAIJA K. ANDREW

J U D G M E N T:
MADHIVANI GROUP LIMITED (hereinafter referred to as the “plaintiff”)
brought this suit against ALEXANDER DAVID SIMBWA, MOSES
WALUGEMBE, HAJJI ABDU KARIM NSANJA SAAVA, WALUSIMBI
GODFREY and 73 Others (hereinafter referred to as the “defendants”) jointly
1
and or severally for trespass upon its land comprised in FRV 45 Folio 2 Land at
Nakigalala and Kansiri Estates, (hereinafter referred to as the “suit land”). The
plaintiff sought the following reliefs;
1. That the defendants jointly and or severally be declared trespassers on the
suit land.
2. An order of eviction against the defendants jointly and or severally
together with their servants, agents employees, assignees and/or any other
person deriving any purported title or interest on the suit land from them.
3. An order of a permanent injunction against the defendants jointly and/or
severally together with their servants, or agents from further trespassing
on the suit land.
4. That the defendants jointly and/or severally pay general damages to the
plaintiff
5. Costs of the suit.

The 4th defendant, Walusimbi Godfrey and the 73 others also claimed interest in
the suit land through several purchases from the 1 st, and 3rd defendants. They
applied in High Court Miscellaneous Application No. 831of 2013 and were joined
as defendants to the suit. The 73 others defendants gave authority to 4 th defendant
to represent them in the suit.
In the joint Scheduling Memorandum, it is an agreed fact that the plaintiff is the
registered proprietor of the suit land, and holds a certificate of title for land known
as FRV 45 Folio 2 Land at Nakigalala and Kansiri Estates. It is also an greed
fact that that the 3rddefendant claims to derive interest in the suit land from 1st
defendant, and the 4th and 73 other defendants claim interest in the suit land
through purchase from the 1st and 3rd defendants. The parties agreed on the
following issues for determination;

2
1. Whether the plaintiff owns the land?
2. Whether or not the plaintiff fraudulently acquired the title to the suit land?
3. Whether the defendants jointly and or severally are trespassers on the suit
land?
4. Whether the defendants jointly and or severally have the locus standi to
bring the counterclaim against the plaintiff?
5. Whether the counterclaim discloses a cause of action?
6. Whether the counterclaim is barred by statute?
7. Whether the parties are entitled to the remedies sought?
The plaintiff was represented by Mr. Paul Kuteesa of M/s. Kampala Associated
Advocates, while the 1st and 2nd defendants were represented by Mr. Mugerwa R. of
M/s Mugerwa Partners, Advocates & Solicitors. The 4th and the 73 other
defendants were represented by Mr. Edward Bamwite of M/s Bamwite & Co.
Advocates. All the Counsel, except for the 4th and 73 others, filed written
submissions to argue the case for their respective clients. The submissions are on
court record and I need not to reproduce them in this judgment. I will, however,
make specific reference to them as and when need arises. I should also point out
that the 3rd, 4th and 73 other defendants opted not to give evidence when the case
was due for their defence. The case proceeded only on the basis of evidence
adduced by the plaintiff and the 1st defendant represented by the 2nd defendant.
Background:
The plaintiff is the registered proprietor of the suit land comprised in Freehold
Register Volume 45 Folio 2 Land at Nakigalala and Kansiri Estates measuring
948.15 acres. The suit land was acquired on the 08/06/1960 by M/s Madhvani
Sugar Co. Works Ltd, and has since been owned at various times by companies
related to and predecessors in title to the plaintiff company. The said companies

3
have been in possession of the suit land carrying on the business of tea estate,
planting, processing, and other associated activities.
In 1972 during the advent of the expulsion of persons of Asian descent, of which
the plaintiff’s predecessors in title were, the suit land was expropriated and taken
over by the Government of Uganda. The suit land was, however, repossessed in
1993 by the plaintiff’s successor in title and it was subsequently transferred to the
current plaintiff, which got registered on the title as proprietor on 02/02/2012.
The plaintiff brings this action in trespass against the defendants jointly and
severally in that that around the 26/11/2012, they entered on to the suit land,
cleared vegetation, cut down trees, and started to demarcate it into various plots.
They constructed roads thereon, parceled it into small plots and carried out various
activities, including depositing building and construction materials such as sand
and bricks on various parts of the suit land in addition to constructing buildings
thereon.
Further, that on the 16/09/ 2012 the 1st defendant by deed gifted part of the suit
land measuring 200 acres to the 3rd defendant and others who have since also
trespassed upon the suit land and started carrying on activities in utter disregard of
the plaintiff’s ownership of the suit land. Furthermore, that on the 13/08/2012 and
the 25/08/ 2012 the 3rd defendant sold part of the suit land measuring 15 acres to a
one Apollo Lumama, and that in the course of doing that the 3 rd defendant
trespassed upon and surveyed and made boundary marks on parts of the suit land,
and that around 02/12/2012 the defendants commenced the construction of a
building on the suit land.
The defendants, for their part, denied the allegations of trespass and also set up a
counterclaim in which they laid claim to ownership of the suit land. The cause of
action in the counterclaim is based on fraud committed by the 1 st counterclaim
defendant in conjunction with the Commissioner for Land Registration who was
4
sued as the 2nd counterclaim defendant. The counterclaimants contend that both
counterclaim defendants connived in registering the suit land and superimposing
FRV 45, Folio 2 on the mailo interest comprised in Block 372 – 373, Plot 2 and
thus annexing more land to create 2948.15 acres well knowing that the Block 372 –
373, Plot 2, Land at Nakigalala did not form or constitute part of the suit land.
Further, that the two illegally amalgamated land comprised in FRV 45, Folio 2
with land comprised in Block 372 – 373, Plot 2 measuring 669.52 acres.
The 1st defendant/counterclaimant in particular laid claim as bona fide owner of an
unascertained huge chunk of land comprised in Busiro Block 372 – 373, Plot 2
Land at Wasozi measuring 669.52 acres comprised in a Blue Page, but which is
not yet registered in his names on the White Page. The 1st defendant/
counterclaimant claimed that that the suit land was bequeathed to him as a share in
his father’s Estate, the late Sir Daudi Chwa, whose names were entered on the Blue
Page on 07/09/1955.
He further stated in 2013 when he attempted to commence the survey and
subdivision of the suit land in order to bring it under the operation of the
Registration of Titles Act (Cap.230), he discovered that the plaintiff/1st
counterclaim defendant also claimed ownership of the same land and was in
possession a certificate of title known as FRV 45 Folio2. The counterclaimants
aver that the registration of the plaintiff/ 1 st counterclaim defendant was procured
through fraud in connivance with the 2nd counterclaim defendant. The particulars of
fraud against both counterclaim defendants are as follows;
a) The 2nd defendant conniving with the 1st defendant and registering the suit
land and superimposing FRV 45, Folio 2 on the mailo interest comprised
in block 372 – 373, Plot 2 and thus annexing more land to create 2948.15
acres well knowing that the Block 372 – 373, Plot 2, land at Nakigalala
does not and did not form or constitute part of the suit land.
5
 b) By the 2nd defendant conniving with the 1 st Defendant and illegally
amalgamated land comprised in FRV 45, Folio 2 with land comprised in
Block 372 – 373, Plot 2 measuring 669.52 acres.
c) By the 1st defendant illegally using repossession certificate in the names of
Muljibhai Madhivani & Co. Ltd on the 6 th day of March, 1991 (a different
company) to repossess land that belonged to Madhvani Sugar Works Ltd.
d) By the 2nd defendant registering Madhivani Sugar Works Ltd. as owner of
the suit land under instrument No. 147051 with two different dates of
registration ; one for the 8th day of June, 1960 and 4th day of March, 1960.
e) By the 2nd defendant conniving with the 1 st defendant and registered the
suit land on the 7th day of October, 1993 in the names of Muljibhai
Madhivani & Co. Ltd under Instrument No. 259684 a non existing
company; what existed is Madhivani Company Ltd.
f) By the 1st defendant intentionally omitting to present to court the deed plan
of its title which would have shown the exact acreage and location of the
land?
The counterclaimants prayed for the following reliefs;
a) A declaration that the counterclaimants are not occupying theplaintiff’s/
1st counterclaim defendant’s land.
b) A further declaration that the land occupied by the counterclaimants is
Block 372 – 373, Plot 2 and not the plaintiff’s/1 st counterclaim defendant’s
land.
c) A declaration that the plaintiff/ 1st counterclaim defendant’s land
comprised in FRV 45, Folio 2 does not measure 948.15 acres.
d) A declaration that the said title was fraudulently issued and obtained by
the plaintiff/ 1st counterclaim defendant.

6
 e) An order directing the 2ndcounterclaim defendant to issue a certificate of
title in respect of Block 372 – 373, Plot 2 to the 1st counterclaimant.
f) General damages.
g) Costs of the counterclaim be paid by the counterclaim defendants.
Resolution of Issues:
Issue No. 1 whether the plaintiff owns the suit land.
Section 59 of the Registration of Titles Act (supra) which governs the legal
ownership of land is to the effect that;
“No certificate of title issued upon an application to bring land under this
Act shall be impeached or defeasible by reason or on account of any
informality or irregularity in the application or in the proceedings
previous to the registration of the certificate, and every certificate of title
issued under this Act shall be received in all courts as evidence of the
particulars set forth in the certificate and of the entry of the certificate in
the Register Book, and shall be conclusive evidence that the person named
in the certificate as the proprietor of or having any estate or interest in or
power to appoint or dispose of the land described in the certificate is seized
or possessed of that estate or interest or has that power.”
A number of decided cases have considered and applied the above provisions. In
the case of John Katarikawe v. William Katwiremu & A’ nor [1977] HCB 187, it
was held, inter alia, that provisions of Section 61 (now S.59) RTA are clear that
once a person is registered as proprietor of land, his title is indefeasible except for
fraud. Similar position was taken in Olinda De Souza v. Kasamali Manji [1962]
EA 756 that in absence of fraud possession a certificate of title by a registered
proprietor is conclusive evidence of ownership of the land and the registered
proprietor has indefeasible title against the whole world.

7
Section 176 (c) (supra) protects a registered proprietor of land against ejectment
except on ground of fraud. The relevant part provides as follows;
“No action of ejectment or other action for the recovery of any land shall
lie or be sustained against the person registered as proprietor under this
Act, except in any of the following cases—
(c) the case of a person deprived of any land by fraud as against the
person registered as proprietor of that land through fraud or as
against a person deriving otherwise than as a transferee bona fide
for value from or through a person so registered through fraud;…”
In the present case, PW1 K.P Eswar, the Director of Corporate Affairs in the
plaintiff company adduced in evidence copy of a certificate of title for the suit
land, which was admitted as Exhibit P3 held by the plaintiff. According to
particulars on Exhibit P3, the plaintiff got registered on the suit land on 02/12/2012
under Instrument No.462012 having acquired the same from the immediate
predecessor in title M/s Kakira Sugar Works (1985) Ltd. Evidence of possession of
the certificate of title by the plaintiff was not rebutted nor was it proved that the
title is not authentic or genuine. It is also an agreed fact in the joint Scheduling
Memorandum that the plaintiff is the registered proprietor of the suit land. Since
the position of the law is that possession of the certificate of title by a registered
proprietor is conclusive evidence of ownership of the land described therein,
subject to fraud being proved, it would follow that the plaintiff company, M/s.
Madhivani Group Ltd, is the owner of the suit land. Issue No.1 is answered in the
affirmative.
Issue No. 2: Whether the plaintiff fraudulently acquired the title to the suit land.
In the case of Fredrick J. K Zaabwe v. Orient Bank & 5 O' rs, S.C.C.A.No. 4 of
2006 (at page 28 of the lead judgment) Justice Katureebe JSC, relied on the

8
definition of fraud in Black’s Law Dictionary, (6th Ed) page 660 which states as
follows;
“An intentional perversion of truth for purposes of inducing another in
reliance upon it to part with some valuable thing belonging to him or to
surrender a legal right. A false representation of a matter of fact, whether
by words or by conduct, by false or misleading allegations or by
concealment of that which deceives and is intended to deceive another so
that he shall act upon it to his legal injury. Anything calculated to deceive,
whether by a single act or combination or by suppression of truth or
suggestion of what is false, whether it is by direct falsehood or innuendo
by speech or silence, word of mouth or look or gesture… A generic term
embracing all multifarious means which human ingenuity can devise and
which are resorted to by one individual to get advantage over another by
false suggestion or by suppression of truth and includes all surprise, trick,
cunning dissembling and any unfair way by which another is cheated.
“Bad faith” and fraud are synonymous and also synonymous of
dishonesty, infidelity, faithlessness, perfidy, unfairness etc.As
distinguished from negligence, it is always positive intentional. It
comprises all acts, omissions and concealments involving a breach of a
legal or equitable duty and resulting in damage to another. And includes
anything calculated to deceive whether it be a single act or combination of
circumstances, whether the suppression of truth or the suggestion of what
is false whether it be by direct falsehood or by innuendo by speech, or by
silence by word of mouth or by look or gesture”.
Also in the case of Kampala Bottlers Ltd v. Daminico Ltd, S.C.C.A No. 22 of
1992, Wambuzi, CJ (at page 5 of his judgment) quoting the trial judge on the
definition of fraud stated that; “It is well established that fraud means actual
9
fraud or some act of dishonesty.” The trial judge in that case had relied on the
case of Waimiha Saw Milling Co. Ltd v. Waione Timber Co. Ltd (1926) A.C 101
at page 106, quoting Lord Buchmaster that; “Now fraud implies some act of
dishonesty.” I believe these authoritative definitions exhaustively encapsulate all
aspects of what constitutes fraud.
Secondly, it was held in David Sejjaaka v. Rebecca Musoke, Civil Appeal No. 12
of 1985 that fraud must be attributable to the transferee, either directly or by
necessary implication. The transferee must be guilty of some fraudulent act or must
have known of such act by somebody else and participated in it or taken advantage
of it. Thirdly, in the case of J.W.R Kazzora v. M.L.S Rukuba, S.C.C.A No. 13 of
1992 it was held that fraud must be specifically pleaded and strictly proved and
cannot be left to be inferred from the facts. In Ratilal Gordhanbhai Makanji
[1957] EA 314 it was held that the standard of proof is beyond mere balance of
probability required in ordinary civil cases though not beyond reasonable doubt as
required in criminal cases. Also as was held in Sebuliba v. Co-operative Bank Ltd
[1987] HCB 130 and as it is stipulated in Section 101, 102 and 103 Evidence Act
(Cap.6) the burden of proof of lies on the person who alleges the facts to exist. It
follows that the onus of proving the particulars of fraud in this case lies on the
defendants/counterclaimants.
I will start with the allegations that both counterclaim defendants connived and
registered the suit land and superimposed FRV 45, Folio 2 on the mailo interest
comprised in Block 372 – 373, Plot 2, and thus annexing more land to create
2948.15 acres well knowing that the Block 372 – 373, Plot 2, land at Nakigalala
did not form or constitute part of the suit land; and that they illegally amalgamated
land comprised in FRV 45, Folio 2 with land comprised in Block 372 – 373, Plot 2
measuring 669.52 acres.

10
To prove these allegations, the 1st defendant/counterclaimant adduced evidence
through DW1, the 2nd defendant Moses Walugembe and DW2 Ojera Venancio.
DW1 who is also the 2nd defendant/counterclaimant testified in the capacity as the
2nd defendant and holder of Power of Attorney from the 1 st defendant his father.
The Power of Attorney was exhibited as Exhibit D3 and there is need to address it
first as it raises particular issues of admissibility.
A reading and contextualizing of Exhibit D3 brings to fore the inevitable
conclusion that the 2nd defendant was in fact not vested with the mandate and
authority to represent the 1st defendant and to give evidence his behalf in this case.
Exhibit D3 only confers the power and authority on the 2 nd defendant to pursue and
follow up criminal and civil cases against the 1 st defendant in respect of Block 532
Plot 3 which is a different piece of land from the one in issue in this case.
Clause 2 thereof which the 2nd defendant, claimed bestowed on him the authority to
pursue this case on behalf of the 1st defendant states that; “To administer and
manage all my estate.” This clause must be read in the context of the whole
document and in particular with Clause 1 which confers general powers on the
donee. Clearly no such power is given to the 2nd defendant as concerns this case.
This finding is reinforced by the fact that Exhibit D3 was made on 18/02/2013, and
there is nothing in it that suggests that it had a retrospective effect to include this
suit which was instituted in 2012. “To administer and manage all my estate” in
Clause 2 in a Power of Attorney made in 2013 could not include the filing of a
defence in the suit in 2012. It makes no logic at all.
As was held in the case of F.J.K Zaabwe v. Orient Bank Ltd. (supra) provisions
of a power of attorney must be construes strictly. The authority and mandate
conferred by a power of attorney is only that which falls within the four corners of
the instrument, either in express terms or by necessary implication. Nothing should

11
be read into it that would render the purpose and effect of the instrument either to
go beyond or contrary to that intended.
Having stated as above, however, this case being a land matter the dictates of
justice make it imperative and incumbent upon this court that it ought to be
determined purely on merits. I will, therefore no belabor the effect of the power of
attorney on the standing of the 2nd defendant in this case, beyond stating that it does
not vest the 2nd defendant with power and the mandate to represent the 1 st
defendant in this case. I will now concentrate on the merits of the evidence
adduced in regard to the allegations of fraud.
DW1 testified that the suit land is a mailo interest comprised in Block 372 – 373,
Plot 2 measuring 948.15 acres. Further, that it belonged to the Late Sir Daudi
Chwa who bequeathed it to the 1st defendant. DW1, however, conceded that he
does not have any proof or document showing that his father, the 1st defendant, was
given the suit land by Late Sir Daudi Chwa nor that the suit land was mailo land.
When asked to avail the certificate of title from which he based his claim of
ownership, DW1 also conceded that he did not have it. Apparently, he conceded to
not having any personal knowledge of the material facts pertaining to the suit land
he was testifying upon.
These concessions by DW1 are in no doubt quite honest and a genuine admission
of his ignorance of material aspects pertaining to the suit. His father the 1 st
defendant, David Alexander Simbwa did not testify in person in the matter. Indeed
when questioned on the issue of ownership of the suit land, DW1 exhibited a total
lack of knowledge of facts relating to the same and could at most only hazard a
guess and hearsay evidence. Section 59 of the Evidence Act (supra) makes
hearsay evidence generally inadmissible, and requires that oral evidence must, in
all cases whatever, be direct. Accordingly, DW1 was thus not a helpful witness to
court in proving the alleged particulars of fraud.
12
DW2 Ojera Venancio, a Senior Cartographer in Wakiso District, stated that his
schedule of duties is primarily to carry out cadastral mapping and issuance of plot
number after subdivision of land. He further stated that he knows Block 372-372
Plot 2 to be mailo land owned by the 1st defendant, and that his source of
information was the Blue Page which he has seen in the computer system at
Wakiso District Land Office. When pressed further to explain as to whether his job
description involves authentication of ownership of land or nature of tenure, DW2
answered in the negative, and stated that it is the duty of the Registrar of Titles.
DW2 further explained that for the unascertained tracts of land, such as those that
appear on the Blue Page, the precise legal ownership is only ascertained after a
survey has been done and the land registered on the White Page and a title made.
He further stated that he did not have any proof of such a title for the 1 st defendant/
counterclaimant because when their office tried to carry out a survey and
subdivision of the suit land in order to get titles, they were stopped and directed by
Commissioner for Land Registration, in letter Exhibit P9, to cancel the
subdivisions and survey because the land already had a title claimed by the
plaintiff/ 1st counterclaim defendant. DW2 conceded that the Commissioner for
Land Registration is the chief custodian of all titles in Uganda and best placed to
confirm ownership and tenure of any given land.
It is worth revisiting contents of Exhibit P9 because they have a strong bearing on
the issue of ownership and tenure of the suit land. It is dated 03/10/2013 and
addressed to the 1st defendant. It was also copied to M/s. Kampala Associated
Advocates, the lawyers of the plaintiff among others, and it states as follows:
“RE: BUSIRO BLOCK 372 PLOT 2 LAND AT WASOZI
You claim to be a registered proprietor of the above land and in that
respect you applied for a subdivision which subdivision was received by
Wakiso to create plots 3 - 14.
13
 We have searched the register and found your claim to be erroneously.
(sic) Our records do not show any registry copy registered in your names
instead the records show that this land is registered as a freehold under
FRV 45 Folio 2.
The request to survey was also erroneously passed and the officer who
handled it has recommended for its cancellation. Since you do not have
titles to this land I am requesting the District Staff Surveys to cancel the
Survey and reinstate it to Plot 2.
I have been availed a photocopy of a document you claim to be your title.
From the fact of it this document is not authentic and was not issued by
the office of titles. You are therefore advised to stop laying any claim on
this land based on this document.
By copy of this letter Kampala Associated Advocates are informed and in
response to their letter dated 20th September, 2013.”
Exhibit P9 was a follow – up on an earlier letter, Exhibit P8, also written by the
Commissioner for Land Registration, dated 03/01/2013 addressed to the
Commandant Land Protection Police Unit Criminal Investigations & Intelligence
Directorate Headquarters, and copied to the 1 st defendant among others. It states as
follows;
“ALLEGATION OF CRIMINAL TRESPASS AND FRAUD ON SALE
TO THE PREJUDICE OF MADHIVANI GROUP OF COMPANIES
(KAKIRA SUGAR WORKS (1985) LIMITED) BY PRINCE SIMBWA
DAVID ALEXANDER, KALUMBA BENJAMIN SEBULIBA AND HAJI
SAAVA NSANJA CIID HQS LPPU REF: 677/2012
Reference is made to your letter dated 27th December 2012 in respect of the
above subject.

14
I have availed you certified copies of the document you requested for but
some need interpretation by this office since they refer to mailo records
which were either closed or cancelled.
This office is aware of claims by Prince Simbwa David Alexander
regarding Nakigalala land. We have even come across a photocopy of a
title for Busiro Block 372 Plot 2 allegedly in the names of Prince
Alexander Simbwa. But as an Office of Titles, we are not aware of any
valid title for Prince Alexander Simbwa.
You and the general public are put to notice that the title being waved by
Prince Alexander Simbwa is not genuine and authentic, and people should
desist from committing themselves on transactions basing on it.
By copy of this letter, Prince Alexander Simbwa is accordingly informed
and urged to authenticate his claims, if any, over the land with this office.
There is also another claim for Muwanga Omuwesi based on a grant by
the Governor dated 20th October 1913. Indeed this grant by the Governor
culminated into a mailo title Mailo Register Volume 21 Folio 18 which
was first registered on 20th October, 1913. This mailo title however, was
terminated on 22nd May, 1931 and the land therein then transferred to
FRV 2 Folio 23 and FRV 34 Folio 9. Attached is a photocopy of this
cancelled MRV title. The title being held by the Muljibhai Madhivani are
authentic and duly issued by this office.
The land claimed by Muwanga Omuwesi was the land comprised in MRV
21 Folio 18 which was cancelled and terminated and later registered as
FRV 2 Folio 23. Any claim by Omuwesi or a people deriving title from
him is therefore wrong outrageous and misplaced and is not supported by
the land records that we have. ”

15
The above letters authored by the chief custodian of all titles of land well versed
with the issues pertaining to the tenure and ownership of any given land in Uganda,
in my view, effectually and authoritatively should put to rest any question on the
tenure and ownership of the suit land. The letters in no uncertain terms state that
the plaintiff/ 1st counterclaim defendant is the duly registered owner of the suit
land. They also unequivocally clarify that the 1 st defendant/counterclaimant does
not own the suit land nor hold any genuine title to it, and that he is simply making
false claims of ownership over suit land.
In the other hand, the plaintiff/1st counterclaim defendant supported its claim of
ownership of the suit land with copy of a freehold title Exhibit P3 known as FRV
45 Plot 2. A cursory look at the title shows that it was issued on 08/06/1960 to M/s.
Madhivani Sugar Co. Ltd., and has since been in existence without being
challenged or cancelled for any reason. PW1 testified that the
plaintiff /1stcounterclaim defendant acquired the suit land for valuable
consideration from M/s. Kakira Sugar Works (1985) Ltd, and was registered as
proprietor on 02/02/2012 under Instrument No.4623012. No evidence was adduced
by the defendants/counterclaimants showing how or that the plaintiff/1st
counterclaim defendant acquired the suit land through fraud. Also, no evidence of
fraud was adduced showing how or that there was any fraud in the acquisition of
the title to suit land by the 1st counterclaim defendant’s predecessors in title. The
net effect is that the counterclaimants have dismally failed to prove the allegations
of fraud in counterclaim. They have also completely failed to establish their claim
of ownership of the suit land.
The counterclaimants also alleged that the 1 st counterclaim defendant illegally used
repossession certificate in the names of M/s. Muljibhai Madhivani & Co. Ltd on
the 06/03/1991 (a different company) to repossess land that belonged to M/s.
Madhvani Sugar Works Ltd. If I understood these allegations correctly, the
16
counterclaimants fault the repossession by M/s Muljibhai Madhivani Co. Ltd,
which they insist is a non - existent company, and maintain that it had no right to
repossess the suit land that belonged to M/s. Madhivani Sugar Works Ltd.
I have, however, not found anything in the evidence of the counterclaimants to
show that M/s Muljibhai Madhivani & Co. Ltd is a non-existent company. No
record from the Companies’ Registry was brought to support these allegations. The
1st counterclaim defendant, on the other hand adduced in evidence in Exhibit P10, a
certificate of incorporation of M/s Muljibhai Madhivani Co.Ltd, showing that the
company was duly incorporation on 28/12/1948. Even if the 1 st counterclaim
defendant had no duty to prove the existence or non existence of the company,
Exhibit P10 served to lay bare the counterclaimants’ allegations in that regard as
wild, untrue and completely baseless. I have not found a single instance of
anything wrongful in the acquisition and registration process of M/s. Madhivani
Sugar Works Ltd as proprietor of the suit land in 1960.
On the allegations that M/s. Muljibhai Madhivani & Co. Ltd had no right to
repossess land that belonged to M/s. Madhivani Sugar Works Ltd, I fail to see how
this has any connection with the 1 st counterclaim defendant or how it concerns the
counterclaimants. The aggrieved party in that case would be M/s. Madhivani Sugar
Works Ltd and not the counterclaimants who have not shown that they have any
interest in the company that would give them a right to complain on the company’s
behalf. The counterclaimants have no locus standi whatsoever to question the
repossession.
Again looking at the issue of repossession substantively, the Expropriated
Properties Act (Cap 87) and the Regulations made thereunder vested the Minister
with the statutory power as a quasi judicial authority to make decisions to grant
repossession. Under Section 15 thereof a person aggrieved with the Minister’s
decision could challenge it by lodging an appeal within thirty days of the decision.
17
It is in the appeal that issues of fraud in repossession by M/s. Muljibhai Madhivani
& Co. Ltd would have been raised.
In the present case repossession was granted to M/s. Muljibhai Madhivani & Co.
Ltd on 09/03/1991. There was no appeal against the decision to repossess. The
counterclaimants are thus precluded from attempting to challenge the repossession
twenty –three years later on. In any case, no evidence was laid to show that the
repossession by M/s. Muljibhai Madhivani & Co. Ltd in 1991 was fraudulent. The
allegations are simply without foundation.
Before taking leave of this point, I wish to observe that M/s. Muljibhai Madhivani
& Co. Ltd and M/s. Madhivani Sugar Works Ltd; though predecessors in title to
the 1st counterclaim defendant are separate legal entities existing separately from
one another. It has not been shown nor has 1st counterclaim defendant indicated
that it represents the others in any way. The other two companies were not sued
before this court. It was hence unfair for the counterclaimants to accuse the
companies of committing fraud well knowing that they could not be heard on their
defence on the allegations against them.
The counterclaimants also alleged that the 1 st counterclaim defendant intentionally
omitted to present to court the deed plan of its title which would have shown the
exact acreage and location of the land. To them this is evidence of and /or amounts
to fraud. To dispel these allegations, PW1 K.P Eswar gave evidence that Exhibit
P3 that was exhibited in court is copy of a special certificate of title that was issued
after the duplicate (owner’s) copy got lost during the 1972 Asians expulsion from
Uganda. The plaintiff’s predecessors in title were among the expelled Asians, and
that as a result when Exhibit P3 was issued as a special certificate it did not contain
the deed.
In my considered opinion, evidence of PW1 on this point satisfactorily explains the
absence of the deed plan from the title. If indeed the contention of the
18
counterclaimants is about the total acreage of the suit land, still there is ample
material evidence from which one can tell and prove the same. Exhibit P3 shows
the total acreage of FRV 45 Plot 2 is 948.15, and the authenticity of the title is
vouched for by the Commissioner for land Registration. One cannot claim the
acreage on basis of Busiro Block 372 – 373, Plot 2 Land at Wasozi because no
title by that description was produced in evidence in court. Indeed no such title
exists according to the evidence of DW1, and any such purported title was
discredited by the Commissioner for Land Registration. Given these facts, I do not
find that the absence of a deed plan in the title is evidence of fraud.
Finally on the issue of fraud generally, it was held in the case of David Sejjaka
Nalima v. Rebecca Musoke(supra) fraud must be attributed to the transferee, who
must have known of the fraud and either participated in it or taken advantage of it.
In the present case even assuming, for arguments’ sake, that the plaintiff’s/1 st
counterclaim defendant’s predecessors in title were fraudulent, the
counterclaimants still had the onus to prove that the 1 st counterclaim defendant
knew of the fraud and or participated in it and or took advantage of it. No evidence
was led to that effect. Issue No.2 is answered in the negative that the plaintiff
never fraudulently acquired the suit land.
Issue No. 3: Whether the defendants jointly and/or severally trespassed on the
suit land.
In the case of Justine E.M.N Lutaaya v Stiriling Civil Engineering Co. Ltd.,
S.C.C.A. No. 11 of 2002, it was held that trespass to land occurs when a person
makes unauthorized entry upon land, and thereby, or portends to interfere with
another person’s lawful possession of that land. In that case the Supreme Court
cited with approval Moya Drift Farm Ltd. v. Theuri (1973) E.A 114, at page.115
per Spry V.P which also supports the position that possession does not mean
physical occupation but includes constructive possession. On the issue of
19
possession Mugenyi J. in Ddungu Lillian v. Marc Wandera & Anor, H.C.C.A.No.
38 of 2009, held that;
“In light of the foregoing provisions, it would appear to me to be clear that
a certificate of title inter alia represents two positions. First, it is
conclusive evidence of the registered proprietor’s ownership thereof and
secondly, such registered proprietor is by virtue of the certificate of title
seized with possession of the land stated therein.”
In the present case, the plaintiff adduced evidence of PW1, PW2 and PW3 to prove
that it is the registered proprietor and owner of the suit land. Further, the evidence
showed that the plaintiff has at all material times been in possession of the suit land
carrying on various activities of tea farming among others. On basis of this
evidence, I find that actual possession and legal ownership by the plaintiff as the
registered proprietor of the suit land invariably gives the plaintiff the right to sue
the defendants jointly and/or severally for trespass.
The plaintiff was able to demonstrate the defendants’ activities on the suit land
since sometime in 2012 which amount to trespass. For instance, in Exhibit P5 the
1st defendant purported to give away to the 3rd defendant as gift part of the suit land
and thereby to grant him rights of ownership and possession of the same. Further,
in application H.C.M.A No. 0821 of 2013, Mukuye Steven & 73 Others v.
Madhivani Group Ltd, the 4th and the 73 defendants were added as defendants to
this suit claiming interest through purchase of the various pieces of land from the
1st and the 3rd defendants in sale agreements Exhibits P6, P7, P13, P14. Also in his
testimony DW1 confirmed the fact of the purported sale of part of the suit land to
the other defendants. I find that the acts of buying and selling the suit land falls
nothing short of trespass by the defendants upon the suit land.
The plaintiff further adduced evidence showing that after the said purchases, the
defendants entered the suit land and carried out activities, which include clearing
20
of vegetation, cutting down trees, grading roads, and sub dividing the land into
small plots. The plaintiff adduced proof of these activities in photographs taken of
the same in Exhibit P4. Further according to Exhibit P1 and P2 the defendants
surveyed the suit land with the intention of obtaining certificate of title. This fact
was confirmed by DW2 in his testimony that a survey and subdivision of the suit
land into several plots and preparation for several titles was in process of when
they were stopped. The plaintiff also adduced in evidence a court order of
temporary injunction, Exhibit P12, restraining the activities of the defendants and
further trespass on the suit land. The total sum of this evidence leaves no doubt
that the defendants’ activities on the suit land interfered with the plaintiff’s right of
possession of the suit land, and amounted in law to the tort of trespass. Issue No. 3
is answered in the affirmative that the defendant jointly and /or severally
trespassed on the suit land.
Issue 4, 5, and 6 are interrelated in that they all concern the issue as to whether the
defendants jointly and/or severally have the locus standi to bring the counterclaim
against the plaintiff; whether the counterclaim discloses a cause of action; and
whether the counterclaim is barred by statute. I will therefore resolve them
simultaneously starting with the issue of locus standi.
In Kampala Bottlers Ltd v. Daminico Ltd. (supra) it was held that the only person
who can sue to impeach a title of a registered proprietor is the person who has been
deprived of the land by fraud. This holding was based on provisions of Section
176(c) of the Registration of Titles Act (supra) which protect the registered
proprietor of land against ejectment of other action for the recovery of any land,
except on ground of fraud.
The counterclaimants in their pleadings sought for orders and declaration, inter
alia, that the land belongs to them, and that the 1 st counterclaim defendant’s
certificate of title be cancelled for fraud. However, applying the principles of the
21
law cited above to facts of this case, the counterclaimants do not qualify as such
persons deprived of the land by fraud. I have already made a finding in Issue No.2
above that the 1st counterclaim defendant did not obtain registration of the suit land
by fraud. It follows logically that the counterclaimants lack the necessary locus
standi to bring a suit against the registered proprietor to impeach the title since
they are not persons who were deprived of land by fraud. Similarly, without the
locus standi, the counterclaimants have no cause of action against the counterclaim
defendants. The counterclaim ought to be struck out under Order 7 r.11 (c) of the
Civil Procedure Rules (S.I. 71 -1).
On the issue of whether the counterclaim is time barred, Section 3 of the
Limitation Act (Cap.80) stipulates that actions founded on tort must be brought
within six years from the date the cause of action arose. Also under Section 15 of
the Expropriated Properties’ Act (supra) any person aggrieved by the decision of
the Minister made under the Act, granting repossession had a right to appeal
against the decision within thirty days from the date of the decision.
In the present case the counterclaimants allege that the 1 st counterclaim
defendant’s certificate of title was illegally or fraudulently created over the 1 st
counterclaimant’s mailo land in June to 1960, when the said certificate of title was
registered and issued to the plaintiff’s predecessors in title. It means that the suit
for the recovery of the land should have been filed within six years from 1960,
which was not done, which renders the counterclaimant statute barred. I also find
that the same applies to the allegations of wrongful repossession of the suit land by
M/s. Muljibhai Madhivani & Co. Ltd under Section 15 of the Expropriated
Properties Act (supra). Such a claim should have been instituted by way of an
appeal within thirty days of the grant to repossession by the Minister, but it was not
done and cannot be entertained in this suit as it time barred.

22
Furthermore, Order 7 R.11 (d) CPR (supra) provides that a suit which is barred by
statute must be rejected. Since the counterclaim is a suit in its own right, it falls
under the said provisions. It is the established law that a suit which is time barred
by statute must be rejected because in such a suit the court is barred from granting
a relief or remedy. See: Iga v. Makerere University [1992] EA 65, at page 66;
Vincent Rule Opio v. Attorney General, [1990-1991] KALR 68; Onesiforo
Bamuwayira & 2 Or’s v. Attorney General (1973) HCB 87.
Even in a situation where a party has substantive rights, if the suit is barred by
statute, the party cannot enforce them through a court action. As was held by the
Court of Appeal in the case of Mohammad B. Kasasa v.Jaspher Buyonga Sirasi
Bwogi, C.A CA No. 42 of 2008; quoting Lord Green M.R. Hilton v.Satton Steam
Laundry [1946] IKB 61 at page 81, statutes of limitations are by their nature strict
and inflexible enactments. Their overriding purpose is interest republicae ut fins
litum, which means that litigation shall automatically be stifled after a fixed length
of time irrespective of the merits of the particular case. Statutes of limitation are
not concerned with merits. Once the axe falls, it falls, and a defendant who is
fortunate enough to have acquired the benefit of the statute of limitation is entitled,
of course, to insist on his strict rights.
I am acutely alive to the fact that the counterclaim is premised on grounds of fraud
and that fraud is an exception to the limitation period under Section 25 of the
Limitation Act (supra). However, for a party to benefit from the postponement of
limitation under said section, he or she must state when the alleged fraud came to
his or her attention. In the present case, it is not stated, and the presumption is that
the counterclaimants were aware of it at all times. Issue No.4 and No.5 above are
answered in the negative, and Issue No. 6 in the affirmative. This renders the entire
counterclaim unproven, and it is accordingly dismissed with costs.

23
Issue No. 7: Whether the Parties are entitled to the remedies sought?
The plaintiff in the main suit seeks for the a declaration that the defendants jointly
and/or severally are trespassers on the suit land, an order of eviction to issue
against the defendants jointly and/or severally together with their servants, agents,
employees, assignees and/or any other person deriving any purported title or
interest on the suit land from them, evicting them from the suit land; an order of
permanent injunction to issue against the defendants jointly and/or severally
together with their servants and/or agents restraining them from trespassing and/or
continuing to trespass on the suit land. From the foregone evidence the plaintiff has
proved to the required standard and to the satisfaction of court that it is entitled to
the reliefs. I grant the remedies as prayed above.
The plaintiff also prayed for general damages. The position of the law is that the
award of general damages is in the discretion of court, and is always as the law will
presume to be the natural consequence of the defendant’s act or omission. See:
James Fredrick Nsubuga v. Attorney General, H.C.C.S No. 13 of 1993. It was
also held in Robert Cuossens v. Attorney General, S.C.C.A. No. 08 of 1999 that;

“The object of the award of damages is to give the plaintiff compensation

A plaintiff who suffers damage due to the wrongful act of the defendant must be
put in the position he or she would have been in had she or he not suffered the
wrong. See: Charles Acire v. Myaana Engola, H.C.C.S No. 143 of 1993; Kibimba
Rice Ltd. v. Umar Salim, S.C.C.A. No.17 of 1992.

In this case the plaintiff through PW1 was able to show that they suffered general
inconvenience as a result of the trespass to their land by the defendants jointly
and/or severally. Also, that the suit land has been degraded, and tress cut,
vegetation cleared, and sand excavated there from. Construction and building
24
materials have been deposited on various parts of the suit land In my view, this
warrants the award of general damages.

In determining the quantum of damages, the guiding principle is that the party
claiming general damages is expected to lead evidence or give an indication as to
what amount of damages sought to be awarded on inquiry as the quantum. See:
Robert Cuossens v. Attorney General, S.C.C.A No. 8 of 1999; Ongom v. Attorney
General. [1979] HCB 267. Further, courts are also guided mainly by the value of
the subject matter, the general economic or social or other inconvenience or loss
that the party was put through at the instance of the opposite party, and the nature
and extent of the breach or injury. See: Uganda Commercial Bank v. Kigozi
[2002] 1 EA. 305.

In the case of Kibimba Rice Company Ltd v. Umar Salim(supra) it was held that
inconvenience though not specifically proved, can be inferred from circumstances
adduced in evidence. Similar stance was taken in the case of UCB v. Kigozi
(supra).
In the present case the plaintiff has shown generally the inconvenience it has
suffered at the instance of the defendants. The plaintiff has been denied it the use
and development of its land which it acquired for valuable financial consideration
for almost two years now. Besides, the defendants have degraded and destroyed
vegetation on the suit and the suit land and the plaintiff will have to incur
substantial expenses of restoration of the same. Taking all these factors together, I
find that Shs. 200.000.000= (Two hundred million only) is appropriate general
damages, and I award the same.
On the issue of costs, Section 27(2) CPA (supra) stipulates that costs are awarded
in the discretion of court and follow the event unless for good reasons the court
directs otherwise. See: Jennifer Rwanyindo Aurelia &A’ nor v. School Outfitters

25
(U) Ltd., C.A.CA No.53 of 1999; National Pharmacy Ltd. v.Kampala City
Council [1979] HCB 25. In the instant case, the plaintiff has succeeded on all the
issues, and is awarded costs of this suit. Accordingly, it hereby declared and
ordered as follows;
1. The plaintiff M/s. Madhivani Group Ltd id the lawful and registered
owner of the suit land comprised in FRV 45 Folio 2 Land at Nakigalala
and Kansiri Estates.
2. The defendants jointly and or severally are declared trespassers on the
suit land belonging to the plaintiff.
3. An order of eviction is issued against the defendants jointly and or
severally together with their servants, agents employees, assignees and/or
any other person deriving any purported title or interest on the suit land
from them.
4. An order of a permanent injunction is issued against the defendants
jointly and/or severally together with their servants or agents restraining
them from further trespassing on the suit land.
5. The defendants jointly and/or severally pay as general damages Shs.
200,000,000= (Two Hundred Million Only) to the plaintiff.
6. The counterclaim is dismissed with costs to the 1 stcounterclaim
defendant.
7. The plaintiff is awarded costs of the suit.

BASHAIJA K. ANDREW
JUDGE
30/09/2014
26
Mr. Paul Kuteesa, Counsel for the Plaintiff/1st Counterclaim Defendant: present.

Mr. R. Mugerwa, Counsel; for the 1st 2nd and 3rd Defendants/Counterclaimants:
present.
Mr. K.P.Eswar, Director Corporate Affairs of the Plaintiff/1 st Counterclaim
Defendant: present.
Mr. Bamwite Edward, Counsel for the 4th and 73 Other Defendants: absent.
Defendants; all absent.
Ms. Namusoke Justine Court Clerk: present.
Court: Judgment read in open court.

BASHAIJA K. ANDREW
JUDGE
30/09/2014

27